Schipper Construction, Inc.

Plain-English summary

Schipper Construction timely contested a willful excavation citation carrying a proposed $14,000 penalty but did not file a formal answer to the Secretary's complaint. When the Secretary sought default, the company's pro se president promptly wrote a response raising defenses but mistakenly mailed it to the Secretary rather than the judge. The Commission treated the response as a sufficient answer, found reasonable diligence, and set aside the default. It also criticized the Secretary for not conferring before moving for default and for apparently failing to forward the misdirected response to the judge, conduct that suggested unfairness and gamesmanship. The case was remanded for a hearing on the merits, with settlement encouraged.

Decision snapshot

• Cited standard(s): The excavation standard is not identified by number in the decision.
• Outcome: Default judgment set aside, notice of contest reinstated, response accepted as the answer, and case remanded for hearing.
• Key point: A prompt pro se response that plainly disputes a citation may prevent default even if misdirected, especially when the moving party failed to confer and withheld the response from the judge.

Full text (OSHRC public release)

Secretary of Labor,
               Complainant,
                      v.                           OSHRC Docket No. 99-0253
Schipper Construction, Inc.,
                Respondent.



                               DECISION AND ORDER

BY THE COMMISSION:
Administrative Law Judge Irving Sommer issued a default judgment upon the
Secretary of Labor’s motion in this case because the employer, Schipper Construction, Inc.,
failed to file an answer to the complaint within the time permitted by Commission Rule
34(b)(1).1 For the following reasons, we set aside the default judgment and remand this case
for further proceedings.
Schipper is a general contractor that, in October 1998, was performing excavation
work with a subcontractor in Fargo, North Dakota. After an inspection by a representative
of the Occupational Safety and Health Administration ("OSHA"), the Secretary issued a
willful citation alleging that Schipper failed to slope, shore, or otherwise protect the
excavation from caving in. An employee of the subcontractor had been working inside the
excavation at the time of the OSHA inspection. The Secretary proposed a penalty of $14,000.
Schipper’s president, Shaun Schipper, responded by filing a timely notice of contest.2

1
Commission Rule 34(b)(1), 29 C.F.R. § 2200.34(b)(1), provides that "[w]ithin 20 days after
service of the complaint" the employer "shall file an answer with the Commission."
2
Shaun Schipper is representing the corporation; that is, it is appearing pro se (without
counsel) in these proceedings.
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However, Schipper did not file an answer to the Secretary’s complaint, which the Secretary
served on March 24. On April 27, the Secretary filed a motion for default judgment, which
Judge Sommer granted. The judge served notice of his order on Schipper on May 13, and
filed his order with the Commission on May 24.3 Although the judge did not explicitly affirm
the Secretary’s willful citation and assess her $14,000 proposed penalty, a default judgment
automatically has this effect.
On June 8, Schipper sent a letter to the judge asking him to "let me know what I must
do" to "appeal your decision." Then, on June 14, Schipper filed a petition for discretionary
review with the Commission.
Schipper’s June 8 letter and petition for discretionary review both contend that he
erroneously mailed a May 5 response to the Secretary’s motion for default judgment to the
Secretary instead of the judge. Schipper contends that, in the past, the "citations and fines"
that he had received from OSHA "were handled directly through the Bismarck office" and
that "dealing with a court through the mail is new to me." "I apologize for this and throw
myself on the mercy of the Review Commission to take another look at this." Schipper’s
petition for discretionary review further contends that he thought his notice of contest "would
be used" as an answer to the complaint in this case.
Commission Rule 41(b),4 permits the Commission to set aside a default for reasons
it deems "sufficient." As a result, the Commission has wide latitude and discretion in its
review of a default sanction. Choice Electric Corp., 14 BNA OSHC 1899, 1900, 1987-90

