1 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 OSHRC DOCKET NO. 18-1477 

Attorneys and Parties:

Martin D. Christopher Santos Esq., Office of the Solicitor, U.S. Department of Labor, 

 For Complainant 

 Miguel Cruz, Jr., Self Represented, Northpac Corporation d/b/a Northpac Construction 

 For Respondent 

JUDGE: Patrick B. Augustine, United States Administrative Law Judge

DECISION AND ORDER DISMISSING RESPONDENT’S NOTICE OF CONTEST AND 

ORDER DECLARING DEFAULT PURSUANT TO 29 C.F.R. § 2200.101 

This proceeding is before the 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 a Northpac Corporation (“Respondent”) worksite in Saipan, Northern 

Mariana Islands (“Saipan, MP”) on June 27, 2018. As a result of the inspection, OSHA issued a 

Citation and Notification of Penalty (“Citation”) to Respondent alleging one serious violation and 

two repeat violations of the Act with a proposed penalty of $12,197.00. The Citation was issued 

on August 22, 2018. Respondent filed a timely Notice of Contest on September 17, 2018.

SECRETARY OF LABOR, 

 Complainant,

 v. 

NORTHPAC CORPORATION d/b/a

NORTHPAC CONSTRUCTION, 

 Respondent.
2 

Complainant timely filed his Complaint on October 9, 2018. See 29 C.F.R. § 2200.34. 

Respondent filed an Answer on November 23, 2018 which was received on December 3, 2018. 

Jurisdiction

The Commission has jurisdiction over this action pursuant to Section 10(c) of the Act due 

to the filing of a Notice of Contest by Respondent. 29 U.S.C. § 659(c). 

Procedural History

 On December 14, 2018, Complainant sent Respondent his first set of discovery requests

consisting of Interrogatories, Request for Production of Documents and Request for Admissions. 

(“Discovery Request”). See Compln’t Motion at 2; Compln’t Exs. C-1. Answers to the Discovery 

Request were due by January 14, 2019. See April 3, 2019 Order (Dkt No. 18-1477). Respondent, 

a self represented litigant, provided either no response or incomplete responses to the Discovery 

Request on January 12, 2019. See Compln’t Exs. C-2. Complainant states it made multiple 

attempts to communicate with Respondent about supplementing the Discovery Request. See 

Compln’t Motion at 2. The parties, however, were able to confer and submit the Proposed Joint 

Pretrial Recommendations to the Court on January 29, 2019. 

The Court then issued a Scheduling Order on February 11, 2019. See February 11, 2019

Order (Dkt No. 18-1477). By March 7, 2019, Respondent still had not served responsive and 

complete answers to the Discovery Request and was not communicating with Complainant. See 

Compln’t Motion at 2. Complainant requested a conference call with the Court, and the conference 

call took place on April 2, 2019, which was April 3, 2019 in Saipan, MP. Id.; See Compln’t Motion 

at 3. Respondent was present for the conference call. See April 3, 2019 Order (Dkt No. 18-1477). 

The Court found Respondent’s responses to the Discovery Request inadequate and incomplete and 

ordered Respondent to supplement its’ responses. Id. During the conference call, Respondent told 

the Court he found the Discovery Request complex and difficult because he was not an attorney. 
3 

Respondent was reminded of its responsibility to make a good faith effort to follow the

Commission Rules and respond to the Discovery Request, even if the response is difficult. Id. In 

fact, the April 3, 2019 Order, issued after the close of the conference call, contained the following 

language: 

While Respondent states the Interrogatories and Requests for 

Production of Documents are complicated, the complexity does not 

relieve Respondent to make a good faith effort to respond to 

Interrogatories and produce documents. Although the Commission 

recognizes the difficulties a pro se litigant may face when 

participating in the Commission’s proceedings, the Commission 

still requires the pro se litigant to follow the rules and exercise 

reasonable diligence in the legal proceedings in which it is taking 

part. [Citations omitted]

Id. 

After the conference call with the Court, Complainant alleges Respondent twice more

provided inadequate responses to the Interrogatories and Request for Production, and improperly 

changed answers to a number of the Requests for Admissions, on April 18, 2019 and May 2, 2019. 

See Compln’t Motion at 3-4; Compln’t Exs. C-5; C-6. Complainant continued to attempt 

communication and clarification about the Discovery Request with Respondent after the 

conference call but to little avail. See Compln’t Exs. C-7. 

