Philadelphia Construction Equipment, Inc.

Plain-English summary

Philadelphia Construction Equipment failed to appear for its scheduled hearing on serious and willful construction citations. After an initial remand gave the company another opportunity, the ALJ rejected its explanation for arriving late and found no good cause to reinstate the case. The record also showed that the company had repeatedly failed to respond to discovery, file a prehearing statement, certify posting, or answer the complaint until threatened with dismissal. The Commission held that this pattern of disregard justified default despite the company's pro se status and that it had already received due process through two opportunities to proceed. The citations were affirmed as undisputed, including hazard-communication and excavation items and a willful cave-in-protection item, with total penalties of $16,650.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.59(e)(1), 1926.59(h), 1926.651(c)(2), 1926.651(h)(1), 1926.651(i)(3), 1926.651(j)(2), 1926.651(k)(1), and 1926.652(a)(1)
• Outcome: Default affirmed six serious citation groups and one willful excavation item, with $16,650 in total penalties.
• Key point: A pro se employer must exercise reasonable diligence, and a sustained pattern of missed hearings, discovery defaults, and ignored orders can justify affirming citations without a merits trial.

Full text (OSHRC public release)

                -

                                          UNITED STATES OF AMERICA
               OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                                             1825 K STREET NW
                                                 4TH FLOOR
                                        WASHINGTON,   DC 20006- 1246


                                                                                                  FAX
                                                                .                                 COM (202) 6344008
                                                                .
                                                                                                  FTS (202) 634-4008
                                                                ..

SECRETARY OF LABOR,
..
Complainant,
. OSHRC Docket No. 924399
V. .
.
..
PHILADELPHIA CONSTRUCTION
..
EQUIPMENT, INC.,

              Respondent.

                                             DECISION

Before:
FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION: -

      The   Occupational       Safety   and Health       Administration      issued   two citations       to

Philadelphia Construction Equipment, Inc. (“PCE”) alleging willful and serious violations of
a number of construction safety standards. PCE contested the citations and was notified of
the hearing set for 10:00 a.m. on October 22, 1992, as scheduled by a Review Commission
Administrative Law Judge. PCE did not appear at the appointed time. Under Rule 64(a)
of the Commission’s Rules of Procedure (“Commission’s Rules”), 29 C.F.R. 0 2200.64(a),
“[t]he failure of a party to appear at a hearing may result in a decision against that party.”
The judge granted the Secretary’s motion to find PCE in default pursuant to Rule 41(a) of
the Commission’s Rules, 29 C.F.R. 5 2200.41(a),’ affirmed the citations, and assessed the
penalty proposed by the Secretary of $16,650.

‘Rule 41(a) provides:

       Sanctions. 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.

2

       PCE filed a petition seeking Commission review and reinstatement               under Rule 64(c)

of the Commission’s Rules, 29 C.F.R. 8 2200.64(~).~ The Commission directed the case for
review and, due to the lack of a factual record, remanded it to the judge to conduct further
proceedings to allow PCE to offer proof of good cause to excuse its failure to appear.
On remand, the judge conducted a hearing on the issue of reinstatement on
January 6, 1993 (“the reinstatement hearing”), at which James Carroll, PCE’s Secretary,
appearing pro se and arriving late, testified concerning the events of October 22. Based on
the record, the judge concluded in his decision that PCE did not show good cause that would
excuse its failure to appear at the scheduled October 22 hearing. Describing PCE’s overall
conduct as “a consistent pattern of disregard for the pending proceedings,” he found PCE
to be in default. PCE took issue with the decision in its second petition for review, in which
it was represented by counsel for the first time. The petition was granted.
Having deemed it unnecessary to request briefs in this case, we consider the following
issues based on the record to be (1) whether the judge erred in finding that PCE failed to
prove good cause that would excuse its failure to appear at the scheduled time for the
l .

nearmg on October 22, and (2) whether the judge abused his discretion in finding PCE in
default.
I. mether the Judge Erred in Finding that PCE Failed to Prove Good Cause for Excusing
Its Failure to Appear at the Scheduled Hearing
PCE contends that the judge erred in denying it reinstatement because Carroll had
a good reason for being late. According to Carroll, he had to pick up a PCE foreman who
was a witness described by PCE as “important to our case.” PCE also asserts that Carroll
was only “about seven minutes late, ” as he testified. PCE also asserts that Carroll never had
the opportunity to inform the judge of his presence.

