Jessica Hicks dba Logs to Lumber and Beyond

Plain-English summary

OSHA issued Logs to Lumber and Beyond serious and other-than-serious citations with proposed penalties totaling $1,360. The judge entered default after the employer did not respond to a show-cause order or timely file the parties' settlement agreement. The Commission found that a single missed response did not establish contumacious conduct, especially because the employer had contested, participated in settlement talks, and complied with posting instructions. It also noted that the Secretary had missed the same settlement-filing deadline. The Commission set aside the default and approved the signed settlement reducing the penalty to $816.

Decision snapshot

• Cited standard(s): None specified in the decision.
• Outcome: The default judgment was set aside and the settlement agreement with an $816 penalty was approved.
• Key point: A single missed filing does not justify default when the record shows participation and both parties failed to meet the settlement deadline.

Full text (OSHRC public release)



Jessica Hicks dba Logs to Lumber and Beyond, Docket No. 16-0757

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 1 6-0757

JESSICA HICKS db a LOGS TO LUMBER AND BEYOND ,

Respondent.

APPEARANCES :

Karen E. Mock, Senior Trial Attorney; Rolesia Butler Dancy, Counsel;
Stanley
E.
Keen,
Regional Solicitor; M. Patricia Smith, Solicitor;
U.S. Depart ment of Labor,
Washington, DC and
Atlanta, GA

F or
the C omplainant

Jessica Hicks,
Logs to Lumber and Beyond , Ocilla, GA

F or
the Respondent

DECISION

Before: ATTWOOD , Chairman;
and
M ac DOUGALL , Commissioner.

BY THE COMMISSION:

On July 25 , 2016,
Ad ministrative Law Judge John B. Gatto issued a
default
judgment
against
Respondent . On August 8, 2016, t he parties filed a
Stipulation and Joint Motion
seeking approval of
their signed
settlement agreement . For the
reasons
that follow , we set aside the
default
judgment
and approve the
s ettlement
a greement.

BACKGROUND

On April 8, 2016,
the
O ccupational
S afety and
H ealth
A dministration
issued
Respondent
two citations alleging
a
serious violation and several
other-than - serious violations
with a total proposed
penalty
of
$1 , 360 . Respondent ,
appearing
pro se , filed a timely
notice of contest , and
o n June 3, 2016 , the Secretary notified the judge that the parties had settled th e
matter. 1 That same day,
the judge
issued an order
vaca ting a
scheduling order
he had
previously
issued
and di rec t ed
the parties to file the ir
s ettlement
a greement with
him
no later than 30 d ays from the date of
his
order. T he judge also
directed
Respondent
to
serve
the
order on certain employee s
and employee representatives , as well as post the order
and
submit proof of posting
to the judge . 2 On
June 15, 2016, the Secretary
sent
the judge
a
copy of the
cover letter
he
sent to
Respondent
with a
proposed settlement agreement . That same day,
Respondent
complied with the judge’s
post ing requirement . 3

H aving received no
s ettlement
a greement
from either par ty within the 30-day time
frame
specified
in his June 3, 2016 order ,
the judge
issued
Respondent
a show cause
o rder
on July 8, 2016. The
July 8, 2016
order
direct ed
Respondent
to show cause in
writing as to the reason
it
s hould not be declared in default for failing to comply
with the
June 3, 2016 o rder , or in the alternative,
to
file a
s ettlement
a greement
executed
by both parties
on or before July 22, 2016. 4
Respondent
receive d
the
s how
c ause
o rder
on
Ju ly 12, 2016 , and
it
did not file a response with the judge . On July 25, 2016,
the judge issued an order declaring
Respondent
in default, dismissing
its
notice of contest, and affirming the c itation s . On August 5, 2016,
th e default
o rder was docketed with the Commission. Three days later, o n August 8, 2016, the judge received
the
fully executed
s ettlement
a greement from the Secretary. The
a greement, which amends the
proposed
penalty to $816, was signed by
Respondent’s
representative
on July 27, 2016 ,
and
by the Secretary two days later on July 29, 2016.

DISCUSSION

Commission
Rule 101(a)
permits the sanction of default where a party
fails
to proceed as
required
by the Commission’s rule s ,
by
the Commission ,
or a judge. 29 C.F.R. § 2200.101(a) .
W hether dismissal is appropriate depends on whether a party’s behavior demonstrates
contumacy, whether the other party has suffered prejudice, and whether other aggravating circumstances
are
present.

See , e.g.,
Tom Reed Contracting,
25 BN A OSHC 1649, 1650 (N o.
14- 1659, 2015).
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, prejudice to the opposing party ,
or a pattern of disregard for Commission proceedings. See Architectural Glass & Metal Co.,
19 BNA OSHC 1546, 1547 (No. 00- 0 389, 2001)
( AGM ) ;
compare Philadelphia Constr .
Equip .
Inc.,
16 BNA OSHC 1128, 1130-31 (No. 92-899, 1993).

