Before: ROGERS, Chairman; THOMPSON and ATTWOOD, Commissioners.
BY THE COMMISSION:
On March 21, 2011, former Administrative Law Judge Benjamin R. Loye issued a
default judgment against Waterford Aluminum Company, Incorporated (“Waterford”) based on
its failure to timely file an answer to the Secretary’s complaint and respond to an Order to Show
Cause. For the reasons that follow, we direct this case for review, set aside the judge’s decision
and remand this case for further proceedings in a manner consistent with this opinion.
Following the issuance of a single-item citation on May 19, 2010, Waterford, appearing
pro se, timely filed a notice of contest (“NOC”). On July 8, 2010, this case was designated to
proceed under Simplified Proceedings but was subsequently returned to conventional
proceedings after the judge granted the Secretary’s Unopposed Motion to Return the Matter to
Regular Trial Proceedings. The judge also granted the Secretary’s request for an extension of
time to file her complaint, which she timely filed on August 6, 2010. Under Commission Rule
34(b)(1), Waterford was required to file an answer by August 26, 2010. 29 C.F.R. § 2200.34(b).
On January 13, 2011, having received no filings from Waterford, the judge sua sponte
issued a Show Cause Order—sent by certified mail, return receipt requested—directing
Waterford to file an answer, or an explanation as to why it could not, on or before February 7,
2011. See 29 C.F.R. § 2200.101(a) and 101(d) (setting forth default procedure for party’s failure
to proceed and requirement that show cause order be served by certified mail, return receipt
requested). In the order, the judge stated that he would dismiss Waterford’s NOC if no answer
or explanation was received by that date. The show cause order was sent to Tamlyn Plohocky,
the Waterford employee who signed the NOC, at P.O. Box 150, Waterford, Wisconsin 53185.
There is no signed return receipt in the record, but the show cause order has not been returned to
On March 8, 2011, the judge sent the parties a notice of his decision, in which he vacated
Waterford’s NOC and affirmed the citation. On March 14, 2011, Ms. Plohocky sent a letter to
the judge, which the Commission has construed as a petition for discretionary review.
The Commission has consistently held that that “ ‘dismissal of a citation is too harsh a
sanction for failure to comply with certain prehearing orders unless the record shows
contumacious conduct by the noncomplying party or prejudice to the opposing party.’ ” AA
Plumbing, Inc., 20 BNA OSHC 2203, 2204, 2004-09 CCH OSHD ¶ 32,795, p. 52,446 (No.
04-1299, 2005) (citation omitted). Here, the judge characterized Waterford’s failure to file an
answer and respond to his show cause order as “contumacious conduct justifying sanctions.”
However, we find the record insufficient to establish contumacy where it is unclear whether the
judge’s show cause order was ever received by Waterford. See Samuel Filisko, 20 BNA OSHC
2204, 2206, 2004-09 CCH OSHD ¶ 32,855, p. 52,963 (No. 04-1465, 2005) (“[W]ith only
[employer’s] failure to file a timely answer before [the judge], and no indication on the record
that [it] had received his show cause order, we see no basis for the judge’s conclusion that
[employer] either ‘has abandoned the case or treats the Rules of Procedure of the Commission
with disdain.’ ”). In addition, Ms. Plohocky explains in the petition that Waterford experienced
a water pipe break around the time the show cause order was sent that required its office to cease
operations for more than a week, delaying her ability to retrieve relevant documents until
February 12, 2011.
The record also suggests that Ms. Plohocky, as Waterford’s pro se representative, may
have been confused by the Commission’s procedural requirements. In the petition, Ms.
Plohocky makes the following representations: (1) “[a]fter correspond[ing] with [Secretary’s
counsel] and a representative from the Milwaukee Office, I believed that what had to be done
was to correct the violation[, which] is what we researched and accomplished”; and (2) “[o]n
September 27, 2010 there was a motion for an Extension of Time to File An Answer for
Abatement” and “we did not receive a reply.”
In addition, Ms. Plohocky states that Waterford
was moving “forward with the correction of the violation [and] that [was] completed on January
29.” She then “apologize[s] for the tardiness in forwarding the correction of the violation.”
Based on these various representations, it appears Ms. Plohocky believed that correcting
the violation and sending notification of that correction was all that was necessary to resolve this
matter. As such, it is not clear that she understood that filing an “answer” meant something
other than forwarding OSHA a notice regarding Waterford’s abatement of the alleged violation.
