RIBBLESDALE, INC.

OSHRC Docket No. 13191

Occupational Safety and Health Review Commission

March 23, 1977

[*1]

BEFORE: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Joseph G. Sawtelle, Jr., Ribblesdale, Inc., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Foster Furcolo, dated December 22, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 held that respondent committed a serious violation of 29 U.S.C. 654(a)(2) by failing to comply with three occupational safety standards. For the reasons which follow, we vacate the Judge's order and remand the case for further proceedings.

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n1 Chairman Barnako does not agree to this attachment.

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On April 25, 1975, respondent was issued a citation for allegedly failing to comply with the occupational safety standards codified at 29 C.F.R. 1926.451(a)(4), (y)(4)(iii) and (y)(5). After respondent, through counsel, filed a notice of contest, a hearing was set for July 25, [*2] 1975. Thereafter, respondent requested and was granted a continuance until August 29, 1975. On August 18, 1975, respondent's counsel sent a letter to complainant which indicated that he had been directed by his client "to take no further action with respect to any OSHA proceedings." Respondent's counsel telephoned the Judge a few days later and repeated the substance of his letter, whereupon the Judge informed respondent's counsel that the case would proceed as scheduled despite "the application for a default judgment." Subsequently, the Judge reissued his order setting the hearing date for August 29, 1975. This notice was not sent to respondent. It was sent only to its counsel, who was operating under the misconception that respondent intended to default.

Seven days prior to the hearing, and again at the hearing, complainant moved for default judgment. The Judge denied the motion until after complainant had presented his case. Thereafter, he granted the motion and affirmed a serious violation for noncompliance with the cited standards.

In its petition for review, respondent requests vacation of the default judgment and a remand of the case on the ground that the default was [*3] the result of a misunderstanding between respondent and counsel. Respondent's representative, in a letter to the Commission, explained that when he instructed counsel to take no further action he was referring to a prior citation which he did not want reviewed by the Commission. Respondent's counsel, however, believed that respondent no longer wanted to contest the instant citation and, therefore, failed to appear at the hearing in this case.

Pursuant to Commission Rule 62(c), n2 the Commission, upon a showing of good cause, is authorized to excuse a party's default and reopen a hearing. 29 C.F.R. 2200.62(c). Considering the circumstances of this case, we conclude that it is in the best interests of justice and fairness to invoke that authority and set aside respondent's inadvertent default. n3

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n2 Also see Fed. R. Civ. P. 55(c) and 60(b).

n3 Cf. Secretary v. Monroe & Sons, Inc., OSAHRC Docket No. 6031, January 21, 1977.

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Accordingly, the Judge's decision is hereby vacated and the case is remanded for [*4] further proceedings consistent with this decision.

Appendix A

DECISION AND ORDER

This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 USC, sec. 651 et seq.) hereinafter called the Act. The Complainant alleges that the Respondent has violated sec. 5(a)(2) of the Act (sec. 654) by not complying with Occupational Safety and Health standards 29 CFR 1926.451(a)(4), 451(y)(4)(iii), and 451(y)(5); and the Complainant further alleges that such failure is a "repeated violation".

The Respondent is a corporation engaged in the business of real estate leasing and its business affects the commerce of the United States.

The Respondent's worksite at Circuit Road, Portsmouth, New Hampshire, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on April 25, 1975.

On April 25, 1975 the following Citation, together with Notice of Proposed Penalty, was issued against the Respondent:

Citation No. 3, Item #1a, the serious repeated violation of standard 29 CFR 1926.451(a)(4).

Item #1b, the serious repeated violation of standard 29 CFR 1926.451(y)(4)(iii).

Item #1c, the serious repeated violation of standard [*5] 29 CFR 1926.451(y)(5).

(The above three items were treated as one serious violation with a proposed penalty of $750.)

On May 2, 1975, the Respondent filed Notice of Contest to the Citation and the penalty proposed therefor.

The Complainant filed a Motion for Default Judgment. The reasons for my allowance of that motion (after the Complainant had presented evidence on the merits of the Complaint) are stated herein under the heading, "The Complainant's Motion for Default Judgment."

