THIS CASE IS NOT A FINAL ORDER OF THE REVIEWCOMMISSION AS IT IS PENDING COMMISSION REVIEW

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. 22-0385
				TRINCHESE IRON WORKS & CONSTRUCTION CORP.,

				Respondent.
**

**DECISION AND ORDER**

	This proceeding is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to § 10(c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. § 651*et seq.* (the Act).  TheActing Secretary of Labor (Secretary) filed a Motion for Sanctionsfor Respondent, Andrew Trinchese’s (owner and *pro se*representative of Trinchese Iron Works & ConstructionCorporation) failure to comply with three (3) Orders compelling himto participate in discovery.1 Respondent did not file a response to the Secretary’s Motion. However, the Court treats Respondent’s email (dated September 29,2023, filed before the Secretary’s Motion, and added to the casefile) as a prebuttal to the Secretary’s Motion.  For the reasonsthat follow, the Court finds that Respondent is in DEFAULT.

FACTUAL AND PROCEDURAL BACKGROUND2

- On March 15, 2022, the Occupational Safety and	Health Administration (OSHA) issued two citations and a notification	of proposed penalties to Respondent for violations that occurred at	One Jefferson Ferry Drive, South Setauket, NY on October 2, 2021. 	The first citation contained two (2) items and the second citation	contained one (1) item. These citations arose from Inspection No.	1560013 (Docket No. 22-0385).  
- On March 31, 2022, Respondent filed with the	OSHA Long Island Area Office a notice of contest to all of the	citations issued in connection with Inspection No. 1560013.   
- On June 6, 2022, the Secretary filed her	Complaint.  Respondent did not file an Answer.  Exhibit 3.  On July	12, 2022, the Commission issued, by certified mail and email, an	Order to Show Cause Why Respondent’s Notice Of Contest Should Not	Be Dismissed.  
- On July 19, 2022, the Commission accepted as	an Answer, a letter filed by Respondent’s President Andrew	Trinchese stating; “[p]lease let this letter serve as record to	appoint myself, Andrew Trinchese President of Trinchese Ironworks	and Construction as the respondent in the case docket noted above.”	  
- On December 15, 2022, the Secretary served her	first set of interrogatories and first set of requests for the	production of documents on Respondent by email. 
- On January 9, 2023, the Secretary emailed	Respondent seeking to meet and discuss the case and reminding that	responses to discovery are due on January 15, 2023.   
- On January 17, 2023, having not received	responses to discovery, the Secretary emailed Respondent explaining	the responses were overdue.
- The next day the Secretary’s counsel texted	Mr. Trinchese asking if he had received the email with the	Secretary’s discovery requests.  Mr. Trinchese responded by text	message stating he had received the discovery but “there is	nothing for me to answer.”  The Secretary’s counsel texted back	pointing out that there are 12 interrogatories starting on page 5 of	11; and 12 requests for documents that relate to the case starting	on page 9 of 11.   
- On January 19, 2023, in an effort to engage	Respondent in the litigation process, the Secretary voluntarily	emailed Respondent a copy of the OSHA’s Inspection Report.  The	Secretary also issued a Notice to remotely depose Respondent’s	Foreman Steven Fernandez.   
- On January 23, 2023, the Secretary emailed	Respondent to ensure he received and understood the Secretary’s	discovery requests and received copies of the OSHA Inspection Report	and Notice to depose Foreman Fernandez.      
- Having received no response, on January 25,	2023, the Secretary emailed Respondent about the overdue discovery: 	

Andrew, please call/email, or text me to let meknow whether you are planning to respond to the written discovery weissued.  If you do not respond in writing, we must file a motion incourt to compel the responses.  Please also let me know if you haveissues identifying specifically what we are asking for.   

We need to also, in addition to Mr.Fernandez’s, schedule your deposition which should only take a fewhours.  We can do your deposition on the same day as Mr. Fernandez ifthat works with everyone.  Let me know Mr. Fernandez’s and youravailability to be deposed in the first 2 weeks of February. 

- On January 31, 2023, the Secretary texted	Respondent: 

Andrew, I’m following up on the discovery andwould like to discuss scheduling depositions.  Please let me knowwhen you are planning to respond in writing to the discoveryrequests. Also, what is a good time to talk and figure out the besttimes to conduct depositions? Please let me know thanks MattSullivan. 

