AMSCO, Inc.

Plain-English summary

Amsco's attorney missed one scheduled prehearing telephone conference because of staffing and communication problems at his law firm. The judge declared Amsco in default and dismissed its notice of contest, relying partly on the attorney's conduct in unrelated cases. The Commission found no prejudice, pattern of disregard in Amsco's case, or contumacious conduct sufficient to justify the harsh sanction of dismissal. It reinstated the notice of contest and remanded for further proceedings while separately considering possible discipline against counsel.

Decision snapshot

• Cited standard(s): None specified; this decision concerns Commission procedural rules.
• Outcome: The default dismissal was vacated, Amsco's notice of contest was reinstated, and the case was remanded.
• Key point: Missing a single prehearing conference through neglect does not justify default dismissal without prejudice, contumacious conduct, or a pattern of disregard in the case.

Full text (OSHRC public release)

AMSCO, Inc., Docket No. 02-0220

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-0220

AMSCO, INC .,

Respondent.

DECISION

Before: RAILTON, Chairman; ROGERS and STEPHENS, Commissioners.

BY THE COMMISSION:

On August 26, 2002, Administrative Law Judge G. Marvin Bober issued a Decision and
Order declaring Amsco, Inc. (“Amsco”) to be in default and dismissing its notice of contest. The
judge stated that dismissal was warranted under either Rule 41(a), 29 C.F.R.

§ 2200.41(a),

or Rule 64(a), 29 C.F.R. § 2200.64,

of the Commission’s Rules of Procedure,
because Amsco’s attorney, Richard D. Wayne, failed to be available for a pre-hearing teleconference.
For the following reasons, we vacate the judge’s order, reinstate Amsco’s notice of contest, and
remand this case to the judge for further proceedings.

I. BACKGROUND

On August 8, 2002, the judge scheduled a pre-hearing teleconference by agreement with the
parties for August 12, 2002, at 10:00 a.m. At the scheduled time, a Commission employee, on behalf
of the judge, telephoned the office of Mr. Wayne. The receptionist at Mr. Wayne’s law firm
connected the call to his office voice mail, but the Commission employee did not leave a message.
Instead, the Commission employee again telephoned Mr. Wayne’s office and requested that the
receptionist page Mr. Wayne. When the receptionist received no response to the page, she informed
the Commission employee that Mr. Wayne was not in the building. The Commission employee then
made a call to Mr. Wayne’s cell phone and left a message instructing him to contact the Secretary’s
representative, Kevin Sullivan, and then contact the judge to proceed with the teleconference. No
further contact regarding this matter was made between the judge’s office and Mr. Wayne’s office
on August 12, 2002.

On August 13, 2002, the judge issued an Order to Show Cause requiring Amsco to show why
it should not be declared in default. Amsco immediately submitted a response stating that at the time
of the scheduled teleconference, Mr. Wayne was working in a conference room at his law firm, and
he was prepared to receive the call. However, because of staffing shortages at the firm on that date,
he was not notified of the call. Amsco submitted copies of internal e-mails from Mr. Wayne’s law
firm indicating that Mr. Wayne’s secretary had resigned on August 9, 2002, and that several other
secretaries were absent on August 12, 2002.

On August 14, 2002, the judge issued a Notice of Decision in which he stated that he was
not persuaded by Amsco’s reasons for Mr. Wayne’s failure to appear and found Mr. Wayne’s
conduct contumacious. Amsco immediately filed a Motion for Reconsideration, which reiterated
the staffing problems at Mr. Wayne’s law firm and provided additional supporting affidavits by Mr.
Wayne and Loretta Connolly, the receptionist at the law firm. The Secretary submitted a
memorandum opposing Amsco’s Motion for Reconsideration, arguing that the staffing and
communication problems at the law firm did not excuse Mr. Wayne’s failure to make some effort
to contact either the Secretary’s representative or the Commission after the time for the scheduled
conference had passed.

In denying Amsco’s Motion for Reconsideration, the judge noted that Amsco offered no
explanation as to why Mr. Wayne failed to respond to the message left on his cell phone by the
Commission employee or why he failed to make any effort to contact the Commission regarding the
status of the teleconference. As an additional reason for denying the motion, the judge stated that
Mr. Wayne had previously failed to comply with orders issued by him on three previous occasions
involving three other unrelated cases to which Amsco was not a party.

II. DISCUSSION

The issue on review is whether to set aside the judge’s default sanction against Amsco and
reinstate its Notice of Contest. Pursuant to Commission Rule 41(b), 29 C.F.R. § 2200.41(b),

the
Commission may set aside a sanction for reasons deemed sufficient. Amsco argues that the sanction
should be set aside because dismissal by default was a disproportionately harsh sanction for
unintentionally missing a single pre-hearing teleconference. We agree. The Commission has long
held that dismissal is too harsh a sanction for failure to comply with certain pre-hearing orders unless
the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party,
or a pattern of disregard for Commission proceedings. See Architectural Glass & Metal Co. , 19
BNA OSHC 1546, 1547, 2001 CCH OSHD ¶ 32,424, p. 49,975 (No. 00-389, 2001), and cases cited
therein. Cf. Crossman v. Raytheon , 2002 U.S. App. LEXIS 27198 (1st Cir. Dec. 31, 2002) (failure
to comply with one pre-hearing scheduling order “is not the type of action that alone should support
the sanction of dismissal”).

At the outset, we note that the Secretary has not alleged before the Commission any prejudice
as a result of Mr. Wayne’s conduct in this case. In addition, while we are disturbed by Mr. Wayne’s
actions, we find that his conduct does not rise to the level of contumacy. Mr. Wayne’s failure to
contact the judge’s office once the scheduled time for the teleconference passed or to respond to the
message left on his cell phone by the Commission employee raises serious questions about his regard
for Commission procedures.

