Michael Buckly

Plain-English summary

OSHA cited Michael Buckly after observing one employee removing shingles from a three-story roof without fall protection and another cleaning debris below without a protective helmet. After filing a notice of contest, Buckly did not file an answer, return the Secretary's calls, participate in the ordered scheduling conference, or respond to the motion for default judgment. The judge found that this conduct showed abandonment of the case and prejudiced the Secretary's ability to prepare for trial. Default made the citation's factual allegations sufficient to establish liability. The notice of contest was dismissed with prejudice, both serious items were affirmed, and penalties totaling $4,400 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.501(b)(13)
• Outcome: The contest was dismissed by default, and both serious citations were affirmed with $4,400 in penalties.
• Key point: Repeated failure to participate in Commission proceedings can result in default and affirmance of the citation allegations.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

      Complainant,
                                                 OSHRC Docket No. 13-1027
             v.

Michael Buckly, dba

      Respondent.

Appearances:

             Ralph R. Minichiello, Esquire                 Michael Buckly, dba
             Office of the Regional Solicitor              Pro se
             U.S. Department of Labor                      86 Edgewood Street
             John F. Kennedy Federal Building              Apartment #B2
             Room E-375                                    Hartford, Connecticut 06112
             Boston, MA 02203                              For the Respondent.
             For the Secretary.

Before: Dennis L. Phillips
Administrative Law Judge

               DECISION AND ORDER GRANTING COMPLAINANT’S
                     MOTION FOR DEFAULT JUDGEMENT

                                         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”). On April 9, 2013, the Occupational Safety and Health Administration

(“OSHA”) inspected the work site of Respondent, Michael Buckly dba, (“Respondent” or

“Buckly”) at 539-541 Blue Hills Avenue, Hartford, Connecticut 06112 (“work site”). As a result

of the inspection, on May 10, 2013, OSHA issued a two item serious citation. The total

proposed penalty for the citation items is $4,400.

      Citation 1, Item 1, alleged that Respondent’s employees, at the work site on April 9,

2013, working in areas where there was a possible danger of head injury from impact, or falling

or flying objects, or from electrical shock and burns, were not protected by protective helmets in

violation of 29 C.F.R. § 1926.100(a). The citation item alleged that an employee was observed

cleaning up roofing debris on the ground while an employee was stripping shingles directly

overhead. The citation item further alleged that the employee on the ground was not wearing

head protection. The proposed penalty for Citation 1, Item 1, is $1,600.

   Citation 1, Item 2, alleged that each of Respondent’s employee(s) at the work site

engaged in residential construction activities 6 feet (1.8 m) or more above lower levels were not

protected by guardrail systems, safety net system, or personal fall arrest system, nor were

employee(s) provided with an alternative fall protection measure under another provision of

paragraph 29 C.F.R. § 1926.501(b) in violation of 29 C.F.R. § 1926.501(b)(13). The citation

item alleged that an employee was exposed to a 25 to 30 foot fall hazard while removing asphalt

shingles on the roof of a three story house with no fall protection systems in use.

The proposed penalty for Citation 1, Item 2, is $2,800.

   Citation 1, Items 1 through 2, described herein are together referred to as the “Citation

Items at issue.”

   On about May 28, 2013, Respondent contested the citation and the proposed penalties

pursuant to § 10 (c) of the Act.

   On June 26, 2013, the Chief Judge assigned the case for Simplified Proceedings. The

complaint and answer requirements were suspended.

   On July 2 and 3, 2013, the Secretary attempted to contact Respondent by telephone –

leaving messages both times with individuals who identified themselves as Mr. Buckly’s

employees – to discuss the Court’s Simplified Proceedings Order and to ascertain whether Mr.
Buckly objected to the Complainant’s Motion to Discontinue Simplified Proceedings and return

the case to conventional proceedings. Respondent did not return these two telephone calls.

     By Court Order dated July 23, 2013, the Court granted Complainant’s Motion Requesting

Discontinuance of Simplified Proceedings. 1 The Order directed Complainant to file his

complaint within 20 days after receipt of the Order and ordered Respondent to file its answer

within 20 days after service of the complaint. Per 29 C.F.R. § 2200.51, the Order NOTIFIED the

parties that a telephone pre-hearing scheduling conference would take place on September 27,

2013, at 2:00 p.m., E.D.T. 2 The Order further stated that following the pre-hearing scheduling

conference, a pre-hearing order will be issued establishing a calendar for the conduct of pre-

hearing matters and for the hearing.

     On August 14, 2013, Complainant filed his complaint with the Court and served it upon

Respondent.

     Respondent’s answer was due on September 3, 2013. No answer has been filed.

     Respondent also did not respond to the Secretary’s telephone calls requesting a time to

confer pursuant to the Court’s Order.