- On February 2, 2023, the Secretary emailed	Respondent another copy of the discovery requests and then texted	Respondent “Andrew can you please respond to my questions. I need	to know you’re participating in this litigation. As always, [I’m]	am available to discuss the case at your convenience thanks Matt.”	 
- Having received no response, on February 6,	2023, the Secretary emailed the Court to schedule a conference to	discuss the Secretary’s need to file a motion to compel discovery	responses and schedule depositions in the above case.   
- The Court scheduled a conference for February	16 but when Respondent did not appear it rescheduled the conference	for February 22, 2023.  During the February 22 conference call,	Respondent did appear, and the Court ordered Respondent to respond	to discovery by February 27, 2023.   
- On February 27, 2023, after being directed to	do so, Respondent produced responses to the Secretary’s discovery	requests.    
- On February 28, 2023, at the Secretary’s	request, the Court held a conference call to address Respondent’s	failure up to that point to cooperate in discovery generally and in	particular, for scheduling of depositions. During the call Andrew	Trinchese agreed that he and Respondent’s Foreman, Steven	Fernandez, who was supervising the worksite when the fall incident	occurred would both sit for depositions.  The parties agreed that	both depositions would be taken remotely on Friday March 17, 2023,	starting at 2 pm. The Secretary issued deposition notices.    
- On March 17, Mr. Trinchese appeared and was	sworn in as scheduled.  However, from the beginning of the	deposition Mr. Trinchese was contumacious, argumentative, and	nonresponsive on numerous questions.  Moreover, on multiple	questions Mr. Trinchese responded (without explanation) that he was	asserting the Fifth Amendment and, on that basis, refused to answer	at all.  Furthermore, he informed the Secretary, for the first time,	that Mr. Fernandez would not appear at all for his deposition	scheduled to begin at 4pm, after Mr. Trinchese’s.  Mr. Trinchese	explained that Mr. Fernandez was not appearing and told him “Boss,	I already spoke to OSHA, and I already spoke to the insurance	company. Why do I have to keep getting interviewed?”  ****
- On March 29, 2023, at the Secretary’s	request, the Court held a conference to discuss the discovery	disputes in this case.  During the conference the Court approved the	Secretary’s request to file a motion seeking adverse inferences	related to Mr. Trinchese’s pleading the Fifth Amendment and	refusing to answer questions during his deposition.  Mr. Trinchese	also agreed to produce Foreman Fernandez for a remote deposition	which was subsequently scheduled for 4pm on May 12, 2023.  
- On May 8, 2023, the Secretary emailed	Respondent’s Foreman Steven Fernandez, and copied Respondent, a	copy of the subpoena confirming that his deposition will be held	remotely and commence at 4pm on Friday May 12, 2023.    
- On May 10, 2023, Respondent emailed	confirmation that Foreman Fernandez would appear for his May 12	deposition. 
- Mr. Fernandez appeared on May 12 as scheduled,	was sworn in, and began answering questions.  However, after a few	minutes had elapsed, Mr. Trinchese, who unbeknownst to the Secretary	was in the room with Mr. Fernandez, began to make what turned out to	be the first of twenty-five (25) separate interruptions of Mr.	Fernandez’s testimony.  His interruptions ranged in nature	including interjecting that the questions were insulting and	irrelevant to the case (“[i]f you’re going to insult people and	ask their level of education that is insulting. Why does that have	anything to do with this case?” (Dep. 8), a waste of time (“Wasted	a lot of my time.”  *Id*.	10) and reframing the Secretary’s questions in his own words.	(“Steven, you never seen me at the jobsite? That’s what he’s	asking"*Id*.	26). These repeated interruptions substantially impeded the	Secretary’s ability to conduct the deposition causing it to end	early. 
- On May 16, 2023, the Secretary sent a letter	to the Court regarding the status of discovery disputes and	explaining that in light of Respondent’s refusals and contumacious	behavior throughout this litigation, the	Secretary would file a motion to address these deficiencies. 
- On June 27, 2023, the Secretary filed a Motion	for Adverse Inferences based on Mr. Trinchese’s assertion of the	Fifth Amendment and for an order that Foreman Fernandez be deposed	without interference at Respondent’s expense.    
- On June 28, 2023, this Court issued an Order	Granting Secretary’s Motion To Depose Foreman Fernandez At	Respondent’s Expense And Directing The Secretary To Supplement Her	Motion For Adverse Inferences.  The Court  found that Mr.	Trinchese’s conduct during Foreman Fernandez’s deposition was	argumentative and suggestive so as to taint any testimony provided	by Mr. Fernandez and hinder the Secretary’s efforts to obtain full	discovery of this witness.  The Court concluded these actions were	in violation of Federal Rule of Civil Procedure 30(c)(2) and	warranted “appropriate sanctions.”  The Court also warned that	any efforts to interfere with the rescheduled deposition of Foreman	Fernandez would be met with sanctions pursuant to Commission Rule	101. 29 C.F.R. § 2200.101. 
- On June 30, 2023, the Secretary filed her	Supplemental Filing Withdrawing Proposed Adverse Inference Numbers 2	And 3. 
- On July 14, 2023, in an effort to assist	Respondent to comply with the Court’s Order dated June 28, 2023,	the Secretary sent this email containing pertinent information to	schedule Foreman Fernandez’s deposition:    