2Rule 64(c) provides in pertinent part:

       Rescheduling hearing The Commission or the Judge, upon a showing of good cause, may
       excuse such failure to appear.

We note that in our direction for review and remand order, we ordered (pursuant to Rule 107 of the
Commission’sRules, 29 C.F.R. 0 2200.107) a waiver of Rule 64(b) of the Commission’s Rules, 29 C.F.R.
5 2200.64(b), which requires that requests for reinstatement must ordinarily be made within five days after the
scheduled hearing date.
 3

   The record shows that, by the time Carroll arrived at the courtroom,         the judge was

conducting a hearing in another case. Carroll was alone because, according to his testimony,
the witness that he had picked up “was down parking the vehicle.”
1

                                                                      The record establishes

that after Carroll entered the courtroom John Strawn. counsel for the Secretary, informed
Carroll that his case had already been called and a default order had been entered,
mentioning that Carroll might be able to talk to the judge at the end of the hearing in
progress. According to Carroll, he stayed in the hearing room approximately 45 minutes
until the other hearing was completed, at which time the judge arose and walked into his
chambers. Carroll testified that he assumed that the judge would ask if there were any
questions before leaving the bench, and when the judge did not do this, Carroll did not want
to cause a disruption in the courtroom to get his attention. Carroll testified that, “not being
familiar with the function of the Court,” he waited for the judge to return to the bench, and
when he did not, Carroll left.
In his decision on remand, the judge concluded that PCE failed to .prove good cause
to excuse its failure to appear at 10:00 a.m. on October 22 for the scheduled hearing
because the only witness, Carroll, was not credible. The judge found Carroll’s testimony that
he was late because he had to pick up a witness who had a flat tire to be an “incredulous”
statement in light of the failure of this allegedly important witness to ever appear in the
courtroom on October 22, and the proposed penalty in excess of $15,000.
The judge noted that, while Carroll testified that he arrived about seven minutes late,
the transcript of the hearing on PCE’s case shows that it concluded at lo:08 a.m., and the
hearing on the next case commenced at 10:10 a.m. The judge found that the transcript was
consistent with the recollection of the Secretary’s counsel Strawn, who stated informally at
the reinstatement hearing that Carroll arrived about 30 minutes late for the October 22
hearing. The judge further noted that Carroll’s statement that he stayed approximately 45
minutes until the other hearing was over was inconsistent with the transcript of the hearing
in the next case showing that it lasted almost two hours. The judge also found that Carroll’s
failure to appear on time or inform the judge of his late appearance was inconsistent with
what he termed “the reasonablv d anticipated behavior of people dealing with business matters
of similar import.”
 4

       Based on our de ytovo review of the record, we conclude that the judge did not err

in finding that PCE failed to prove good cause for excusing its failure to appear at the
hearing on October 22. A party’s responsibility to *appear at the scheduled time for the
hearing is basic to the orderly, efficient operation of Commission proceedings, and that
responsibility will not be waived except for good cause? The judge heard Carroll’s
testimony about why he was late and observed his demeanor, and the judge found his
testimony not credible for the reasons he gave in his decision. PCE presented no
corroborating evidence, such as testimony by the foreman who was allegedly picked up by
Carroll.
Regarding Carroll’s alleged lack of opportunity to inform the judge based on his
unfamiliarity with Commission proceedings, we note that the Commission has stated that lay
persons choosing to manage legal matters on their own will be held to a standard of
reasonable diligence. Keefe Earth Boring Co., 14 BNA OSHC 2187,2192, 1991 CCH OSHD
!I 29, 277, p. 39,270 (No. 88-2521, 1991). We conclude that the judge did not err in finding
Carroll’s conduct, as described in his testimony, inconsistent with what a reasonably diligent
employer faced with a penalty over $15,000 would have done under the circumstances.4 It
would seem that, after the next hearing concluded, a reasonably diligent representative of
a party would have taken some steps to get the judge’s attention.

