J. R. Construction
Commission affirms dismissal after employer ignored answer and show-cause requirements
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This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
J. R. Construction timely contested OSHA citations arising from a Kansas City, Missouri construction site but did not answer the Secretary's formal complaint. It then failed to respond to the chief judge's show-cause order, which had been mailed to an address the company itself listed. After dismissal, the company filed documents challenging federal jurisdiction and asserting that it had never been located at that address. The Commission found that the filings did not explain the missing answer or show good cause for failing to respond, and the address assertion contradicted the notice of contest. It also rejected the jurisdictional argument because federal OSHA covered Missouri and the Commission had authority to review timely contested citations. The Commission affirmed dismissal of the notice of contest and affirmed the citations and proposed penalties.
Decision snapshot
- Cited standard(s): None enumerated; the order states that OSHA alleged several construction safety violations.
- Outcome: Procedural. The notice of contest remained dismissed, and the citations and proposed penalties were affirmed.
- Key point: A timely notice of contest does not preserve a case when the employer ignores the required answer and show-cause order and later offers no valid explanation or jurisdictional defense.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
s One Lafayette Centre
1120 20th Street, N:W. - 9th Floor -
Washington, DC :20036-3419
\
PHONE: .
coM(202)606-5100 zk (202) 6os4050
F1s(202)6OHlOO
mW4-
.
..
SECRETARY OF LABOR,
. .
.
Complainant, :
..
a-
.
V. . OSHRC Docket No. 95-259
. -.
.
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J. R. CONSTRUCTION,
Respondent. :-
..
ORDER
BEFORE: WEISBERG, Chairman; and MONTOYA, Commissioner. -..
The issue is whether the judge erred in dismissing the notide of contest filed by J.
R. Construction (“JR”) to the Secretary of Labor’s citation. We affirm the judge’s
dismissal for the following reasons. 1
Following an inspection of JR’s worksite at 521 Main Street, Kansas City,.
Missouri, the Secretary alleged that JR had violated several construction safety standards,
promulgated under the Occupational Safety and Health Act, 29 U.S.C. 88 65 l-78.. JR
timely filed a notice of contest (copy attached) that listed its address as “5212 N. W. 84th
Terrace, Kansas City, MO 64154.“’
‘At the same time, JR filed a different, but substantially identical copy of its notice of contest,
listing its address as the worksite f?om which the citation arose. .
1995 OSHRC No. 44
2
The Secretary then filed a formal complaint, which JR was required to answer
within 20 days under the Commission’s rules. That requirement also was explained to JR
in the complaint itself. JR fned no answer, and after a month Chief Judge Irving Sommer
issued to JR an order to show cause why the citation should not be affirmed based on that
failure. Judge Sommer’s order was sent by certified mail to JR’s owner, Otto Nigro, Jr.,
at the address on 84th Terrace, Kansas City, mentioned above. It was returned to the
Commission unclaimed.
The judge then dismissed JR’s notice of contest and affirmed the Secretary’s
citation, finding that in the circumstances JR’s failure to answer the complaint and the
show cause order indicated that it “has abandoned the case or treats the Rules of Procedure
of the Commission with disdain.” The Commission’s Executive Secretary sent JR a copy
of the judge’s dismissal order to the same address on 84th Terrace, Kansas City.
JR, acting without a lawyer and thus “pro se,” then filed with the Commission two
unusual documents, each entitled “Constructive Notice (By Affidavit). ” The fllrst
document appears to challenge the Secretary’s and the Commission’s jurisdiction,
mentioning that “you and yours are limited to certain federal territorial boundaries. “2 The
2That document states:
The undersigned in propria persona, sui Juris (not: pro se) timely hereby
challenge jurisdiction of this tribunal for good cause shown herein as follows:
Attached Exhibit A (Copy of Secretary of Labor Notice of Docketing of
Administrative Law Judges Decision), (no filing and authentication!) is hereby
timely refused for cause without dishonor (U.C.C. 3-501), due to the fact that once
jurisdiction is challenged, it must be proven, that accord:
A. JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES
(APRIL 1956) (PART I)
B. JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES
(JUNE 1957) (PART II)
understanding you and yours are limited to certain federal territorial boundaries.
You and yours have 10 (ten) days to rebut this notice.
(continued.. .)
3
second document states that “J. R. Construction is not and never was located at 5212 N.W.
