United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W. 

Atlanta, Georgia 30303-3104 

Secretary of Labor, 

Complainant 

v. OSHRC Docket No.: 22-0519 & 22-0536 

Joshua Herion dba ECS Roofing 

Professionals, Inc., 

Respondent. 

Attorney and Law Firm: 

Elisabeth P. Nolte, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois, for 

Complainant 

Joshua Herion, d/b/a ECS Roofing Professionals, Inc., Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER OF DEFAULT 

This matter is before the Occupational Safety and Health Review Commission on two 

Notices of Contest filed May 2, 2022, by Respondent, Joshua Heroin d/b/a ECS Roofing 

Professionals, Inc. (ECS). Following inspections of two of ECS’s worksites in October of 2021, 

the Secretary issued ECS citations on April 14, 2022. For the reasons that follow, ECS is 

declared in DEFAULT and the citations issued to it on April 14, 2022, pursuant to Inspection 

Nos. 1559071 and 1560806 are AFFIRMED in their entirety and penalties ASSESSED. 

BACKGROUND 

The Des Plaines, Illinois, and Milwaukee, Wisconsin, Area Offices of the Occupational 

Safety and Health Administration conducted inspections of two ECS worksites in Hoffman 

Estates, Illinois, and Waukesha, Wisconsin, respectively, in October of 2021. As a result of each 

inspection, the Secretary issued ECS citations. The Secretary alleged a total of 14 violations of 

the standards covering construction work at the worksites. 29 C.F.R. § 1926. He characterized 

one violation as willful, four as repeat, and the remaining violations as serious. The Secretary 
 

 

 

 

 

 

 

 

 

proposes a total penalty for all the violations of $360,531. On May 2, 2022, ECS, through its 

attorney, filed timely notices of contest to the citations. The Commission docketed the matters on 

May 12, 2022, assigning Docket No. 22-0536 to Inspection No. 1559071 and Docket No. 22-

0519 to Inspection No. 1560806. 

Chief Judge Covette Rooney issued an order consolidating the two dockets and assigned 

the matter to Judge William Coleman under the Commission’s settlement proceedings. 29 C.F.R. 

§ 2200.120. The parties filed their respective Complaints and Answers. Judge Coleman held a 

settlement conference via video teleconference on August 11, 2022, which both parties attended 

with their attorneys. The parties were not able to reach an agreed resolution to the matter during 

settlement proceedings and Chief Judge Rooney reassigned the matter to the undersigned on 

August 16, 2022, under the Commission’s conventional proceedings. 

By order of August 25, 2022, the undersigned set the matter for a two-week hearing in 

Chicago, Illinois, to commence on March 28, 2023. The order set out a prehearing schedule that 

included deadlines for the close of discovery, designation of expert witnesses, and filing of 

dispositive motions, among other matters. The order was issued and served on counsel for each 

party via the Commission’s e-filing system. 

On September 16, 2022, ECS’s attorney filed a motion to withdraw as counsel. In the 

motion, then-counsel for ECS attested that “irreconcilable differences” between it and ECS 

existed making continued representation “impossible.”1 Counsel went on to attest he had 

informed ECS of his intent to withdraw, provided ECS a copy of the motion, and requested ECS 

be given 30 days in which to obtain new counsel. He also included a current mailing address for 

ECS in the motion. This address was the same as that to which the Secretary had issued, and at 

which ECS had received, the citations. ECS did not respond to its counsel upon notification of 

his intent to withdraw. Nor did it file a response with the court to the motion. The Secretary did 

not object to the request to withdraw. On September 19, 2022, the court granted the motion and 

directed ECS to provide the court with its record address, have its representative register with the 

Commission’s e-filing system, and notify the court immediately upon retaining new counsel. The 

order explicitly stated all previously established deadlines remained in effect. This order was 

1 Counsel for ECS filed a second motion to withdraw the same day. The second motion to withdraw includes the 

required notification, omitted from the first motion, indicating counsel for ECS had conferred with counsel for the 

Secretary. The motions are otherwise identical. 

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issued via the Commission’s e-filing system.2 ECS did not comply with the court’s directives in 

its September 19, 2022, order. 

On October 13, 2022, the Secretary filed a motion to compel responses to written 

discovery and for an order deeming requests for admission admitted. The Secretary had 

propounded written discovery requests on ECS on August 29, 2022. According to the Secretary’s 

motion, he had contacted Joshua Herion via phone and email on October 5th and 12th to discuss 

the outstanding discovery responses. Mr. Herion never responded, prompting the Secretary to 

file his motion to compel. Pursuant to Commission Rule 40(h), ECS’s response to the Secretary’s 

motion to compel was due on November 14, 2022. 

