Architectural Glass & Metal Co., Inc.

Plain-English summary

A judge dismissed OSHA's serious citation with prejudice after the Secretary's attorney missed a prehearing telephone conference. Notice of the conference had been faxed on a Sunday in an informal one-page document, and the assigned attorney never received it. The Commission found no evidence of contumacious conduct, prejudice to the employer, willful deception, or a pattern of disregarding proceedings. It remanded the case for evidence about the Solicitor's Office procedures for handling facsimiles and for further proceedings under Commission rules. Commissioner Eisenbrey concurred but would have vacated the dismissal outright as a disproportionate sanction.

Decision snapshot

• Cited standard(s): The order does not identify the standard in the underlying serious citation.
• Outcome: Dismissal remanded for inquiry into office procedures and further proceedings.
• Key point: Dismissal with prejudice is generally too harsh for a single missed prehearing conference without contumacious conduct or prejudice to the opposing party.

Full text (OSHRC public release)

SECRETARY OF LABOR,

                       Comp lainant,

             v.                                    OSHRC D ocket No. 00-0389

ARCHITECTURAL GLASS & METAL
CO., IN C.,

                        Respon dent.




                                       ORDER

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
On December 29, 1999, the Occupational Safety and Health Administration
(“OSHA”) inspected an Arch itectural Glas s & M etal Co., Inc. (“ AGM ”) facility in Dublin,
Ohio. As a result of this inspection, OSHA cited AGM for one serious violation of a standard
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 6 51-78 (“the Act”).
AGM timely contested the citation, and the case was assigned to Judge Michael H.
Schoe nfeld.

                                                                 2001 OSHRC N o. 23

2

A. Procedural Background
On May 2, 2000, the judg e issued a discovery order directing the Secretary to turn
over to AGM a copy of any videotapes taken during the insp ectio n of its fa cility. 1 This order
also notified the parties that a telephone conference call would take place no later than May
19, 2000. On the same day tha t the judge issu ed his order, May 2, 2000, the Secretary mailed
AGM a letter informing the company that the OSHA compliance officer had not videotaped
or photographed AGM’s employees during the inspection, and apologizing for any confusion
caused by the prior letter. The Secretary did not forward a copy of this letter to the judge,
however.
Although the judge’s discovery order stated that a conference call would take place
no later than M ay 19, 2000, th e judge did not hold or schedu le a conference call by that date.
Instead, on Su nday, M ay 21, 20 00, the judge’s ad ministrative as sistant sent by fac simile
transmission a one-page document to the Cleveland Solicitor’s Office which stated that the
judge would have a conference call on Wednesday, May 24, 2000, at 10:30 a.m.2 This
document was directed to the attention of Anthon y Stevenson , the attorney assig ned to the
AGM case. At the designated time, the judge’s administrative assistant attempted to contact
Stevenson by phone. However, Stevenson was attending a conference outside the office and
was unavailab le for the call. AGM w as represented at the phon e confere nce by Rob ert Peel,
its vice president and chief financial officer. Peel told the judge that Stevenson had
previously informed him that OSH A did not hav e a ta pe of its inspe ction of A GM ’s fa cility.
Peel also stated that the Secretary “had no evidence” to support her allegations. The judge

1
The Secretary had previously informed AGM, by letter dated April 20, 2000, that OSHA had
vide otap ed w ork- relat ed ac tiviti es du ring the in spec tion of its faci lity.
2
The bod y of th e docum ent w as typed in 16-p oint font, and read in its entir ety:

      The Judge will have a telephone conference call on Wednesday, May 24, 2000, at
      10:30 (EDT). This office will place call. Thank You.