Andrew,  

To comply with Judge Bell’s Order(attached)please let us know what dates and times work to scheduleForeman Fernandez’s deposition. Please keep in mind the trial isscheduled to be held virtually on September 5-6, 2023, so we need toschedule the deposition promptly.   

Per the Judge’s Order, the deposition is tobe taken at Respondent’s expense. Here is the contact informationfor Capital Reporting, the stenographer we have used in the case sofar. Once we agree on a date and time, I suggest that you contactCapital Reporting to procure their services for the deposition.Please let me know if you have any questions.  

Capital Reporting Company 

1250 I St NW Ste 350 

Washington, DC 20005 (202) 857-3376 

www.capitalreportingcompany.com

Thanks,

- That day Andrew Trinchese responded by sending	the below email stating in pertinent part that he flatly refuses to	comply with this Court’s Order while launching unnecessary	personal attacks on the Secretary’s counsel and impugning the	integrity of this Court: 

Look sir, I am not going back and forth withyou.  I will not pay for any kind of deposition nor does Steven wantto sit in another one.  We are really getting tired of being bulliedby you. I am no longer going to even respond to you, unless we aregoing straight to trial with this.  I want a jury trial.  I'm notgoing to sit here and endure your abuse. We have done nothing wrongother than having a possible checkbook for you to steal from.  youare an osha lawyer and with no disrespect to judge bell because hehas been nothing but a gentleman but he is an osha judge.  I askedyou questions that you couldn't answer.  Why can't you answer myquestions if I am obviously the opposing attorney and defendant.  Youare the one charging me with something I'm not responsible for. Myonly fault here is your say-so.  There are so many people that areahead of me in this case that can be at fault if you want to faultsomeone, as you clearly do.  don't think for a second i don't knowwhat your depositions are about. It's your lawyer's tactic to try andget a timid guy like Steven to say something to benefit your case. I'm going to pay for a deposition that is not necessary?  Why? because we can go to court tomorrow if you want to, but you don'tbecause you have nothing on us. you actually insult me.   

Let me set the record straight for you one moretime Mr Osha lawyer.   you are osha!  you train and give out cards topeople saying that they completed a course and are certified as longas they pay your fee.  but you don't actually test the employees. soyou don't know if they learned anything or even slept in your class.you don't care.  the people should be tested to see if they learnedanything about safety. but that's not what this is really about. It'sabout money!   the very reason you are attacking me.  Imagine you getinto an accident with a guy and it's his fault.  but he is an offduty cop, and the cops get called to the scene.  how's your chancesnow?   same here!  I'm getting accused of something, I still don'tknow what it is, by osha and the people judging me work for osha. How's that a fair trial?   so you can order another deposition if youlike but good luck getting me to attend it.  But when you tell me weare going to trial with this then I'll comply. Of course I need to bethere to pick the jury.  or you can call me and tell me you'reaccepting my generous offer I gave you. but until then please stopharassing me. 

