Columbia Portland Cement Company (Commission decision, November 13, 1986)

Plain-English summary

The Chief Administrative Law Judge entered a default order against Columbia Portland Cement Company after it failed to respond to a show-cause order, affirmed a citation, and assessed a $2,000 civil penalty. Columbia later petitioned for discretionary review and attributed its failure to respond to the mistake or neglect of a former employee. The Commission concluded that Columbia should have the opportunity to present its position. It vacated the dismissal order and remanded for further proceedings.

Decision snapshot

• Governing provision: 30 U.S.C. § 801
• Outcome: The default-related order was vacated and the case was remanded for further proceedings.
• Key point: A sufficient showing of good cause may excuse a failure to respond to an order and allow proceedings on the merits.

Full text (FMSHRC public release)

CCASE:
MSHA V. COLUMBIA PORTLAND CEMENT
DDATE:
19861113
TTEXT:

FMSHRC-WDC
November 13, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. LAKE 86-38-M

COLUMBIA PORTLAND
CEMENT COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, and Lastowka, Commissioners

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 801 et. seq. (1982). On October 3, 1986, Chief Administrative Law Judge Paul Merlin issued an Order of Default finding respondent Columbia Portland Cement Company ("Columbia") in default, affirming the citation in issue, and assessing a civil penalty of $2000. Thereafter, Columbia filed a timely petition for discretionary review with the Commission, requesting that the Order of Default and the penalty assessed against Columbia be reversed. On November 4, Columbia filed a supplementary Memorandum in Support of Petition for Discretionary Review specifically addressing its failure to respond to the July 7, 1986 Order to Show Cause which resulted in the October 3, 1986 Order of Default.

Default is a harsh remedy, and if a defaulting party can make a showing of adequate or good cause for a failure to respond to an order, the failure may be excused and proceedings on the merits permitted. M.M. Sundt Constr. Co., 8 FMSHRC 1269 (Sept. 1986). Columbia asserts that its failure to respond to the July 7, 1986 Order to Show Cause is attributable to the mistake or neglect of

Page 2

a former employee. In the interests of justice we conclude that Columbia should have the opportunity to present its position to the judge.

Page 3

~1645
Accordingly, we vacate the Order of Dismissal and remand the case for further proceedings consistent with this Order. Fife Rock Products Co., 8 FMSHRC (October 1986).

Ford B. Ford, Chairman

Richard V. Backley, Commissioner

Joyce A. Doyle, Commissioner

James A. Lastowka, Commissioner

Distribution

John C. Ross, Esq.
Ross & Robertson
Suite 200, Renaissance Centre
4580 Stephen Circle, N.W.
Canton, Ohio 44718

Marcella L. Thompson, Esq.
Office of the Solicitor
U.S. Department of Labor
881 Federal Building
1240 East Ninth Street
Cleveland, Ohio 44199

Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin Federal Mine Safety & Health Review Commission 1730 K St., N.W., Suite 600 Washington, D.C. 20006