BML Construction

Plain-English summary

OSHA cited BML Construction for two serious violations at a Missouri construction site and proposed penalties totaling $4,320. After filing a notice of contest, BML did not communicate with the Secretary, attend the pretrial conference, respond to a sanctions motion, or answer the judge's order to show cause. The judge found a pattern of disregard for Commission proceedings and concluded that BML had abandoned its case. The notice of contest was dismissed, and both citation items and their $2,160 penalties became final orders.

Decision snapshot

• Cited standard(s): None specified in the decision.
• Outcome: The notice of contest was dismissed, and two serious items with $4,320 in total penalties were affirmed.
• Key point: A party that repeatedly ignores pretrial obligations and court orders may be treated as having abandoned its contest.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 16-1231

BML CONSTRUCTION,

Respondent.

Leigh Burleson , Esq. , Office of the Solicitor, U.S. Department of Labor,
Kansas City, Missouri

For Complainant

Brent Lawrenz, Hayseville, Kansas

For Respondent

Before: Administrative Law Judge Patrick B. Augustine

D ECISION AND ORDER
OF DISMISSAL
OF NOTICE OF CONTEST

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 Saf ety and Health Administration (“OSHA” ) conducted an inspection of
a
BML Construction
(“ Resp ondent” )
worksite
in
Kansas City, Missouri
on
May 12, 2016 . As a result of the inspection, OSHA issued a Citation and Notification of Penalty
(“Citation”)
to Respondent alleging
t wo
serious
violation s
of the Act with
a penalty of
$ 4 , 320 .00. The Citation was
issued on
May 23,
201 6 . Respondent
filed a
Notice of Contest
with
Complainant .
This case was designated to proceed under simplified proceedings of the Commission. See 29 C.F.R.
§ 2200.203.

Therefore, no Complaint or Answer were required.

Jurisdiction

The
Commission has j urisdiction over this action pursuant to Section 10(c )
of
the Act
due to the filing of a
Notice of Contest
by Respondent.
29 USC § 659(c).
Respondent is an employer engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §
652(5 ).
See

Sling l uff v. OSHRC , 425 F.3d 861 (10th Cir. 2005) . T he Commission
has stated
“[t]here is an interstate market in construction materials and services and therefore construction work affects interstate commerce.” Id., citing
NLRB v. Int’l Union of Operating Engineers, Local
571, 317 F.2d 638, 643 n. 5 (8th Cir. 1963) (judicial notice taken that construction industry affects interstate commerce). Because Respondent is engaged in construction work, the undersigned finds it is engaged in a business affecting interstate commerce.   

Procedural History

On September 9, 2016 the Court issued a
Pretrial Conference Order
directing the parties to appear on a conference call on October 12, 2016. The
Pretrial Conference Order
was not returned as “undeliverable” on either party by the United States Postal Service.
Complainant appeared through counsel. Respondent did not appear.

On
October 31, 2016 , Complainant filed
Complainant’s Motion for Sanctions Against Respondent for Failure to Comply with Commission Rules
(“ Motion for Sanctions ”). As grounds for the
Motion
for Sanctions , Complainant set forth multiple instances
of Respondent’s failure to comply. These include:

1. On
   September 12, 2016 , Complainant sent
   Respondent the unprivileged portion of the investigation file along with a letter requesting Respondent call counsel to discuss the issues set forth in the
   Pretrial Conference Order.
   Respondent did not make contact with the Solicitor.

2. On October 6, 2016, Complainant sent Respondent a second letter asking Respondent to contact the Solicitor to discuss issues set forth in the
   Pretrial Conference Order . Respondent did not make contact with the Solicitor.

3. Neither communication was returned “undeliverable” by the United States Postal Service.

4. Finally, Complainant represents that
   Respondent failed to attend the scheduled conference call with the Court set forth in the
   Pretrial
   Conference
   Order.

See generally Secretary’s Motion
for Sanctions .

In response to Complainant’s
Motion
for Sanctions , the Court issued an
Order to Show Cause , directing Respondent to “SHOW CAUSE WITHIN
ELEVEN
(1 1 ) DAYS why the Court should not issue judgment against Respondent, affirming the proposed violations in this case for: (1) failure to
attend a Pretrial Conference set forth in the
Pretrial Conference Order
dated September 9, 2016 ; and (2) failure to respond to
respond to the
Motion
for Sanctions .
To date, Respondent has failed to file a response to the Court’s
Order to Show Cause . 1

Discussion

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
. . . .

