Secretary of Labor v. Gordon Sand Company (ALJ decision, June 20, 2014)

Plain-English summary

Gordon Sand Company faced four citations issued under section 104(a) of the Mine Act and a proposed penalty of $400. The company did not participate in a scheduled conference call, file an answer, or enter an appearance. Judge Richard W. Manning issued an order to show cause and warned that an inadequate or missing response would result in default. The company did not respond even though an agent signed the certified-mail receipt. The judge entered default, affirmed all four citations as written, found the proposed penalties reasonable under the statutory criteria, and ordered the company to pay $400 within 30 days.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.66 and 2700.102(c); 30 U.S.C. §§ 814(a) and 820(i)
• Outcome: Four citations were affirmed as written, and the proposed $400 penalty was assessed.
• Key point: Failure to appear and respond to a show-cause order can result in default and assessment of the Secretary's proposed penalties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-3577 / FAX: 303-844-5267

June 20, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

GORDON SAND COMPANY

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 2014-47-M

A.C. No. 04-01787-332496

Gordon Sand Company

DEFAULT DECISION

This case is before me upon a petition for assessment of civil penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"). The case involves four citations issued under section 104(a) and a proposed civil penalty of $400.00. A conference call was scheduled in this case on May 14, 2014, but Gordon Sand Company chose not to participate in the call. A conference call is equivalent to a court appearance and is especially important in a case designated for Simplified Proceedings. Gordon Sand Company also failed to file an answer or enter its appearance in this case, as required Commission Procedural Rule 102(c), which would have provided me with critical contact information. 29 C.F.R. § 2700.102(c).

On May 14, 2014, I issued an order
to show cause against Gordon Sand Company. In the show cause order I directed Gordon Sand Company to explain why it should not be held in default for its failure to participate in the conference call and enter its appearance in the case. I warned Gordon Sand that its failure to file a satisfactory response to my order by June 11, 2014, would result in an entry of default against Gordon Sand and the assessment of the Secretary’s proposed penalty of
$400.

Gordon Sand Company
failed to respond to my order to show cause.[1] Consequently, Gordon Sand Company is in DEFAULT. 29 C.F.R. § 2700.66. The four citations at issue are AFFIRMED as written by the MSHA inspector. I have reviewed the citations and the six penalty criteria in Section 110(i) of the Act. Based on this review I find that the penalties proposed by the Secretary are reasonable and are hereby AFFIRMED. Gordon Sand Company is ORDERED TO PAY the Secretary of Labor the sum of $400.00 within 30 days of the date of this decision.[2]

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

D. Scott Horn, Conference & Litigation Representative, Mine Safety & Health Administration, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (First Class Mail)

George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd, Suite F, Hayward, CA 94545-4436 (Certified Mail)

RWM

[1]
The order to show cause was sent to Gordon Sand Company via certified mail. The return receipt card was returned to the Commission with the signature of one of its agents dated May 19, 2014. I also note that in another case, Gordon Sand Company failed to appear at a scheduled hearing and I held the company in default. Gordon Sand Company, 30 FMSHRC 235 (March 2008).

[2]
Payment should be sent to the Mine Safety and
Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.