On May 16, 2019, Complainant filed Complainant’s Motion for Sanctions Against 

Respondent for Failure to Comply with Commission Rules (“Motion for Sanctions”). As grounds 

for the Motion for Sanctions, Complainant set forth multiple instances of Respondent’s failure to 

comply. These include: 

1. Respondent’s refusal to obey the Court’s Order dated April 3, 2019 constitutes prejudice. 

See Compln’t Motion at 5. Complainant states it cannot determine the factual merits of 

Respondent’s defense based on the responses to the Discovery Request. Id. 

2. Respondent demonstrates contumacious conduct with its inadequate responses and 
4 

disregard for communication with Complainant. See Compln’t Motion at 7. 

3. Based on Respondent’s past conduct with the Commission, Respondent has demonstrated 

a pattern of disregard for the Commission rules and authority, which will likely not be 

altered for this case. See Compln’t Motion at 8; North Pac Corp., 26 BNA OSHC 2361

(No. 16-1830, 2017). 

See generally Secretary’s Motion for Sanctions. 

Respondent failed to file a Response to the Secretary’s Motion for Sanctions. Due to 

Respondent’s failure to respond, the Court issued an Order to Show Cause, directing Respondent 

to “SHOW CAUSE WITHIN TWENTY-ONE (21) DAYS1 why the Court should not issue 

judgement against Respondent, affirming the proposed violations in this case for: (1) failure to 

timely respond to the Secretary’s Notice of Motion and Motion for Sanctions, and (2) to provide 

complete and responsive answers to discovery as required by the Court’s Order dated April 3, 

2019.” A response to the Order to Show Cause was due July 2, 2019. The Court’s Order to Show 

Cause was delivered to Respondent on June 19, 2019. The Order was sent and tracked via United 

States Post Service. See USPS Tracking log. Therefore, from the time Respondent actually 

received the Order to Show Cause and the date a response was due to the Court Respondent was 

provided thirteen days to prepare a response. 

The Court did receive Respondent’s Response (“Response”) on July 16, 2019 – fourteen 

days after the deadline for a response. The Response was placed in the U. S. Mail, Priority Mail, 

on July 9, 2019. See U. S. Priority Mail postage stamp dated July 9, 2019. Even using the July 9, 

2019 date as the operative date, the Response was still seven days late. The Court could simply 

ignore the Response since it is out-of-time and Respondent provided no good cause for the delay 

1 The Court provided extra time from its normal time frame to provide a response to the Order to Show Cause due to 

the distance Saipan is from Denver and the delivery periods required for mail to reach Respondent. 
5 

in filing a timely response. However, the Court will address the two arguments advanced by 

Respondent in its Response. 

Discussion

 According to Complainant, Respondent has engaged in contumacious conduct and 

disregarded the Rules of the Commission, resulting in undue prejudice against Complainant. Thus, 

Complainant seeks dismissal of Respondent’s Notice of Contest and an Order declaring 

Respondent in default. See generally Secretary’s Motion for Sanctions. 

The Court’s prehearing procedures aid in the early formulation of issues, which benefits 

all parties during trial preparation as well as resulting in the more effective use of the Court’s 

resources at the hearing stage. Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1547 (No. 

00-0389, 2001). The imposition of appropriate sanctions is important to ensure compliance with 

prehearing procedures and to permit the fair and efficient adjudication of issues. Id. The Judge 

has broad discretion to decide whether sanctions should be ordered. Id. See also, Jersey Steel

Erectors, 16 BNA OSHC 1162, 1165 (No. 90-1307, 1993), Sealtite Corp., 15 BNA OSHC 1130, 

1134 (No. 88-1431, 1991) and Duquesne Light Co., 8 BNA OSHC 1218, 1222 (No. 78-5034, 

1980) (consolidated). 

The Order to Show Cause required Respondent to provide good cause for Respondent’s 

failure to; (i) respond to Complainant’s Motion for Sanctions Against Respondent for Failure to 

Comply with Commission Rules; and (ii) supplement or answer the Discovery Request as ordered 

in the Court’s April 3, 2019 Order. The Response does not directly respond to the questions posed 

in the Order to Show Cause. Respondent advances two arguments. The first centers around the 

complexity of the Discovery Request because he is a non-attorney. Respondent also attached 

responses he filed with Complainant after the Conference call with the Court and which are the 
6 

subject matter to the Motion for Sanctions2. The second response advances Respondent’s 

settlement discussions with Complainant’s counsel and Respondent’s position on the proposed 

penalties. As to the second argument regarding settlement, this is non-responsive to the Order to 

Show Cause and the Court declines the invitation to become involved in settlement discussions. 

As to Respondent’s first response, it appears to again go to an issue Respondent has been advised 

on at least three times. 

Respondent, in this case, was advised by the Court in the April 2, 2019 conference call of 

the need for him to comply with Court orders and Commission Rules. Again, in this Order 

Respondent is advised of the need for compliance with Commission Rules and Court orders. 

