Ray Wentzell, d/b/a N.E.E.T. Builders

Plain-English summary

N.E.E.T. Builders was a construction business whose owner represented himself in proceedings over a serious citation and proposed penalties totaling $10,050. The ALJ dismissed the notice of contest after the employer did not provide more complete discovery responses despite two orders. The Commission found that the employer's responses could mean that he had already supplied all the information and documents available to him. It held that the ALJ should take additional steps, such as a telephone prehearing conference, to test those assertions, explain the proceedings, and determine what evidence could be presented. The Commission set aside the dismissal, reinstated the notice of contest, and remanded the case for further proceedings.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Remanded. The Commission set aside the dismissal and reinstated the employer's notice of contest.
• Key point: Before dismissing a pro se employer's contest for discovery noncompliance, the judge should determine whether the employer has already provided all information reasonably available to him.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : OSHRC Docket No. 92-2696
RAY WENTZELL, d/b/a
N.E.E.T. BUILDERS,
Respondent.

ORDER

Upon the motion of the Secretary of Labor (“the Secretary”), which asserted that the
employer failed to allow requested discovery, Administrative Law Judge Richard
DeBenedetto dismissed the employer’s notice of contest, affirmed the alleged serious
citation, and assessed the proposed penalties amounting to $10,050. For the following
reasons, we set aside the judge’s dismissal order and remand the case for further proceed-
ings.

Background

The employer, Ray Wentzel d/b/a N.E.E.T. Builders, has not been represented by an
attorney from the outset of these proceedings. In answer to the complaint, the pro se
employer stated that he could not afford to hire an attorney although he believed he needed
one to “explain the terms and language” of the legal proceedings. After the employer filed
his answer to the Secretary’s complaint, the Secretary sent to the employer the following six
interrogatories, to which the employer made the following replies:

1. Please describe in detail the business engaged in by Ray Wentzel d/b/a
   N.E.E.T. Builders.

No business now.

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2. Please list every individual tool and/or equipment owned or leased by Ray
   Wentzel d/b/a N.E.E.T. Builders and for each list the name of the manufactur-
   er and the State where such tool or equipment was manufactured.

No tools or equipment owned or leased[;] out of business because of this mess!

3. Please describe, if any, any and all training given to employees of Ray
   Wentzel d/b/a N.E.E.T. Builders by the Respondent prior to June 8, 1992, and
   if such training was given, state the dates of such training, the employees being
   trained on each date of training and the specific content of training on every
   date listed.

[T]raining was given every day by me and talked about safety ways every day.

4. Please describe in detail any measurements or tests performed by the
   Respondent on June 8, 1992 examining the excavation located at Castle Drive
   and its atmosphere.

[W]hen test was done air was OK.

5. Please state how many years the Respondent has been engaged in the
   construction business.

[A]lmost 15 years.

6. Please list the names, titles, addresses and telephone numbers of all
   employees who worked for Ray Wentzel d/b/a N.E.E.T. Builders on June 8,
   1992 at the Castle Drive worksite.

[A]ll worker[s] were part time and don’t know where you can find anyone.

The Secretary also requested the employer to produce the following five documents,
to which the employer made the following replies:

1. Any Ray Wentzel d/b/a N.E.E.T. Builders written Hazard Communication
   Programs, which existed on June 8, 1992.

[A]ll safety & Hazard Communication programs [were] in trailer and now gone.
[Unintelligible on copy forwarded by the Secretary] all papers going to Neet or
sent to him from Department of Labor and others.

2. Any and all documents relating to the training of Ray Wentzel d/b/a
   N.E.E.T. Builders’ employees prior to June 8, 1992.

[A]ll training was done by Ray Wentzel in person and show all employees safety
papers in trailer.

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3. Any and all bills of purchase for equipment, tools, and/or materials to be
   used by Ray Wentzel d/b/a N.E.E.T. Builders during the period from January
   1, 1990 to present.

[C]an’t find papers & not necessary for this action.

4. Any and all Material Safety Data Sheets present at the Castle Drive
   worksite on June 8, 1992.

[A]ll paper [were] in trailer, trailer gone!

5. Any and all documentation, if existing, of any measurements or tests
   performed by the Respondent on June 8, 1992 in examining the excavation
   located at Castle Drive and its atmosphere.