Citation No. 3 had three items that, taken together, were alleged to constitute a serious violation. The "repeated" classification is based on a citation issued against the Respondent on April 15, 1975, docket #13091, hereinafter referred to as the previous case. That citation alleged non-compliance by the Respondent with standards 29 CFR 1926.451(a)(4), 451(y)(4)(iii), and 451(y)(5), which are identical with the alleged violations in the instant case.

In the instant case, the relevant language of the standards is as follows:

Standard 29 CFR 1926.451(a)(4): Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor.

Standard 29 [*6] CFR 1926.451(y)(4)(iii): Poles shall be secured to the work wall by rigid triangular bracing, or equivalent, at the bottom, top, and other points as necessary.

Standard 29 CFR 1926.451(y)(5): All poles shall bear on mud sills or other adequate firm foundations.

EVIDENCE

In answer to the Complainant's Requests for Admissions 1, 2, and 4, the Respondent admitted that it was a Massachusetts corporation and owned and managed the Seacrest Village housing development in Portsmouth, New Hampshire, including the building at 395 Circuit Road (the worksite in the instant case). In response to Request for Admissions #3, the Respondent admitted that its employees regularly received, handled or worked with goods or materials in interstate commerce.

The Complainant's evidence, offered by Compliance Officer William Chase, tended to establish that on April 25, 1975, the Respondent's employee, one Megna, was installing siding on the exterior of a house at 395 Circuit Road in Portsmouth, N.H.; the materials were provided by the Respondent and the Respondent's superintendent, Mason, instructed and supervised Megna; the employee Megna was working on a pump jack scaffold that was above 10 feet [*7] in height, 20 feet in length, without any mudsill or firm foundation for either of the upright poles; the ground below both poles was soft; the upright poles were not braced at bottom or middle; there was no lifeline or guard railing; and the scaffold was shaky and swayed horizontally. (Tr. 17-26 and Exh. C-1)

The Compliance Officer testified that he had made a previous inspection on April 8, 1975, at 394 Circuit Road (in the previous case) and the conditions in the instant case (at 395 Circuit Road) were exactly the same as in the previous case. (Tr. 24).

He testified that, because of the conditions described, an employee could fall and sustain broken bones or death. (Tr. 23)

The Respondent did not appear and did not offer any evidence at the hearing and was not represented by anyone at the hearing.

FINDINGS OF FACT

Having heard the evidence and examined the exhibits, I find that on the date in question:

1. The Respondent's employee was working on a scaffold over 10 feet high, 20 feet long, without any mudsill or other firm foundation for either of the upright poles.

2. The upright poles were not braced at bottom or middle, had no mudsill or firm foundation, and the [*8] scaffold was shaky and swayed horizontally.

3. There were no guardrails or lifelines.

4. The conditions described herein exposed Respondent's employees to the hazard of sustaining serious or fatal harm.

5. One or more officers or supervisory personnel of the Respondent was aware of all the conditions described herein and knew that employees were exposed to such hazards.

6. The conditions in the instant case were virtually identical with those of the previous case.

7. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

CONCLUSIONS OF LAW

1. At all times material herein, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.

2. At all times material herein, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.

3. On the date in question, the Respondent was not in compliance with 29 CFR 1926.451(a)(4), 451(y)(4)(iii), and 451(y)(5) and was in violation of sec. 5(a)(2) of the Act (sec. [*9] 654).

4. The Citation in the previous case was affirmed by the Administrative Law Judge on July 25, 1975, and was not a final order at the time of the inspection of April 25, 1975, on which the instant case is based. It is not a "repeat" violation.

THE COMPLAINANT'S MOTION FOR DEFAULT JUDGMENT

The Complainant also filed a Motion for Default Judgment based on the Respondent's failure to appear at the hearing. The facts bearing on that Motion are as follows:

The Respondent had duly filed a Notice of Contest, an Answer to the Complaint, and Answers to the Complainant's Reguests for Admissions. By notice of June 24, 1975, the hearing was set for July 25, 1975, but the Respondent requested a continuance, which was granted. The hearing date was changed to August 29, 1975. On August 11, 1975, the Respondent filed Amended Answers to the Complainant's Requests for Admissions. On or about August 18, 1975, the Respondent's counsel sent a letter to the Complainant's counsel, one part of which reads as follows: ". . . . We have been directed by our client to take no further action with respect to any OSHA proceedings. I suppose you will have to proceed as you see fit but in all [*10] probability no response will be forthcoming from this office."

