Hudson Wood Recycling, Inc.

Plain-English summary

An administrative law judge dismissed Hudson Wood Recycling's notice of contest after the company failed to comply with prehearing requirements and did not answer a show-cause order. Hudson then asserted that it had never had employees, raising whether it was an employer covered by the Occupational Safety and Health Act. The Commission held that statutory jurisdiction may be raised at any time, although a party must still follow procedural rules and provide relevant information. It found that Hudson had waived its right to contest the merits but gave the company another opportunity to address jurisdiction. The case was remanded for a renewed show-cause order and, if Hudson responded sufficiently, further proceedings on employer status. If Hudson again failed to respond, both citation items would be affirmed with a $1,200 penalty for each item.

Decision snapshot

• Cited standard(s): 29 U.S.C. §§ 652(5) and 654(a)
• Outcome: The default order was remanded for further proceedings limited to statutory jurisdiction.
• Key point: A jurisdictional issue may be raised at any time, but a party can default on that issue by refusing to follow procedural orders or provide relevant evidence.

Full text (OSHRC public release)

                               UNITED STATES OF AMERICA
           OCCUPATIONAL SAFETY AND HEALTH REVIEW CORIRII[SSION
                                     One Lafayette Centre
                               1120 20th Street, N.W.- 9th Floor
                                 Washington, DC 20036-34 19




                                                 .
                                                 .

SECRETARY OF LABOR, ..

          Complainant,
                                                 ..
          v.                                      ..     OSHRC Docket No. 95-1767
                                                   ..

HUDSON WOOD RECYCLING, INC., :
..
Respondent. ..

                                       ORDER
    .
   On March 5,1996, Administrative Law Judge Richard DeBenedetto issued an order

to show cause to the Respondent for failure to comply with the judge’s E-Z Trial pre-hearing
teleconference order of January 24,1996, and with Commission Rule 6,29 C.F.R. § 2200.6,
which requires each party to inform the Commission and the other parties of its current
address and telephone number. Having not received a response to the show cause order,
which was sent by certified mail, the judge issued an order on April 23, 1996,’ dismissing
.
the Respondent’s notice of contest, affirming the Secretary’s two-item citation, and assessing
the proposed penalties.

‘The judge noted in this order that the show cause order sent by certified mail was returned
to the judge’s office “following three unsuccessful attempts by the postal service to
accomplish delivery.”

                                                                    1996 OSHRC No. 21

2

   On May 6, 1996, Mr. Jeff Beatty filed a petition for discretionary review on behalf of

Hudson Wood Recycling, Inc., claiming that “I have never had any employees.” The
Respondent had raised this claim earlier in a handwritten letter sent to the Commission’s
Executive Secretary following the notice of docketing of the case, in which Mr. Beatty stated
that “Hudson Wood Recycling is not an operating business yet. I have never had any
employees.“2
In alleging that it is not an employer because it has “never had any employees,” the
Respondent raises a question of statutory jurisdiction, see sections 3(5) and 5(a) of the
Occupational Safety and Health Act of 1970,29 U.S.C. $8 652(5) and 654(a). An issue of
jurisdiction can be raised at any time during Commission proceedings. See WiZZametteIron
& Steel Co., 9 BNA OSHC 1900,1904,198 1 CCH OSHD 7 25,427, p. 3 1,699 (No. 76-1201,
198 1); Fed. R. Civ. P. 12(h)(3). This does not mean that a party raising a jurisdictional
question does not have to follow the applicable rules of procedure. For example, if a party
raising the jurisdictional issue as a defense refuses to provide the information relevant to the
Commission’s determination of the jurisdictional issue, it will be deemed to be in default
on the issue. C!’ Tropicana products, Inc., 122 NLRB 121,43 LRRM 1077 (1958) (National
Labor Relations Board found jurisdiction where employer refused to cooperate in production
of evidence on jurisdictional issue).
We do not condone Respondent’s failure to comply with the judge’s teleconference
order and Commission Rule 6 or its failure to respond to the judge’s show cause order, and
we find that by those failures the Respondent has waived its right to contest the merits of the
citation. However, given that the Respondent is raising an issue of statutory jurisdiction, we
are willing to give the Respondent yet another opportunity to present evidence on the
jurisdictional question. Therefore, we remand this case to the judge to re-issue the show
cause order. If the Respondent once again fails to respond to the order, it will be held’in