These actions demonstrate a clear indifference on his part to the
commitment he made to both the judge and the Secretary regarding his participation in the scheduled
teleconference. Though troubling, we believe that such neglect, without more, falls short of
contumacious conduct warranting a default sanction. See Choice Elec. Corp., 14 BNA OSHC 1899-1900, 1987-90 CCH OSHD ¶ 29,141 (88-1393, 1990) (Commission may set aside sanction pursuant
to Rule 41(b) where party’s conduct constitutes “excusable neglect”). See also Pioneer Inv. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1990) (excusable neglect under Federal Rules
of Civil Procedure 60(b)(1) encompasses situations where non-compliance is due to negligence,
inadvertence, mistake or carelessness); Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781 (8 th Cir.
1998) (in determining whether to set aside default sanction, poor communication, carelessness, and
“cavalier approach” does not constitute contumacious conduct). Cf. Sealtite Corp., 15 BNA 1130,
1991-93 CCH OSHD ¶ 29,398 (88-1431, 1991) (contumacious conduct established where party
engaged in a “consistent pattern” of failure to respond to judge’s orders).

The judge’s decision to sanction Amsco appears largely to stem from what he characterizes
as a pattern of misconduct engaged in by its counsel, Mr. Wayne, in this and other cases. The
judge’s reasons, if correct, would appear to support disciplinary action against Mr. Wayne pursuant
to Commission Rule 104, 29 C.F.R. § 2200.104.

Thus, in tandem with this Decision, the
Commission has issued an Order to Show Cause Why Disciplinary Action Should Not Be Taken
against Mr. Wayne. Accordingly, in the current matter, we set aside the judge’s decision imposing
the sanction of dismissal of the notice of contest against Amsco and remand this case to the judge
for further proceedings.

So ORDERED.

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

/s/

James M. Stephens

Commissioner

Dated: February 12, 2003

SECRETARY OF LABOR,

Complainant,

v.

Docket No. 02-0220

AMSCO, INCORPORATED,

Respondent.

DECISION AND ORDER

It was agreed between counsel for the Complainant, counsel for the Respondent, and the
undersigned to hold a pre-trial telephone conference on Monday, August 12, 2002 at 10:00 a.m.
EDT. The Respondent’s counsel without notifying the undersigned failed in his responsibility to be
available for the pre-trial telephone conference.

On August 13, 2002, the undersigned issued an order directing Respondent’s counsel,
Richard D. Wayne, Esquire, to provide in affidavit form a statement as to reason(s) the Respondent
should not be declared to be in default and the Citation and Notification of Penalty issued on January
7, 2002 should not be affirmed in its entirety.

On August 13, 2002, Respondent’s counsel, Richard D. Wayne, Esquire, filed a reply stating

that on Monday, August 12, 2002, he “left a note at his secretary’s station, also on the 30th floor, that
he could be reached in a conference room on the 29th floor or on his cell phone.” He further states
that “[a]lthough Respondent’s counsel was at his firm and prepared to receive the telephone call,
because his secretarial station was not manned, he failed to receive notice of the telephone
conference and no message was left in Respondent’s voice mail that a call had been placed.”

DISCUSSION AND CONCLUSION

The pre-trial conference call was set on a date and time established by counsel for the
Complainant and counsel for the Respondent in order to coincide with previously scheduled pre-trial
conference call with another Judge. No request for an adjournment of the date or time of the pre-trial
conference call was ever made.

At approximately 10:00 a.m. EDT on August 12, 2002, the Office of the Chief Judge initialed
the pre-trial telephone call by telephoning the Respondent at his law firm. The person answering the
telephone (“operator”) directed the Commission employee to Mr. Wayne’s office. As he was not
in his office, the telephone went into his voice mail. No message was left. Instead the Commission
employee again called the Respondent at his law firm. At this point the Commission employee
directed the operator to page Mr. Wayne; however, the Commission employee was informed that Mr.
Wayne had left the building. Immediately, thereafter, the Commission employee dialed Mr. Wayne’s
cell phone number. As Mr. Wayne did not answer his cell phone, the Commission employee left him
a message on his cell phone and directed him to call Complainant’s counsel, Kevin Sullivan, Esquire
and than call the undersigned in order for the telephone conference to go forward. Mr. Wayne never
contacted the Commission on August 12, 2002 as instructed.

Moreover, Rule 41 of the Commission’s Rules of Procedure, 29 C.F.R. 2200.41 provides that
when any “party has failed or otherwise proceed as * * * required by the Judge, he [she] may be
declared to be in default * * : (1) on the initiative of the * * * Judge, after having been afforded an
opportunity to show cause why he [she] should not be declared to be in default; * * .”

Rule 64 (a) of the Commission’s Rules of Procedure, 29 C.F.R. 2200.64 (a) provides:

Attendance at hearing . The failure of a party to

appear at a hearing may result in a decision

against that party.

Pre-trial procedures aid in the early formulation of issues which benefit all parties and result
in a more efficient use of Commission resources. The imposition of appropriate sanctions is
important to ensure compliance with pre-trial procedures. Duquesne Light Co., 8 BNA OSHC 1218,
1221 (No. 78-5303, 1980).

Mr. Wayne’s reasons for his failure to appear are unpersuasive and his behavior is
contumacious towards this Court.. Therefore, dismissal of the notice of contest is warranted under
either Rule 41 or Rule 64 (a).

IT IS ORDERED that the Respondent shall be declared to be in default and the Citation and
Notification of Penalty issued on January 7, 2002 shall be affirmed in its entirety.

Dated: August 26, 2002                                                  /s/

Washington, D.C.                                                          G. Marvin Bober

Administrative Law Judge