[A]ll test was done June 8-92 by Waste, Inc. I have no cop[ies].

Based upon these communications, the Secretary filed a motion asking the judge to
compel the employer to supply more complete answers in certain respects:

Specifically, in response to Number 1 and 2 of the Interrogatories propounded
by the Secretary, the Respondent stated he had no business, tools or
equipment. On March 22, 1993, a call was made to the number advertised [in
the yellow pages] and information was obtained that N.E.E.T. Builders is still
in business as advertised. Based on this information the Secretary asserts that
the Respondent did not provide a sufficient answer to Interrogatories 1 and
2 propounded by the Secretary.

In addition, the Respondent did not answer Interrogatories 3, 4 and 6 “in
good faith and as completely as the answering party’s information will permit”
as required by Section 2200.55 of the Rules of Procedure.

In regard to the Secretary’s Request for Production of Documents, it appears
that the Respondent objects to Request Number 3. The inspection of those
documents is imperative to the Secretary’s case, as the Respondent has denied
[interstate commerce] coverage in its Answer to the Secretary’s complaint.

(References to motion exhibits omitted.) The Secretary also asked the judge to issue the
following ruling: “[T]hat the Respondent be denied permission to submit at a hearing on this
matter any of the documents requested by the Secretary, if the Respondent does not
produce these documents within [a specified time period].” A proposed order that the
Secretary submitted with the motion asserted that the employer “must provide all other
documents requested by the Secretary.”

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Responding to the Secretary’s motion, Judge DeBenedetto issued an order requiring
the employer to supply the requested information within a stated time period or “be in
default.” When the employer did not file a response, the Secretary filed another motion
asking that the employer be declared in default. The judge thereafter issued another order
giving the employer “one last opportunity” to supply the requested information within a
second time period. The order further stated that the employer’s notice of contest “shall
be dismissed” if he fails to respond in a timely fashion. When the requested information was
still not forthcoming, the judge issued his order dismissing the employer’s notice of contest.

Analysis

A pro se employer is required to exercise reasonable diligence in the legal proceedings
over which an administrative law judge presides; a pro se employer must follow the rules and
file responses to a judge’s orders, or suffer the consequences, which can include dismissal
of the notice of contest. See, e.g., Imageries, 15 BNA OSHC 1545, 1547, 1992 CCH OSHD
¶ 29,639, p. 40,131 (No. 90-378, 1992). Nonetheless, a pro se employer can often be
genuinely confused by legal terminology and the technicalities of judicial procedure; that is,
even while trying to exercise reasonable diligence, a pro se employer can fail to grasp exactly
what he is being asked to do. See, e.g., Action Group, Inc., 14 BNA OSHC 1934, 1935,
1987-90 CCH OSHD ¶ 29,166, p. 39,018 (No. 88-2058, 1990). We have also recognized that,
where an employer has a substantial reason for having failed to comply with a discovery
order, and where the employer’s conduct also does not indicate disrespect toward the judge,
the failure to comply should not used against the employer as an indication of bad faith or
contumacious conduct. See Trinity Indus., Inc., 15 BNA OSHC 1579, 1583, 1992 CCH
OSHD ¶ 29,662, p. 40,185 (No. 88-1545, 1992), petition for review filed, No. 92-2559 (11th
Cir. June 18, 1992).

In the case now before us, the employer states in his petition for review of the judge’s
dismissal order that “I responded by answering all that I could” and “I will apologize to the
court for any improper [E]nglish or procedure or anything I may have done wrong . . . .”
Although this pro se employer’s replies to the Secretary’s discovery requests do lack the
precision and detail that the Secretary would expect of an attorney, the replies, taken as a

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whole, do assert the following: (1) that the employer is now out of business; (2) that the
tools and equipment in use during the inspection are no longer in the employer’s possession;
(3) that no more detail can be provided regarding the identity of employees, their
attendance at safety training sessions, the content of those sessions, and any atmospheric
measurements at the excavation because the employer either handled everything verbally
without making records or has disposed of the records; and (4) that any documents pertinent
to this proceeding no longer exist, because they were stored in a trailer that the employer
no longer owns.

