___________________________________
                                   :
SECRETARY OF LABOR,                :
                                   :
          Complainant,             :
                                   :
          v.                       :   OSHRC Docket No. 98-1974
                                   :
HENRY ZAVALA CONSTRUCTION,         :
                                   :
          Respondent.              :
___________________________________:

*/DECISION AND ORDER ON MOTION FOR DEFAULT JUDGEMENT/*

On March 1, 1999, the Complainant filed her Motion for Default Judgement
asserting that this case was designated for E-Z Trial; that on January
21, 1999, a telephonic conference was held between Complainant's counsel
and Respondent's representative; that Respondent's representative agreed
to mail to complainant's counsel the relevant portions of Respondent's
fall protection program; that the documents were not received; that on
February 4, 1999, the Complainant's counsel wrote to Respondent's
representative again requesting the documents; that Complainant has not
received a reply to her letter; that on February 22, 1999, the
undersigned at the request of Complainant returned this matter to
conventional proceedings; that on February 24, 1999, a second telephonic
conference was held between Complainant's counsel and Respondent's
representative; that the undersigned thereafter directed Respondent's
representative to send to Complainant's counsel immediately by overnight
mail, the relevant portions of Respondent's fall protection program; and
that as of March 1, 1999, the Complainant's counsel has not received the
documents and no reply has been filed.

*/DISCUSSION AND CONCLUSION/*

Rule 41(a) of the Commission's Rules of Practice, 29 C.F.R. 2200.41(a),
as pertinent, provides:

    /Sanctions/: When any party has failed to plead or otherwise proceed
    as provided by these rules or as required by the * * * Judge, he may
    be declared to be in default * * * (2) on motion of a party.
    Thereafter, the * * * Judge, in [his] discretion, may enter a
    decision against the defaulting party * * *.

In my opinion, Respondent's representative has engaged in a pattern of
disregard for the pending proceeding. Counsel for the Complainant has
been more than reasonable in her request, and the undersigned has
extended the time to submit the identified documents as requested.
Respondent's representative has not responded,and has offered no reason
for not complying. /Philadelphia Construction Equipment Inc./, 16 BNA
OSHC 1128 (No.92-899, 1993).

IT IS ORDERED that the Motion for Default Judgement is GRANTED.

IT IS FURTHER ORDERED that the Citation and Notification of penalty
issued October 19, 1998, is affirmed in its entirety.

 

__________________________
G. Marvin Bober
Administrative Law Judge

Dated:

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