Bilodeau Homes

Plain-English summary

Bilodeau Homes timely contested three serious construction citations but did not file an answer after its pro se case was removed from E-Z Trial. The judge granted the Secretary's dismissal motion, affirmed all three items by default, and assessed $3,000. The Commission found no claim of prejudice, contumacious conduct, or a pattern of disregarding its rules. It also noted that the Secretary had not complied with the rule requiring consultation before filing the motion and that the switch from E-Z Trial may have confused the unrepresented employer about the answer deadline. The Commission set aside the default order and remanded the case so Bilodeau could explain its late answer.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.651(i)(2); 29 C.F.R. § 1926.651(k)(1)
• Outcome: The default judgment affirming three serious items and $3,000 in penalties was set aside, and the case was remanded.
• Key point: A late answer alone does not justify default without prejudice, contumacious conduct, or a pattern of disregard, especially when procedural changes may have confused a pro se employer.

Full text (OSHRC public release)

Bilodeau Homes, Docket No. 05-0231

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET No. 05-0231

BILODEAU HOMES,

Respondent.

DIRECTION FOR REVIEW AND REMAND ORDER

In a decision and order dated August 11, 2005, Administrative Law Judge William
C. Cregar granted the Secretary’s Motion to Dismiss Notice of Contest based on the
failure of Bilodeau Homes (Bilodeau) to file a timely answer to the Secretary’s complaint.
The judge affirmed a serious citation alleging three violations of standards under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, and assessed the
total proposed penalty of $3,000. For the reasons that follow, we direct this case for
review, set aside Judge Cregar’s order, and remand the case to the judge.

Procedural Background

The Secretary issued Bilodeau the citation and notification of penalty on January
12, 2005. Bilodeau, appearing pro se, filed a timely notice of contest on February 4,
2005, and the Secretary filed her complaint on February 23, 2005. On March 8, 2005,
before the 20-day period for filing an answer had passed, the case was designated for E-Z
Trial by the Chief Administrative Law Judge and all pleading requirements were
suspended.

See Commission Rule 200(b)(1), 29 C.F.R. § 2200.200(b)(1) (complaints
and answers not required in EZ-Trial proceedings).

On April 15, 2005, the Secretary filed an unopposed Motion to Discontinue E-Z
Trial based on the fact that “discussions between counsel for the Secretary and the
respondent have revealed that there are factual disputes which will require discovery….”
On April 26, 2005, the judge granted the unopposed motion stating that, “under the
particular circumstances of this case, the E-Z Trial procedures would be inappropriate”
and “the case shall continue under conventional rules.” See Rule 204, 29 C.F.R. §
2200.204 (provisions governing discontinuance of E-Z Trial).

On June 28, 2005, the Secretary filed her Motion to Dismiss Notice of Contest. In
her motion, the Secretary stated that she had contacted Bilodeau’s president on June 7,
2005, and informed him that, “an answer to the Complaint needed to be filed.” The
Secretary also stated that the parties had agreed Bilodeau would file an answer by June
21, 2005, but that no answer had yet been filed; a letter from the Secretary to Bilodeau’s
president documenting their conversation was also attached to the motion. The Secretary
failed to state, however, that she had consulted with Bilodeau prior to filing her motion as
required by Rule 40 (a), 29 C.F.R. § 2200.40(a) (“Prior to filing a motion, the moving
party shall confer or make reasonable efforts to confer with the other parties and shall
state in the motion if any other party opposes or does not oppose the motion.”).
Nonetheless, Judge Cregar granted the Secretary’s motion and his decision was docketed
with the Commission on August 16, 2005.

On September 6, 2005, Bilodeau filed a petition for discretionary review seeking
the Commission’s “understanding that Respondent is Pro Se and is trying to comply with
the rules and regulations of OSHA.” In the petition, Bilodeau’s president disputes that
“any firm date was set for [an] answer to [the] complaint” when he spoke to the
Secretary’s counsel. He also claims that the Secretary’s counsel was “advised that
[Bilodeau’s] response had already been filed with the Complainant and should stand as a
response to said complaint.”

