Henry Zavala Construction

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; citation and notification of penalty 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