Commission Issues Decision in Arch-Tech Construction, OSHRC Docket No. 19-1922

On July 1, 2020, Administrative Law Judge William S. Coleman issued an order finding Respondent in default, dismissing its notice of contest, and affirming the underlying two-item serious citation issued by the Occupational Safety and Health Administration. For the following reasons, we remand this case for the judge to reconsider his order in light of claims made by Respondent in its petition for discretionary review. Specifically, Respondent’s owner (appearing pro se) claims that he did not call in for several telephone conferences scheduled by the judge because of the ongoing COVID-19 pandemic and his belief after hearing the Governor of Massachusetts (where the OSHA Regional Solicitor’s Office handling this matter is located) say on the news that all courts were closed. According to Respondent, he attempted to call in for a scheduled telephone conference on one occasion but did not receive a response and could not reach anyone to assist him. Additionally, he stated in his petition for discretionary review that he was under the belief that the citation would be withdrawn. He also claims that, after last speaking with the Secretary’s counsel in the Regional Solicitor’s Office by telephone on March 9, 2020, he then tried to reach him on seven occasions between March 30 and May 13, 2020, and never received a response. Due to his belief that the “courts” were closed and his repeated inability to reach anyone on the telephone, Respondent’s owner avers that the pandemic made it confusing and “very difficult to know what to do in these unknown and crazy times that nobody has ever been through or has past experiences with on how to handle . . . .” Finally, Respondent’s owner requests the opportunity to establish the company’s defense to the citation and claims that now that he knows the “court is open,” he will appear by telephone or in person as ordered.