On August 21, 1975, the Respondent's counsel telephoned me (as the Administrative Law Judge assigned to this case) and told me of the letter to the Complainant's counsel. He said he assumed the Respondent would be defaulted but all he could tell me was what was in the substance of the letter to the Complainant's counsel. I told the Respondent's counsel that the case would proceed as scheduled. On that same date (August 21, 1975), I again notified both parties that "the hearing scheduled for August 29, 1975, will begin promptly at 10 a.m. in Courtroom No. 3 of the Manchester District Court. Both parties are directed to be present and ready to proceed at that time and place."

On August 22, the Complainant's counsel filed a Motion for Default Judgment against the Respondent. On that same date, the Respondent's counsel was notified by mail that the Complainant's "application for a default judgment would be heard on August 29, 1975, in the Manchester District Court, Manchester, New Hampshire at 10 o'clock." In that same letter, the Respondent's counsel was "again reminded that the case itself will also be heard at that [*11] same time and place and both parties are directed to be present and ready to proceed at that time and place."

On August 29, 1975, in Courtroom No. 3 of the said Manchester District Court, the hearing was called to order at 10:05 a.m. Counsel for the Complainant stated that she had called the Respondent's counsel on August 27th and was told that the Respondent was still being represented by the same counsel but he did not expect that he or anyone else would be appearing on August 29th for the Respondent. Following that statement, the Respondent and Respondent's counsel were called without response. I made search and inquiry in the corridors, clerk's office, and elsewhere in the courthouse for anyone representing the Respondent. There was no response. The hearing was resumed at about 10:20 a.m.; the Respondent and anyone representing the Respondent were again called, but there was no response. The hearing proceeded. At 11 A.M. the Respondent and anyone representing the Respondent were again called, both in and out of the courtroom, but there was no response. The Complainant's Motion for Default Judgment against the Respondent was then allowed.

I followed the procedure outlined [*12] herein because the law seems to me to be unsettled on the question of whether there must be sufficient evidence of record to justify a Citation where a Respondent has duly filed a Notice of Contest but has not appeared at the hearing.

The Complainant cited several OSAHRC cases where summary judgments had been granted without any hearing. However, the cases of Heber Valley Milk Co. v. Butz, 503 F(2) 96 and Nickol v. United States, 501 F(2) 1389, both seem to indicate that summary judgment is inappropriate in Administrative law proceedings and that (at least in certain situations) there should be findings of fact and a determination that on Order is supported by substantial evidence.

In the instant case, the Respondent filed a Notice of Contest to the Citation and an Answer to the Complaint. In such citcumstances, the Respondent may be entitled to more than simply the entry of a Default Judgment. For that reason, although I have allowed the Complainant's Motion for Default Judgment, I also required the Complainant to produce evidence supporting the Citation.

Rule 62 of the Rules of Procedure of the Occupational Safety and Health Review Commission says in part: [*13] ". . . . the failure of a party to appear at a hearing shall be deemed to be a waiver of all rights except the rights to be served with a copy of the decision of the Judge. . . ."

Rule 90 says in part: "(a) The decision of the Judge shall include findings of fact, conclusions of law, and an order."

Rule 55 of Civil Procedure for the U.S. District Courts says in part: ". . . . If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary. . . . to establish the truth of any averment by evidence. . . . the court may conduct such hearings. . . . as it deems necessary and proper. . . ."

ORDER

The whole record having been considered, and due consideration having been given to 29 USC 666(j) it is ordered:

The Citation is affirmed as a "serious" violation, but not as a "serious-repeated" one. The proposed penalty of $750 for the "serious-repeated" violation is modified to $500 [*14] for a "serious" violation and, as so modified, is hereby assessed.

Dated: December 22, 1975

Boston, Massachusetts

FOSTER FURCOLO, Judge, OSAHRC