Twin Pines Construction, Inc./Teles Construction

Read the official release (oshrc.gov)

Plain-English summary

OSHA issued Twin Pines Construction/Teles Construction two serious items and four other-than-serious items after a Massachusetts inspection. The allegations involved an obstructed or slippery emergency exit, forklift refresher training, injury and illness records, record production, and forklift training certification. After contesting, the company missed two required prehearing conferences and did not provide documents, exchange exhibits, identify witnesses, file a prehearing statement, or respond to the Secretary's default motion. The judge found willful default, contumacious conduct, and prejudice to the Secretary's trial preparation. He dismissed the notice of contest with prejudice, affirmed all six items, and assessed the proposed $10,010 in penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.34(c); 29 C.F.R. § 1910.178(l)(4)(ii); 29 C.F.R. § 1904.29(b)(2); 29 C.F.R. § 1904.32(a)(2); 29 C.F.R. § 1904.40(a); 29 C.F.R. § 1910.178(l)(6)
• Outcome: Notice of contest dismissed with prejudice; all six items affirmed and $10,010 in penalties assessed.
• Key point: Repeated failure to attend conferences, make required disclosures, and answer a default motion can lead to dismissal of the contest and affirmation of every citation item.

Full text (OSHRC public release)

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

Secretary of Labor,
Complainant,
SIMPLIFIED PROCEEDING

v. OSHRC Docket No. 12-1328

Twin Pines Construction, Inc./Teles
Construction,
Respondent.

APPEARANCES:
Celeste C. Moran, Esquire, U.S. Department of Labor, Boston, Massachusetts
For the Complainant.

    Juliano Fernandes, Twin Pines Construction, Inc./Teles Construction, Everett,
    Massachusetts
            Pro se, for the Respondent.

BEFORE: Dennis L. Phillips
Administrative Law Judge

                                  DECISION AND ORDER

                                     Background

    This proceeding is before the Occupational Safety and Health Review

Commission (the Commission) pursuant to § 10(c) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 651 et seq. (the Act). From January 18 through January 20,

2012, the Occupational Safety and Health Administration (OSHA) inspected the work

site at 100 Fisher Avenue, Brookline, Massachusetts 02445 of Respondent, Twin Pines

Construction, Inc./Teles Construction (Respondent or Twin Pines Construction). As a

result of the inspection, on May 31, 2012, OSHA issued a two-item serious citation and a

four-item other citation. On about June 13, 2012, Respondent contested the citation (sic)
and proposed penalty. The Secretary filed her complaint on July 10, 2012. On July 20,

2012, the Chief Judge assigned the case for Simplified Proceedings. The pleading

requirements were suspended and no answer has been filed.

    By Court Order dated July 27, 20112 the parties were informed that on August 17,

2012 at 10:30 a.m., E.D.T., the Court would hold a telephone pre-hearing conference

with the parties pursuant to Commission Rule of Procedure (CRP) Rule 207, 29 C.F.R. §

2200.207(2007). The Order stated that:

    The following matters will be addressed during the telephone conference:
    settlement of the case; the narrowing of issues; an agreed statement of issues and
    facts; defenses; witnesses and exhibits; motions; case consolidation; and any other
    pertinent matter. NOTE THAT Except under extraordinary circumstances,
    any affirmative defenses not raised at the pre-hearing scheduling conference
    may not be raised later.

    On August 7, 2012, Complainant mailed the OSHA 1A and 1B forms in the

investigative file to Respondent.

    The pre-hearing scheduling conference was conducted on August 17, 2012

pursuant to the Court’s Order dated July 27, 2012. Respondent inexplicably failed to

participate in the pre-hearing scheduling conference call.1

    By the Court’s Notice of Hearing and Scheduling Order dated August 17, 2012

(Scheduling Order), the parties were advised that the hearing would commence at 9:00

a.m., E.D.T., on October 16, 2012 at Boston, Massachusetts.2 Respondent was also

ordered to disclose to Complainant all documents relevant to any defense(s) to any

specific item where Respondent admits that a violation has occurred, but offers excuse(s),

1
The Court’s legal assistant contacted Mr. Fernandez’s assistant at the time of the conference call in an
unsuccessful attempt to include Mr. Fernandez in the prehearing scheduling conference call.
2
The Scheduling Order noted that Respondent failed to participate in the August 17, 2012 pre-hearing
scheduling conference call and Respondent was advised that continued failure to comply with Court orders
may result in sanctions, including the dismissal of its notice of contest.
no later than 30 days before the commencement of the hearing. Respondent was further

ordered to disclose to Complainant no later than 30 days before the commencement of the

hearing such documents that are relevant to any affirmative defense(s) timely raised by

Respondent. The parties were also ordered to exchange all documents or physical

evidence intended for introduction at the hearing no later than 30 days before the

commencement of the hearing.