?he Commission has found good cause for reinstatement in certain circumstances, such as in Simpson Roofing
Co., 5 BNA OSHC 1836, 1837, 1977-78 CCH OSHD ll 22,147, pp. 26,671.72 (No. 76-1841, 1977) (evidence
established numerous unsuccessful attempts to contact judge, as well as communication with OS-IA, about
client injured evening before hearing); Herion printing Co., 2 BNA OSHC 1702, 1703, 1974-75 CCH OSHD
lI 19,466 p. 23,235 (No. 10615, 1975) (parties agreed failure to appear due to severe weather and unavoidable).
But see Richard Rothbarci,Inc., 8 BNA OSHC 1408, 1410, 1980 CCH OSHD II 24,482, p. 29,901 (No. 79-2283,
1980) (no good cause found where untimely, inadequate reinstatement request).

4We recognize that an employer appearing pro se may not be familiar with court proceedings and may be
intimidated by courtrooms and judges. However, that cannot excuse the failure of PCE, through its
representative Carroll, to be on time or to give notice of its belated appearance to the judge or court reporter,
without a showing that it was deliberately thwarted in its efforts by the Secretary or the judge. C’f Keppel’s,
Inc., 7 BNA OSHC 1442, 144344, 1979 CCH OSHD II 23,622, pp. 28,637.38 ( No. 77-3020, 1979) (while
subjective feeling of intimidation may have been responsible for late filing of written notice of contest, it was
not precipitated by improper actions by the Secretary). However, a pro se employer’s lack of legal knowledge
has been considered a contributing factor in finding good cause for reinstatement. See National Roojing Cop.,
9 BNA OSHC 1249, 1250, 1981 CCH OSHD 725,164, p. 31,067 (No. 79-1158, 1981).
 5

   Having concluded that the judge did not err in finding that PCE failed to prove good

cause to excuse its failure to appear at the scheduled time for the October 22 hearing,
remaining for consideration is whether the judge abused his discretion by the default order.
II. Whether the Judge Abused His Discretion .irt Finding PCE in Default
The judge determined that default was the appropriate sanction against PCE in light
of the “pattern of disregard for the pending proceedings” that PCE showed over the course
of the proceedings in this case. He found the most compelling component of this pattern
to be Carroll’s failure to appear for the reinstatement hearing on time, for which tardiness
Carroll testified that he had “no excuse, again, but the parking situation.” The judge also
noted that, earlier in the proceedings, PCE did not certify that the citation was posted or file
an answer to the complaint until it was sent orders threatening dismissal or default. In
addition, the judge mentioned that PCE failed to respond to the Secretary’s discovery
requests or motion to compel discovery, and it failed to file a prehearing statement in
response to the judge’s prehearing exchange order. The judge concluded that PCE’s failure
to be on time for the hearing twice, its failure, until threatened with dismissal, to certify the
posting of the citation and file an answer, and its failure to respond to the discovery requests
and the prehearing order are actions that “go beyond a lack of familiarity with legal
procedures.” He therefore found PCE to be in default.
PCE, through its counsel, argues in its second petition that the default order denied
it due process, essentially contending that the sanction was excessive for its failure to appear.
PCE does not deny the occurrence of any of the instances of its conduct upon which the
judge relied in finding a pattern of disregard for Commission proceedings.
Rule 41(a) specificallv4 mentions that default is a possible sanction if a party fails to
proceed as provided by Commission Rules of Procedure or as required by the judge. See
supra note 1. A judge has very. broad discretion in imposing sanctions for noncompliance
with Commission Rules of Procedure or the judge’s orders. E.g., Seakite Corp., 15 BNA
OSHC 1130, 1134, 1991 CCH OSHD ll 29,398, p. 39,583 (No. 88-1431, 1991). In
determining whether a sanction imposed by a judge is too harsh, the test is whether the

k abused his or her discretion. Id. at 1134, 1991 CCH OSHD at p. 39,582. A judge
judge
 6

