United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20thStreet, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 16-0757 JESSICA HICKS dba LOGS TO LUMBER AND BEYOND, Respondent. APPEARANCES: Karen E. Mock, Senior Trial Attorney; Rolesia Butler Dancy, Counsel;StanleyE.Keen,Regional Solicitor; M. Patricia Smith, Solicitor;U.S. Department of Labor,Washington, DC andAtlanta, GA Forthe Complainant Jessica Hicks,Logs to Lumber and Beyond, Ocilla, GA Forthe Respondent DECISION Before: ATTWOOD, Chairman;andMacDOUGALL, Commissioner. BY THE COMMISSION: On July 25, 2016,Administrative Law Judge John B. Gatto issued adefaultjudgmentagainstRespondent. On August 8, 2016, the parties filed aStipulation and Joint Motionseeking approval oftheir signedsettlement agreement. For thereasonsthat follow, we set aside thedefaultjudgmentand approve thesettlementagreement. BACKGROUND On April 8, 2016,theOccupationalSafety andHealthAdministrationissuedRespondenttwo citations allegingaserious violation and severalother-than-serious violationswith a total proposedpenaltyof$1,360. Respondent,appearingpro se, filed a timelynotice of contest, andon June 3, 2016, the Secretary notified the judge that the parties had settled thematter.1 <#ftn1>That same day,the judgeissued an ordervacating ascheduling orderhe hadpreviouslyissuedand directedthe parties to file theirsettlementagreement withhimno later than 30 days from the date ofhisorder. The judge alsodirectedRespondenttoservetheorder on certain employeesand employee representatives, as well as post the orderandsubmit proof of postingto the judge.2 <#ftn2>OnJune 15, 2016, the Secretarysentthe judgeacopy of thecover letterhesent toRespondentwith aproposed settlement agreement. That same day,Respondentcomplied with the judge’sposting requirement.3 <#ftn3> Having received nosettlementagreementfrom either party within the 30-day timeframespecifiedin his June 3, 2016 order,the judgeissuedRespondenta show causeorderon July 8, 2016. TheJuly 8, 2016orderdirectedRespondentto show cause inwriting as to the reasonitshould not be declared in default for failing to complywith theJune 3, 2016 order, or in the alternative,tofile asettlementagreementexecutedby both partieson or before July 22, 2016.4 <#ftn4>RespondentreceivedtheshowcauseorderonJuly 12, 2016, anditdid not file a response with the judge. On July 25, 2016,the judge issued an order declaringRespondentin default, dismissingitsnotice of contest, and affirming the citations. On August 5, 2016,the defaultorder was docketed with the Commission. Three days later, on August 8, 2016, the judge receivedthefully executedsettlementagreement from the Secretary. Theagreement, which amends theproposedpenalty to $816, was signed byRespondent’srepresentativeon July 27, 2016,andby the Secretary two days later on July 29, 2016. DISCUSSION CommissionRule 101(a)permits the sanction of default where a partyfailsto proceed asrequiredby the Commission’s rules,bythe Commission,or a judge. 29 C.F.R. § 2200.101(a).Whether dismissal is appropriate depends on whether a party’s behavior demonstratescontumacy, whether the other party has suffered prejudice, and whether other aggravating circumstancesarepresent.See, e.g.,Tom Reed Contracting,25 BNA OSHC 1649, 1650 (No.14-1659, 2015).Dismissal of a citation is too harsh a sanction for failure to comply with certain prehearing orders unless the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party,or a pattern of disregard for Commission proceedings. See Architectural Glass & Metal Co.,19 BNA OSHC 1546, 1547 (No. 00-0389, 2001)(AGM);compare Philadelphia Constr.Equip.Inc.,16 BNA OSHC 1128, 1130-31 (No. 92-899, 1993). Here, the judgeconcluded thatRespondent’sconductwascontumaciousbased solely on its failure to respond to his showcauseorder, as no other basis wasidentifiedin his default order.5 <#ftn5>A one-time failure, however,does notestablish contumacy, let alone a “pattern of disregard.”6 <#ftn6>AGM,19 BNA OSHCat 1547;AA Plumbing Inc.,20 BNA OSHC 2203, 2204 (No. 04-1299, 2005)(failure to file timely answer does not alone warrant dismissal);SamuelFilisko, 20 BNA OSHC 2204, 2206 (No. 04-1465, 2005) (same).In any event,Respondentfileda timely notice of contestandparticipated in settlement negotiations with the Secretary, asisevident from the cover letter the Secretary sent to the judgeand fromthesigned settlementagreement itself. Respondentalso complied withthejudge’sJune3, 2016 orderbysubmittingproof of posting.7 <#ftn7>Finally, whileit is true thatRespondentdid notfile thesettlementagreement within the timeordered by the judge,neither did the Secretary. Thejudge’sJune3, 2016order directed theparties, notjustRespondent, to filetheagreement;yet,theshow cause order was directed solelytoRespondentand thedefault judgment penalizedonlyRespondent.8 <#ftn8>In these circumstances,we findthedefaultsanctionunwarranted. Accordingly, we set aside the judge’sorder and