Docket No. 77-2720

GEORGE BARRY, et al., d/b/a UNION WATERPROOFING, ROOFING AND PAINTING CO.

OSHRC Docket No. 77-2720

Occupational Safety and Health Review Commission

January 30, 1981

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

George Barry, for the employer

George Barry, Administrator, Union Waterproofing, Roofing & Painting Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Administrative Law Judge Jerome C. Ditore affirmed a citation and proposed penalties against a respondent, George Barry. Mr. Barry petitioned for review of the judge's decision, alleging, among other things, that he had no notice of the hearings held by Judge Ditore. Commissioner Barnako, pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i), directed review of the judge's decision on the issues raised in the petition and directed the attention of the parties to the following issue:

Whether there is, or can be shown, good cause pursuant to Commission Rule 2200.62(c) to excuse the failure of George Barry, referred to in the caption herein as "George Barry, Administrator, d/b/a Union Waterproofing, Roofing and Painting Co.," to appear for [*2] the hearing held on January 30, 1978, such that the decision of the Judge affirming the citations should be vacated and the case remanded for further proceedings, to permit opportunity to present any further evidence concerning, but not limited to, the matters set forth by George Barry in his Petition for Discretionary Review.

From July 26 to July 28, 1977, an authorized representative of the Secretary of Labor ("the Secretary") conducted an inspection at Roosevelt Hospital in New York City. As a result of that inspection two citations were issued on August 1, 1977, to "Union Waterproofing, Roofing & Painting Co." and were marked "Attn: Mr. George Barry, Owner." One of these citations alleged six serious violations for failure to comply with certain occupational safety and health standards. The other alleged one other-than-serious violation. A total penalty of $6,000 was proposed for the serious violations. On August 24, 1977, a notice of contest was filed contesting all items in the citation for serious violations. The notice of contest was written on the letterhead of Union Waterproofing, Roofing and Painting Company ("Union") and signed by "George Barry, Administrator." [*3] The Secretary filed his complaint, naming "George Barry, et al., d/b/a Union Waterproofing, Roofing and Painting Co." as respondent. The complaint alleged that Union is a partnership. The answer to the complaint was written on Union's letterhead and signed by "George Barry, Admin." It denied that George Barry was doing business as Union. The answer also asserted that George Barry is not Union's owner and that Union is not a partnership. The Secretary proceeded with various methods of discovery including a request for admissions, motion for production of documents and interrogatories. Included in these requests were questions regarding the business structure and identity of Union. No responses to the discovery requests were filed.

Judge Ditore scheduled a prehearing conference and orally notified George Barry, who agreed to attend. Before the conference an attorney filed a mailgram stating that he had "just been retained to represent Union Waterproofing," n1 and requesting that the conference be postponed. Subsequently, the attorney notified the judge that the principal of Union was hospitalized and that the attorney was unable to prepare his case. On January 4, 1978, the [*4] judge entered an order directing the attorney to identify the principal and supply information about Union and George Barry's relationship to Union. The attorney for Union then notified the judge that the principal of Union had died and that the attorney was withdrawing from the case.

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n1 George Barry later alleged in his petition for discretionary review that the attorney represented a Mr. George Stefano.

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On January 18, 1978, the judge entered a new order directing the attorney to inform the judge of the name of the principal and to provide the judge with information about the status, business structure, and ownership of Union. That order set a hearing for January 30, 1978, to resolve the issues concerning the ownership of Union as well as George Barry's relationship to it. The order was served by mail on both George Barry and on the attorney for Union.

The attorney wrote to the judge that the principal was George Stefano and that, as a matter of law, his agency terminated when his principal died. He enclosed [*5] a copy of a death certificate for George Stefano. That certificate states that certain personal information about George Stefano reflected on the certificate was received from George Barry, whose relationship to George Stefano was stated as "friend."