On November 4, 2022, the court issued an order requiring ECS to provide the court with 

updated contact information and setting a November 18, 2022, deadline for it to respond to the 

Secretary’s motion to compel. The court issued this order via the Commission’s e-filing system 

but also served the document on Mr. Herion at the address provided by his former counsel in the 

motion to withdraw. The court served Mr. Herion via Federal Express.3 According to Federal 

Express tracking records, the order was delivered to Mr. Herion on November 7, 2022 (Exhibit 

A). ECS did not file a response to the Secretary’s motion to compel nor provide the court with 

updated contact information. 

On November 29, 2022, the Secretary filed a motion for default based upon ECS’s 

repeated failures to comply with the court’s orders. According to counsel for the Secretary, Mr. 

Herion had refused to communicate with her and stated he “objects to the entire proceeding.” 

ECS’s response to the Secretary’s motion for default was due December 13, 2022. ECS did not 

file a response by that date. 

On December 21, 2022, the court issued three orders. In the first order, the court granted 

the Secretary’s motion to compel and required ECS to provide complete written responses to the 

Secretary’s written discovery requests by January 13, 2023. In the second, the court deemed the 

Secretary’s requests for admission admitted pursuant to Commission Rule 54(a)(3). The third 

order was an Order to Show Cause. In that order, the court required ECS to show cause, by 

January 20, 2023, why it should not be found in default for its repeated failures to comply with 

2 The court reissued this order on November 4, 2022. The court did so in an abundance of caution when the 

September 19, 2022, order appeared in the Commission’s e-filing system under only one of the two docket numbers. 

The court notes that both orders were sent to ECS’s original counsel and not directly to Joshua Herion. 

3 The court also provided Mr. Herion with a courtesy copy via email. 

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Commission procedural rules and this court’s orders. All three orders were served on Mr. Herion 

at ECS’s business address via Federal Express.4 According to Federal Express tracking records, 

ECS received and signed for the orders on December 22, 2022 (Exhibit B). Neither Mr. Herion 

nor any other representative for ECS responded to the order by January 20, 2023. On January 24, 

2023, the Secretary filed a status report attesting ECS had failed to comply with the court’s order 

compelling it to respond to the Secretary’s written discovery. 

On January 26, 2023, the court issued an order requiring the parties to appear for a 

telephone conference on February 2, 2023, at 2:00 p.m. EST (1:00 p.m. CST). That order was 

served on Mr. Herion via Federal Express. According to Federal Express tracking records, the 

order was delivered and signed for at ECS’s business address on January 27, 2023 (Exhibit C). 

Counsel for the Secretary appeared at the time noticed. No representative for ECS appeared. 

On February 3, 2023, the court issued a second Order to Show Cause to ECS. The court 

required ECS to show cause why it should not be declared in default for its failures to comply 

with the Commission’s procedural rules and the court’s orders, most recently for its failure to 

appear at the telephone conference. The court set a deadline of February 24, 2023, for ECS’s 

response. That order was served on ECS at its business address via Federal Express. According 

to Federal Express tracking records, the order was delivered and signed for February 6, 2023 

(Exhibit D). 

To date, ECS had failed to respond to either the December 21, 2022, or the February 3, 

2023, orders to show cause. Nor has ECS provided the Secretary with the discovery responses 

required by the court’s order granting the Secretary’s motion to compel. 

DISCUSSION 

Commission Rules 52(f)(2) and 101(a) prescribe the actions a judge may take when a 

party fails to comply with discovery orders or to obey Commission rules or orders, respectively. 

Commission Rule 101(a) provides 

When any party has failed to plead or otherwise proceed as provided by these 

rules or as required by the Commission or the Judge, the party 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 the party should not be declared 

to be in default, or on the motion of a party. Subsequently, the Commission or the 

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. 

