United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Customs House

721 19th Street, Room 407

Denver, CO 80202-2517

Before:  Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

This proceeding is before the U.S. 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").  The Occupational Safety and Health Administration ("OSHA") conducted an inspection of Respondent’s worksite in Syracuse, New York on March 27, 2025.  As a result of the inspection, OSHA issued a Citation and Notification of Penalty to Respondent alleging one serious and one willful violation of the Act with a combined total penalty of $31,210.00.  Respondent contested the violations on July 10, 2025.  

On April 8, 2026, Respondent’s counsel withdrew from representation.   On June 8, 2026, Complainant filed Acting Secretary’s Motion to Compel Responses to Discovery due to Respondent’s failure to timely provide discovery responses, and failure to respond to attempts to communicate about the late discovery responses.  Respondent never filed any type of response to Complainant’s Motion to Compel.  On June 25, 2026, the Court ordered Respondent to register for mandatory electronic filing pursuant to Commission Rule 8(c).  Respondent failed to register for electronic filing by the court-ordered deadline, and still has not registered.  The Court also ordered the parties to appear for a telephonic conference call on  July 14, 2026.  Complainant appeared, ready to proceed.  Respondent failed to appear on the call.    

Therefore, on July 16, 2026, the Court issued an Order Canceling Trial and Order to Respondent to Show Cause.  Respondent was ordered to show cause “as to why the Court should not issue sanctions against Respondent for: (1) failing to respond to Complainant’s June 8, 2026 Acting Secretary’s Motion to Compel Responses to Discovery; (2) failing to comply with the Court’s June 25, 2026 Order to Respondent to Register for Electronic Filing; and (3) failing to appear for the court-ordered conference call on July 14, 2026.  Respondent was warned that “If Respondent does not respond to this Order to Respondent to Show Cause, or fails to establish good cause, it may result in sanctions, including the issuance of default judgment against Respondent dismissing its Notice of Contest and affirming the citations proposed in this case, pursuant to Commission Rules 67 and 101.”  Respondent never filed any type of response to the Order to Respondent to Show Cause.

Commission Rule 101(a) provides "[w]hen 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 the Judge, after having been afforded an opportunity to show cause why he should not be declared in default ... [t]hereafter, the Commission or Judge, in their discretion, may enter a decision against the defaulting party ..."  The Court finds that Respondent has either abandoned its contest in this case or demonstrated a pattern of disregard for the procedural requirements and authority of the Commission by: (1) failing to respond to Complainant’s June 8, 2026 Acting Secretary’s Motion to Compel Responses to Discovery; (2) failing to comply with the Court’s June 25, 2026 Order to Respondent to Register for Electronic Filing; (3) failing to appear for the court-ordered conference call on July 14, 2026; and (4) failing to respond to the Court’s July 16, 2026 Order to Respondent to Show Cause.  Respondent’s repeated failure to timely participate in this proceeding constitutes abandonment, and/or contumacious conduct justifying sanctions.  Philadelphia Construction Equipment, Inc., 1993 WL 127953 (OSHRC, 1993); Sealtite Corporation, 1991 WL 132733 (OSHRC, 1991).  

Accordingly, Respondent’s Notice of Contest is hereby VACATED in Docket No. 25-0882, and the violations and penalties alleged in the Citation and Notification of Penalty are AFFIRMED.

SO ORDERED.

           Brian A. Duncan