2The Secretary does not oppose the petition for review here.
 3

default on the jurisdictional issue and the citation items affrmed and a $1200 penalty
assessed for each item. The Respondent will then have no further opportunity to challenge
the jurisdiction in this case. See Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S.
694,702 n.9 (1982) (decision on subject-matter jurisdiction will be res judicata on that issue
in any further proceedings). If the judge deems there to be a sufficient reply to the show
cause order, he will conduct further proceedings in the case, affording the parties an
opportunity to introduce evidence on’ the jurisdictional issue and making the necessary
findings of fact and conclusions of law on that issue.3 If the judge finds that jurisdiction
exists, then the citation items shall be affirmed because, as noted above, the Respondent has
-waived its right to contest the merits of the citation, based on the Respondent’s failure to
comply with the judge’s teleconference order and Commission Rule 6 and its failure to
respond to the judge’s order to show cause issued on March 5, 1996.
It is so ordered.
l

                                                      Stuart E. Weisberg
                                                      Chairman




                                                      Velma Montoya
                                                      Commissioner




                                                      Daniel Guttman
                                                      Commissioner

Date: June 6, 1996

3Given the limitations on discovery under E-Z Trial, the judge may want to consider
discontinuance of E-Z Trial in this particular case. See Commission Rule 204(a), 29 C.F.R
5 2200.204(a).
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

 Office of                                                                    Phone: (202) 606-5400

Executive Secretary Fax: (202) 606-5050

                                                      .

SECRETARY OF LABOR, ..
.
.
Complainant,
.
.
v. .. OSHRC Docket No. 954767
.
HUDSON WOOD RECYCLING, INC., ..

                  Respondent.




                       NOTICE OF COMMISSION ORDER AND REW

     The attached order and remand by the Occupational Safety and Health Review Commission

was issued on June 6,1996.

                                             FOR THE COMMISSION

Date: June 6, 1996

                                            I Executive Secretary

95-l 767

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen
Office of the Solicitor, U.S. DOL
201 brick St., Room 707
New York, NY 10014

Jeff Beatty
Hudson Wood Recycling, Inc.
147 Union Tpk.
Hudson, NY 12534

Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02 109-450 1
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                                Phone:(202)606-5400
                                                                                 Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 951767
HUDSON WOOD RECYCLING, 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 April 26, 1996. The decision of the Judge
will become a final order of the Commission on May 28, 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 FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 16, 11 96 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew 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. DOgL
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: April 26, 1996
DOCKET NO. 951767
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

John Beatty
Hudson Wood Recycling, Inc.
147 Union Turn ike
Hudson, NY 12s 34

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00122246465 :02
 UNITED STATES OF AMERICA

       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR l
l

                                                l
                                                l




           Complainant                          l
                                                l



                                                l
                                                l       OSHRC DOCKET NO. 954767
           v.                                   l
                                                0



                                                l
                                                l

HUDSON WOOD RECYCLING, INC.
l
l

           Resnondent                           l
                                                l




                                        ORDER
     On March 5, 1996, an order was entered directing Hudson Wood Recycling, Inc.

(Hudson) to show cause by March 22, 1996, why its notice of contest should not be dismissed
for failure to comply with certain specified rules of procedures of the Commission.
The March 5, 1996, order was sent to Hudson by certified mail which was returned to
this office by the postal service following three unsuccessful attempts by the postal service to
accomplish delivery. Accordingly, it is
ORDERED that the two-item citation issued on October 20, 1995, is affirmed and a penalty of
$1200 is assessed for each of the two items described in the citation.

                                                RICHARD DeBENEDETTO
                                                Judge, OSHRC


          April    23

Dated: --~--- __ --I- ! gg6
Boston, Massachusetts