These assertions, combined with the Secretary’s motion to compel greater detail,
implicitly raised before Judge DeBenedetto the issue of whether the pro se employer’s
responses had been as complete as possible. If so, the information, limited though it was,
would have fully answered the Secretary’s interrogatories and document requests, in the
sense that the Secretary must accept that the employer lacks the additional information that
the Secretary requested. As we have already noted, the employer asserts in his petition for
review that “I responded by answering all that I could and was able to do,” and the
employer points out that he has already “made it known to the court I needed help to
answer this paperwork.” Accordingly, in this instance, we believe that the judge should have
taken and should now take additional steps to determine the validity of the assertions made
by the employer and the extent to which the employer is capable of providing more
information in response to the Secretary’s discovery requests.

For example, our rules provide for prehearing conferences to be convened by a judge
“upon his own initiative,” including conferences “conducted by telephone conference call,”
during which the judge and the parties may together consider the factual issues that remain
in dispute, the evidence to be presented, whether any facts may be stipulated, and “any
other matter that may expedite the hearing.” 29 C.F.R. § 2200.51. Such a prehearing
conference can be particularly useful under the facts of this case. By thus conferring with
the parties, the judge can determine whether this case can proceed to a hearing on the
limited basis that all evidence capable of being introduced by the employer in his defense
has already been disclosed in discovery. That is, after the prehearing conference, the
employer would be precluded from introducing evidence not previously disclosed in discovery

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or at the conference. The issue of interstate commerce jurisdiction, which is part of the
Secretary’s case, can also be explored between the parties at the prehearing conference.
Although a Commission judge obviously cannot act as an advocate for either party, the judge
can “explain the terms and language” of the legal proceedings and issues to a pro se
employer. See Sealtite Corp., 15 BNA OSHC 1130, 1133-34, 1991 CCH OSHD ¶ 29,398, pp.
39,581-82 (No. 88-1431, 1991); see generally 29 C.F.R. § 2200.67 (duties and powers of
judges). The judge can also evaluate the substance and genuineness of the assertions being
made by the respective parties. Thereby, the judge can facilitate the case coming to hearing
and being resolved on the merits.

Order

Accordingly, we set aside the judge’s order, reinstate the employer’s notice of contest,
and remand the case for further proceedings consistent with our order in this case. SO
ORDERED.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

DATED: 11/19/93

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : Docket No. 92-2996
RAY WENTZELL, d/b/a
N.E.E.T. BUILDERS,
Respondent.

NOTICE OF REMAND ORDER

The attached Order of Remand by the Occupational Safety and Health Review Commission was
issued on November 19, 1993.

FOR THE COMMISSION

November 19, 1993
Date

Ray H. Darling, Jr.
Executive Secretary

Docket No. 92-2696

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

Albert H. Ross, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
11th Floor
One Congress Street
Boston, MA 02114

Ray Wentzell
Ray Wentzell, d/b/a N.E.E.T. Builders
PO Box 596
Newport, NH 03773

Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2696
N.E.E.T. BUILDERS
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on May 13, 1993. The decision of the Judge
will become a final order of the Commission on June 14, 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
June 2, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

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

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.

FOR THE COMMISSION

Date: May 13, 1993

Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-2696

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

Albert H. Ross, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
One Congress Street, 11th Floor
P.O. Box 8396
Boston, MA 02114

Ray Wentzell
N.E.E.T. Builders
PO Box 596
Newport, NH 03773

Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00017898032:01

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant,
v. : OSHRC
Docket No. 92-2696
RAY WENTZELL d/b/a N.E.E.T. BUILDERS
Respondent

ORDER

On April 20, 1993, an order was entered directing respondent to respond to the
Secretary’s interrogatories and request to produce documents by April 28, 1993. Respondent
was also informed that failure to comply by the April 28 deadline would result in dismissal
of respondent’s notice of contest.

On April 23, 1993, this office received respondent’s cross-motion for judgment by
default grounded upon the Secretary’s alleged failure to provide respondent with “all
records, pictures, film and all information.” (Emphasis in original.) There is no procedural
basis for respondent’s motion for sanctions either under the Commission’s procedural rules
or the Federal Rules of Civil Procedure.

Respondent’s response to the April 20, 1993, discovery order is unacceptable.
Accordingly, it is

ORDERED that respondent’s notice of contest is dismissed, the July 9, 1992, citation is
affirmed and penalties totaling $10,050 are assessed.

RICHARD DeBENEDETTO
Judge, OSHRC

Dated: May 4, 1993

Boston, Massachusetts