Secretary of Labor v. ARJ Construction Company, Inc.

Plain-English summary

ARJ Construction contested one $154 citation at the Taylor No. 1 Mine. Its counsel did not respond to the Secretary's simplified-proceeding disclosures, missed two scheduled conference calls, and failed to contact opposing counsel after saying the company would pay the penalty. Judge Priscilla M. Rae then issued a show-cause order, which counsel received but did not answer. The judge found ARJ in default, dismissed its contest and hearing request, and ordered payment of the $154 penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(d); 29 C.F.R. §§ 2700.66, 2700.105, and 2700.106(a)
• Outcome: ARJ was found in default, its contest was dismissed, and the $154 penalty became payable.
• Key point: Repeated failure to participate and answer a show-cause order can result in default even in a simplified proceeding involving a small penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9956 / FAX: 202-434-9949

February 22, 2017

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

ARJ
CONSTRUCTION COMPANY INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. YORK 2016-103

A.C.
No. 18-00748-409912

Mine:
Taylor # 1

ORDER OF DEFAULT
AND ORDER TO PAY

This case is before me upon a petition
for assessment of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d).

At issue in this docket is one citation
with a total proposed penalty of $154.00. The Petition was filed on July 27,
2016. On August 10, 2016, the docket was assigned to me and designated for
simplified proceedings under the Commission’s procedural rules at 29 C.F.R.
Part 2700, Subpart J. Pursuant to the procedural rules, within 45 days after a
case has been designated for simplified proceedings, the parties must exchange
any information and materials which may be used to support their claims or
defenses and must “engage in a discussion to explore the possibility of
settlement” before a prehearing conference is held by the judge. 29 C.F.R. §
2700.105, § 2700.106(a). Between October and December 2016, the Solicitor
provided several status updates stating that she had duly provided disclosures
to Respondent’s counsel but had never heard back from him.

I held a prescheduled conference call on
December 6, 2016 in an attempt to discuss the status of this case and schedule
a hearing, if necessary. Counsel for the Respondent failed to appear despite having
received two emails stating the date and time for the call and directing him to
appear. After missing the call, counsel for the Respondent phoned my law clerk
and stated that his client was willing to pay the $154.00 penalty for the one
citation at issue in this docket. My clerk told Respondent’s counsel that he needed
to contact opposing counsel to confirm the settlement. However, he never
contacted opposing counsel.

A last attempt was provided to
Respondent’s counsel to comply with my previous orders by scheduling a
conference call on February 3, 2017, at which time he again failed to appear.

On February 6, 2017, I issued an Order
to Show Cause ordering Respondent to explain in writing within ten days why an
order of default should not be issued against it due to its failure to comply
with the procedural rules and with my previous orders to appear on conference
calls. Respondent’s counsel signed for receipt of the show cause order on
February 9, 2017. However, he has failed to submit a written response.

The Commission’s procedural rules permit
a finding of default and summary disposition of a case after issuance of a show
cause order when a party has failed to comply with a judge’s orders. 29 C.F.R.
§ 2700.66.

WHEREFORE , I find
Respondent to be IN DEFAULT .

Respondent’s notice of contest and
request for hearing are DISMISSED . Respondent is hereby ORDERED to
pay a total penalty of $154.00 within thirty (30) days of the date of this
Order. [1]

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Helga
P. Spencer, Esq., U.S. Department of Labor, Office of the Solicitor, 170 South
Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306

John
F. Leaberry, Esq., Law Office of John Leaberry, 106 Patrick Street, Lewisburg,
WV 24901

ARJ
Construction Company Inc., 201 South Jefferson Street, Lewisburg, WV 24901

[1] Checks or money
orders should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.