Permabond Construction, Inc.

Plain-English summary

An administrative law judge entered default against Permabond after it missed a conference call, filed a late notice of contest, and appeared not to respond to an order to show cause. Before the decision was docketed, however, Permabond's pro se representative faxed the judge a letter explaining that illness caused him to miss the call and asking for another conference date. A second letter, apparently sent to the Secretary instead of the judge, gave a different explanation and asked for another chance. The Commission remanded the case so the judge could review both letters and determine whether any further action, including possible relief from default, was appropriate.

Decision snapshot

• Cited standard(s): None identified in the decision
• Outcome: The case was remanded for the judge to consider two letters submitted by Permabond before the default became final.
• Key point: A filing mistake by a pro se party may warrant consideration when a response intended for the judge was timely sent elsewhere or reached the judge before docketing.

Full text (OSHRC public release)

Permabond Construction, Inc., Docket No. 12-0993

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. 12-0993

PERMABOND CONSTRUCTION, INC.,

Respondent.

APPEARANCES:

Madeline T. Le, Attorney; James E. Culp, Regional Solicitor; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC and Dallas, TX

For the Complainant

Darrel Kirtley, Vice President; Permabond Construction, Inc., Houston, TX

For the Respondent

REMAND ORDER

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

At issue before the Commission is Administrative Law Judge Brian A. Duncan’s
Decision and Order affirming a single-item citation issued to Permabond Construction, Inc.
(“Permabond”) and assessing the total proposed penalty of $4,900. For the following reasons,
we remand this case to the judge for further proceedings consistent with this opinion.

On October 30, 2012, the judge issued an Order to Show Cause in which he gave
Permabond, appearing pro se , fifteen days to show why it should not be held in default for (1)
failing to appear for an October 22, 2012 conference call and (2) failing to file a timely notice of
contest. See Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 659(a)
(requiring employer to notify the Secretary of its intent to contest a citation within 15 working
days after receiving a Citation and Notification of Penalty from the Occupational Safety and
Health Administration). The show cause order was sent to Permabond via certified mail, return
receipt requested, as required by Commission Rule 101(d), 29 C.F.R. § 2200.101(d). The return
receipt shows that Permabond received the order on November 2, 2012.

On November 30, 2012, the judge sent the parties a Notice of Decision indicating that the
attached copy of his decision affirming the citation would be submitted to the Commission on
December 14, 2012, and if not directed for review, would become a final Commission order
thirty days after docketing with the Commission. See Commission Rule 90(b)(1), (2), 29 C.F.R.
§ 2200.90(b)(1), (2). In his decision, the judge concluded that Permabond’s repeated failure to
timely participate in the proceedings constituted contumacious conduct justifying the sanction of
default. See Commission Rule 101(a), 29 C.F.R. § 2200.101(a) (a party “may be declared to be
in default . . . after having been afforded an opportunity to show cause why he should not be
declared to be in default . . . .”).

On December 7, 2012, seven days after the judge sent his decision to the parties,
Permabond faxed a letter to the Commission’s Denver Regional Office, dated December 4, 2012,
(“December 4 letter”) and addressed to the judge.

In the letter, Permabond’s vice president,
Darrel Kirtley, explains that he missed the scheduled conference call due to illness and asks the
judge for “another conference date.” Approximately one week later, the judge submitted his
decision to the Commission’s Executive Secretary, who docketed it on December 17, 2012,
which became “the date that the Judge’s [decision was] made for purposes of section 12(j) of the
Act, 29 U.S.C. § 661(j).” Commission Rule 90(b)(2), 29 C.F.R. § 2200.90(b)(2).

On January 3, 2013, the Secretary forwarded to the judge a copy of a letter from
Permabond dated November 2, 2012 (“November 2 letter”). In her cover letter to the judge, the
Secretary states that Permabond’s letter is being forwarded “to the court in the event that
Permabond itself failed to do so.” The November 2 letter begins with the salutation “To whom it
may Concern,” and in it Kirtley explains that he missed the scheduled conference call because he
wrote down the wrong date and asks “for the mercy of the courts to allow Permabond
Construction another chance.”

Under Commission Rule 90(b)(3), 29 C.F.R. § 2200.90(b)(3), a judge has the authority to
correct errors in his decision and/or relieve a party from default or grant reinstatement, as
follows:

Correction of errors; Relief from default. Until the Judge’s report has been
directed for review or, in the absence of a direction for review, until the decision
has become a final order, the Judge may correct clerical errors and errors arising
through oversight or inadvertence . . . . Until the Judge’s report has been
docketed by the Executive Secretary, the Judge may relieve a party of default or
grant reinstatement under §§ 2200.101(b), 2200.52(f) or 2200.64(b).