As noted above,
Respondent has been provided an opportunity to show cause why
it
should not be held in default
and failed to respond to the Court’s request .

The Court has a duty to “conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues, and avoid delay.” 29 C.F.R. § 2200.67. In order to carry out that duty, Commission Rule 67(m) authorizes the Court to “[t]ake any other action necessary . . . and authorized by the published rules and regulations of the Commission.” According to the
Commission, “[D] ismissal
is too harsh a sanction for failure to comply with certain pre-hearing orders unless the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party, or a pattern of disregard for Commission proceedings.”
Amsco, Inc. , 19 BNA OSHC 2189, 2191 (No. 02-0220, 2003).
See also
Sealtite Corporation , 15 BNA OSHC 1130 (No. 88-1431, 1991) (contumacious conduct established where party engaged in a “consistent pattern” of failure to respond to judge’s orders).

As noted, none of the communications sent to Respondent have been returned as ‘undeliverable.” by the United States Postal Service. 2 All communications were sent to the address provided Respondent in its
Notice of Contest.
Under Commission Rule 6, it is Respondent’s duty to advise the Court of any change of address. See 29 C.F.R . § 2200.6. 3
Respondent has not filed a change of address with the Court.

The Court finds that Respondent’s repeated failures to engage in the litigation process illustrate a pattern of disregard for the Commission’s proceedings. Respondent has been given multiple opportunities and plenty of time to comply with Commission Rules of Procedure and this Court’s
Orders ,
and the Court has yet to receive an y communication or contact from Respondent.
Based on the representations of Complainant, 4
the Court finds that the delays in this case are wholly attributable to Respondent , including Respondent’s failure to respond to or collect mail that was sent to the address that he specifically provided on multiple occasions .
See supra
note 2. In that regard, the Court finds that Respondent’s pattern of disregard for the Commission’s proceedings constitutes contumacious conduct
warranting the sanction of dismissal.

In addition, t he Court finds that the Commission has conveyed due notice to Respondent of its 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.
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 fulfill its pre-trial obligations or actually appear at the trial.
11 See Twin Pines Constr. Inc./Teles Constr. , 24 BNA OSHC 1500, 1504 (No. 12-1328, 2012) (No worthwhile purpose in proceeding to a hearing where a party has abandoned the case).
The Court finds that Respondent relinquished its case with the intent to abandon. 1 C.J.S. Abandonment § 13 (2013).

Accordingly, with respect
to the above-referenced docket , Respondent’s
Notice of
Contes t
is hereby VACATED and the violations
and penalties
alleged in the
Citation and Notification of Penalty
are AFFIRMED.

ORDER

Based on the foregoing , it is ORDERED that:

1. Citation 1, Item 1, and the corresponding penalty of $ 2, 160 .00 are hereby AFFIRMED
   as final orders of the Commission pursuant to Section 10(a) of the Act.

2. Citation 1, Item 2, and the corresponding penalty of $2, 160 .00 are hereby AFFIRMED as
   f inal orders of the Commission pursuant to Section 10(a) of the Act.

SO ORDERED.

/s Patrick B. Augustine

Patrick B. Augustine

Judge, OSHRC

Date:    December 23, 2016   

Denver, Colorado   

"

1 . The Court’s
Order to Show Cause
has not been returned as “Unclaimed” by the United States Post Service by the date of this Order.

2
In
Crude Oil Corp. v. Commissioner , 161 F.2d 809 (10th Cir.1947), the Court stated that “[w]hen mail matter is properly addressed and deposited in the United States mails, with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received by the addressee in the ordinary course of mail.” Id. at 810. See also Arkansas Motor Coaches, Ltd., Inc. v. C.I.R.,
198 F.2d 189, 191 (8 th
Cir. 1952);
Central Paper Co. v. C.I.R ., 199 F. 902, 904 (6 th
Cir. 1952);
Legille v. Dann , 544 F.2d 1 (D.C. Cir. 1976).

3
Rule 6 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.6, provides that:

Record Address: Every pleading or document filed by any party or intervenor shall contain the name, current address and telephone number of his representative or, if he has no representative, his own name, current address and telephone number. Any change in such information shall be communicated promptly in writing to the Judge, or the Executive Secretary if no Judge has been assigned, and to all other parties and intervenors.
A party or intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service under these rules.

29 C.F.R. § 2200.6 (emphasis added).

4 . Because Respondent has failed to submit a response to either the Court’s
Orders
or Complainant’s
Motion , the Court accepts Complainant’s representations of the facts as true.