United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 16-0478

SJ PYO CORP.,

 

Respondent.

DECISION AND ORDER

 Respondent, SJ Pyo Corp., through its Owner, Mr. Jum Pyo, has failed to respond to court 

communications and comply with court notices and orders on multiple occasions. As a result, 

the undersigned finds that there are sufficient grounds to find SJ Pyo Corp. to be in DEFAULT. 

Language Access

 Mr. Jum Pyo is a self-represented party to the above-captioned case who speaks Korean and 

has limited English proficiency. Executive Order (E.O.) 13166, 65 Fed. Reg. 50, 121 (Aug. 16, 

2000), directs all federal agencies to provide persons with limited English proficiency 

meaningful access to services provided by the agency. In fulfillment of its obligations under 

E.O. 13166, the Occupational Safety and Health Review Commission (the Commission) has 

implemented its own language access plan to ensure that persons, like Mr. Jum Pyo, who have 

limited English proficiency are provided meaningful access to this court and its services. 
2

 Upon receipt of this case, the undersigned immediately noticed that Mr. Jum Pyo filed an 

Answer in English with his signature written using Korean symbols. As a result, the undersigned 

employed the services of a Korean interpreter for all conference calls and had all documents 

from the court translated and issued in Korean and English. The court has fulfilled its 

obligations under E.O. 13166 and the Commission’s language access plan to ensure that Mr. Jum 

Pyo has had meaningful access to the Commission’s services at all stages of this case.

Show Cause Orders

 This court has issued two Show Cause Orders against Respondent, SJ Pyo, for the failure of 

its Owner, Jum Pyo, to communicate with the court. 

 The first Show Cause Order was issued on December 19, 2016, in response to an Expedited 

Motion to Postpone the Hearing Date and Request to Clarify the Pre-hearing Procedures filed by 

the Secretary of Labor (Secretary) on December 2, 2016. In the motion, Counsel for the 

Secretary represented that he made several failed attempts to reach Mr. Jum Pyo to discuss 

unresolved evidentiary and procedural matters before the hearing. Further, Counsel for the 

Secretary indicated that Jum Pyo’s unresponsiveness and limited English proficiency prevented 

the Secretary from adequately preparing for the hearing. To address these concerns raised by the 

Secretary, the undersigned scheduled a conference call for December 7, 2016. The undersigned’s 

legal assistant attempted to reach Mr. Jum Pyo, by phone using a Korean interpreter, to notify 

him of the conference call. The undersigned’s legal assistant called both numbers on file for Mr. 

Pyo and left voicemail messages on each providing the information for the conference call. 

However, Jum Pyo neither responded to the voicemail messages nor did he participate in the 

conference call on December 7th. Following the conference call, the undersigned’s legal assistant 

again tried to reach Mr. Jum Pyo, by phone, with no success. Again, with the aid of a Korean 
3

interpreter, the legal assistant left voicemail messages on each of the phone numbers on file 

directing Mr. Pyo to contact the court no later than December 9, 2016. Mr. Pyo never responded. 

Another basis for the first Show Cause Order was Jum Pyo’s failure to comply with the court’s 

Notice of Hearing and Hearing Site, Scheduling Order and Special Notices issued on September 

26, 2016. In that Order, the court directed the parties to “meet or confer” to discuss prehearing 

issues by or before Friday, December 2, 2016. However, as indicated in the Secretary’s motion, 

Jum Pyo was unresponsive to attempts to contact him in fulfillment of the court’s Order. 

 The second Show Cause Order was issued on February 21, 2017, via United State Postal 

Service (USPS) certified mail (tracking no. 7015 1520 0001 3098 1315). The court’s reason for 

issuing the second Show Cause Order was due, in large part, to the fact that service of the first 

Show Cause Order was accomplished using USPS regular first-class mail and FEDEX express 

overnight with direct signature. Upon reflection, the undersigned determined that such service 

did not meet the requirements of Rule 101(d) of the Commission Rules of Procedure. 29 C.F.R. 

§2200.101. Additionally, Mr. Jum Pyo still had not responded to any of the court’s prior 

communications as of the issuance of the second Show Cause Order. 

Address of Record

 Rule 6 of the Commission Rules of Procedure requires all parties to provide and update, 

among other things, its address in writing or risk waiving the right to notice and service. 29 

C.F.R. §2200.6. The USPS online tracking for the 2nd Show Cause Order issued via certified 

mail (no. 7015 1520 0001 3098 1315) shows that the package was “undeliverable as addressed” 

when delivery was attempted at Respondent’s address of record (50-11 20th St., Bayside, N.Y. 

11361). Ex. A. Instead, the letter was forwarded and ultimately delivered to an individual at a 
4

location in Oakland Gardens, N.Y. 11384.1 This location appears to be a forwarding address. It 

is important to note that the 2nd Show Cause Order was also served to Respondent via USPS 

first-class mail and was not returned. It is telling that neither of the letters (by certified and 

regular first-class mail was returned by the postal service undelivered, and therefore are

presumed to have been duly delivered to the Respondent. See Legille v. Dann, 544 F.2d 1 (D.C. 

Cir. 1976) (applying the rebuttable presumption that post office has delivered a properly mailed

item). Altogether, these facts appear to indicate that Jum Pyo has either moved or had his mail 

forwarded to another address without informing the Commission. In either case, his failure to 

provide the Commission with a current address means that he has waived his right to notice and 

service under Commission rules. 