    In preparation for the hearing, the parties were directed to file with the Judge no

later than 25 days before the commencement of the hearing, a joint pre-trial statement

containing an agreed statement of facts and issues, where the Respondent shall set forth

the factual basis of each affirmative defense as it relates to each specific item, a list of all

lay witnesses who may be called at hearing, including a brief summary of testimony to be

elicited; a list of all expert witnesses including, as to each expert witness, a statement of

subject matter and a summary of the substance of the testimony with respect to each item;

a list of exhibits to be offered into evidence with notations of all objections thereto, a list

of all motions or other matters which require action by the Judge, an estimate of time

each counsel [party] anticipates will be needed to present its case, and the signatures,

telephone numbers, and email addresses of counsel [or representative] for all parties.

    The parties were further informed that they were required to participate in the

final pre-hearing conference to be conducted by telephone on September 28, 2012 at

9:30, a.m., E.D.T. The parties were directed to be prepared to discuss during the final

pre-hearing conference the: 1) status of any settlement, 2) compliance with the

Scheduling Order, and 3) General Procedures and Practices in Hearings, including

intention to use any automated equipment in the courtroom.
 A copy of the General Procedures and Practice for the Hearing in cases that have

been designated for disposition by Simplified Proceedings was attached to the Scheduling

Order. In accordance with these procedures, the parties were directed to deliver one set

of trial exhibits in three ring binders, with an index, to the judge’s chambers at One

Lafayette Centre – South, 1120 20th St., N.W., Ste 996, Washington, D.C. 20036-3457 no

later than seven days before the start of the hearing.

    The parties were also warned in the Scheduling Order that “Failure to comply

with all parts of this order may result in sanctions, including the dismissal of claim(s) or

defense(s), as well as the assessment of costs incurred by the Commission and the other

parties.”

    On August 20, 2012, Complainant mailed photographs from the investigative file

to Respondent.

    On September 14, 2012, Complainant sent a cover letter and draft Joint

Prehearing Statement to Respondent by facsimile, e-mail, and first-class mail. In her

cover letter, Complainant asked Respondent to immediately contact Complainant to

discuss the draft Joint Prehearing Statement. Respondent failed to contact Complainant.

    Complainant filed her Prehearing Statement on September 21, 2012.

Complainant stated that her attempt to contact Respondent to confer and prepare a joint

prehearing statement was unsuccessful.

    On September 21, 2012, Complainant filed her Motion for Default and Dismissal

of Respondent’s Notice of Contest (Motion for Default).3 She asserts that Respondent

has been inattentive and unresponsive to the case and has repeatedly ignored Court

3
Complainant’s counsel certified that her September 19, 2012 attempt to contact Respondent regarding her
Motion for Default was unsuccessful.
orders. The Secretary asserts that Respondent has an extensive history where it has

consistently disregarded Commission Rules of Procedure and judge’s orders in this and

other cases.4 She asserts that Complainant has been prejudiced in preparing for trial

because she has been unable to ascertain: 1) the facts and issues in dispute, 2) any

defenses that Respondent intends to assert, 3) who Respondent intends to call as

witnesses, and 4) what exhibits Respondent intends to introduce at trial. She states that

Respondent has not provided any documents to the Secretary. She asserts that

“permitting a Respondent to consistently ignore the Commission’s Rules of Procedures

and judge’s orders would make a mockery of the Commission and on the Occupational

Safety and Health Act enforcement actions the Commission was created to adjudicate.”

The Secretary requests that the Court default Respondent, dismiss its notice of contest

and affirm the Citations and proposed penalties.

     A final pre-hearing conference was conducted on September 28, 2012 pursuant to

the Court’s Order of August 17, 2012. Respondent also inexplicably failed to participate

in the September 28, 2012 final prehearing conference call. 5

     Respondent did not file a response to the Complainant’s Motion for Default.

