European Craft Construction, Inc.

Plain-English summary

European Craft Construction stopped participating after an initial prehearing conference. The company did not join later conference calls, return messages, help prepare the joint prehearing statement, or respond to an order to show cause. The judge found that the company had received the Commission's communications and had been given notice and an opportunity to respond. She declared it in default, dismissed the notice of contest, and affirmed three serious items covering head protection, eye protection, and aerial-lift tie-off requirements. Penalties totaling $4,000 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.102(a)(1), and 1926.453(b)(2)(v)
• Outcome: Default entered; three serious citation items affirmed with $4,000 in total penalties.
• Key point: Repeated failure to participate in conferences and answer a show-cause order can result in default and dismissal of the contest.

Full text (OSHRC public release)

                          United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 01-2203
EUROPEAN CRAFT CONSTRUCTION,
INC.,
Respondent.

                         DECISION AND ORDER OF DEFAULT

Factual Background
This proceeding arises under the Occupational Safety and Health Act of 1970, 29 U.S.C.
§651, et. seq. From October 30 to November 7, 2001, the Occupational Safety and Health
Administration conducted a safety inspection at Respondent’s workplace located at 7701
Reynolds Road, Mentor, OH. As a result of that inspection, on November 14, 2001, Respondent
was issued one serious citation, consisting of three items, with a total proposed penalty in the
amount of $4,000.00. In a letter dated December 3, 2001, Respondent’s President, John Tampa,
contested the penalty. The letter was forwarded to the Review Commission, and docketed on
December 26, 2001. On January 11, 2002, the Chief Judge assigned this matter to the
undersigned for E-Z Trial. On January 15, 2002, the undersigned issued an E-Z Trial Notice and
Scheduling Order which scheduled a telephonic pre-hearing conference for Friday, February 22,
2002 at 10:30 am.
On February 22, 2002, the undersigned held a telephonic conference call with the parties.
Respondent was on a jobsite and took the call via his cell phone. During the course of that
conference call, counsel for Complainant represented that he had forwarded to Respondent the
mandated OSHA Forms 1-A and 1-B. Mr. Tampa responded that he had not received the forms,
and also clarified that his street address was 486 Winder Road instead of 486 Highway 81.
Counsel for Complainant stated that he would again forward the forms, as well as photographs to
Respondent at this new address. Accordingly, the conference call was rescheduled for March 8,
2002. The parties were instructed by the undersigned to be prepared to discuss the issues
pursuant to my original order. The Respondent advised that he could be reached on his cell phone
(678-296-8316). On March 8, 2002, my administrative assistant, Georgiana Jones, called
Respondent’s cell number. At that time Ms. Jones received no answer. She also called the
telephone number which appeared upon the letterhead of his December 3, 2001, Notice of
Contest, and received no answer. She left a message on the voice mail message, wherein she
requested that Respondent to call the undersigned’s office. On this same day, Complainant’s
counsel also attempted to contact Respondent. He also left a message on Respondent’s voice
mail to call so that they could discuss settlement. On March 8, 2002, the undersigned issued an
EZ Trial Notice scheduling this matter for April 19, 2002. On April 3, 2002, Ms Jones called
Respondent. At that time, Respondent’s voice mail message stated that it was “March 11th”, and
to leave a message. Ms. Jones left a message advising Respondent to call the Commission
regarding the scheduled hearing.
On April 10, 2002, counsel for Complainant filed a Motion to Dismiss for failure to
comply with court orders, and failure to negotiate in good faith.1 Counsel’s Motion set forth that
he had called Respondent subsequent to March 8, 2002, to discuss settlement and had received
no response. He again called Respondent on April 10, 2002, to discuss preparation of a joint
prehearing statement. Respondent again did not return counsel’s call. In view Respondent’s
failure to participate in the rescheduled pre-trial conference call and order to participate in the
filing of a joint pretrial statement, or return calls to discuss settlement Complainant requests that
Respondent’s Notice of Contest be dismissed. On April 11, 2002, the undersigned issued an
Order To Show Cause directing Respondent to show cause within 5 days of receipt this Order
why he did not comply with this Court’s March 8, 2002 Order, and should not be declared in
default. Respondent was advised that failure to respond to this Order would indicate a lack of
interest in pursuing its notice of contest. Respondent was further advised that failure to comply
with this order wouldl result in the dismissal of its notice of contest, the citation affirmed, and the

   1
      On April 11, 2002, Complainant’s counsel, Paul Spanos, advised Ms Jones that he had also

faxed this Motion to Respondent on April 11, 2002.
penalties assessed. This Order was faxed to both parties. The transmittal notice indicated that
both parties had received said fax. Respondent’s Order was faxed to the telephone number
which appeared upon the letterhead of his December 3, 2001, Notice of Contest.
Discussion
Rule 41(a) of the Commission’s Rules of Practice, 29 C.F.R.§2200.41(a), in pertinent
part provides:
Sanctions: When any party has failed to plead or otherwise proceed as provided by
these rules or as required by the . . . Judge, he may be declared in default . . . (1)
on the initiative of the . . . Judge, after having been afforded an opportunity to
show cause why he should not be declared in default; or on the motion of a party.
Thereafter, ... Judge, in [her] discretion, may enter a decision against the
defaulting party . . .
There is no evidence in the record that indicates that Respondent has not received any of the
Commission’s or Complainant’s prior mailings, or faxes, or the voice mail messages. A judge
has very broad discretion in imposing sanctions for noncompliance with Commission Rules of
Procedure or the judge’s orders. See Sealite Corp., 15 OSHC BNA 11130, 1134 (No. 8801431,
1991). In view of the record before me, the undersigned finds that the Respondent has received
all documents forwarded to him in this matter, and that Respondent has been given due notice
and an opportunity to respond to my Order to Show Cause. The undersigned further finds that
Respondent has failed to respond to her April 11, 2002, Order to Show Cause. Respondent has
not responded, and has offered no reason for not complying.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

                                     ORDER
   Based on the foregoing decision, Respondent is declared in DEFAULT, and his notice of

contest is DISMISSED, and the citation issued in this matter is AFFIRMED.
Serious Citation 1, Item 1, 29 C.F.R. §1926.100(a) is AFFIRMED, and a penalty of
$1,200.00 is assessed.
 Serious Citation 1, Item 2, §1926.102(a)(1) is AFFIRMED, and a penalty of $1,200.00 is
assessed .
Serious Citation 1, Item 3, §1926.453(b)(2)(v) is AFFIRMED, and a penalty of $1,600.00
is assessed .

SO ORDERED.

Dated: April 29, 2002 /s/
Washington, DC. COVETTE ROONEY
Judge, OSHRC