See Bilodeau Homes, 21 BNA OSHC 1292, 1294, 2005-2009 CCH OSHD ¶ 32,805 p. 52,532
(No. 05-0231, 2005) (citing Action Group, 14 BNA OSHC 1934, 1935, 1987-1990 CCH OSHD
¶ 26,199, p. 39,018 (No. 88-2058, 1990)) (noting that “Commission has long recognized
that…employers appearing pro se are ‘often confused by legal terminology and may not be fully
cognizant of the legal technicalities of the judicial process.’ ”).
Finally, we note that the
Secretary does not claim that she was prejudiced by Waterford’s failure to timely file an answer
or respond to the show cause order.
Under these circumstances, we conclude that the present record does not support the
judge’s sanction of dismissal. See WR Exterior Design Construction, Inc., 22 BNA OSHC 1391,
1392, 2004-09 CCH OSHD ¶ 33,006, p. 54,232 (No. 08-0474, 2008) (citing Samuel Filisko, 20
BNA OSHC at 2206, 2004-09 CCH OSHD at p. 52,963 (“[L]ate filing alone without evidence of
prejudice, contumacious conduct and/or a pattern of disregard for Commission rules would not
be a basis for dismissing this case.”)); see also Merchant’s Masonry Inc., 18 BNA OSHC 1936,
1937, 1999 CCH OSHD ¶ 31,931, p. 47,369 (No. 99-0189, 1999) (stating that Commission has
issued remand where small pro se employer makes some factual claims that might justify setting
aside dismissal). Accordingly, we direct this case for review, set aside the judge’s decision in
accordance with Commission Rule 101(b), 29 C.F.R. § 2200.101(b), and remand this case to the
Chief Administrative Law Judge. On remand, Waterford should be afforded an opportunity to
explain its failure to timely file an answer and respond to the show cause order.
Thomasina V. Rogers
Horace A. Thompson III
Cynthia L. Attwood
Dated: April 25, 2011 Commissioner
Secretary of Labor,
Waterford Aluminum Company, Inc.,
OSHRC DOCKET NO. 10-1163
Before: Administrative Law Judge Benjamin R. Loye
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to Section 10(c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §651 et seq. ("the Act"). The Occupational Safety and Health
Administration ("OSHA") conducted an inspection of a Waterford Aluminum Company, Inc.
facility between January 6 and January 26, 2010. As a result of the inspection, OSHA issued a
Citation and Notification of Penalty to Respondent alleging one serious violation of the Act with
a proposed penalty of $375.00. Respondent contested the citation item.
On July 8, 2010, this case was designated to proceed under the Commission’s
Simplified Proceeding rules. On July 23, 2010, as a result of Complainant’s Unopposed Motion
to Return Matter to Regular Trial Proceedings, the court issued an Order returning the case to
the conventional docket and requiring Respondent to file an Answer by August 26, 2010.
Respondent never filed an Answer. Therefore, on January 13, 2011, the court issued an Order to
Show Cause to Respondent, by certified mail, requiring Respondent to file an Answer by
February 7, 2011 or show cause as to why Respondent was unable to file an Answer. The Order
to Show Cause warned that failure to file an Answer or an explanation regarding its inability to
file an Answer by February 7, 2011 would result in an order dismissing Respondent’s Notice of
Contest and affirming the citations and penalty as proposed. Respondent did not respond to the
Order to Show Cause.
Commission Rule 101(a) provides "[w]hen any party has failed to plead or
otherwise proceed as provided by these rules or as required by the Commission or Judge, he may
be declared to be in default either on the initiative of the Commission or the Judge, after having
been afforded an opportunity to show cause why he should not be declared in default ...
[t]hereafter, the Commission or Judge, in their discretion, may enter a decision against the
defaulting party ..."
Respondent has demonstrated a pattern of disregard for the procedural
requirements and authority of the Commission by: (1) failing to file an Answer pursuant to
Commission Rule 34(b) and the court’s Order of July 23, 2010, and (2) failing to respond to the
January 13, 2011 Order to Show Cause. Respondent’s repeated failure to participate in this
proceeding constitutes contumacious conduct justifying sanctions. Philadelphia Construction
Equipment, Inc., 16 BNA OSHC 1128, 1993 CCH OSHD ¶30,051 (No. 92-0899, 1993); Sealtite
Corporation, 15 BNA OSHC 1130, 1991 CCH OSHD ¶29,398 (No. 88-1431, 1991).
Accordingly, Respondent’s Notice of Contest is hereby VACATED and the violation alleged in
the Citation and Notification of Penalty is AFFIRMED.
Date: March 21, 2011 BENJAMIN R. LOYE
Denver, Colorado Judge, OSHRC