Discussion

Rule 101(a), 29 C.F.R. §2200.101(a),

permits the sanction of default for failure to
plead or otherwise proceed as required by the Commission’s rules or by the Commission
or judge. The Commission has held that a default sanction may be appropriate “where a
party displays a ‘pattern of disregard’ for Commission proceedings.” Architectural Glass
& Metal Co. , 19 BNA OSHC 1546, 1547, 2001 CCH OSHD ¶32,424, p. 49,975 (No. 00-0389, 2001)(citing Philadelphia Construction Equipment Inc., 16 BNA OSHC 1128,
1131, 1993-95 CCH OSHD ¶39,051, p. 41,295 (No. 92-899, 1993)). The Commission has
also held that “dismissal of a citation is too harsh 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.” Id., and cases cited therein.
Under Rule 101(b), 29 C.F.R. §2200.101(b),

a default sanction may be set aside “for
reasons deemed sufficient by the Commission or Judge.”

In AA Plumbing, Inc., Docket No. 04-1299 (February 2, 2005), we noted that a late
filing alone, without evidence of prejudice, contumacious conduct and/or a pattern of
disregard for Commission rules, would not be a basis for dismissing a case. AA Plumbing ,
slip opinion at 3-4 (citing Samuel Filisko d/b/a/ Associated Contractors Group, Docket
No. 04-1465 (January 21, 2005)). Here, the Secretary made no claims of contumacious
conduct on the part of Bilodeau in her motion to dismiss and the judge made no such
findings in his decision. The Secretary also made no claims of prejudice as a result of
Bilodeau’s failure to file a timely answer. In fact, the reasons for Bilodeau’s failure to
file remain unknown and the company’s petition suggests that it intended its notice of
contest to “stand as a response to said complaint.”

The Secretary also failed to comply with Rule 40(a) when she did not consult with
Bilodeau prior to filing her motion to dismiss. See AA Plumbing , slip opinion at 4
(Commission set aside default for pro se employer’s failure to file timely answer based in
part on Secretary’s failure to follow Rule 40(a) in filing of motion for default). While the
Secretary did contact Bilodeau’s president three weeks prior to filing her motion in order
to discuss the company’s failure to file an answer, it is not clear whether she informed
him that she intended to file a motion to dismiss if the answer was not filed by their
alleged agreed-upon date and that if the motion were granted, the alleged violations
would be affirmed and the proposed penalties assessed. In any event, the Secretary’s
motion did not contain a statement as to whether or not Bilodeau opposed it, and was
therefore violative of Rule 40(a).

Finally, we note that the Commission has long recognized that, generally speaking,
employers appearing pro se are “often confused by legal terminology and may not be
fully cognizant of the legal technicalities of the judicial process.” Action Group, 14 BNA
OSHC 1934, 1935, 1987-90 CCH OSHD ¶ 29,166, p. 39,018 (No. 88-2058, 1990), and
cases cited therein. In this regard, cases, such as this one, that involve pro se employers,
few citation items, and less than $20,000 in proposed penalties, are typically assigned to
the Commission’s E-Z Trial docket, thereby allowing all pleading requirements to be
suspended, discovery to be eliminated, and a hearing to proceed under less formal rules.
See Subpart M of the Commission’s Rules, 29 C.F.R. §§ 2200.200-211.

Here, we question whether the current case’s initial assignment to the E-Z Trial
docket, then subsequent removal, created confusion for this pro se employer, particularly
where the judge’s order discontinuing E-Z Trial stated only that “conventional rules”
would now apply and made no mention of the specific circumstances surrounding this
case. Indeed, for the matter to proceed at that point, Bilodeau was required to file an
answer to the Secretary’s previously filed complaint and do so by a date neither specified
by the judge nor easily determined by consulting the Commission’s “conventional rules,”
which would not have addressed the unique posture of the case at that time. See Rule
34(b), 29 C.F.R. § 2200.34(b) (“Within 20 days after service of the complaint, the party
against whom the complaint was issued shall file an answer with the Commission.”).

Under these circumstances, we find that Bilodeau should be given an opportunity
to explain to the judge the reasons for its failure to file a timely answer. Accordingly, we
direct this case for review, set aside the judge’s order, and remand this case for further
proceedings in a manner consistent with this order.

SO ORDERED.

_/s/___                    

W. Scott Railton

Chairman

/s/___

Thomasina V. Rogers                     

Commissioner

Dated: _September 9, 2005

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

DOCKET NO. 05-0231

BILODEAU HOMES,

Respondent.

APPEARANCES:

Merle D. Hyman                                         Michael J. Bilodeau, President

U.S. Department of LaborBilodeau Homes

Boston, Massachusetts                                Sudbury, Massachusetts

For the Complainant.                                             For the Respondent,
pro se .

