RICHARD ROTHBARD, INC.  

OSHRC Docket No. 79-2283

Occupational Safety and Health Review Commission

May 9, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

David Pleva, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Richard DeBenedetto granting the Secretary's motion for default judgment is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In the direction for review the parties were advised that an order would follow.   The judge's order is affirmed.

On April 20, 1979, a citation alleging a repeated violation of the Act and a notification of failure to correct two alleged violations were issued to Respondent, Richard Rothbard, Inc., by the Secretary of Labor ("the Secretary").   Respondent timely contested these enforcement actions.   The Secretary filed complaints in both actions.   On August 2, 1979, Chief Administrative Law Judge Paul A. Tenney issued an order to show cause why the notice of contest should not stand as an answer since no formal answer had been filed by Respondent.   Neither party responded to   [*2]   the order to show cause.   Assistant Chief Administrative Law Judge Irving Sommer held, on September 21, 1979, that the notice of contest "is treated as an Answer controverting the contested action." The case was assigned to Judge DeBenedetto on October 5, 1979.   On October 9, 1979, the judge issued a notice scheduling a hearing for October 23, 1979.   The notice of hearing was received by Respondent's attorney on October 11, 1979.

Respondent did not appear at the scheduled hearing. The hearing was delayed approximately one-half hour to give Respondent additional time to appear.   At the hearing, the Secretary moved to amend the complaint to correct typographical errors and for a default judgment due to Respondent's failure to appear.   The judge granted the motions.   On November 7, 1979, the judge received a letter from Respondent's attorney which stated "this letter will serve to confirm the misunderstanding concerning the hearing date." The letter went on to point out that the parties "are currently discussing the possibilities of an amicable settlement." The letter concluded with a request to schedule another hearing date if a satisfactory settlement could not be reached.

The Secretary [*3]   responded to Respondent's letter asserting that three telephone messages were left for Respondent's attorney during the week prior to the hearing and that Respondent's attorney did not return the phone calls until October 31, 1979, eight days after the hearing at which time Respondent's attorney stated that he was "under the impression that the hearing was scheduled for November 1, 1979." The Secretary took the position that Respondent's letter failed to make an adequate showing of the reasons for its failure to appear at the hearing.   The Secretary also noted that Respondent failed to request reinstatement of the case within five days after the scheduled hearing date as required by Commission Rule 62(b) n1 and, furthermore, failed to demonstrate "extraordinary circumstances" for waiver of the five-day rule.

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n1 The full text of Commission Rule 62, 29 C.F.R. §   2200.62, is as follows:

Rule 62 Failure to appear.

(a) Subject to the provisions of paragraph (c) of this section, 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 and to request Commission review pursuant to §   2200.91.

(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.

  [*4]  

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In his decision the judge recounts the fact that on October 31, 1979, eight days after the scheduled hearing date, Respondent's counsel telephoned the judge and stated that he believed the hearing had been postponed. According to the judge, Respondent's counsel related that a secretary from his office "had requested a continuance which he thought had been granted." The judge noted that he had received no request for postponement of the hearing.

The judge concluded that Respondent had not shown good cause for its failure to appear at the hearing as required by Commission Rule 62(c). n2 He refused to set aside the default.

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n2 See note 1 supra.

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Respondent petitioned for discretionary review of the judge's order.   Respondent argues that the belief of its counsel that the hearing had been postponed was "mistaken, but honest." Respondent explains that its counsel's secretary had contacted Respondent instead of the Secretary, thus [*5]   "no request for postponement of the hearing was received by the Judge." Respondent maintains that the record does not support a finding of "lack of due effort on counsel's behalf."

Commission Rule 62(a), supra, provides that a party's failure to appear at a hearing "shall be deemed to be a waiver of all rights" except the right to receive a copy of the decision and the right to petition the Commission for review of that decision.   Commission Rule 62(c), supra, however, permits reinstatement of the case "upon a showing of good cause."

In his decision, Judge DeBenedetto states correctly that the application of "the standard of 'good cause' required for reinstatement [that is, the granting of reinstatement under Rule 62(c)] necessarily requires exercise of discretion, it is surely not an arbitrary or unrestrained discretion." That being so, our standard of review is whether the judge abused his descretion in permitting the default judgment to stand under the circumstances of this case.   Cf. Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD P21,071 (No. 4533, 1976) (the decision whether to modify a witness list settled upon during the prehearing [*6]   stage is a matter left to the discretion of the judge, and in reviewing his decision to exclude certain witnesses, the issue is whether the judge abused his discretion).

In the past the Commission has found good cause for reinstatement where, for example, a respondent's counsel made numerous unsuccessful attempts to contact the presiding judge to convey the message that his client was injured in an accident the evening before the hearing, Simpson Roofing Co.,    OSAHRC   , 5 BNA OSHC 1836, 1977-78 CCH OSHD P22,147 (No. 76-1841, 1977); or where "the parties are in agreement that the failure [of respondent] to appear was due to the severity of the weather conditions [24 inches of snow] and was unavoidable," Herriott Printing Co.,    OSAHRC   , 2 BNA OSHC 1702, 1974-75 CCH OSHD P19,466 (No. 10615, 1975).

Under the circumstances of the case before us, however, we find no abuse of discretion on the part of Judge DeBenedetto.   Respondent's request for reinstatement was in the form of a four sentence letter which stated that its purpose was to "serve to confirm the misunderstanding concerning the hearing date . . ." and "to schedule another hearing date . . . ." The letter neither [*7]   set forth a basis of fact nor did it make a claim that good cause existed for Respondent's failure to appear. n3 Respondent's request for reinstatement was thus an inadequate motion on its face.   Furthermore, we agree with the judge that the "element of good cause is wanting . . ." and that ". . . the record does not justify setting aside the default." Moreover, Respondent's request for reinstatement was not made within five days after the scheduled hearing date nor did Respondent claim that extraordinary circumstances prevented the timely filing of the request as required by Commission Rule 62(c), supra.

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n3 We also note that the request for reinstatement did not indicate that a copy had been served on the Secretary. Commission Rule 7(a), 29 C.F.R. §   2200(7)(a), requires, among other things, a party filing a pleading to serve a copy on every other party.

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Accordingly, the judge's decision granting the Secretary's motion that Respondent be held in default is affirmed.   The citation for repeated violation of the [*8]   Act as well as the notification of failure to correct alleged violations are affirmed, and penalties of $120 and $2,100 respectively are assessed.

SO ORDERED.