     Respondent did not file any trial exhibits with the Court by October 9, 2012.

     Respondent has also not filed a declaration listing all Respondent’s parents,

subsidiaries, and affiliates, or stating that it has none pursuant to 29 C.F.R. § 2200.35(a).

4
The Secretary alludes to several cases where judges issued default orders in matters involving Mr.
Fernandes for failing to respond to Show Cause orders and/or treating the Commission’s Rules of
Procedure with disdain. See Twin Pines Construction, Inc., No. 11-0236, slip op. at 1 (OSHRC July 8,
2011); Teles Construction, Inc. No. 11-1130, slip op. at 1 (OSHRC Sept. 22, 2011); Twin Pines
Construction, Inc./Teles Construction, Inc., No. 12-0406, slip op. at 1 (OSHRC May 25, 2012).
5
The Court’s legal assistant contacted Mr. Fernandez’s assistant at the time of the conference call in an
unsuccessful attempt to include Mr. Fernandez in the final prehearing conference call.
 A hearing in this case is scheduled to commence on October 16, 2012 at Boston,

Massachusetts.

                                   The Cited Standards

   Citation 1, Item 1, alleged that the means of egress on a metal deck between the

main building and the guest house (6-8 Olmsted Road) was not maintained free of all

obstructions or impediments to full instant use in the case of fire or emergency in that a

thin layer of snow on the metal deck made it a very slippery walking-working surface in

violation of 29 C.F.R. § 1926.34(c). Citation 1, Item 2, alleged that a Gradall forklift

operator had not received training in the safe operation of powered industrial trucks that

meets OSHA requirements and that refresher training was required in violation of 29

C.F.R. § 1910.178(l)(4)(ii). Citation 2, Item 1, alleged that Respondent did not complete

an OSHA 301 Incident Report form, or equivalent form, for each recordable injury or

illness entered on the OSHA 300 log in that Respondent did not maintain a copy of injury

and illness Incident Reports for 2011 in violation of 29 C.F.R. § 1904.29(b)(2). Citation

2, Item 2, alleged that Respondent did not create an annual summary of injuries and

illnesses recorded on the OSHA 300 log at the end of each calendar year and that

Respondent did not maintain injury and illness log summaries (OSHA form 300As),

including a summary for 2011, in violation of 29 C.F.R. § 1904.32(a)(2). Citation 2, Item

3, alleged that Respondent did not provide injury and illness logs required to be kept

under Part 1904 to an authorized OSHA government representative within four business

hours upon request in violation of 29 C.F.R. § 1904.40(a). Citation 2, Item 4, alleged that

Respondent did not certify that the Gradall forklift operator had been trained and

evaluated as required by, and in violation of, 29 C.F.R. § 1910.178(l)(6).
 The proposed penalty for serious Citation 1, Item 1, is $4,620. The proposed

penalty for serious Citation 1, Item 2, is $5,390. There is no proposed penalty for the

second other citation. The total proposed penalties for the two citations amount to

$10,010.

                                             Jurisdiction

         The Court finds that the Commission has jurisdiction of the parties and the

subject matter in this case.

                               The Secretary’s Burden of Proof

     To prove a violation of a specific standard, the Secretary must demonstrate by a

preponderance of the evidence that: 1) the cited standard applies, 2) the terms of the

standard were not met, 3) employees had access to the cited condition, and 4) the

employer knew, or could have known with the exercise of reasonable diligence, of the

cited condition. Astra Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247,

1981).

                                 Complainant’s Motion to Default

     CRP 101 permits a judge to declare a party in default and enter a final decision for

failure to otherwise proceed as required by the rules or judge on the motion of a party.

See 29 C.F.R. § 2200.101.

     Commission judges have the discretion to impose sanctions on parties who violate

their orders. See NL Industries, Inc. 11 BNA OSHC 2156, 2168 (No. 78-5204, 1984).