4 The court again provided Mr. Herion with a courtesy copy via email. 

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29 C.F.R. § 2900.101(a). Commission Rule 101(a) does not apply where a party has specifically 

failed to comply with orders compelling discovery. See 29 C.F.R. § 2900.101(c). Sanctions for 

such non-compliance are governed by Commission Rule 52(f). Under Commission Rule 52(f), 

If a party fails to comply with an order compelling discovery, the Judge may enter 

an order to redress the failure. Such order may issue upon the initiative of a Judge, 

after affording an opportunity to show cause why the order should not be entered, 

or upon the motion of a party conforming to § 2200.40. The order may include 

any sanction stated in Federal Rule of Civil Procedure 375, including the 

following: 

(i) An order that designated facts shall be taken to be established for purposes of 

the case in accordance with the claim of the party obtaining that order; 

(ii) An order refusing to permit the disobedient party to support or to oppose 

designated claims or defenses or prohibiting it from introducing designated 

matters in evidence; 

(iii) An order striking pleadings or parts of pleadings or staying further 

proceedings until the order is obeyed; and 

(iv) An order dismissing the action or proceeding or any part of the action or 

proceeding or rendering a judgment by default against the disobedient party. 

29 C.F.R. § 2200.52(f). 

What constitutes an appropriate sanction where a party has failed to follow Commission 

procedures is left to the discretion of the judge. Trinity Industries, Inc., Nos. 88-1545 and 1547, 

1992 WL 88788, at *3 (OSHRC Apr. 22,1992). The Commission has provided some guidance 

on the exercise of that discretion. 

5 Federal Rule of Civil Procedure 37(b)(2)(A) includes additional sanctions a judge may impose for not obeying a 

discovery order. These include: 

(i) directing that the matters embraced in the order or other designated facts be taken as established 

for purposes of the action, as the prevailing party claims; 

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, 

or from introducing designated matters in evidence; 

(iii) striking pleadings in whole or in part; 

(iv) staying further proceedings until the order is obeyed; 

(v) dismissing the action or proceeding in whole or in part; 

(vi) rendering a default judgment against the disobedient party; or 

(vii) treating as contempt of court the failure to obey any order except an order to submit to a 

physical or mental examination. 

Federal Rule of Civil Procedure 37(b)(2)(C) also allows a judge to require the disobeying party to pay the expenses 

incurred as a result of its failure to comply. 

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Prehearing procedures that aid in the early formulation of issues benefit all parties 

during trial preparation and result in the more efficient use of Commission 

resources at both the hearing and review stages. The imposition of appropriate 

sanctions is important, therefore, to ensure compliance with prehearing 

procedures and to adjudicate cases fairly and efficiently. Duquesne Light Co., 8 

BNA OSHC 1218, 1221, 1980 CCH OSHD ¶ 24,384, p. 29,718 (No. 78-5034, 

1980). Although a judge has very broad discretion in imposing sanctions for 

noncompliance with Commission 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 generally require that lesser sanctions first be considered.” Id. at 1222, 1980 

CCH OSHD at p. 29,719. 

The Commission has held that 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 or prejudice to the opposing 

party. Noranda Aluminum, Inc., 9 BNA OSHC 1187, 1189, 1981 CCH OSHD ¶ 

25,086, p. 30,988 (No. 79-1059, 1980); Circle T. Drilling Co., 8 BNA OSHC 

1681, 1682, 1980 CCH OSHD ¶ 24,583, p. 30,155 (No. 79-2667, 1980). 

However, the Commission has also held that a default order may be appropriate 

where a party displays a “pattern of disregard” for Commission proceedings. 

Philadelphia Construction Equipment Inc., 16 BNA OSHC 1128, 1131, 1993-95 

CCH OSHD ¶ 30,051, p. 41,295 (No. 92-899, 1993). In addition, the Commission 

has indicated that the “extreme sanction” of exclusion of evidence critical to a 

party’s case may be appropriate, but only where a party has willfully deceived the 

Commission or flagrantly disregarded a Commission order. Jersey Steel Erectors, 

16 BNA OSHC 1162, 1166, 1993-95 CCH OSHD ¶ 30,041, p. 41,218 (No. 90-

1307, 1993), aff’d without published opinion, 19 F.3d 643 (3d Cir. 1994). 

Architectural Glass & Metal Co., Inc., No. 00-0389, 2001 WL 1041005, at *2 (OSHRC Sept. 6, 

2001). 

The Court may impose sanctions on ECS under Commission Rule 101(a) for its failure to 

comply with Commission rules and respond to this Court’s orders or under Commission Rule 

52(f) for its failure to comply with this Court’s order compelling it to respond to the Secretary’s 

written discovery. Both allow sanctions up to dismissal of ECS’s notice of contest. The question 

before the court is whether ECS’s conduct constitutes a pattern of disregard for Commission 

proceedings properly characterized as contumacious such that dismissal is warranted. The court 

finds that it does. 