- On July 17, 2023, the Secretary emailed the	Court to inform about Respondent’s stated refusal to comply with	the Court’s order.  The Secretary also notified the Court of her	intention to move for sanctions against Respondent for its failure	to comply with the Order. 
- The Court scheduled a conference for July 27,	2023, to discuss Respondent’s noncompliance.  That morning,	Respondent sent an email stating he could not attend the conference	due to a personal emergency.  The Court advised the Secretary that	she could file her Motion for Sanctions.    
- On August 10, 2023, the Secretary filed her	Motion for Sanctions.  That day the Secretary also obtained a	subpoena from the Court requiring Foreman Fernandez appear for a	deposition.   
- On August 11, 2023, the Court issued an Order	noting “that the Secretary has not filed, neither has the Court	granted, a Motion to Compel.  The Secretary is hereby ordered to	supplement the Motion for Sanctions to address this issue.”   
- On August 18, 2023, the Secretary filed her	Motion to Compel Respondent to Coordinate and Pay for foreman	Fernandez’s Deposition.   
- On August 23, 2023, the Court granted the	Secretary’s Motion to Compel Respondent to Coordinate and Pay for	Foreman Fernandez’s Deposition.  That day the Court held a	conference call with the parties to discuss compliance with the	Order wherein Andrew Trinchese declared that Respondent would not	comply with the Order and clarified that it understood and was	prepared to deal with the consequences of its decision.   
- During the call, despite refusing to cooperate	and arrange Foreman Fernandez’s deposition, Mr. Trinchese	nevertheless explicitly requested that the Secretary obtain and	serve a subpoena on Foreman Fernandez requiring his deposition	testimony.  Mr. Trinchese explained that he would not contact	Foreman Fernandez regarding this deposition because he respected	Foreman Fernandez’s wish to not participate in this case.  The	Secretary agreed to serve the subpoena and immediately following the	conference call emailed Respondent “. . . as we just discussed	during our conference call with Judge Bell, please forward me Steven	Fernandez’s home address and phone number.” 
- Respondent did not respond and on August 30,	2023, the Secretary again emailed Mr. Trinchese requesting Foreman	Fernandez’s home address: 

As you requested during our conference callwith Judge Bell last Wednesday, we (the Secretary of labor) haveobtained and are prepared to serve Steven Fernandez with the attachedsubpoena requiring him to appear for the deposition that Judge BellOrdered As Judge Bell ordered, Mr. Fernandez’s deposition mustoccur **by**September29, 2023**.**

However, we do not have Mr. Fernandez’s homeaddress which prevents us from serving him by certified mail- returnreceipt requested. Therefore, we ask again, that you send Mr.Fernandez’s home address and ideally his phone number so we canserve him with the subpoena. 

If you are not willing to provide Mr.Fernandez’s home address, please let us know, so we may decide howto respond to this circumstance. Please let me know if you have anyquestions. 

- On August 31, 2023, the Secretary emailed	Foreman Fernandez to try and obtain his home address:

As you know Trinchese iron Works &Construction Corp. is currently engaged in an OSHA lawsuit with theSecretary of Labor. Judge Bell who presides over the case has orderedthat your deposition be held before September 29, 2023. 

We are trying to serve a subpoena requiringyour attendance at the yet-to-be scheduled deposition, but we do nothave your home address to send you a certified letter. 

We are therefore asking that you send us yourhome address as soon as possible so we can mail you the depositionsubpoena by certified mail. 

- Unable to obtain Foreman Fernandez’s home	address, on September 6, 2023, the Secretary wrote the Court a	letter and requested a conference to address Respondent’s failure	to provide Mr. Fernandez’s home address.  
- In response the Court scheduled a conference	call for September 7, 2023, which was rescheduled to September 11,	2023. During the September 11th	call, Mr. Trinchese repeated his refusal to provide Foreman	Fernandez’s address because he personally does not want to get	Foreman Fernandez further involved in the litigation and repeated,	he understood the potential consequences of failing to comply,	including default.   
- On September 13, 2023, the Secretary filed a	Motion to Compel Respondent to Produce Foreman Fernandez’s Home	Address and Phone Number.  Secretary’s Counsel also emailed the	Motion to Mr. Trinchese.  
- On September 14, 2023, the Court granted the	Secretary’s Motion and Ordered

Respondent to produce Foreman Fernandez’scontact information.  

