Barbara A. Goldberg, Attorney; Janet M. Graney, Acting Regional Solicitor; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC and Chicago, IL
For the Complainant
Andjelko Galic, Attorney; Chicago, IL
For the Respondent
Before: ROGERS, Chairman and ATTWOOD, Commissioner.
BY THE COMMISSION:
At issue before the Commission is an Order of Default issued by Chief Administrative Law Judge Covette Rooney dismissing the notice of contest filed by Neupauer Masonry, Inc. (“Neupauer”), affirming the three citations issued to Neupauer, and assessing the total proposed penalty of $43,560. For the following reasons, we remand this case for further proceedings consistent with this opinion.
On September 19, 2012, the judge issued an Order to Show Cause, in which she gave Neupauer—appearing pro se at the time—until October 1, 2012, to show why it should not be held in default for failing to file a timely answer to the Secretary’s complaint. See Commission Rule 34(b)(1), 29 C.F.R. § 2200.34(b)(1) (answer shall be filed within 20 days after service of complaint). The judge sent the show cause order to Neupauer via certified mail, return receipt requested, as required by Commission Rule 101(d), 29 C.F.R. § 2200.101(d). The return receipt shows that the order was received by Neupauer on September 25, 2012.
On December 12, 2012, the judge dismissed Neupauer’s notice of contest based on its failure to respond to the show cause order or otherwise communicate with her office citing Commission Rule 101(a), 29 C.F.R. § 2200.101(a), which provides that a party “may be declared to be in default . . . after having been afforded an opportunity to show cause why he should not be declared to be in default . . . .” She found that Neupauer’s failure to respond constituted contumacious conduct which prejudiced the Secretary by impeding her ability to proceed in the matter.
In its petition for review, Neupauer—now represented by counsel—claims that it had previously hired an individual named Julio Vargas to provide the company with legal advice and representation in this matter. According to Neupauer, it forwarded the judge’s show cause order to Vargas, who assured the company that an appropriate response would be timely filed. Neupauer argues that “[b]ut for the fact that [it] became a victim of the unauthorized practice of law [by Vargas, it] would have answered the underlying complaint and would have participated in this litigation contesting these very serious charges.” The company’s petition also includes a verification signed by its counsel asserting that Vargas is not an attorney and is not licensed in Illinois.
Parties are generally bound by the actions of their hired representatives. Byrd Produce Co., 16 BNA OSHC 1268, 1269, 1993-1995 CCH OSHD ¶ 30,139, p. 41,447 (No. 91-0823, 1993) (consolidated). But the claims alleged by Neupauer in its petition raise serious issues that the judge did not have before her when determining whether default was appropriate. Indeed, it is not clear from the current record when Vargas was hired or whether he contributed to Neupauer’s failure to file a timely answer and respond to the judge’s show cause order. And while the judge found Neupauer’s conduct contumacious, the company now claims that its behavior was due to its reliance on a representative who misrepresented his qualifications.
Under these circumstances, we find it appropriate to remand this case to the judge to allow her an opportunity to fully consider Neupauer’s claims and take any further action as appropriate including, if necessary, reconsideration of her default decision.