     The pre-hearing scheduling conference was conducted on September 27, 2013 pursuant

1
Respondent did not file any response to the Motion for Discontinuation of Simplified Proceedings.
2
The Order stated that at the time of the pre-hearing scheduling conference, the parties shall be prepared to stipulate
that a settlement has been reached, or, in the alternative, shall be prepared to commit to a specific schedule in
preparation for and the conduct of the hearing in this matter, including, but not limited to, specific dates for the
following:

     1. Hearing date(s).
     2. Identification of expert witnesses and submission of their written reports.
              2a. Completion of depositions of experts.
     3. Close of all other discovery.
     4. Submission of motions seeking amendment(s) of the pleadings.
     5. Submission of all dispositive and partially dispositive motions and motions in limine.
     6. Submission of pre-hearing position statements which shall include:
              a. A brief narrative statement of the unresolved factual and legal issues.
              b. A list and brief description of all documents and other exhibits to be
     offered in evidence.
              c. An estimate of the time needed by each party to present its case.

to the Court’s Order dated July 23, 2013. Respondent inexplicably failed to participate in the

pre-hearing scheduling conference call. During the pre-hearing scheduling conference, the

Secretary stated his intention to file a Motion for Default.

       On September 18, 2013, Complainant filed his Motion for Default Judgment. The

Secretary cited to OSHRC Rule of Procedure 101. 3 Complainant asserts that Respondent’s

failures to comply with the Commission’s Rules of Procedure and Court’s Order put

Complainant at a disadvantage, not knowing Respondent’s positions and how to prepare to meet

them at trial, and not being able to initiate discovery. The Secretary seeks the Court’s

affirmance of the Citation and penalties.

       Respondent has not filed a response to the Secretary’s Motion for Default Judgment.

                                               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).

                                     Motion for Default Judgment

       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),

3
OSHRC Rule of Procedure 101 states, in part:
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 ... on the motion of a party.
Federal Rules of Civil Procedure (Fed. R. Civ. P.), 4 permits the Court on motion to order just

sanctions if a party or party’s attorney fails to obey a scheduling or pretrial order. 5 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, 6

whether there is a showing of willful default by a party, and contumacious conduct by the

4
Rule 16(f), Fed. R. Civ. P. states:

(f) Sanctions.

(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.

5
Procedure before the Occupational Safety and Review Commission is in accordance with the Federal Rules of
Civil Procedure in the absence of a specific provision in the Commission’s own Rules of Procedure. Rule 2(b) of
the Commission’s Rules of Procedure, 29 C.F.R. § 2200.2(b), see also Williams Enterprises 4 BNA OSHC 1663,
1665 n.2 (No. 4533, 1976).
6
A party is prejudiced if the failure to comply with Commission rules or Court orders 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 Commission rules and the Court’s Order requiring it to commit to a specific
schedule in preparation for and the conduct of the hearing and by failing to file an answer and accompanying
disclosure statement.
.
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 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 the Court ordered pre-hearing scheduling conference. No explanation for its

absence was tendered. Respondent failed to comply with the Court’s Order requiring it to

commit to a specific schedule in preparation for and the conduct of the hearing in this matter.

Respondent failed to file an answer or accompanying disclosure statement (Disclosure of

corporate parents, subsidiaries, and affiliates) pursuant to 29 C.F.R. § 2200.35. Respondent

failed to respond to the Secretary’s Motion for Default Judgment. 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 the citation at issue on about May 28, 2013, Respondent has shown no

interest since then in moving this case forward to trial or addressing the merits of the citation

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. 7

     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). However, 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 underlying citation 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 citation and Complaint sufficiently state the

description of the alleged violations and a reference to the standards allegedly violated. 8

      The Court further finds that the Secretary has: 1) adequately shown the applicability of

the cited standards for each of the alleged violations, 2) sufficiently established that the terms of

the cited standards were not met by Respondent in each of the alleged violations, and 3)

7
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.
8
§ 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.”).
adequately proved that Respondent either knew or should have known of the cited conditions.

The Court also finds that Respondent’s employees had access to the cited conditions. The

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

                                          Penalties

    The Secretary has proposed a total penalty of $4,400 for 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 his penalty

proposals. The Court finds the total proposed penalty of $4,400, along with the classification of

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

the proposed penalties are assessed.

                        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 and Respondent’s lack of response to the

Motion For Default Judgment, the Court finds that a default judgment against Respondent is
warranted, and IT IS ORDERED THAT Complainant’s Motion for Default Judgment is

GRANTED and that Respondent be declared in DEFAULT;

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

prejudice; 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. § 1926.100(a)

and a penalty of $1,600 is assessed.

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

1926.501(b)(13) and a penalty of $2,800 is assessed.

SO ORDERED.

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

Date: Nov 04 2013
Washington, D.C.