Here, the judge
concluded that
Respondent ’ s
conduct
was
contumaciou s
based solely on its failure to respond to his show
cause
order , as no other basis was
identified
in his default order . 5 A one-time failure , however,
does not
establish contumacy , let alone a “pattern of disregard . ” 6
AGM ,
19 BNA OSHC
at 1547 ;
AA Plumbing Inc.,
20 BNA OSHC 2203, 2204 (No . 04-1299, 2005)
(failure to file timely answer does not alone warrant dismissal) ;
Samuel
Filisko , 20 BNA OSHC 2204, 2206 (No. 04-1465, 2005) (same) .
In any event ,
Respondent
fil ed
a ti mely notice of contest
and
participated in settlement negotiations with the Secretary, as
is
evident from the cover letter the Secretary sent to the judge
and from
the
signed settlement
agreement itself. Respondent
also complied with
the
judge’s
June
3, 2016 o rder
by
submit t ing
proof of posting . 7
F inally, w hile
it is true that
Respondent
did not
file the
s ettlement
a greement within the time
ordered by the judge,
neither did the Secretary. The
judge’s
June
3, 2016
o rder directed the
parties, not
just
Respondent , to file
the
a greement ;
yet ,
the
show cause order was directed solely
to
Respondent
and the
default judgment penalize d
only
Respondent . 8
In these circumstances ,
we find
the
default
sanction
unwarranted .

Accordingly, we set aside the judge ’ s
o rder and approve the
s ettlement
a greement filed by the parties.
See
29 C.F.R. §2200.101(b) ( sanction
may be set aside
for sufficient reasons); 29 C.F.R. § 2200.100( c ) ( approval of
settlement
agreement ).

SO ORDERED.

/s/                      Cynthia L. Attwood

Chairman

/s/               

Heather L. MacDougall

Dated:    September 29, 2016             Commissioner

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ , Secretary of Labor, United States Department of Labor,

Complainant,

v.

D ocket
No.
16-0757

JESSICA HICKS d/b/a LOGS TO LUMBER AND BEYOND ,

Respondent.

DEFAULT
ORDER

The Court
entered an
Order Vacating Scheduling Order and Directing Filing of Settlement Agreement and Final Consent Order ,
which required the parties no later than
30 days
from the date of that
Order
to
file with the Court an executed settlement agreement. On July 8, 2016, the Court entered a
Show Cause Order
directing
Respondent
Jessica Hicks d/b/a Logs To Lumber And Beyond
to show cause in writing
on
or before
July 22, 2016 ,
by filing with the
Court
a statement as to the reason(s)
Respondent
should not be declared to be in default
for failing to
comply with the
Court’s
Order ,
or in the alternative, within the same period, filing with the Court an executed Stipulation and Joint Motion signed by both parties .

Ms. Hicks received the
Show Cause Order , as evidence by the signed return receipt she signed for on July 12, 2016. A fter having been afforded an opportunity to show
cause
why
it s hould not be declared to be in default,
Respondent failed to respond to the Show Cause Order.

The Court’s
Show Cause Order
notified
Respondent
that “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 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 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. ” 29 CFR
§ 2200.101(a).

A judge has very broad discretion in imposing sanctions for noncompliance with the Commission’s Rules of Procedure or the judge’s orders.
See Sealtite Corp. , 15 BNA OSHC 1130, 1134 (No. 88-1431, 1991).

The Commission, however, 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.
See Architectural Glass & Metal Co. , 19 BNA OSHC 1546, 1547 (No. 00-389, 2001). The Court finds
Respondent’s conduct here to be contumacious. Accordingly,

IT IS HEREBY ORDERED THAT
Respondent is
declared to be in
DEFAULT ,
its
notice of contest is
DISMISSED , and the OSHA citation issued to Respondent on
April 8, 2016 , Inspection Number 1103922 is
AFFIRMED
in its entirety.

SO ORDERED THIS
25 th
day of
July, 2016 .

/s/               

JOHN B. GATTO, Judge

"

1
The parties were not
required
to file pleadings since this
case
was assigned to Simplified Proceedings. See
29 C.F.R. §   2200.200(b) (pleadings generally not required under Simplified Proceedings).

2
The judge
directed
Respondent to compl y with the service and posting requirement no later than the first working day after receipt of his order and to submit proof of posting no later than the first working day following the posting.

3
Respondent submitted proof of posting to the judge on June 24, 2016.

4
As required by Commission Rule 101(b), the judge sent the show cause order by certified mail, return receipt requested. 29 C.F.R. § 2200.101(b).

5
We
note that the judge issued his default order three days after the response to his show cause order was due—the precise time
frame the Commission’s rules allow for the mailing of a response. See
29 C.F.R. § 2200.4(b) (where service of a document is made by mail, a separate period of 3 days shall be allowed).

6
N ot only
does the judge’s default order
fail to
support a finding of
contumacious conduct on the part of
Respondent , but i t
also fails to provide important details and
supporting reasons
for his
conclusion
as
required by the Administrative Procedure Act. 5 U.S.C. § 557(c).

7
T he posting of
a
citation is required
under section 9(b) of the Occupational Safety and Health Act ,
and
the service and posting of a
settlement agreement is required by
Commission Rule 100(c). See
29 U.S.C. § 658(a) (requiring citation be prominently posted at or near the place the violation occurred); 29 C.F.R. § 2200.100(c) (requiring proof of service be filed with a settlement agreement, showing both service and posting). No
statutory or procedural
requirement exists for
the
posting of a judge’s
order directing the
parties to
fil e a
sett lement agreement.

8
It is unclear why the judge, when faced with what appears to have been the parties’ inability to finalize their attempts at settlement within the 30-day time
frame, did not simply return the case to his active docket and issue the parties a new scheduling order .