- Having not received a response, on September	19, 2023, the Secretary emailed Mr. Trinchese asking that he	“[p]lease let us know immediately whether you plan on complying	with this Order.” The Secretary did not receive a response.   
- After ignoring the Orders and the Secretary’s	multiple requests that he comply, on September 29, 2023, which was	the deadline to comply with the Court’s August 23, 2023, Order	requiring Respondent to coordinate and pay for Foreman Fernandez’s	deposition, Respondent wrote an email titled “Forced Defiance”	to the Court flatly declaring again his refusal to comply with the	Order.    

Discussion

	Rule 52(f)(2) of the Commission Rules ofProcedure (Commission Rules), 29 C.F.R. § 2200.52(f)(2),provides in pertinent part:

*Sanctions.*Ifa party fails to comply with an order compelling discovery, the Judgemay enter an order to redress the failure.  Such an 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 Procedure 37, including the following:

- 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 matters in evidence;
- An order refusing to permit the disobedient	party to support or to oppose designated claims or defenses or	prohibiting it from introducing designated matters into evidence;
-  An order striking pleadings or parts of	pleadings or staying further proceedings until the order is obeyed;	and
- **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.**

(emphasis added.)

Rule 101 also provides for sanctions, toinclude default, for failure to obey Commission Rules or Orders ofthe Commission or its Judges.  However, by express terms, it does notapply to sanctions for failure to comply with orders compellingdiscovery.  29 C.F.R. § 2200.101(a) and (c).

By Order dated June 28, 2023, the Courtgranted the Secretary’s Motion to Depose Foreman Steven Fernandezat Respondent’s Expense.3 By Order dated August 23, 2023, the Court granted the Secretary’sMotion to Compel Respondent to Coordinate and Pay for Foreman StevenFernandez’s Deposition.  Then, by Order dated September 14, 2023,the Court granted the Secretary’s Motion to Compel Respondent toProduce Foreman Fernandez’s Home Address and Phone Number. Respondent failed to comply with these Orders.

	The Commission has an obligation to provideall parties to a case with an opportunity to for a “full, fair, andequal opportunity to be heard.” *ChoiceElec. Corp*., 14 BNA OSHC 1899,1900-01 (No. 88-1393, 1990). The Commission recognizes that employerswho participate in proceedings before the Commissionself-represented, without an attorney, may require additionalconsideration as they may not be knowledgeable about the Commission'sprocedural requirements and legal procedures. *Id*.;*Sealtite Corp*.,15 BNA OSHC 1133-34 (No. 88-1431, 1991).