The hearing was held before Judge Ditore on January 30, 1978. Neither George Barry nor any representative of Union appeared. At that hearing, an employee of Roosevelt Hospital testified that the hospital had entered into a contract with Union to perform work at the hospital, that all negotiations and business dealings on behalf of Union were conducted by George Barry, and that George Barry was in charge of all work performed by Union. Two employees who worked at the hospital project testified that they understood that they worked for a company called A-1 Construction and that they were hired, paid, and supervised by George Barry. Two compliance officers testified that they went to Union's office, where they met Barry, and that Barry represented that he was a partner in Union. One of these officers testified that he had had other convertsations with Barry in which Barry acted on behalf of Union and held himself out as the owner [*6] of Union. The hospital made two payment by check to Union. The checks were endorsed by a Union stamp over to "A-1 Construction, Waterproofing & Painting Co." ("A-1"). Evidence was introduced to show that Barry paid the workers on the hospital job with checks on the account of A-1.

At the request of the Secretary the hearing was reopened on March 16, 1978. At the reopened hearing the Secretary introduced additional evidence which he had obtained after the hearing held on January 30, 1978. Copies of bank records introduced at the reopened hearing show that George Barry is secretary-treasurer of A-1 and that he is the only individual authorized to disburse funds from A-1's account. Neither George Barry nor any representative of Union appeared at the March 16 hearing. n2

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n2 At that hearing counsel for the Secretary offered to file with the judge a certificate of service certifying that George Barry was served at his post office box with a subpoena to appear at the March 16 hearing. That certificate is not, however, in the record.

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In his decision, Judge Ditore found that the evidence presented by the Secretary left "no doubt that George Barry was the employer" at the cited worksite and that he and his company, A-1, were doing business as Union Waterproofing, Roofing & Painting Co. The judge therefore concluded that George Barry was properly designated as a respondent. The judge noted that Union's address was George Barry's address of record and concluded that mailings to him there were properly served. Judge Ditore therefore held that Barry's failure to appear at the hearing after being properly served constituted a waiver of his rights except the right to receive a copy of the judge's decision. n3 He dismissed the notice of contest and affirmed the citation and proposed penalty.

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n3 Rule 62 of the Commission's Rules of Procedure, 29 C.F.R. § 2200.62, provides:

Failure to appear.

(a) Subject to the provisions of paragraph (c) of this rule, the failure of a party to appear at a hearing shall be deemed to be waiver of all rights except the rights to be served with a copy of the decision of the Judge and to request Commission review pursuant to Rule 91 hereof.

(b) Requests for reinstatement must be made, in the absence of extraordinary circumstances, within 5 days after the Scheduled hearing date.

(c) The Commission or the Judge, upon a showing of good cause, may excuse such failure to appear. In such event, the hearing will be rescheduled.

[*8]

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In his petition George Barry denies that he is the employer at issue in this case. He represents that he had no notice of the hearings and argues that he is entitled to notice of the hearing and to the opportunity to defend. He states that his correct mailing address is a post office box in Bronx, N.Y. n4 He asserts that this information was known to the judge but was improperly disregarded. He argues that he could have been personally served. Barry further claims that "evidence was concealed" by the attorney for the Secretary, that the hearing was reopened without notice to him, and that it was improper to amend the citation in the complaint to name Barry personally.

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n4 Union's address is on Webster Avenue, Bronx, N.Y. It was to that address that the citation and complaint were mailed, both of which were responded to by George Barry.

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The Secretary argues on review that Barry has not shown good cause to set aside the judge's [*9] decision. The Secretary argues that notice was sent to the only address known for Barry and that the address used was that to which the citation and complaint were mailed and which appeared on the notice of contest and answer signed by Barry. The Secretary argues that such service complies with the Commission's rules and is therefore adequate. He argues that service is effective upon mailing and that nonreceipt is not good cause for setting aside a default based on failure to appear at a scheduled hearing.

The Secretary states in his brief that a subpoena for the hearing held on March 16, 1978, was sent to George Barry at both A-1's business address and at the post office box that Barry claims is his correct address. The Secretary argues that both the Secretary and the judge exercised greater diligence to notify Barry than was required by law and that Barry has not shown good cause for his failure to appear.

III

George Barry alleges that the complaint improperly amended the citation to name him as a party. We disagree. The citation alleged that George Barry was Union's owner. The complaint alleged that Mr. Barry was a partner in, and therefore part-owner of, Union. Mr. [*10] Barry's status in the case was not adversely affected by the style of the complaint, if it was affected at all. We find that the amendment was proper. See John Hill, d/b/a Leisure Resources Corp., 79 OSAHRC 50/A12, 7 BNA OSHC 1485, 1979 CCH OSHD P23,669 (No. 78-47, 1979). Cf. P & Z Co., 79 OSAHRC 60/B6, 7 BNA OSHC 1589, 1979 CCH OSHD P23,777 (No. 14,822, 1979) (A complaint may be amended to add a new party as long as the party to be added receives actual notice of the Secretary's allegations and has a full opportunity to defend).