Rule 16(f), Federal Rules of Civil Procedure (“Fed. R. Civ. P.”),6 permits the Court on its

     6
       Rule 16(f), Fed. R. Civ. P. states:

(f) Sanctions.
own initiative to order just sanctions if a party fails to obey a scheduling or pretrial

order.7 Rule 16(f) was added in 1983 to “reflect that existing practice [to enforce

failures by appropriate sanctions] and to obviate dependence upon Rule 41(b) or the

court’s inherent power to regulate litigation.” Notes of Advisory Committee on Rules,

1983 Amendment, Subdivision (f); Sanctions. Considerable discretion is vested in judges

to decide whether to impose sanctions and what form they should take.

     The Commission and federal courts generally consider eight criteria when

determining whether a Judge’s decision to sanction a party through dismissal is

appropriate. Duquesne Light Company, 8 BNA OSHC 1218, 1221 (No. 78-5303, 1980).

Prejudice to the opposing party,8 whether there is a showing of willful default by a party,

and contumacious conduct by the noncomplying party are three of the more significant

criteria to take into account. Only one of these three criteria is needed to affirm the

Judge’s decision to render a judgment by default against a party. Ford Development

(1) In General. On motion or on its own, the court may issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate--or does not participate in good faith--in the conference;
or

(C) fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the
party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of
any noncompliance with this rule, unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.
7
Procedure before the Commission is in accordance with the Fed. R. Civ. P. in the absence of a
specific provision in the Commission’s own Rules of Procedure. Rule 2(b) of the CRP, 29 C.F.R. §
2200.2(b), see also Williams Enterprises 4 BNA OSHC 1663, 1665 n.2 (No. 4533, 1976).
8
A party is prejudiced if the failure to make required court ordered disclosures impairs the party’s ability to
adequately prepare for trial, including understanding the factual merits of the opponent’s defense(s).
Avionic Co. v. General Dynamics Corp., 957 F.2d 555 (8th Cir. 1992). In this instance, the Secretary has
been clearly prejudiced by Respondent’s failure to comply with the Court’s Scheduling Order by failing to
participate in conference calls, disclose documents, exchange exhibits, identify witnesses, and meet and
confer in advance of the hearing.
Corp., 15 BNA OSHC 2003, 2005 (No. 90-1505, 1992), Circle T Drilling Company, Inc.,

8 BNA OSHC 1681, 1682 (No. 79-2667, 1980).

     In this instance, there is a clear showing of willful default by Respondent. The

Court finds that Respondent has abandoned its case pending before the Commission.

Respondent did not participate in either the Court ordered pre-hearing scheduling

conference or final pre-hearing conference. No explanation for its absences was

tendered. Respondent failed to comply with the Court’s Scheduling order to disclose

documents, exchange exhibits, identify witnesses, and meet and confer. Respondent

failed to file any pre-hearing statement. Respondent failed to respond to the Secretary’s

Motion to Default. Again, no explanations for these failings were offered. Collectively,

the Court finds these failures to be contumacious conduct by the Respondent.

     The Court may dismiss a matter when “the record shows contumacious conduct

by the noncomplying party or prejudice to the opposing party.” St. Lawrence Food Corp.

D/b/a/ (sic) Primo Foods, 21 BNA OSHC 1467, 1472 (Nos. 04-1734 and 04-1735, 2006).

Having submitted its notice to contest, Respondent has shown no interest since then in

moving this case forward to trial. Respondent has done nothing to prepare to address the

merits of the citations before the Court in an orderly fashion. Under these circumstances,

the Court sees no worthwhile purpose in allowing this case to proceed to a hearing when

there is no basis to believe that Respondent will appear.9

     The Court is mindful of policy considerations in the law that weigh in favor of

deciding cases on their merits. See Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965).

The Court finds that the Commission has conveyed due notice to Respondent of its

9
The failure of a party to appear at a hearing may result in a decision against that party. See 29 C.F.R. §
2200.64.
procedural rights and provided ample warning that its failure to comply with Court orders

may result in the dismissal of its notice of contest. At every instance, Respondent has

failed to take advantage of the opportunity to advise the Court that it has not abandoned

its case before the Commission. Every indication before the Court is that Respondent has

walked away from its contest.