3

deemed that statemen t to be a mo tion to dismiss the citation. The judge granted this motion
on May 24, 20 00, withou t a hearing a nd witho ut giving the Secretary notice of the motion
or an opportunity to oppose it, finding that the Secretary’s failure to participate in the
telephone conference scheduled for that day supported dismissal of the citation, with
prejudice, pursuant to either Rule 41 or 64 of the Commission’s Rules of Procedure, 29
C.F.R. § 2200.413 or § 2200.64.4
On June 2, 20 00, the Sec retary filed a M otion for R econsideration of the dismissal
order, arguing that her attorney was not available for the prehearing conference call because
he never received the notice from the judge’s office. In her motion, the Secretary did not
dispute that the Cleveland So licitor’s Office received the judg e’s notice, but rather stated that
the notice was never forwarded to Stevenson. The Secretary also stated that she had
attempted to find the notice from the ju dge’s off ice, but wa s unable to determine its location.
The judge denied the Secretary’s motion for reconsideration in a June 5, 2000 order. The
Secretary thereafter petitioned for review of this order. In her petition, the Secretary argues
that while the failure to forw ard the judge’s no tice to Steven son “ultima tely is attributable
to one of the Sec retary’s rep resenta tives . . . the memo’s informal f ormat, the m anner in
which it was served, and the time and date on which it was served may have created a

3
Rule 41(a) provides:
Sanctions. When any party has failed to plead or otherwise proceed as provided by
these rules or as required by the Commission or Judge, he may be declared to be in def ault
either:
(1) On the initiative of the Commission or Judge, after having been afforded an
opportunity to show cause why he should not be declared to be in default; or
(2) O n the motion o f a pa rty.
Thereafter, the Commission or Judge, in their discretion, may enter a decision against the
defaulting party or strike any pleading or docume nt not filed in a ccordanc e with these rules.

4
Rule 64(a) provides:
Attendance at hearing. The failure of a party to appear at a hearing may result in a
deci sion agai nst th at pa rty.
 4

situation in which s omeone in the Solicitor’s office failed to recognize the importance of the
document and failed to deliver it to the Secretary’s coun sel.” However, the S ecretary has not
submitted any affidavits from the C leveland Solicitor’s office staff attesting to the handling
of the f acsimile .
B. Discussion
Prehearing procedures that aid in the early formulation of issues benefit all parties
during trial preparation and result in the more efficient use of C ommissio n resource s at both
the hearing and review stages. The imp osition of ap propriate san ctions is impo rtant,
therefore, to en sure com plian ce w ith prehe aring pro cedu res and to adju dica te ca ses f airly and
effi cien tly. Duquesne Light Co., 8 BNA OSHC 1218, 1221, 1980 CCH OSHD ¶ 24,384, p.
29,718 (No. 78-5034, 1980). Although a judge has very broad discretion in imposing
sanctions for noncompliance with Commission Rules of Procedure or his own order s, the
judge must not impose a sanction that is too harsh under the circumstances of the case.
“Reviewing courts un iversally recognize the harshness of dismissal with prejudice and
generally require that lesser sanctions first be considered.” Id. at 1222, 1980 CCH OSHD at
p. 29,719.
The Commission h as held that dismissal of a citation is too ha rsh a sanction for failure
to comply with certain prehearing orders unless the record shows contumacious conduct by
the noncomplying party or prejudice to the opposing party. Nora nda A luminu m, Inc., 9 BNA
OSHC 1187, 11 89, 1981 CCH OSH D ¶ 25,0 86, p. 30,98 8 (No. 79 -1059, 19 80); Circle T.
Drilling Co., 8 BN A OS HC 1 681, 16 82, 198 0 CC H OS HD ¶ 24,583 , p. 30,15 5 (No . 79-
2667, 1980). However, the Commission has also he ld that a defa ult order may be appropriate
where a party displays a “pattern of disregard” for Co mmiss ion pro ceedin gs. Philadelp hia
Construction Equipment Inc., 16 BNA OSHC 1128, 1131, 1993-95 CCH OSHD ¶ 30,051,
p. 41,295 (No. 92-899, 1993). In addition, the Commission has indicated that the “extreme
sanction” of exclusio n of evid ence critical to a party’s ca se may be ap propriate, bu t only
where a party has willfully deceived the Commission or flagrantly disregarded a Commission
 5

