Best Touch Tub & Tile, LLC

Plain-English summary

OSHA issued Best Touch Tub & Tile a citation alleging serious violations with proposed penalties totaling $25,200. After contesting, the company did not answer the Secretary's complaint. The judge sent three orders to show cause, including notices to updated counsel and directly to the company's owner and agent, but neither the company nor its attorney responded. The judge found a pattern of contumacious conduct, declared Best Touch in default, dismissed its notice of contest, and affirmed the citation and penalties in full.

Decision snapshot

• Cited standard(s): None specified in the decision.
• Outcome: The notice of contest was dismissed by default, and the citation and $25,200 in penalties were affirmed.
• Key point: Repeated nonresponse after documented delivery of multiple show-cause orders supports default and dismissal.

Full text (OSHRC public release)



Best Touch Tub & Tile, LLC, Docket No. 16-0296

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No.
16-0296

Best Touch Tub & Tile,
LLC,

Respondent.

REVISED
ORDER OF DEFAULT 1

On January
19, 2016, the Occupational Safety and Health Administration (OSHA) issued a Citation and Notification of Penalty (“citation”) to Respondent for OSHA inspection number 1081517. The citation alleged
serious
violations of OSHA’s standards with a proposed total penalty of $25,200. Respondent’s notice of contest, dated February 10, 2016,
was filed by
Respondent’s
attorney, Robert J. Vecchio, Esq. 2 Respondent’s notice of contest was docketed and the Commission’s Notice of Docketing was sent to the Respondent on
February 22, 2016. The Notice of Docketing return
postcard 3
was signed by Respondent’s attorney
on March 10, 2016, and returned to the Commission.

On April 15, 2016, the Secretary filed the complaint in this matter. Respondent did not file an answer as required by Commission Rule 34(b), 29
C.F.R. § 2200.34(b). On June 30, 2016, the undersigned issued an Order to Show Cause Why Notice of Contest Should Not Be Dismissed (“First
Order”). The
First
Order directed Respondent to show cause on or before July 14, 2016, as to why it should not be declared in default for not filing an answer to the complaint within the time permitted by the Commission’s Rules of Procedure.

Respondent was advised that failure to respond to the
First
Order would result in all of the alleged violations set out in the OSHA citation being affirmed and the proposed penalties being assessed without a hearing.

The
First Order was sent to
the record address of the
Respondent’s
attorney 4
through the United States Postal Service (“USPS”) by regular first class mail and by
certified mail 5
with return receipt requested. The mailing by regular first class mail was not returned. The USPS
Product & Tracking information
website
shows the certified
mailing was delivered on July 5, 2015;
the certified mailing’s green receipt card
that acknowledges receipt
has not yet been returned
to the Commission.

On
July 26, 2016, my staff contacted
the office of Respondent’s attorney,
Mr. Vecchio,
to
inquire as to why an answer had not
been filed and was informed his
address had changed to 526 Superior Avenue, East, Suite 220, Cleveland OH  44114. On July 26, 2016, the undersigned issued a second
Order to Show Cause Why Notice of Contest Should Not Be Dismissed (“Second
Order”). The
Second
Order directed Respondent to show cause on or before
August 9, 2016, as to why it should not be declared in default for not filing an answer to the complaint within the time permitted by the Commission’s Rules of Procedure. Respondent was advised
that failure to respond
would result in all of the alleged violations set out in the OSHA citation being affirmed and the proposed penalties being assessed without a hearing.   

The Second Order was sent to the updated record address of the Respondent’s attorney 6
through USPS
regular
first class mail and by certified mail 7
with return receipt requested. The USPS Product & Tracking information
website
shows the certified
mailing was delivered on July 29, 2015;
the certified mailing’s green receipt card that acknowledges receipt has not yet been returned to the Commission. The first class mailing was not returned by USPS
and is presumed delivered. It is concluded that Respondent’s attorney
received the Second Order.

On October 12, 2016, the undersigned issued a third
Order to Show Cause Why Notice of Contest Should Not Be Dismissed (“Third
Order”). The Third Order was sent directly to the Respondent, rather than through Respondent’s attorney, to provide
an
additional notice to Respondent. 8

A search of the Ohio Secretary of State’s website provided the address for Respondent’s owner and agent, Eric L. Howard. This address matched the business address listed on the citation and the Secretary’s complaint. The Third
Order was sent
to the Respondent’s agent ,
Eric L. Howard, at 3930 Princeton Blvd., South Euclid, OH 44121, through USPS regular first class mail and
certified mail 9
with return receipt requested. The USPS Product & Tracking information
website
shows this mailing was delivered on October 18, 2016.

