OSHRC Docket No. 5150

Occupational Safety and Health Review Commission

March 6, 1975


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a report made by Judge Henry K. Osterman.   Judge Osterman vacated the Secretary's citation and notification of proposed penalty because neither the Secretary nor the Respondent appeared at a hearing scheduled for February 27, 1974.   For the reasons that follow, we reject his report.

Prior to the date on which the hearing was scheduled, Respondent informed Complainant that it wished to withdraw its notice of contest because the violations had been abated, and Respondent would continue to comply with the Act in the future.   Shortly thereafter, Respondent paid the penalty in full, and stated that it would submit a motion to withdraw. The motion was not submitted.

On February 28, the parties realized that the hearing was to have been held the preceding day, and Respondent immediately sent to the Judge a letter stating that through an oversight it had not earlier advised the Commission of its intention to withdraw. In addition, on March 1, Complainant informed the Judge by mail that it had understood that Respondent [*2]   has stated it would move to withdraw, and Complainant had relied on that assurance because Respondent had paid the penalty.

Both letters were received by the Commission on March 4, but the record does not reveal whether they were received by the Judge.   His order issued on March 6.

Rule 62(c) provides that the Commission may excuse a failure to appear at a hearing upon a showing of good cause. It appears from the record that the failure of the parties to appear is a matter of mutual mistake occurring through Respondent's oversight and Complainant's mistaken reliance.   In such circumstances the sanction imposed by the Judge herein should not be employed for it does not do justice.

  Respondent has moved to withdraw its notice of contest, and the record shows that the violations have been abated and the penalty has been paid.

Accordingly, the Judge's report is hereby rejected, Respondent's motion to withdraw its notice of contest is granted, and the citation and notification of proposed penalty are affirmed.   It is so ORDERED.  



  MORAN, CHAIRMAN, dissenting: I disagree with this disposition because it tends to undermine the respect for judicial processes which [*3]   are essential to the proper functioning of our adversary system of justice.

Both parties were properly notified that a hearing on this case would be convened by Judge Osterman at 10 a.m. on February 27, 1974, in Room B-2231, 26 Federal Plaza, New York City.   This agency had arranged for the use of that courtroom and the presence of a court stenegrapher.   Judge Osterman travelled from his office in Washington, D.C., to New York City so he could preside at the trial.   All of this cost the government a considerable amount in both money and time.

The Code of Professional Responsibility provides that lawyers should be punctual in fulfilling all professional commitments as well as respectful and courteous in their relations with a judge appointed to adjudicate any matter in which such lawyers appear as counsel.

Nevertheless, despite the foregoing, neither party appeared at the hearing nor had the courtesy to advise the judge of their intention not to do so.   To permit this to happen without any adverse consequence to either counsel or the parties tends to diminish public confidence in our legal system, is disrespectful to the judge, and demonstrates an insensitivity to the integrity   [*4]   of this agency and the taxpayers who provide its operational funds.

Though the Commission may excuse a failure to appear at a hearing upon a showing of good cause, this record demonstrates only carelessness, discourtesy and disrespect.   There was no good cause for the action of counsel.   The judge's disposition was impeccably correct.   I think the Commission should hang its collective head in shame for overturning Judge Osterman in this and I   am quite apprehensive about the future consequences once it is known that counsel can ignore a scheduled trial without fear.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: The subject matter was scheduled for hearing at 10 a.m., February 27, 1974, in Room B-2231, 26 Federal Plaza, New York City, New York.

Neither party having appeared at the hearing it is ORDERED

That the citation and the notice of proposed penalty both dated October 4, 1973, be, and the same hereby are, vacated.