84th Terrace, Kansas City, Missouri 64154. ” It is signed by Aprille J. Schelhammer of
that address, in what appears to be the same distinctive handwriting as the notice of contest
that listed that address as JR’s business address. Ms. Schelhammer also states that she
“received and opened in error” at that address the Commission’s notice of docketing of the
judge’s dismissal order.
Neither of JR’s documents shows cause for reinstating its notice of contest. Neither
document explains why it failed to answer the Secretary’s complaint. Nor does JR
satisfactorily explain its failure to respond to the show cause order. The assertion that JR
never was located at the address to which the show cause order was sent is contradicted
by its notice of contest.
In any event, JR has had a sufficient opportunity to show cause on review why its
notice of contest should not be dismissed, and it has not done so. Its only apparent claim
relates to jurisdiction. We will assume for present purposes that JR’s jurisdictional claim
is properly raised at this stage. See, e.g., OzarkWoodGaZZery,
Docket No. 94-3292 (June
9, 1995) (respondent who claimed not to be employer under Act was raising “a question
of jurisdiction, which can be raised at any time during Commission proceedings. “)
However, JR has given us no basis to conclude that it may have a valid claim. The
Secretary is authorized under the Act to inspect worksites generally in Missouri, because
no state OSHA plan is in effect. See, e.g., BNA Occupational Safety and Health Reporter,
0 81: 1003; CCH Employment Safety and Health Guide 7 5003. JR has provided no basis
to conclude that the Secretary lacked jurisdiction to inspect JR’s construction worksite at
2(.. .continued)
Failure to timely rebut this notice in law will result in a judgement by
default on the issues herein discussed.
Respectfully submitted with explicit
reservation of all absolute rights in all jurisdictions.
4
521 Main Street, Kansas City, Missouri. The Commission has jurisdiction to review all
citations issued by the Secretary under the Act, when they are timely contested. 29 U. S.C.
8 659(c). We are aware of no other valid jurisdictional challenge that JR has made to
either the Secretary’s or the Commission’s jurisdiction in this case. 3
Thus, we affirm the judge’s order vacating JR’s notice of contest and affirming the
citation and proposed penalties.
4AiskiAd
Stuart E. Weisberg
Chairman
Commissioner
Dated September 13, 1~~95
3We acknowledge receipt of JR’s “Constructive Notice of Default,” ftied on July 15, 1995. That
document is unauthorized in Commission proceedings and is a nullity.
ATTACHMENT TO OSHRC ORDER IN DOCKET NO; 95-259
.. . l
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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIl3W COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone: (202) 606-5400
Fax: (202) 606-5050
.
.
SECRETARY OF LABOR, ..
Complainant,
v. Docket No. 95-0259
J. R. CONSTRUCTION,
Respondent.
.
NOTICE OF COMMISSION DECISION
The attached order by the Occupational Safety and Health Review Commission was issued on September
13.1995. ANY PERSON ADVIZRSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.
FOR THE COMMISSION
September 13. 1995
Date
Executive Secretary
Docket No. 95-0259
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105
Otto L. Nigro
c/o J. R. Construction
532 Harrison
Kansas City, Missouri 64106
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419
Phone: (202) 606-5400
Fax: (202) 606-5050
SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 95-0259
J. R. CONSTRUCTION
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 9, 1995. The decision of the Judge
will become a final order of the Commission on July 10, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 29, 1995 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litiga Rion
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent th .e Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 6063400.
Date: June 9, 1995
Docket No. 95-0259
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 &fain Street
Kansas City, MO 64105
Otto L. Nigro
c/o J. R. Construction
532 Harrison
_ - -. ..-* .-. .- .- . -. ‘.
-_- -.
Kansas City, Missouri 64106
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Secretary of Labor,
Complainant, !I
I
V. i OSHRC DOCKET NO. 95-0259
II
J.R. CONSTRUCTION f
I
Respondent. i.
On 4/W/95 the undersigned issued an ORDER TO SHOW CAUSE to the Respondent
as to why his Notice of Contest should not be dismissed for failure to file an answer to the
complaint as required by the Commission Rules of Procedure. The Respondent failed to reply to
the ORDER. His actions demonstrate either that he has abandoned the case or treats the Rules of
Procedure of the Commission with disdain. This cannot be countenanced as it seriously impedes
the administration of justice.
Accordingly, the Notice of Contest filed by the Respondent is dismissed. The Secretary’s
citation(s) and proposed penalties are AFFIRMED in all respecks.
~~hzw~,
Chief Judge, OSHRC
DATE: jiN 0 6 @Jj
Washington, D.C.
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