“SECRETARY OF LABOR,\t Complainant,\t v.\t OSHRC Docket No. 07-0478DHL EXPRESS, INC.,\t Respondent.\t APPEARANCES:Stanley E. Keen, Regional Solicitor; Michael P. Doyle, Counsel forAppellate Litigation, Charles F. James, Counsel for AppellateLitigation; U.S. Department of Labor, Washington, DC For the Complainant John C. Artz, Esq., and David E. Jones, Esq.; Ogletree, Deakins, Nash,Smoak & Stewart, P.C., Atlanta, GA For the Respondent DIRECTION FOR REVIEW AND REMAND ORDER Before: THOMPSON, Chairman; ROGERS, Commissioner.BY THE COMMISSION:In an order dated June 14, 2007, Chief Administrative Law Judge IrvingSommer entered a default judgment against DHL Express, Inc. (?DHL?) forfailing to file an answer and failing to respond to an order to showcause. DHL has now filed a petition for discretionary review requestingthat the Commission remand the case for reinstatement and proceedings onthe merits of the citations. For the following reasons, we hereby directreview of this case, vacate the default judgment, and remand the case tothe judge, ordering him to reinstate the case for further proceedings onthe merits of the citation allegations.\/Procedural Background\/The Occupational Safety and Health Administration issued DHL athirteen-item serious citation and a one-item other-than-seriouscitation, alleging violations of the safety standards in 29 C.F.R. Part1910, following a January 17, 2007 inspection of DHL?s Miami Gatewayfacility. The Secretary proposed a total penalty of $25,500 for theserious citation and no penalty for the other-than-serious citation.On February 27, 2007, after settlement negotiations failed, DHL?snon-attorney site manager filed a timely notice of contest. On April 2,the judge issued an order granting the Secretary?s Motion for Leave toFile Complaint Instanter, and directing DHL to file an answer withintwenty days of the date of the order. DHL did not file an answer, and onMay 18 the judge issued an order requiring DHL to show cause why itsnotice of contest should not be dismissed. DHL again filed no responseand on June 14, the judge issued an order affirming the Secretary?scitations and proposed penalties. In its petition for discretionary review, DHL claims thatthe company?s failure to respond to the judge?s orders was a result ofan internal miscommunication. The site manager, after filing the noticeof contest, contacted the company?s legal department for assistance andforwarded both the complaint and the judge?s order to show cause to thelegal department, believing the company?s attorney would respond to thejudge. According to DHL, the attorney was unaware he was expected toaddress the forwarded documents and, therefore, the company filed noresponse.\/Discussion\/Commission precedent follows the policy in law that favors decidingcases on their merits. \/See Duquesne Light Co.\/, 8 BNA OSHC 1218, 1222,1980 CCH OSHD ? 24,384, p. 29,719 (No. 78-5112, 1980). Accordingly, theCommission has held that a default judgment is ?too harsh a sanction forfailure to comply with certain prehearing orders unless the record showscontumacious conduct by the noncomplying party or prejudice to theopposing party,? or ?where a party displays a ?pattern of disregard? forCommission proceedings.? \/Architectural Glass & Metal Co.\/, 19 BNA OSHC1546, 1547, 2001 CCH OSHD ? 32,424, p. 49,975 (No. 00-0389, 2001)(citations omitted). Sanctions will be set aside where the sanctionedparty missed pre-hearing conferences or filings as a result of?excusable neglect,? that is, where the party?s noncompliance was due tonegligence, inadvertence, mistake, or carelessness. \/See Amsco, Inc.\/,19 BNA OSHC 2189, 2191 (No. 02-0220, 2003) (setting aside dismissalsanction and remanding case where attorney was unavailable forpre-hearing teleconference and did not respond to phone message; theseactions ?[t]hough troubling . . . without more, fall[] short ofcontumacious conduct warranting a default sanction?). Sanctions,however, are an appropriate tool to ensure compliance where thesanctioned party has engaged in a pattern of disregard for Commissionrules, or where the party?s conduct was contumacious. \/See,e.g.\/,\/Phila. Constr. Equip. Inc.\/, 16 BNA OSHC 1128, 1130-31, 1993-95CCH OSHD ? 39,051, p. 41,295 (No. 92-899, 1993) (pattern of disregardfor Commission proceedings found where respondent was late for hearingstwice, failed to certify posting of the citation and failed to file ananswer until threatened with dismissal, failed to respond to a discoveryrequest, and failed to respond to a pre-hearing order); \/SealtiteCorp.\/, 15 BNA OSHC 1130, 1134, 1991-93 CCH OSHD ? 29,398, p. 39,582(No. 88-1431, 1991) (judge correctly found respondent?s behavior?contumacious? where respondent failed to make a timely response to thejudge?s order and continued to raise irrelevant issues even after thejudge?s warnings).Here, we find that DHL?s failure to respond to the judge?s orders, whileclearly problematic, was the result of ?excusable neglect? and not?contumacious conduct.? At the start of the case, DHL?s non-attorneysite manager diligently pursued the matter by engaging in settlementnegotiations with the Secretary and filing a timely notice of contest.DHL?s noncompliance began only as a result of the miscommunicationbetween the site manager and the legal department. This miscommunicationwas not the result of conscious disregard of Commission rules, but wasthe type of negligence, inadvertence, mistake, or carelessness for whichthe Commission has vacated sanctions in the past. \/See Amsco, Inc.\/, 19BNA OSHC at 2191 (describing ?excusable neglect?). Finally, there isnothing to suggest that DHL?s failure to comply prejudiced theSecretary, nor is there information in the record to support a prejudiceclaim.Accordingly, we direct this case for review, set aside the judge?sorder, and remand the matter to the judge for further proceedings on themerits of the citations. \/See \/Commission Rule 101(b), 29 C.F.R.? 2200.101(b).SO ORDERED. \/s\/Horace A. Thompson IIIChairman \/s\/Thomasina V. RogersDated: July 16,2007 Commissioner ———————————————————————— Secretary of Labor,\t Complainant,\t V.\tOSHRC DOCKET 07-0478DHL EXPRESS, INC.\t Respondent.\t ORDER On 5\/18\/07 the undersigned issued an ORDER TO SHOW CAUSE tothe Respondent as to why his Notice of Contest should not be dismissedfor failure to file an answer to the complaint as required by theCommission Rules of Procedure. The Respondent failed to reply to theORDER. His actions demonstrate either that he has abandoned the case ortreats the Rules of Procedure of the Commission with disdain. Thiscannot be countenanced as it seriously impedes the administration ofjustice. Accordingly, the Notice of Contest filed by the Respondentis dismissed. The Secretary?s citation(s) and proposed penalties areAFFIRMED in all respects. \/s\/ IRVINGSOMMER ChiefJudgeDate: June 14, 2007Washington, DC “