Since the withdrawal of its counsel, ECS had failed to comply with the Commission’s 

procedural rules or any of the court’s orders. ECS has failed to comply with Commission rules 

regarding registering for its e-filing system. 29 C.F.R. § 2200.8(c). It has failed to provide the 

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court with updated contact information. 29 C.F.R. § 2200.6. ECS has refused to cooperate with 

discovery, ignoring the Commission’s rules requiring responses to properly propounded written 

discovery. 29 C.F.R. §§ 2200.52-2200.55. It has failed to comply with this court’s order 

compelling it to provide responses to discovery. It has failed to respond to either of this court’s 

orders to show cause. When given an opportunity to speak with the undersigned at a telephone 

conference, ECS failed to appear. 

Mr. Herion’s prior statements, much like his inaction, evince his intent not to cooperate 

in these proceedings. For example, counsel for the Secretary has attested Mr. Herion had stated 

in a phone conversation that he “object[ed] to the entire proceedings” and would no longer 

communicate with the Secretary (Secretary of Labor’s Motion for Default, p. 1). Mr. Herion has, 

consistent with this statement, had no further contact with the Secretary, his counsel, or the court. 

The record of this matter establishes a pattern of disregard for these proceedings warranting a 

finding of contumacious conduct on the part of ECS. 

The only indication Mr. Herion has not abandoned his contest is a November 22, 2022, 

email to the Secretary’s counsel in which Mr. Herion writes “I will reach out to another lawyer I 

spoke on this matter after the last one quit, but at this time I don’t know how to proceed.” (Exh. 

A to Secretary of Labor’s Motion for Default) Although self-represented parties are not exempt 

from following Commission rules and procedures, the Commission has recognized “parties not 

trained in the law and appearing pro se may require additional consideration of their 

circumstances.” Imageries, No. 90-378, 1992 WL 77744, at *3 (OSHRC Apr. 2, 1992) (citations 

omitted). Nevertheless, the Commission has recognized, a pro se respondent is “required to 

exercise reasonable diligence in the legal proceedings over which an administrative law judge 

presides; a pro se employer must follow the rules and file responses to a judge’s order or suffer 

the consequences which may include dismissal of the notice of contest.” Ray Wentzell, d/b/a 

N.E.E.T. Builders, No. 92-2696, 1993 WL 488210, at *3 (OSHRC Nov. 19, 1993). The court has 

taken into consideration that Mr. Herion is not an attorney and written its orders without 

legalese, using language intended to be understood by a lay person. Since sending the November 

22, 2022, email, Mr. Herion has had ample opportunity to seek clarification on how to proceed or 

otherwise apprise the court of his intent to participate in these proceedings but has failed to do 

so. 

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--

This is a significant case involving alleged violations of the fall protection standards. A 

default judgment will result in the affirmation of 14 citation items including one alleged willful 

violation and four alleged repeat violations. A total penalty of $360,531 will be assessed against 

ECS. The court does not take lightly issuing a default judgment where the consequences are so 

substantial. But ECS has left the court with no other effective option. Under the circumstances, 

the court can find no worthwhile purpose in allowing this case to proceed to a hearing. See Twin 

Pines Constr. Inc./Teles Constr., No. 12-1328, 2012 WL 6760255, at *5 (OSHRC Oct. 23, 2012) 

(ALJ) (No worthwhile purpose in proceeding to hearing where a party has abandoned the case). 

The Commission “follows the policy in law that favors deciding cases on their merits.” 

DHL Express, Inc., No. 07-0478, 2007 WL 2127307, at *1 (OSHRC July 16, 2007). However, 

the Commission has limited resources and a “strong interest in preserving the integrity of its 

orders as well as deterring future misconduct.” Trinity Indus., Inc., 1992 WL 88788, at *18 n. 6, 

citing Pittsburgh Forgings Co., No. 78-1361, 1982 WL 22596, at *3 (OSHRC Mar. 24, 1982). 

ECS’s conduct has been prejudicial to the administration of justice and to the Secretary’s 

enforcement responsibility under the Act and cannot be permitted to continue. Dismissal of 

ECS’s notice of contest is necessary and appropriate to remedy ECS’s continuing prejudicial 

conduct. 

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 

Citations issued to Respondent on April 14, 2022, pursuant to Inspection Nos. 1559071 and 

1560806 are AFFIRMED in their entirety and penalties ASSESSED. 

SO ORDERED. 

/s/___________________________ 

Heather A. Joys 

Dated: March 20, 2023 Administrative Law Judge, OSHRC 

Atlanta, GA 

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