order. Jersey Steel Erectors, 16 BNA OSHC 1162, 1166, 1993-95 CCH OSHD ¶ 30,041, p.
41,218 (No. 90 -1307, 1993), aff’d w ithout p ublishe d opini on, 19 F.3 d 643 ( 3d Cir. 1 994).
Under Commission Rule 41(b), the Commission may set aside a sanction imposed
under Rule 41(a). 5 In considering whether to reinstate a case under Rule 41(b), the
Commission has also looked at the criteria und er Rule 60(b) of the F ederal Rules of Civil
Procedure, particularly whether the sanctioned p arty has sh own “ excusa ble neg lect.” 6 Choice
Electric Corp., 14 BNA OSHC 1899, 1900, 1987-90 CCH OSH D ¶ 29,141, p. 38,942 (No.
88-1393, 1990). In determining whether there is “excusable neglect,” the Commission has
looked at evide nce on the ade quacy of office proced ures. Northwest Conduit Corp., 18 BNA
OSHC 1948, 1951, 199 9 CCH OSHD ¶ 31,949, pp. 47,458 -49 (No. 97-851 , 2000).
In this case, there is no evidence that Stevenson’s failure to be available for the May
24, 2000, prehearing telephone conference was contumacious, or the result of contumacious
conduct by other employees in the Cleveland Solicitor’s Office. There is also no evidence
that AGM w as prejudiced by Stevenson’s failure to appear at the conference. Nor is there
evidence of willful deception by the S ecretary or a pattern of disregard for Commission
proceedings. The judg e did not find otherwise, but concluded that the Secreta ry’s failure to
assure that the notice of the prehea ring confe rence wa s delivered p roperly “shows a lack of
concern amounting to disrespect and disregard for the judicial process and the authority of
the Commission[.]”

5
Rule 41(b) provides:
Motion to set aside sanctio ns. For reasons deemed sufficient by the Commission or
Judge and upon motion expeditiously made, the Commission or Judge may set aside a
sanction imposed u nder paragraph (a) o f this rule. See § 2200.90(b )(3).
6
Fed. R. Civ. P. 60(b) provides in relevan t part that “[o]n motion and upon such term s as are
just, the court may relieve a party or a party’s legal representative from a final judg ment,
order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect[.]”
 6

   We disagree with the judge’s factual finding. A single incident involving a lost or

misdirected document does not necessarily show disrespect or disregard for the judicial
process. While the judge found that the “record establishes neglect but no excuse,” the record
does not reflect consideration of noteworthy circumstances here, including the facts that the
conference did not take place when originally scheduled, the facsimile was sent on a non-
business day, and the facsimile, which was not labeled an order, was sent on plain paper.
Furthermore, the record is n ot fully develo ped, as it contains no information regarding the
proced ures fo r handl ing fac similes in the Cle veland Solicito r’s offic e.

C. Order
Because the Commission has typically considered evidence regarding mailroom
procedures in determining whether relief may be granted from sanctions imposed in cases
which involve lost or misdirecte d docum ents, we rem and this cas e to the judge so that he can
consider evidence on the Secretary’s office procedures for handling facsimiles, and so that
he may conduct further proceedings consistent with the Commission’s procedural rules and
this order.

                                                          /s/
                                                          Thomasina V . Rogers
                                                          Chairman

Date: September 6, 2001
EISENBREY, Com missioner, concurring:
I join in the de cision to rem and this cas e, but do so only to exped ite its ultimate
resolution. I would h ave prefe rred simply to v acate the dism issal order as wholly
disproportionate to the underlying conduct an d an abuse of the administrative law judge’s
discretion.
Commission precedent, which holds that sanctions must be proportionate to the
misconduct for which they were imposed, does not support dismissal of this case. It is also
instructive to review federal court decisions applying Rule 41 of the Federal R ules of C ivil
Procedure, upon which Commission R ule 41 is modeled. In p articular, the courts hold that
it is an abuse of discretion to dismiss a case, as the judge did here, in the early stages of
litigation, without warning, for the single act of missing a pretrial conference, status call or
motion hearing . For example, in Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir. 1980), the
Ninth Circuit held
that it is an abuse o f discretion to dismiss a pla intiff’s case for fa ilure to
prosecute where (1) the only evidence of dilatoriness is his or h is attorney’s
failure to attend a pretrial conference; (2) the court has not warned that failure
to attend will create a risk of dismissal; and (3) the case is still “young.”