BEFORE:       William C. Cregar

Administrative Law Judge

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission
(“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678 (“the Act”). On June 28, 2005, Complainant filed and
served upon Respondent a Motion to Dismiss Notice of Contest (“Motion”). The Motion
requests that the Notice of Contest be dismissed and that the penalties be affirmed. To
date, Respondent has failed to respond to the Motion. Finding good cause, I grant the
Motion.

Statement of Facts

I adopt the following allegations, as set forth in the Secretary’s Complaint, dated
February 23, 2005, as having been established:

1. Respondent, is, and at all times hereinafter mentioned was, a corporation with
an office and place of business located at 111 Boston Post Road, Ste. 211, Sudbury,
Massachusetts, and is engaged in the operation of a custom home building business.

2. During the course of business activities the Respondent and employees are
engaged in receiving, handling and otherwise working on and with goods and materials
that are moving or have moved across state lines in interstate commerce. By virtue of
activities, as aforesaid, the Respondent is an employer engaged in a business affecting
commerce within the meaning of section 3(5) of the Act.

3. As a result of an inspection of Respondent’s workplace located at 24 Polonoket
Avenue, Sudbury, Massachusetts, by an authorized representative of the Complainant
between October 29, 2004-January 4, 2005, Respondent, an employer withing the
meaning of the Act, was issued: Serious Citation No. 1 (three itemized violations), dated
January 12, 2005.

4. The citation identifies the specific standard or general duty clause violations
alleged, describes said violations, specifies the abatement date proposed for said
violations, and sets forth the penalties for said violations.

5. At or about the time of the inspection herein Respondent violated each of the
standards set out in the citation in the manner described therein.

6. The violations alleged in the citation constitute serious violations within the
meaning of sections 17(b)and 17(k) of the Act in that there was substantial probability
that death or serious bodily harm could result from the conditions that existed and the
Respondent knew, or with the exercise of reasonable diligence should have known, of the
presence of the violations.

7. The citation sets forth the penalties proposed for the violations alleged therein.
Considering the gravity of the violations, the size of Respondent’s business, Respondent’s
history of previous violations and good faith, as required under section 17(j) of the Act,
said penalties are appropriate.

8. The abatement date set forth in the citation represents the earliest practicable
time within which the Respondent could reasonably be expected to abate the violations.

9. On January 12, 2005, a Notification of Proposed Penalty was mailed to the
Respondent.

10. On February 4, 2005, the Respondent filed with a representative of the
Secretary of Labor a notification of intent to contest the aforesaid citation and proposed
penalties.

I further adopt the following allegations, as set forth in the Motion:

11. This case was assigned to E-Z trial status. On April 26, 2005, this court issued
an order discontinuing E-Z trial and stating that “the case shall continue under
conventional rules.” When no answer to the Complaint was forthcoming, on June 7, 2005,
Complainant’s counsel contacted

Respondent, who is pro se , and advised him that an answer to the complaint needed to be
filed. The parties agreed that the answer would be filed no later than June 21, 2005. To
date, neither Complainant nor this tribunal has received an answer to the complaint.

Discussion

Section 2200.41(a) of Title 29 of the Code of Federal Regulations states:

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 default 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) on the motion of a party. Thereafter, the
Commission or Judge, in their discretion, may enter a decision against the
defaulting party or strike any pleading or document not filed in accordance
with these rules.

There is no requirement that a judge issue a show cause order before granting a
party’s motion for a default judgment. See Schipper Constr., Inc. , 18 BNA OSHC 1865,
n.3 (No. 99-0253, 1999). The Secretary’s Motion is accordingly GRANTED, and the
Citation and Notification of Penalty is AFFIRMED in all respects.

ORDER

Based upon the foregoing, it is hereby ORDERED that:

1. Serious Citation 1, Item 1, alleging a violation of 29 C.F.R. 1926.21(b)(2), is
affirmed, and a penalty of $750.00 is assessed.

2. Serious Citation 1, Item 2, alleging a violation of 29 C.F.R. 1926.651(i)(2), is
affirmed, and a penalty of $750.00 is assessed.

3. Serious Citation 1, Item 3, alleging a violation of 29 C.F.R. 1926.651(k)(1), is
affirmed, and a penalty of $1500.00 is assessed.

/s/

WILLIAM C. CREGAR

Judge, OSHRC

Dated:August 11,1005

Washington, D.C.