Although the Commission recognizes the difficulties a self represented litigant may face when 

participating in the Commission’s proceedings, the Commission still requires a self represented 

litigant to follow the rules and exercise reasonable diligence in the legal proceedings in which it is 

taking part. Sealtite Corp., 15 BNA OSHC 1130 (No. 88-1431, 1991); Wentzell d/b/a N.E.E.T. 

Builders, 16 BNA OSHC 1475, 1476 (No. 92-2696, 1993) (stating that “[a] pro se employer is 

required to exercise reasonable diligence... [they must] follow the rules and file responses to a 

judge’s orders, or suffer the consequences...”). The undersigned recognizes that sometimes 

unrepresented employers “can fail to grasp exactly what [it] is being asked to do.” Sealtite Corp., 

15 BNA OSHC 1130 (No. 88-1431, 1991). Thus, where an employer has a substantial reason for 

having failed to comply with a discovery order, and where the employer's conduct also does not 

indicate disrespect toward the judge, the failure to comply may not necessarily be an indication of 

bad faith or contumacious conduct. Id. 

Not having counsel, does not obviate a party’s obligation to engage in the adjudicatory 

2 The Court has reviewed the responses of Respondent in its supplemental filing on the Discovery Request. The 

Court finds the supplemental response deficient and unresponsive. 
7 

process. All litigants, including those declining to hire counsel, must obey orders and to permit 

and respond to discovery as required by the Commission Rules. See JGB LLC, 21 BNA OSHC 

1402, 1403 (No. 04-2153, 2006) (vacating direction for review when unrepresented party failed to 

respond to a briefing notice); Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987) (“Ignorance of 

court rules does not constitute excusable neglect, even if the litigant appears pro se”). An 

unrepresented employer must “exercise reasonable diligence in the legal proceedings” and “must 

follow the rules and file responses to a judge's orders, or suffer the consequences, which can 

include dismissal of the notice of contest.” Wentzel d/b/a N.E.E.T. Builders, 16 BNA OSHC 1475, 

1476 (No. 92-2696, 1993) (citations omitted). 

Respondent has been before the Commission before in a case that substantially has the 

same facts as is present in this case. A Decision and Order of Dismissal of Notice of Contest was 

issued on December 4, 2017 by Chief Judge Covette Rooney. See North Pac Corp., 26 BNA 

OSHC 2361 (No. 16-1830, 2017). In Chief Judge Covette Rooney’s case, Respondent failed to 

address discovery requests appropriately and demonstrated deficient communication with the 

Secretary and Chief Judge Rooney. Id. Chief Judge Rooney determined Respondent acted in a 

contumacious manner, disavowed Commission rules, prejudiced the Secretary and has 

demonstrated a pattern of disregard of Commission procedures and bad faith conduct as a pro se

litigant. She dismissed Respondent’s Notice of Contest and entered a default judgment against 

Respondent. Id. 

Once again, Respondent has acted in a similar manner in this case. As documented by 

Complainant, Respondent received and responded to the Discovery Request but in many respects 

the answers were incomplete, not responsive or some questions ignored. See Compln’t Ex. C-3; 

C-7. Respondent’s delayed and inadequate response to the Discovery Request, and other deficient 

communication with Complainant and the Court, is not an innocent oversight or inadvertence that 
8 

can be excused as related to complexity or self represented representation. Respondent appears to 

communicate just enough to maintain a claim with the Commission yet provide inadequate 

responses that hinders Complainant’s ability to prepare for trial. This is contumacious conduct by 

Respondent. Likewise, Respondent’s non-response to Complainant’s Motion for Sanctions and 

the delayed, untimely and unresponsive Response to the Order to Show Cause has nothing to do 

with self representation. It demonstrates a behavior which delays the proceeding, prejudices 

Complainant and requires Court time and supervision to ensure timely adherence to the Court’s 

order and Commission Rules. 

Finally, the Court has reviewed the questions propounded by Complainant in the Discovery 

Request. Those questions are written where an average person could understand the meaning of 

the question. For instance, Respondent should know all individuals associated with the worksite 

that have knowledge of what happened the day of the inspection. Also, when Complainant asks 

for the basis for Respondent’s position it is taking in regard to a certain citation, asking Respondent 

to explain its position is not a complex question. Also, questions as to when the first day of work 

began, which employees worked with portable cement and work schedules is clearly 

understandable. The providing of responsive answers to the questions propounded are not of so 

much complexity that self representing oneself does not make it impossible to answer the inquiry 

or comply with Commission Rules and the Court’s Orders. 

