E & E Contractors, Inc.

Plain-English summary

E & E Contractors, Inc., a Syracuse, New York company, contested an OSHA case in which the Secretary of Labor had alleged 46 items across three citations (serious, repeat, and other-than-serious) with a total proposed penalty of $39,600. After the company's non-attorney representative withdrew, the judge ordered the company to notify her of any new counsel, warned that the trial would not be postponed, and confirmed the orders were faxed and mailed to the company. On the October 30, 1995 trial date the Secretary and his witnesses appeared, but no one showed up for E & E Contractors. The Secretary withdrew a group of items, dropping the total penalty to $32,600, and moved to default the company. Administrative Law Judge Barbara L. Hassenfeld-Rutberg waited, then entered a default judgment, dismissed the company's notice of contest and answer, and affirmed the remaining citations as amended. Because this was a default for failure to appear, the judge did not rule on the merits of any individual violation.

Decision snapshot

• Cited standard(s): None identified by section number in this default decision; the case involved 46 citation items across three citations, later reduced by the Secretary's withdrawals.
• Outcome: Default judgment entered against the employer for failing to appear at trial; notice of contest and answer dismissed; the remaining citations affirmed as amended with a $32,600 penalty (down from the $39,600 originally proposed).
• Key point: An employer that does not appear for its scheduled hearing, after clear warning, risks a default judgment that dismisses its contest and affirms the citations without any merits review.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Phone: (202) 606-5100
Fax: (202) 606-5050
SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 94-3545
E & E CONTRACTORS, INC.
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 December 7, 1995. The decision of the Judge
will become a final order of the Commission on January 8, 1996 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 F’ILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 27, 1995 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 Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue, N.W. I
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: December 7, 1995
DOCKET NO. 94-3545
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Nicholas Gazotis, Vice-President
E & E Contrators
P. 0. Box 1440
Syracuse, NY 13201

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

00002118396:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

COM (617) 223-9746 COM (617) 223-4004
FTS (617) 223-9746 F-l-S (617) 223-4004

SECRETARY OF LABOR

Complainant .. OSHRC
DOCKET NO. 94-3545
V.

E & E CONTRACTORS

Respondent.
Appearances:
Alan Kammerman, Esq. Nicholas Gazotis, Vice President
Office of the Solicitor E & E Contractors
U.S. Department of Labor Syracuse, NY
For Complainant For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg

DECISION AND ORDER
This proceeding arises under § 10(c) of the Occupational Safety and Health Act of 1970,
29 U.S.C. § 651, et. seq., (“the Act”), to review citations issued by the Secretary of Labor
(“Secretary”) pursuant to § 9(a) of the Act and a proposed assessment of penalty thereon issued
pursuant to § 10(c) of the Act.
The Secretary alleged 46 items with a total proposed penalty of $39,600.00 in three citations;
Serious citation 1 had a proposed penalty of $34,600.00, Repeat citation 2 had a proposed penalty
of $4,000.00, and Other citation 3 had a proposed penalty of $1000.00.
Originally, on March 29, 1995, Attorney James A. Gosier as general counsel for the
Respondent, filed a motion on behalf of the Respondent to file the Answer late. This motion was
granted by Chief Judge Irving Sommer, who gave an extension to the Respondent until April 28,
1995. When the Answer was filed on April 28, 1995, Nicholas Gazotis, vice president, signed the
Answer. On June 30, 1995, Jeffrey McCook, a non-attorney representative, filed his appearance in
the case. After several conference calls among Mr. Kammerman, Mr. McCook and the undersigned
Judge, it became apparent that the matter could not settle as the Respondent had debts in the amount
of approximately $30,000.00 due to the Occupational Safety and Health Administration for past
settlement agreements.
On July 3, 1995, the case was set for trial for September 18-22, 1995 in Syracuse, New York.
That trial was rescheduled on July 17, 1995 for October 30-November 3,1995 in Syracuse, and the
parties were noticed on October 20, 1995 of the actual site. On October 5, 1995, Jeffrey McCook
moved to withdraw his appearance as a non-attorney representative, and in accordance with the
Occupational Safety and Health Review Commission Rule § 2200.23(3)(b), the undersigned Judge
issued an ORDER on October 10, 1995 in which I allowed that motion. That ORDER was both faxed
and mailed to the Secretary and to Nicholas Gazotis, for the Respondent. In that ORDER, the
Respondent was Ordered to forthwith notify the undersigned Judge of any appearance of counsel,
notified that the trial would not be postponed and Ordered to be available for a conference call on
Wednesday, October 11,1995 at 10:30 am with the undersigned Judge and Mr. Kammerman. When
the Mr. Kammerman placed the call on October 11, 1995 at 10:30 am to the Respondent’s place of
business, Mr. Gazotis was not present, rather his secretary, Carol Davis participated in the call
wherein the undersigned Judge reiterated the terms of my October 10, 1995 ORDER. Ms. Davis
confirmed that the fax had been sent to the correct number, which was in accordance with the
confirmation of the fax that the undersigned Judge received on October 10, 1995.
On October 30, 1995, the undersigned Judge, a court reporter, Mr. Kammerman for the
Secretary along with his witnesses appeared at noticed site, the Onondaga Legislature, 407
Courthouse, 401 Montgomery Street, Legislature Chambers, Syracuse, New York. The case was to
commence at 1:00 pm, the undersigned Judge and her court reporter arrived at 12:50 pm. The
Secretary had timely filed his pre-trial exchange, but none was ever received from the Respondent,
which resulted in the Secretary’s filing a Motion for Sanctions against the Respondent . No ruling was
made by the undersigned Judge on that motion. When the Respondent was not present at the hearing
site by 1:30 pm, the undersigned Judge opened the record and the Secretary made two motions. The
first Motion concerned the Secretary’s withdrawal of items: Citation 1, items # 16a-d, #17, #18, #19
a & b, #20 a & b, and Citation 3, items #6 & #7 for a reduced total penalty of $32,600.00. The
undersigned Judge allowed that motion. Then the Secretary made a Motion to Default the
Respondent, but the undersigned Judge indicated that I would wait until 1:45 pm to rule on that
motion. When the Respondent did not show at 1:50 pm, the undersigned Judge opened the record
again and granted the Secretary’s Motion to Default the Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues have
been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure.
Proposed findings of fact or conclusions of law inconsistent with this decision are denied.

ORDER
A default judgment is entered against the Respondent. In addition, the Respondent’s Notice
of Contest and Answer are dismissed. The Citations and Complaint as amended, are Affirmed except
as to the items Withdrawn by the Secretary at the hearing stated hereinabove.

BARBARA L. HASSENFELD-RUTBERG
Judge, OSHRC
Date: November 28, 1995
Boston, MA