Discussion

 Rule 101(a) of the Commission’s Rules, 29 C.F.R. § 2200.101(a), provides in pertinent part: 

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 ... on the initiative of the ... Judge, after having been afforded an 

opportunity to show cause why he should not be declared to be in 

default....Thereafter, the ... Judge, in [his] discretion, may enter a decision 

against the defaulting party.... 

 It has been held that a judge has very broad discretion in imposing sanctions for 

noncompliance with the Commission’s Rules or the judge’s orders. See Sealtite Corp., 15 BNA 

OSHC 1130, 1134 (No. 88-1431, 1991). However, although a judge has very broad discretion in 

imposing sanctions for noncompliance with the Commission’s Rules of Procedure or his own 

orders, the judge must not impose a sanction that is too harsh under the circumstances of the 

case. “Reviewing courts universally recognize the harshness of dismissal with prejudice and 

 

1

 The same method of delivery was used for the undersigned’s December 27, 2016, Order Canceling Hearing (USPS 

certified and first-class mail). Both were served to Respondent at his address of record. Neither were returned; 

however, the certified mail online tracking for this letter (no. 7015 1520 0001 3096 1285) shows that delivery was 

left with an individual at a location in Oakland Gardens, N.Y. 11364. Ex. B. 
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generally require that lesser sanctions first be considered.” Duquesne Light Co., 8 BNA OSHC 

1218, 1222 (No. 78-5034, 1980). The Commission has held that a default judgment is “too harsh 

a sanction for failure to comply with certain prehearing orders unless the record shows 

contumacious conduct by the noncomplying party or prejudice to the opposing party,” or “where 

a party displays a ‘pattern of disregard’ for Commission proceedings.” Architectural Glass & 

Metal Co., 19 BNA OSHC 1546, 1547 (No. 00-0389, 2001). Sanctions, however, are an 

appropriate tool to ensure compliance where the sanctioned party has engaged in a pattern of 

disregard for Commission rules, or where the party's conduct was contumacious. See, e.g., 

Phila. Constr. Equip. Inc., 16 BNA OSHC 1128, 1130-31 (No. 92-899, 1993) (pattern of 

disregard for Commission proceedings found where Respondent was late for hearings twice, 

failed to certify posting of the citation and failed to file an answer until threatened with 

dismissal, failed to respond to a discovery request, and failed to respond to a pre-hearing order). 

The record in this case reveals that Respondent has repeatedly failed to act and communicate 

concerning this case. Respondent, Jum Pyo, failed to act in accordance with the court’s 

September 26, 2016, Order requiring the parties to meet or confer to, among other things, discuss 

the possibility of settlement and to exchange information for the preparation of a joint prehearing statement. As evidenced by the Secretary’s December 2, 2016, Expedited Motion to 

Postpone the Hearing Date and Request to Clarify the Pre-hearing Procedures, Respondent was 

unresponsive to attempts to communicate, by phone, to discuss pre-hearing matters as required 

by the court’s September 26th Order. In fact, Counsel for the Secretary represented that he made 

several unsuccessful attempts to contact Respondent, Jum Pyo, since September 9, 2016. Next, 

Respondent, Jum Pyo, should have communicated with this court in response to voicemails left 

by the undersigned’s legal assistant in an attempt to schedule a conference call for the parties to 
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take place on December 7th for the purpose of discussing the Secretary’s motion. Again, Jum 

Pyo failed to respond to voicemails left by the undersigned’s legal assistant following his failure 

to participate in the December 7, 2016, conference call and directing him to contact the court by 

or before December 9, 2016. Finally, Jum Pyo failed to communicate with this court by not 

filing a written response, by or before March 21, 2017, to the court’s 2nd Show Cause Order 

dated February 21, 2017. To date, Respondent, Jum Pyo, has still not responded to any of the 

court’s communications. I find that Respondent’s failure to respond to the Order Canceling 

Hearing, phone calls/voicemails, and the Show Cause Order, reflects a pattern of disregard for 

this court, its orders, and is the very epitome of contumacious conduct. I also find that this pro 

se Respondent failed to exercise reasonable diligence by simply ignoring all communication 

from opposing counsel and this court. At a minimum, Respondent should have contacted the 

Commission if there was a problem understanding any of the documents sent.2

 Based on this 

behavior, it appears that Respondent has either abandoned this case or treats the Commission’s 

Procedural Rules with disdain. In either case, such behavior cannot be tolerated as it seriously 

impedes the administration of justice. If Mr. Jum Pyo, or any representative of Respondent, had 

provided a response to the SCO or any of the other attempted communications (i.e. phone 

calls/voicemails), the undersigned would have imposed lesser sanctions. However, no such 

response has been provided and I find Respondent’s repeated failure to communicate and 

participate in this case makes default an appropriate sanction. 

 

2

 Interestingly, neither the OSHA Citations nor the Secretary’s Complaint was issued in Korean. Yet, Respondent 

managed to file a timely Notice of Contest and Answer both in English. 
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ORDER 

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that 

Respondent is declared in DEFAULT and its Notice of Contest is DISMISSED. The Citation, 

including all nine items, is AFFIRMED, and proposed penalties in this matter are ASSESSED. 

 /s/Keith E. Bell

 Keith E. Bell

 Judge, OSHRC

Dated: May 23, 2017

Washington, D.C.