approve thesettlementagreement filed by the parties.See29 C.F.R. §2200.101(b) (sanctionmay be set asidefor sufficient reasons); 29 C.F.R. § 2200.100(c) (approval ofsettlementagreement). SO ORDERED. /s/ Cynthia L. Attwood Chairman /s/ Heather L. MacDougall Dated: September 29, 2016 Commissioner UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Complainant, v. DocketNo.16-0757 JESSICA HICKS d/b/a LOGS TO LUMBER AND BEYOND, Respondent. DEFAULTORDER The Courtentered anOrder Vacating Scheduling Order and Directing Filing of Settlement Agreement and Final Consent Order,which required the parties no later than30 daysfrom the date of thatOrdertofile with the Court an executed settlement agreement. On July 8, 2016, the Court entered aShow Cause OrderdirectingRespondentJessica Hicks d/b/a Logs To Lumber And Beyondto show cause in writingonor beforeJuly 22, 2016,by filing with theCourta statement as to the reason(s)Respondentshould not be declared to be in defaultfor failing tocomply with theCourt’sOrder,or in the alternative, within the same period, filing with the Court an executed Stipulation and Joint Motion signed by both parties.Ms. Hicks received theShow Cause Order, as evidence by the signed return receipt she signed for on July 12, 2016. After having been afforded an opportunity to showcausewhyit should not be declared to be in default,Respondent failed to respond to the Show Cause Order. The Court’sShow Cause OrdernotifiedRespondentthat “When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default either on the initiative of the Commission or Judge, after having been afforded an opportunity to show cause why he should not be declared to be in default, or on the motion of a party. Thereafter, the Commission or Judge, in their discretion,may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.” 29 CFR§ 2200.101(a). A judge has very broad discretion in imposing sanctions for noncompliance with the Commission’s Rules of Procedure or the judge’s orders.See Sealtite Corp., 15 BNA OSHC 1130, 1134 (No. 88-1431, 1991).The Commission, however, has long held that dismissal is too harsh a sanction for failure to comply with certain prehearing orders unless the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party, or a pattern of disregard for Commission proceedings.See Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1547 (No. 00-389, 2001).The Court findsRespondent’s conduct here to be contumacious.Accordingly, IT IS HEREBY ORDERED THATRespondent isdeclared to be inDEFAULT,itsnotice of contest isDISMISSED, and the OSHA citation issued to Respondent onApril 8, 2016, Inspection Number 1103922 isAFFIRMEDin its entirety. SO ORDERED THIS25thday ofJuly, 2016. /s/ JOHN B. GATTO, Judge ------------------------------------------------------------------------ " <#ftnref-1> <#ftnref0> 1 <#ftnref1>The parties were notrequiredto file pleadings since thiscasewas assigned to Simplified Proceedings. See29 C.F.R. § 2200.200(b) (pleadings generally not required under Simplified Proceedings). 2 <#ftnref2>The judgedirectedRespondent to comply with the service and posting requirement no later than the first working day after receipt of his order and to submit proof of posting no later than the first working day following the posting. 3 <#ftnref3>Respondent submitted proof of posting to the judge on June 24, 2016. 4 <#ftnref4>As required by Commission Rule 101(b), the judge sent the show cause order by certified mail, return receipt requested. 29 C.F.R. § 2200.101(b). 5 <#ftnref5>Wenote that the judge issued his default order three days after the response to his show cause order was due—the precise timeframe the Commission’s rules allow for the mailing of a response. See29 C.F.R. § 2200.4(b) (where service of a document is made by mail, a separate period of 3 days shall be allowed). 6 <#ftnref6>Not onlydoes the judge’s default orderfail tosupport a finding ofcontumacious conduct on the part ofRespondent, but italso fails to provide important details andsupporting reasonsfor hisconclusionasrequired by the Administrative Procedure Act. 5 U.S.C. § 557(c). 7 <#ftnref7>The posting ofacitation is requiredunder section 9(b) of the Occupational Safety and Health Act,andthe service and posting of asettlement agreement is required byCommission Rule 100(c). See29 U.S.C. § 658(a) (requiring citation be prominently posted at or near the place the violation occurred); 29 C.F.R. § 2200.100(c) (requiring proof of service be filed with a settlement agreement, showing both service and posting). Nostatutory or proceduralrequirement exists fortheposting of a judge’sorder directing theparties tofile asettlement agreement. 8 <#ftnref8>It is unclear why the judge, when faced with what appears to have been the parties’ inability to finalize their attempts at settlement within the 30-day timeframe, did not simply return the case to his active docket and issue the parties a new scheduling order.