could be found to have abused         his or her discretion if the decision to impose the sanction
is unreasonable,   arbitrary, or erroneous. Id. at 1134 n.7, 1991 CCH OSHD at pp. 39,582~83
n.7.   While a default        order   is a considerable       sanction,   Review Commission          judges
unfortunately   have only a limited number of sanctions available to them.
        We determine       that the judge did not abuse his discretion in issuing a default order
in light of the “pattern     of disregard” for Commission proceedings?               PCE does not deny
any elements in this pattern of disregard, rather it makes a general claim that it will be
denied due process if it is prevented from presenting its case on the merits.                However, we
note that PCE has received due process because it was afforded an opportunity                    to present
its case on October 22, and an opportunity           to prove good cause for reinstatement.
        We emphasize that our review of this case is limited to whether the judge abused his

. broad discretion in holding PCE in default based on the entire circumstances of the case.
We recognize that, because the Commission’s Rules generally treat pro se employers the
same as parties represented by counsel, it is often difficult for judges to conduct proceedings
involving pro se employers. However, to hold a pro se employer in default for failure to
appear at the scheduled time may not be appropriate without evidence that . there was a
pattern of disregard generally in the case. Nevertheless, because there was such a pattern
in this case, we conclude that the judge did not abuse his discretion.
III. Order
We find that the judge did not err in concluding that PCE has not proven good cause
for excusing its failure to appear at the October 22 hearing. In light of the cumulative effect
of PCE’s disregard for Commission procedures and the limited sanctions available, we
conclude that the judge did not abuse his discret ion in granting the Secretary’s motion to
hold PCE in default. We therefore consider the allegations in the complaint to be
undisputed, and we affirm the two citations, as clarified by the complaint, for violations of

‘Under Rule 41(b) of the Commission’s Rules of Procedure, 29 C.F.R. #2200.41(b), the Commission may set
aside a sanction imposed under Rule 4 1(a) if presented with “sufficient” reasons. Ordinarily, the Commission
would require a party seeking relief under this rule to make a formal motion supported by sworn affidavits
or other evidence showing sufficien: reason for setting aside a sanction. E.g., Penmd’s Palace, 14 BNA OSHC
1974, 1976, 1991 CCH OSHD Ii 29,210, p. 39,094 (No. 88-1078, 1991).

-
7

the standards as set forth below and assess these penalties totalling $16,650 as proposed by
the Secretary and found appropriate by the judge:
Citation No. 1, Serious Violations
Item la- violation of 29 C.F.R. 6 1926.59(e)(l)--- $450 for
Item lb- violation of 29 C.F.R. Q 1926.59(h)------ la & lb;
Item 2--- violation of 29 C.F.R. 5 1926.651(c)(2)-- $750;
Item 3--- violation of 29 C.F.R. 5 1926.65 l(h)( 1).- $450;
Item 4--- violation of 29 C.F.R. 5 1926.65 1(i)(3)-- $1500;
Item 5--- violation of 29 C.F.R. 5 1926.65 1(j)(2)-- $1500;
Item 6--- violation of 29 C.F.R. § 1926.65 l(k)( 1).- $1500.
Citation No. 2, Willful Violation
Item l--- violation of 29 C.F.R. 5 1926.652(a)(l)-- $10,500.

It is so ordered.

                                                        Edwin G. Foulke, Jr.
                                                        Chairman




                                                         Commissioner



                                                         Velma Montoya
                                                         Commissioner

Dated: April 22, 1993
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-1246

                                                                               FAX
                                                                               COM (202) 634-4008
                                                                               FTS (202) 634-4008

SECRETARY OF LABOR, ..

         Complainant,

  v.                                            Docket No. 92-0899

PHILADELPHIA CONSTRUCTION :
EQUIPMENT, INC., ..

         Respondent.




                         NOTICE   OF COMMISSION               DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
April 22,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.

                                                FOR THE COMMISSION

April 22, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 92-0899
-

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104

Wayne R. Maynard, Esquire
Suite 500
220 South 16th’ Street
Philadelphia, PA 19102

Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, D.C. 20006-1246
 FAX
cLJrJl r2021es-: .l:2’3F,
) FTS (232; 63.1
.I-,--
-..,t,?

