Henry Zavala Construction (ALJ decision, May 10, 1999)

Plain-English summary

Henry Zavala Construction agreed during two telephone conferences to provide portions of its fall-protection program to the Secretary. The company did not send the documents, respond to follow-up requests, or explain its failure to comply after the judge directed immediate overnight delivery. Judge G. Marvin Bober found a pattern of disregard for the proceeding and granted the Secretary's motion for default judgment. The citation and notification of penalty were affirmed in full. The release does not identify the cited standards or penalty amount.

Decision snapshot

• Cited standard(s): Not identified in the official release.
• Outcome: Default judgment granted; the citation and notification of penalty were affirmed in their entirety.
• Key point: Repeated failure to provide directed discovery or respond in a pending case can result in default judgment affirming the citation and penalty.

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

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 98-1974
HENRY ZAVALA CONSTRUCTION,
Respondent.

DECISION AND ORDER ON MOTION FOR DEFAULT JUDGEMENT

On March 1, 1999, the Complainant filed her Motion for Default Judgement asserting that this case was designated for E-Z Trial; that on January 21, 1999, a telephonic conference was held between Complainant’s counsel and Respondent’s representative; that Respondent’s representative agreed to mail to complainant’s counsel the relevant portions of Respondent’s fall protection program; that the documents were not received; that on February 4, 1999, the Complainant’s counsel wrote to Respondent’s representative again requesting the documents; that Complainant has not received a reply to her letter; that on February 22, 1999, the undersigned at the request of Complainant returned this matter to conventional proceedings; that on February 24, 1999, a second telephonic conference was held between Complainant’s counsel and Respondent’s representative; that the undersigned thereafter directed Respondent’s representative to send to Complainant’s counsel immediately by overnight mail, the relevant portions of Respondent’s fall protection program; and that as of March 1, 1999, the Complainant’s counsel has not received the documents and no reply has been filed. 2

DISCUSSION AND CONCLUSION

Rule 41(a) of the Commission’s Rules of Practice, 29 C.F.R. 2200.41(a), as pertinent, provides:
Sanctions: When any party has failed to plead or otherwise proceed as provided by these rules or as required by the * * * Judge, he may be declared to be in default * * * (2) on motion of a party. Thereafter, the
`

• • • Judge, in [his] discretion, may
      enter a decision against the defaulting party * * *.
      In my opinion, Respondent’s representative has engaged in a pattern of disregard for the pending proceeding. Counsel for the Complainant has been more than reasonable in her request, and the undersigned has extended the time to submit the identified documents as requested. Respondent’s representative has not responded,and has offered no reason for not complying. Philadelphia Construction Equipment Inc., 16 BNA OSHC 1128 (No.92-899, 1993).

IT IS ORDERED that the Motion for Default Judgement is GRANTED.

IT IS FURTHER ORDERED that the Citation and Notification of penalty issued October 19, 1998, is affirmed in its entirety.

Dated: _____
G. Marvin Bober
Administrative Law Judge