On this record, we cannot say that the judge erred in concluding that Barry was an employer at the hospital, whatever name he was using. There is abundant testimony in the record pointing to that conclusion. It may be, however, that Mr. Barry could produce evidence that would rebut the Secretary's evidence or otherwise disprove his apparent liability as an employer under the Act. Furthermore, if, as represented in the petition, Mr. Barry had no notice of the hearing, that would excuse his failure to appear.

In his decision, the judge stated that George Barry was properly served at his address of record, by both first class and certified [*11] mail, with copies of the judge's order setting the hearing for January 30, 1978, but that both mailings were returned to the judge. The judge is correct that, ordinarily, nonreceipt or refusal to accept mail does not affect the validity of service. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1148 at 590-91 (1969). Here, however, George Barry's claim that the judge knew Barry's correct address, and failed to use it, calls into question the validity of that service. Although the Secretary's brief states that a subpoena for the March 16 hearing was served on Barry at the post office box he claims as his correct address, this is merely an unsworn representation. Indeed, the Secretary's claim indicates that Barry did, in fact, communicate his change of address. Although Rule 6 of the Commission's Rules of Procedure, 29 C.F.R. § 2200.6, requires a notification of change of address to be in writing, the Commission will excuse mere technical noncompliance with its procedural rules in the absence of a showing of prejudice to the other party. Colonnade Cafeteria, 80 OSAHRC 10/D10, 7 BNA OSHC 2234, 1980 CCH OSHD P24,207 (No. 78-2463, 1980). Inasmuch as we can find [*12] no evidence in the record before us upon which to base a finding that Barry was served at his "correct" address, we will remand this case to permit the judge to take further evidence on Barry's allegations concerning both his status as an employer for purposes of this case and whether he had notice of the hearing. n5

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n5 All further communications will be sent to the post office box given as Barry's "correct" address in the petition. Mr. Barry is admonished that Rule 6 of the Commission's Rules of Procedure require him to inform the judge or this Commission in writing if his address changes at any time during the proceedings.

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Accordingly, the judge's order vacating the notice of contest and affirming the citations and proposed penalties is vacated. The case is remanded for further proceedings consistent with this decision.

SO ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Chairman, Dissenting:

I would affirm Judge Ditore's well-reasoned decision. The judge correctly handled this case, and my colleagues' reversal of his decision is unwarranted. [*13]

The majority remands this case simply because George Barry now claims that the judge knowingly failed to send a hearing notice to Barry's "'correct' address" and the record fails to show service at that address. That ground for remand is specious. Commission Rule 6, 29 C.F.R. § 2200.6, states that the initial pleading filed by any person shall contain his address and clearly places upon that person the duty to promptly communicate any change in address in writing or suffer a waiver of all right to notice. The question is not, therefore, as my colleagues seem to believe, whether Barry was served at his "correct" address, but whether he was served at his record address. Inasmuch as it is clear that Barry was so served, and further that he never informed the judge in writing of any change in address, he never claims to have done so, and he does not claim good cause under Commission Rule 62 for not doing so, a remand is indefensible.

The majority's action is particularly disturbing in this case. Barry was found at Union Waterproofing's office by the compliance officers. He received both the citation and the complaint at that address. Nevertheless, he claims not to [*14] have received the subsequent notices of the hearing sent to that address. Moreover, Mr. Barry did receive a copy of the judge's decision sent to that address, upon receipt of which he timely filed his petition for review. Barry's selective receipt of mail at Union's address raises doubts about the credibility of Barry's claims.

Despite Mr. Barry's allegations, this Commission does not conduct Star Chamber proceedings. It is unfortunate that Mr. Barry did not appear for his "day in court," but in my view he has only himself to blame. It may be that Mr. Barry should not have been cited by the Secretary. He was, nevertheless, made a litigant and therefore had duties to the Commission that he cannot ignore review of the record persuades me that Judge Ditore acted prudently and with moderation. His decision should be affirmed.