Here, the record shows that Permabond’s December 4 letter was faxed to the judge before his
decision was transmitted to the Executive Secretary on December 14, and docketed on December
17, 2012. But the judge stated in his decision that “[a]s of this date, Respondent has never
contacted the Court regarding its failure to appear on the conference call, nor filed any response
to the Order to Show Cause .” Given this statement, it is unclear whether the judge ever
reviewed the December 4 letter, which provided an explanation for Kirtley’s failure to attend the
conference call, before sending his decision to the Executive Secretary for docketing.

With respect to the November 2 letter, the record suggests that Permabond may not have
filed a copy of it with the judge. It is possible, however, that Kirtley, as the company’s pro se
representative, intended for the letter to serve as Permabond’s response to the show cause order,
but he mistakenly sent it to the Secretary instead of the judge. Indeed, the letter was dated the
same day Permabond received the show cause order and provided another, albeit different,
explanation for Kirtley’s failure to attend the conference call. See Schipper Constr., Inc. , 18
BNA OSHC 2000, 2002, 1999 CCH OSHD ¶ 31,885, p. 47,134 (No. 99-0253, 1999) (accepting
answer to complaint that employer, appearing pro se , erroneously mailed to Secretary instead of
judge).

Under these circumstances, we find it appropriate to remand this case to the judge to
allow him an opportunity to review both of Permabond’s letters and determine whether any
further action is appropriate.

SO ORDERED.

/s/                                                         

Thomasina V. Rogers

Chairman

/s/                                                         

Cynthia L. Attwood

Dated: February 11, 2013                                           Commissioner

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

v.

Permabond Construction, Inc.,

Respondent,

OSHRC DOCKET NO. 12-0993

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

This proceeding 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 et seq . ("the Act"). The Occupational Safety and Health
Administration ("OSHA") conducted an inspection of Respondent’s worksite in Katy, Texas on
November 14, 2011. As a result of the inspection, OSHA issued a Citation and Notification
of Penalty to Respondent alleging one serious violation of the Act with an associated penalty of
$4,900.00. Respondent contested the citation item.

On October 2, 2012, the Court issued an Order which required the parties to appear by
telephone for a conference call on October 22, 2012. Complainant’s counsel appeared by
telephone for the conference call. Respondent failed to appear.

On October 30, 2012, the Court issued an Order to Show Cause to Respondent,
pursuant to Commission Rules 67 and 101, requiring Respondent to: (1) explain its failure to
appear on the October 22 nd conference call; and (2) explain its reasons for filing the Notice of
Contest on April 26, 2012 for citations issued on December 6, 2011. The Order to Show
Cause warned that “[f]ailure to respond to this Order to Show Cause , and/or failure to
establish good cause, if any, may result in the issuance of default judgment against Respondent
dismissing its Notice of Contest and affirming the citations proposed in this case pursuant to
Commission Rules 67 and 101.” As of this date, Respondent has never contacted the Court
regarding its failure to appear on the conference call, nor filed any response to the Order to
Show Cause .

Commission Rule 101(a) provides "[w]hen 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 on the initiative of the Commission or the Judge, after having
been afforded an opportunity to show cause why he should not be declared in default ...
[t]hereafter, the Commission or Judge, in their discretion, may enter a decision against the
defaulting party ..." The Court finds that Respondent has either abandoned its contest in this
case or demonstrated a pattern of disregard for the procedural requirements and authority of
the Commission by: (1) failing to appear for the October 22, 2012 conference call; (2) failing
to file its Notice of Contest pursuant to the fifteen working day limitation contained in Section
10(a) of the Act, 29 U.S.C. §659(a); and (3) failing to respond to the Court’s October 30,
2012 Order to Show Cause. Respondent’s repeated failure to timely participate in this
proceeding constitutes contumacious conduct justifying sanctions. Philadelphia Construction
Equipment, Inc ., 16 BNA OSHC 1128, 1993 CCH OSHD ¶30,051 (No. 92-0899, 1993);
Sealtite Corporation , 15 BNA OSHC 1130, 1991 CCH OSHD ¶29,398 (No. 88-1431, 1991).
Accordingly, Respondent’s

Notice of Contest is hereby VACATED and the violation alleged in the Citation and
Notification of Penalty is AFFIRMED.

SO ORDERED.

/s/  

Date:    December 14, 2012                  Judge Brian A. Duncan

Denver, Colorado                                 U.S. Occupational Safety and Health Review Commission

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