The
Third
Order directed Respondent to show cause on or before
October 26, 2016, as to why it should not be declared in default for not filing an answer to the complaint within the time permitted by the Commission’s Rules of Procedure. Respondent was advised
that failure to respond
would result in all of the alleged violations set out in the OSHA citation being affirmed and the proposed penalties being assessed without a hearing.   

The certified mailing’s green receipt card was signed
and returned to the Commission. 10 The first class mailing was not returned by USPS
and is presumed delivered. It is concluded that Respondent
received the Third
Order. 11

Neither
the
Respondent
nor his attorney has
responded
with an answer
to any
Order. 12 Commission Rule 101(a), 29 C.F.R. § 2200.101(a), provides in pertinent part that:

Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the . . . Judge, he 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. . . .Thereafter, the . . . Judge, in [her] discretion, may enter a decision against the defaulting party. . . .

A judge has very broad discretion in imposing sanctions for noncompliance with the judge’s orders or the Commission’s Rules of Procedure. Sealtite Corp.,
15 BNA OSHC 1130, 1134 (No. 88-1431, 1991). The Commission has long held that dismissal is too harsh a sanction for failure to comply with certain prehearing orders unless the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party, or a pattern of disregard for Commission proceedings. Architectural Glass & Metal Co.,
19 BNA OSHC 1546, 1547 (No. 00-0389, 2001). I find Respondent’s conduct here to be contumacious in that, as set out above, the regular first class and certified mailings were received and Respondent failed to respond to
multiple orders.

For these reasons, Respondent is found to be in DEFAULT, its notice of contest is DISMISSED, and the OSHA citation issued to Respondent on January 19, 2016, for inspection Number 1081517
is AFFIRMED in its entirety and penalties ASSESSED.

SO ORDERED.

/s/   

Covette Rooney

Chief Judge

Dated: January 5, 2017

Washington, D.C.

"

1
The
previous
Order is revised to state the reason for the Third Order
and to ensure service of the Revised Order of Default to Respondent’s agent and

Respondent’s attorney.

2
On the same date, by separate letter, Respondent’s counsel noted that Respondent’s
business
had
closed
and the only person associated with the company at closure was its owner, Eric Howard.

3
The postcard is the Respondent’s means to certify that it has posted and served the notice of contest to affected employees as required by Commission Rule 7.

4
The mailing was addressed to
“Robert J. Vecchio, Esquire, Vecchio & Vegh LLC, 720 Leader Builder, 526 Superior Avenue, East, Cleveland, OH 44114.”

5
The certified mailing tracking number
was 7007-3020-0001-9767-5934. USPS tracking information can be found at
https://tools.usps.com/go/TrackConfirmAction_input.

6
The mailing was addressed to:
“Robert J. Vecchio, Esquire, Vecchio & Vegh LLC, 720 Leader Builder, 526 Superior Avenue, East,
Suite 220 ,
Cleveland, OH 44114.”

7
The certified mailing tracking number
was 7016-0910-0001-2491-0092. USPS tracking information can be found at
https://tools.usps.com/go/TrackConfirmAction_input.

8
Because the certified mailing cards were not returned to the Commission and Respondent’s attorney did not respond to the first two show cause orders, a Third Order was issued directly to Respondent’s owner and agent as an additional notice prior to a default action.

9
The certified mailing tracking number
was 7016-0910-0001-2491-0245. USPS tracking information can be found at
https://tools.usps.com/go/TrackConfirmAction_input.

10
The green certified mail
return card
was
returned to the Commission
with significant
damage.

11
On December 20, 2016, my staff contacted the office of Respondent’s attorney, Mr. Vecchio, to determine whether he still represented the Respondent. Mr. Vecchio stated that he had not withdrawn as counsel because Respondent had filed bankruptcy.

12
The Commission expects a business to maintain “orderly procedures for handling important documents.” Louisiana-Pacific Corp.,
13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (citations omitted).