3
Commission Rule 41 does not require that a judge issue a show cause order before granting
a party’s motion for a default judgment. Here, Schipper had the same opportunity to show
cause why it should not be granted that an order to show cause would have provided. A party
"upon whom a motion is served shall have ten days from service of the motion to file a
response" pursuant to Commission Rule 40(c), 29 C.F.R. § 2200.40(c). The judge waited ten
days from service of the Secretary’s motion before ruling on it.
4
Commission Rule 41(b), 29 C.F.R. § 2200.41(b), provides that, "[f]or reasons deemed
sufficient by the Commission or Judge and upon motion expeditiously made, the
Commission or Judge may set aside a sanction [of default]."
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CCH OSHD ¶ 29,141, p. 38,941 (No. 88-1393, 1990).
In a default case such as this one, the Commission’s inquiry has been whether the
employer would be able to demonstrate sufficient reason to set aside the default judgment.
This has generally required remanding the case to the judge to afford the employer an
opportunity to make that showing. However, in Manti d/b/a Manti Homes, 16 BNA OSHC
1459, 1460-61, 1993-95 CCH OSHD ¶ 30,265, pp. 41,682-83 (No. 92-2222, 1993), in which
the employer did respond to the judge’s show cause order (although the response was not
technically complete) and did actually raise defenses to the citation, the Commission found
sufficient reason to set aside the default judgment without a remand to the judge for an
additional showing by the employer.
Schipper’s case is similar to Manti. After Schipper received notice of the impending
default judgment by means of the Secretary’s motion (April 27), Schipper promptly filed a
response (May 5), although he erroneously mailed his response to the Secretary instead of
the judge. While the response did not explain to any substantial extent why the
Commission’s requirement for an answer to the Secretary’s complaint was infringed,5 the
response did raise defenses to the Secretary’s citation and proposed penalty. Schipper
contended that shoring materials and trench boxes were available at the site of the excavation
for Schipper’s subcontractor to use to protect its employee. Schipper also contended in
considerable detail that the proposed penalty for Schipper’s alleged violation should be
reduced on the basis of Schipper’s good faith. President Schipper described some of the
things he has done that demonstrate his concern for safety. Although they do not constitute
a technically complete answer to a complaint, Schipper’s responses raise defenses to the
citation and penalty that can be construed as the "short and plain statement denying those
allegations in the complaint that the party intends to contest" pursuant to Commission Rule

5
We do not need to address whether it was reasonable for Schipper to assume that his notice
of contest would serve as an answer despite the fact that it was filed prior to the complaint.
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34(b)(2).6 See Manti, 16 BNA OSHC at 1460, 1993-95 CCH OSHD at p. 41,682. In
addition, they do meet the standard of reasonable diligence we require of employers
appearing before the Commission pro se who may not be as familiar with legal proceedings
as attorneys. 16 BNA OSHC at 1460, 1993-95 CCH OSHD at p. 41,683. We therefore
reinstate Schipper’s notice of contest, accept his responses thus far as his answer to the
Secretary’s complaint, and remand the matter to the judge for a hearing.
This relief is particularly appropriate because of the Secretary’s actions in two
respects in this case. First, she apparently failed to even attempt to confer with the employer
prior to filing her motion for a default judgment, contrary to Commission Rule 40(a)
governing motions.7 In fact, the Secretary’s motion asserted that, "[i]nasmuch as the
undersigned has not contacted Respondent regarding this Motion, the Secretary is not aware
of any opposition or lack thereof regarding this Motion." Although it is probable that an
employer will oppose the Secretary’s motion for a default judgment, the Commission’s rule
requiring the moving party to confer or make reasonable efforts to confer with the other
parties applies without exception to all motions presented to the judge or Commission.

6
Commission Rule 34(b)(2), 29 C.F.R. § 2200.34(b)(2), states that "[t]he answer shall
contain a short and plain statement denying those allegations in the complaint which the
party intends to contest" and that "[a]ny allegation not denied shall be deemed admitted."
7
Commission Rule 40(a), 29 C.F.R. § 2200.40(a), states that, "[p]rior to filing a motion, the
moving party shall confer or make reasonable efforts to confer with the other parties and
shall state in the motion if any other party opposes or does not oppose the motion."
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   Second, after the Secretary filed her motion for a default judgment on April 27,

Schipper sent a response to her instead of to the judge. Schipper’s response was dated May
5th. The judge’s order granting the Secretary’s motion was issued May 13, eight days later.
The record does not indicate when the Secretary received Schipper’s response, but it is most
likely that she received it before the judge issued his order. Under the circumstances, we
think the Secretary should have promptly notified the judge of the response and forwarded
it to him. Instead, the Secretary never informed the judge of her receipt of Schipper’s May
5 response. The failure to do so compounds the failure to follow Commission Rule 40
discussed above, gives the appearance of unfairness, and suggests gamesmanship. See Bland
Constr. Co., 15 BNA OSHC 1031, 1043, 1991-93 CCH OSHD ¶ 29,325, p. 39,403 (No.
87-992, 1991).
We also note that Schipper contends that Bruce Beelman, OSHA’s area director in
Bismarck, North Dakota, "told me he could work out a settlement on this citation with me
if I showed a good faith effort in improving safety policies." President Schipper "informed
him that five employees from my company (including me) attended an OSHA Trenching and
Excavation seminar in Fargo [on] February 24, 1999 and that I was implementing additional
policies in regards to safety." The Commission encourages voluntary dispositions by parties
to Commission proceedings, and settlement may be particularly appropriate in this case.
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  Accordingly, the judge’s order dismissing Schipper’s notice of contest is set aside and

the matter is remanded for a hearing on the merits.

                                                    /s/
                                                    Thomasina V. Rogers
                                                    Chairman




                                                    /s/
                                                    Gary Visscher
                                                    Commissioner

Dated: July 30, 1999