SECRETARY OF LABOR,

	

 

                        Complainant,

	

 

            v.

	

OSHRC DOCKET NO. 05-0098

CONTI & CARLUCCICONSTRUCTION, INC.,

	

 

                        Respondent.

	

 



Appearances:

 

                        Margaret A. Temple,
Esquire                         John P. Ruggiero, Esquire

                        U.S. Department of
Labor                              Canfield, Madden & Ruggiero, LLP

                        New York, New
York                                    Garden City, New York

                        For the
Complainant.                                      For the Respondent.

 

Before:            Chief Judge Irving Sommer


/DECISION AND ORDER/


            This matter is before the Occupational Safety and Health
Review Commission (“the Commission”) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq/.
(“the Act”). On June 3, 2004, the Occupational Safety and Health
Administration (“OSHA”) inspected a work site of Respondent; as a
result, on December 2, 2004, OSHA issued to Respondent a citation
alleging various violations of OSHA’s construction standards and
proposing a total penalty of $119,000.00. Respondent contested the
citation and proposed penalty, and this matter was set for a hearing on
September 14, 2005. At the hearing, the Secretary’s counsel advised the
undersigned the parties had settled this matter the day before, and
counsel read the terms of the settlement into the record. (Tr. 3-5). On
September 23, 2005, the Secretary’s counsel sent the agreed-to
settlement document to Respondent’s counsel. On October 7, 2005, the
Secretary’s counsel spoke to Respondent’s counsel, who said he had
signed the agreement and sent it for signature to his client, who was to
return it to the Secretary with a check by overnight mail. The
Secretary’s counsel spoke to Respondent’s counsel again on October 14,
2005, to ask why she had not yet received the signed agreement, and
Respondent’s counsel said he would call his client and inquire about the
delay. On October 26, 2005, Respondent’s counsel advised the Secretary’s
counsel that his client had not returned his calls and that he would
write a letter requesting that the client return the agreement to the
Secretary. On November 3, 2005, Respondent’s counsel informed the
Secretary’s counsel that despite various phone calls and letters, his
client had not contacted him. The Secretary filed a motion to dismiss
Respondent’s notice of contest in this matter on November 4, 2005.
Footnote <javascript:WPShow('WPFootnote1',%20WPFootnote1%20)>

/Discussion/

            As the Secretary points out, Commission Rule 101(a) provides
for a default judgment to be entered against a party who has failed to
plead or otherwise proceed as provided by Commission Rules or as
required by the Commission or Judge. /See/ 29 C.F.R. 2200.101(a). As the
Secretary also points out, the Commission has held that, where a party
displays a pattern of disregard for Commission procedures, dismissal may
be an appropriate sanction. /See Philadelphia Constr. Equip., Inc./, 16
BNA OSHC 1128, 1131 (No. 92-899, 1993). /See also Caterpillar, Inc./, 17
BNA OSHC 1507, 1509-10 (No. 94-347, 1996).

            I agree with the Secretary that, based on its course of
conduct in this matter, it is unlikely that Respondent will participate
further in this matter or appear at a rescheduled hearing. I also agree
that dismissal of Respondent’s notice of contest is the appropriate
sanction in this case. Respondent’s notice of contest is accordingly
DISMISSED, and the citation is AFFIRMED in all respects. So ORDERED.


                                                                                    /s/ 

                                                                                    Irving
Sommer

                                                                                    Chief
Judge


Dated: December 12, 2005

            Washington, D.C.