Default judgments may be appropriate when a party fails to comply with an order 

compelling discovery. 29 C.F.R. § 2200.52(f) (sanctions for failing to comply with discovery 

requirements); 29 C.F.R. § 2200.101(a) (default appropriate when a party fails to proceed as 

provided by the Commission Rules or as required by a judge); see also St. Lawrence Food Corp., 

21 BNA OSHC 1467, 1472 (Nos. 04-1734 & 04-1735, 2006). Failing to comply with Commission 

Rules and orders so as to delay proceedings may constitute contumacious conduct. Carson 
9 

Concrete Corp. v. Sec’y of Labor, 21 BNA OSHC 1393, 168 Fed. Appx. 543 (3d Cir. 2006) 

(unpublished) (upholding default judgment for OSH Act violations when employer sought to 

disavow admission provided during discovery until a few days before trial).

The Court finds Respondent’s repeated failures to engage in the litigation process, or when 

it engages in discovery the answers are misleading or incomplete, illustrate a pattern of disregard 

for the Commission’s proceedings. Respondent has been given multiple opportunities and plenty 

of time to comply with Commission Rules of Procedure and this Court’s Orders. Complainant 

has yet to receive adequate responses to Discovery Requests from Respondent. The Court has a 

duty to “conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate 

all issues, and avoid delay.” 29 C.F.R. § 2200.67. In order to carry out that duty, Commission 

Rule 67(m) authorizes the Court to “[t]ake any other action necessary . . . and authorized by the 

published rules and regulations of the Commission.” Based on the representations of 

Complainant,3 the Court finds that the delays in this case are wholly attributable to Respondent, 

including Respondent’s failure to answer the Discovery Request fully and in a responsive way. In 

that regard, the Court finds that Respondent’s contumacious conduct warrants the sanction of 

dismissal. 

 In addition, the Court finds the Commission has conveyed due notice to Respondent of its 

procedural rights and provided ample warning that its failure to comply with Court orders may 

result in the dismissal of its Notice of Contest. See April 3, 2019 Order (Dkt No. 18-1477); June 

11, 2019 Order (Dkt No. 18-1477). Respondent has failed to take advantage of the opportunity to 

adequately communicate with Complainant and the Court, and demonstrate good faith conduct in 

the proceeding. Under these circumstances, the Court sees no worthwhile purpose in allowing this 

3. Because Respondent has failed in its Response to rebut any statement or representation made by Complainant in 

his motions, the Court accepts Complainant’s representations of the facts as true. 
10

case to proceed to a hearing when there is a pattern of bad faith conduct, and thus no basis to 

believe that Respondent will fulfill its pre-trial obligations or actually appear at the trial. 11 See 

Twin Pines Constr. Inc./Teles Constr., 24 BNA OSHC 1500, 1504 (No. 12-1328, 2012) (No 

worthwhile purpose in proceeding to a hearing where a party has abandoned the case). 

The Commission recognizes “[D]ismissal is too harsh a sanction for failure to comply with 

certain pre-hearing orders unless the record shows contumacious conduct by the noncomplying 

party, prejudice to the opposing party, or a pattern of disregard for Commission proceedings.” 

Amsco, Inc., 19 BNA OSHC 2189, 2191 (No. 02-0220, 2003). See also Sealtite Corporation, 15 

BNA OSHC 1130 (No. 88-1431, 1991) (contumacious conduct established where party engaged 

in a “consistent pattern” of failure to respond to judge’s orders). With Respondent’s history and 

current conduct, there is a consistent pattern of disregard for Commission Rules, contumacious 

conduct, and prejudicial conduct that supports the sanction of dismissal under 29 C.F.R. § 

2200.52(f) and 29 C.F.R. § 2200.101(a). 

 Accordingly, with respect to the above-referenced docket, Respondent is declared in 

DEFAULT, its Notice of Contest is hereby DISMISSED and the violations and penalties alleged 

in the Citation and Notification of Penalty are AFFIRMED in its entirety and penalties 

ASSESSED. 

ORDER

 The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based on the foregoing, it 

is ORDERED that:

1. Citation 1, Item 1, and the corresponding penalty of $2,439.00 are hereby AFFIRMED as 

final orders of the Commission pursuant to Section 10(a) of the Act. 

2. Citation 2, Item 1, and the corresponding penalty of $4,879.00 are hereby AFFIRMED as
11

final orders of the Commission pursuant to Section 10(a) of the Act.

3. Citation 2, Item 2, and the corresponding penalty of $4,879.00 are hereby AFFIRMED as 

final orders of the Commission pursuant to Section 10(a) of the Act. 

SO ORDERED.

Date: August 2, 2019 

 /s/ 

 

Denver, Colorado Patrick B. Augustine 

 Judge, OSHRC