(Empha sis in original.) Here, the only evidence of dilatoriness is attorney Stevenson’s failure
to attend a pretrial conference call (perhaps as much because of the judge’s actions as his
own). The judge did not warn that failure to participate in the call could lead to dismissal,
and the case was b arely fou r month s old. See also Fischer v. B uehl, 450 F.2d 950, 951 (3d
Cir. 1971) (dismissal for failure to prosecute following counsel’s failure to appear at
scheduled pretrial conf erence un warranted ); Bush v. United States Postal Service, 496 F.2d
42, 44-45 (4th Cir. 1974) (in absence of delibera te delay or preju dice, court v acated “ultim ate
penalty of dismissal” for failure to prosecute following counsel’s absence from hearing on
opposing party’s motion to dismiss); Moreno v. Collins, 362 F.2d 176, 178 (7th Cir. 1966)
(vacating dismissal for wa nt of prose cution follo wing co unsel’s igno rance of sta tus call
notice and cons equent fa ilure to appe ar in court); cf. Jackson v. Washin gton M onthly
 2

Company, 569 F. 2d 119, 121 , 123 (D.C . Cir. 1977) (d ismissal is rarely if ev er approp riate
when there is b ut a sing le instan ce of a ttorney m iscond uct).
The Sixth Circu it, in which this case arises, has been particularly forceful in holding
that it is an abuse o f discretion to dismiss a case for a single act of misconduct, without any
warning that dismissa l would be the sanction, and without a showing of prejudice to the other
party.
In the Sixth Circuit, we have frequently reversed district courts for dismissing
cases simply becau se litigants failed to appear or c omply with pretrial orders
when the district cou rts did not pu t the derelict parties on notice that further
noncompliance would result in d ismissa l. See, e.g ., Carter v. C ity of Mem phis,
636 F.2d 1 59, 161 (1980) (penalty of dismissal applies only in “extreme
situations” of delibera te delay or “con tumaciou s conduc t”); Holt v. Pitts, 619
F.2d 558, 562 (1980) (sam e); Patterson v. Township of Grand Blanc, 760 F.2d
686, 688 (198 5) (same); Bishop v. Cross, 790 F.2d 38, 39 (1986) (dismissal
require s a “deg ree of w illfulnes s, bad f aith or co ntuma cious c onduc t”).

Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988 ). The case before us involves an
attorney’s single failure to attend a conference call, no warning of impending dismissal, no
hint of contumacy, no prejudice to the opposing party, and nothing approaching an “extreme
situation of deliberate delay.” Dismissal under these circumstances was a clear abuse of
discretio n.
I cannot see how the proceedings we are directing could dev elop facts su fficient to
support the dismissal order. It is unfortunate that our review of the use of a rule inten ded to
help expedite case processing is leading to further and, in my view, un necessary de lay in
review of the m erits of th is case.
/s/
Ross Eisenbrey
Commissioner
Date: September 6, 2001
 UNITED STATES OE AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,

                      v.                    DOCKET No. 00-0389

A.G.M. ARCHITECTURAL GLASS AND
METAL CO.,

                    Respondent.                  I

                                      ORDER



   On May 2, 2000, order was issued directing the Secretary to turn over to Respondent a

copy of any video tapes taken during the inspection. The Order notified the parties that a
prehearing conference would take place no later than May 19, 2000. By facsimile
transmission on May 21,2000, the parties were notified that the conference would take place at
10:30 a.m. on May 24,2000. At the appointed time Respondent was ready to proceed pro
se. Counsel for the Secretary, however, was not available by phone. Respondent stated that
counsel for the Secretary had informed him by phone that there was no tape. Respondent
maintained that the Secretary "had no evidence" to support the allegations.

  In light of the fact that Respondent appeared pro se and is not legally trained, his

argument is taken as a motion to dismiss the Citation and Notification of Proposed Penalty. The
motion is granted.

    Whether considered to be a failure to proceed as required by the Judge (Rule 41) or a

failure to appear (Rule 64)is inconsequential. Complainant's failure to participate in the
conference was both. Accordingly, dismissal on the motion of Respondent is appropriate.
Accordingly,

  IT IS ORDERED that the Citation and Notification of Proposed Penalty issued to

Respondent on January 19, 2000 is DISMISSED WITH PREJUDICE.

                             /s/
                           Michael H Schoenfeld
                                 Judge, OSHRC

Dated: 6 /5/00
Washington, D.C.