     The Court finds Respondent to be in default. “A defaulting party ‘is taken to have

conceded the truth of the factual allegations in the complaint as establishing the grounds

for liability as to which damages will be calculated.’” Ortiz-Gonzalez v. Fonovia, 277

F.3d 59, 62-63 (1st Cir. 2002)(quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st

Cir. 1999)), Tower Painting Co., 22 BNA OSHC 1368, 1375 (No. 07-0585, 2008). As a

result of the default, the factual allegations of the underlying citation relating to liability

are taken as true. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d

1319, 1323 (7th Cir. 1983). When entering a default judgment, factual allegations set

forth in the complaint and underlying citations are sufficient to establish a defendant’s

liability. Trustees of the Iron Workers District Council of Tennessee Valley and Vicinity

Pension Fund et al. v. Charles Howell, No. 1:07-cv-5, 2008 WL 2645504, * 6 (E.D.

Tenn. July 2, 2008); National Satellite Sports, Inc. v. Mosely Entertainment, Inc., No. 01-

CV-74510-DT, 2002 WL 1303039, * 3 (E.D. Mich. May 21, 2002).

     The Court finds that the underlying complaint and citations sufficiently state the

description of the alleged violations and a reference to the standards allegedly violated.10

     The Court further finds that the Secretary has adequately shown the applicability

of the cited standards for each of the alleged violations. The Court further finds that the

10
§ 9(a) of the Act (a citation must “describe with particularity the nature of the violation, including
reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.”).
Secretary has sufficiently established that the terms of the cited standards were not met

by Respondent in each of the alleged violations. The Court also finds that Respondent’s

employees had access to the cited conditions. Lastly, the Secretary has adequately

proved that Respondent either knew or should have known of the cited conditions. All of

the Citation Items at issue are affirmed in their entirety as alleged by the Secretary.

                                      Penalties

        The Secretary has proposed a total penalty of $10,010 for all of the Citation

Items at issue. In assessing penalties, the Commission must give due consideration to the

gravity of the violation and to the employer’s size, prior history of violations and good

faith. 29 U.S.C. § 666(j); J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-

2059, 1993). These factors are not necessarily accorded equal weight, and gravity is

generally the principal factor in penalty assessment. Trinity Indus., Inc., 15 BNA OSHC

1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon such matters

as the number of employees exposed, duration of exposure, precautions taken against

injury, and the likelihood that an injury would result. J.A. Jones, 15 BNA OSHC at 2213-

14. Based on the record of this case and Respondent’s default, the Court finds that the

Secretary properly considered the statutory factors in her penalty proposal. The Court

finds the total proposed penalty of $10,010, along with the classification of the violations

as alleged by the Secretary, for all of the Citation Items at issue to be appropriate, and the

proposed penalties are assessed as proposed by the Secretary.

                    Findings of Fact and Conclusions of Law

All finding of fact and conclusions of law relevant and necessary to a

determination of the contested issues have been found and appear in the decision above.

See Fed. R. Civ. P. 52(a).

                                               Order

       After considering the entire record of this case, Complainant’s Motion to Default

and Respondent’s lack of response thereto, IT IS ORDERED THAT Complainant’s

Motion for Default is GRANTED, a default judgment against Respondent is warranted

and that Respondent be declared in DEFAULT;

       IT IS FURTHER ORDERED THAT Respondent’s Notice of Contest is

DISMISSED with prejudice;11 and

       based upon the foregoing findings of fact and conclusions of law, IT IS

FURTHER ORDERED that:

       1. Item 1 of Citation 1 is affirmed as a serious violation of 29 C.F.R. § 1926.34(c)

and a penalty of $4,620 is assessed.

       2. Item 2 of Citation 1 is affirmed as a serious violation of 29 C.F.R. §

1910.178(l)(4)(ii) and a penalty of $5,390 is assessed.

       3. Item 1 of Citation 2 is affirmed as an other violation of 29 C.F.R. §

1904.29(b)(2). No financial penalty is assessed.

       4. Item 2 of Citation 2, is affirmed as an other violation of 29 C.F.R. §

1904.32(a)(2). No financial penalty is assessed.

       5. Item 3 of Citation 2, is affirmed as an other violation of 29 C.F.R. §

1904.40(a). No financial penalty is assessed.

11
The hearing scheduled for October 16, 2012 at Boston, Massachusetts is cancelled.
 6. Item 4 of Citation 2, is affirmed as an other violation of 29 C.F.R. §

1910.178(l)(6). No financial penalty is assessed.

                                         __/s/_________________________
                                         The Honorable Dennis L. Phillips
                                                U.S. OSHRC Judge

Date: October 23, 2012
Washington, D.C.