SECRETARY OF LABOR )
Complainant, >
v. ) OSHRC DOCKET
j NO. 92-0899
PHILADELPHIA CONSTRUCTION EQ. INC. )
Respondent. )
)

                               NOTICE    OF DOCKETKG
                  OF ADMINISTR.4TIVE          LAW JUDGE‘S                DECISION

 The Administrative   Law Judge’s Report in the above referenced case was

docketed with the Commission on February 18, 19%. The decision of the Judge
will become a final order of the Commission on March 22. 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
March 10, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C. P .R. 2200.91.

All further pleadings or communications regarding this case shall be I l

addressed to:

                              Executive Secretary
                              Occupational  Safety and Health
                                                                                              .
                               Review Commission
                              1825 K St. N.W., Room 401
                              Washington,
                                 .         D.C. 20006-1246

Petitioning parties shall also mail a copvw to:

                              Daniel J. .klick, Esq.
                              Counsel foer Regional Trial Litigation
                              Office of the S&citor, U.S. DOcL
                              Room SUO4
                              200 Constitution   Avenue, NW.
                              Was hi ryton, D.C. 202 10

If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights ma\’ contact the Commission’s Executive
Secretary or call (202) 631-7050. *

                                             FOR THE COMMISSION


                                             &c;c-             -2                   0b/L&-

Date: February 18, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 924899
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of Pice of the Solicitor, U.S. DOL
14480 Gatewa Building
3535 Market J treet
Philadelphia, PA 19104

James Carroll, Secretary
Philadelphia Construction Euipment,
Inc
3427’North 6th Street
P.O. Box 47691
Philadelphia, PA 19160

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Room 417/C
1825IS Street, N.W.
Washington, DC 20006 1246

00018251520:03
 ‘UNITED STATES OF AMERICA
OCCtiPATlONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW.
i
, 4TH FLOOR
i
I
WASHINGTON DC 20006-1246

                                                                                           FAX:
                                                                                           COM (202) 634-4008
                                                                                           F-I-S 634-4008

SECRETARY OF LABOR, ..

       Complainant,                       ..

              v.                          ..        Docket No. 92-0899

PHILADELPHIA CONSTRUCTION :
EQUIPMENT, INC., ..

       Respondent.

Appearances:

       John M. Strawn, Esquire                              James Carroll
             Office of the Solicitor                              Secretary
             U.S. Department of Labor                                     For Respondent
                    For Complainant

Before: Administrative Law Judge Michael H. Schoenfeld

                       DECISION AND ORDER ON REMAND


       On December    18, 1992. the Commission remanded this case to this Administrative

Law Judge “with instructions that further proceedings be scheduled to allow the respondent
to offer proof of good cause to r~cusr its failure to appear [at a hearing on October 22,

19921.” Testimony pursuant to the rcm;ind order was taken in Philadelphia, Pennsylvania
on January 6, 1993.’

1 Although not specifically directed to do so, it is implicit in the Direction for Review and
Remand Order issued by the Commission on December 18, 1992, that the Commission
anticipated that the administratiw 1~ judge would reach some findings and conclusions on
the basis of the further proceedings.
 First, factual assertions offered by Respondent’s representative are found not to be
credible because they are; 1) in some instances, inconsient with documented facts; and 2)
in other instances they are inconsistent with the reason;Mv~Manticipated behavior of people
dealing with business matters of similar import. I

   Secondly, even if taken as true, the factual circurm~;mces                    described    by Respondent’s

representative do not constitute good cause for failure 10 ;lppear.
Thirdly, Respondent. throughout this matter tm ct\t;Mshed a pattern of failing to
comply with Commission Rules and Orders which mmm~ to behavior which is contuma-
cious and disdainful of the Commission and its procecdlngs.
As to inconsistencies with documented facts, Respondent’s Petition for Discretionary
Review2 and its representative claim that its representative arrived “seven minutes” late (TR

8). Not only is this inconsistent with the recollection of the Secretary’s attorney, who places
his arrival at about 30 minutes late (TR S), but it is inconsistent with the transcript of the
hearing, as well as the transcript of the hearing which followed. According to the court
reporter’s watch, the hearing in Respondent’s matter did not finish until lo:08 a.m. (TR 4).
A short recess was taken and the following matter, W. Kramer Associates, No. 92-1391,

commenced at 1O:lO a.m., according to the transcript of those proceedings. Although there
is only a several minute difference between the times shown in the official transcripts and
the claims of Respondent’s representative, they must be viewed in light of other inconsisten-

cies. Respondent’s representative claims in the Petition for Review and in his testimony that

on October 22, 1992, he did not leave the courtroom until after the hearing in Kramer was
finished (Petition for Review; TR 8? line 16; TR 8 - 9, lines 25 & 1; TR 15, lines 14 - 16).
He asserted that he stayed some 45 minutes (TR 15). The transcript shows, however, that
the IGamer hearing lasted just short of two hours and did not. adjourn until 1200 noon.

2 While Respondent’s petition contains a certificate of service, albeit unsigned, counsel for
the Secretary indicated that he had not received a copy of it until the morning of the hearing
on remand when one was supplied bv the Administrative Law Judge. (TR 5, 12). Whether
the Secretary would have filed a cross petition or statement in opposition to Respondent’s
Petition for Review is also somewhat speculative because the Commission issued its
Direction for Review and Remand Order before the time allowed for such filings by the
Secretary expired under Rule 91.
 Respondent’s representative, who testified that he was aware that penalties in this
A

case were over $10,000 and that he took the matter sericju: ly, nonetheless made no effort
to contact the Judge or court reporter in the courtroom on October 22, 1992. Nor, other
than his desire not to disrupt anything or lack of awart:nt:hh of’ court proceedings, could he
offer any explanation as to why he failed to do so even t tlough the Secretary’s attorney
suggested that he do so (TR 5, 8).
Respondent’s representative claimed he was l;ittt 111Wfober 1992 because a witness

he was to pick up had a flat tire (TR 9). Although dttxrlbt:d as “important to our case”
(PDR),
\ this witness somehow never made it to the courtroom in October 1992 (TR 10). I
find this to be an incredulous statement from a person who was supposedly attending an

important hearing in which over $15,000 in penalties was to be at stake.

   Arriving late with “no excuse, again, but the parking,” (TR 9) to the January 1993

hearing on remand might, by itself, constitute, behavior showing disdain for the processes
of the Commission. In addition, Respondent had to be threatened with dismissal before it
certified that it had posted the citation as required. Further? Respondent did not file an
answer of any kind to the Secretary’s complaint until faced with a show cause order, again
threatening dismissal. Respondent has also failed to respond in any way to discovery
requests or a motion to compel discoverv.J Moreover, Respondent did not file a required
pre-hearing statement. These actions go beyond a lack of familiarity with legal procedures.

They constitute a consistent pattern of disregard for the pending proceedings. It is not too
legalistic a standard to expect a pro se party to at least respond in some manner to the
several documents it received. In contrast, Respondent did reply to two threats of dismissal
(Executive Secretary’s Posting and Service Order (April 9, 1992), Order to Show Why Notice
of Contest Should Not Be Dismissed (June 5, 1992), as well as the Decision and Order
affirming the citations (Novembt:r -77 , 1992) . It is concluded that Respondent decided it
could “pick and choose” which p;irts of the Commission proceedings in which to participate.
That is contumacious conduct.
 In sum, I conclude that Respondent has failed to demonstrate that good cause existed
for his failure to appear at the October 2,,3 1992, hearing.CI Thus, Respondent is declared to
be in default. 29 C.F.R. 5 2200.41(a) (1991). Accordin&.L d the citations issued to Respondent
on or about January 10, 1992, are AFFIRMED in their entirety. The civil penalties of
$16,650 as proposed are assessed therefor.

                                       .’
                                              MICHAEL H. SCHOENFELD                    1
                                              Judge, OSHRC
             qe    7 4 1993

Dated:
Washington, D.C.