	Respondent Andrew Trinchese is a *prose*(self-represented) litigant inthis proceeding.  Beyond the initial prehearing conference call, theCourt held five (5) additional prehearing conference calls for thiscase.  During each of these conference calls, the Court took time toexplain to Respondent, Andrew Trinchese, applicable Commission rules--- especially those related to participation in discovery, and theconsequences of failure to comply with the rules and Court Orders toenforce the rules.  However, during the conference calls, Respondentvented his frustration with the process and, at some point,communicated an unwillingness to participate in the discovery processas it related to the follow-up deposition of his employee ForemanFernandez. *See Ark. Abatement*,17 BNA OSHC 1163, 1164-65 (No. 94-2210, 1995), ("[W]hat we willrequire of a *pro se*party is sufficient diligence and reasonableness to show that it iswilling to have its alleged violations resolved by theCommission....[But]  where a party's default indicates disrespectfor, or indifference to, Commission proceedings, the party's claimsproperly are dismissed.")  It is also worth noting that Mr.Trinchese’s tone and demeanor made it clear that he was notintimidated by this administrative process even though he wasself-represented.  On the contrary, he pushed back on requests fromCounsel for the Secretary and even admonitions from the Courtregarding his obligation to participate in the discovery process. For example, in response to the Court’s June 28, 2023, Orderin which the Court granted the Secretary’s Motion to Depose ForemanSteven Fernandez at Respondent’s Expense, Mr.Trinchese sent an email to Counsel for the Secretary stating, “Iwill not pay for any kind of deposition nor does Steven want to sitin another one.”  His email went on to say, “I am no longer goingto even respond to you, unless we are going straight to trial withthis.”  Subsequently, on August 23, 2023, the Secretary filed, andthe Court granted, a Motion to Compel Respondent to Coordinateand Pay for Foreman Steven Fernandez’s Deposition.4 In that Order, the Court mandated that the deposition take placeby/before September 29, 2023, and rescheduled the hearing date toaccommodate this delay.  During a phoneconference with the parties on August 23, 2023 (before the Secretaryfiled, and the Court granted, her Motion to Compel on the same day),Mr. Trinchese said he would not comply with the Court’s Order,neither would he help the Secretary serve Mr. Fernandez with asubpoena for the follow-up deposition.  Rather, he insisted that theSecretary obtain and serve a subpoena directly to Mr. Fernandez. When asked if he had Mr. Fernandez’s contact information, heresponded in the affirmative.  Thereafter, Mr. Trinchese ignoredattempts by Counsel for the Secretary to obtain contact informationfor Steven Fernandez in order to serve a deposition subpoena.  TheCourt held another conference call on September 11, 2023, to discussthese events.  Mr. Trinchese was steadfast in his refusal to provideMr. Fernandez’s contact information because he did not want to “getinvolved,” and out of respect for Mr. Fernandez’s desire to notparticipate in another deposition.  He further indicated that heunderstood the possible consequences of his failure to comply. Finally, on September 13, 2023, the Secretary filed, and the Courtgranted, a Motion to Compel Respondent to Produce Foreman Fernandez’sHome Address and Phone Number.  On September 29, 2023, Mr. Trinchesefiled an email with the Court and Counsel for the Secretary in which,among other things, he objected to a second deposition of Mr.Fernandez although he admitted his interruptions during the firstone, which triggered the need to complete this discovery by settingup a second one.  In his email, Mr. Trinchese went on to assert thatCounsel for the Secretary’s attempts to get Mr. Fernandez’scontact information in order to serve a deposition subpoena amountedto an “abuse of power.”

	The Commission has held that 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. *Architectural Glass & Metal Co.,Inc*., 19 BNA OSHC 1546 (No. 00-0389,2001).  The Commission has also held that the imposition ofappropriate sanctions is important to ensure compliance withprehearing procedures and to adjudicate cases fairly and efficiently. *Duquesne Light Co*.,8 BNA OSHC 1218, 1221 (No. 78-5034, 1980) (consolidated).  

	Here, Respondent took his time providingresponses to the Secretary’s written discovery.  Only aftermultiple reminders by the Secretary and an admonition by the Courtdid Respondent provide scant responses to some of Respondent’sinterrogatories and Request for Production of Documents.  Regardinghis deposition, the transcript reveals that Mr. Trinchese’s conductwas obstreperous, and his answers were, for the most part, evasive,and argumentative.5In response, the Secretary chose to forego full and completeanswers to written discovery and a second deposition of Mr.Trinchese.  Instead, the Secretary decided to settle for a fewadverse inferences based on Mr. Trinchese’s Fifth Amendmentassertions during his deposition along with a follow-up deposition ofSteven Fernandez paid for by Respondent.  The Court finds thatRespondent’s failure to comply with prehearing discovery proceduresprevented the Secretary from identifying and assessing issues inpreparation for a hearing.

*SANCTIONS*

	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*, 15 BNA OSHC at 1134. However, although a judge has very broad discretion inimposing sanctions for noncompliance with the Commission’s Rules 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.” *Duquesne**8 BNA OSHC at*1222.  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*19BNA OSHC**at1547.  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)(finding a pattern of disregard for Commission proceedings 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).  

	For the following reasons, the Court finds that sanctions areappropriate in this case.  The Court has rescheduled this case twicein consideration of delays caused by Mr. Trinchese’s refusal tocomply with Court Orders compelling discovery.  Althoughself-represented, Mr. Trinchese never indicated that he did notunderstand what any of the Orders required him to do, but rather hisunwillingness to do it.  Finally, the Secretary asserts, and theCourt agrees, that her inability to conduct a thorough deposition ofSteven Fernandez who is identified as a key witness in this case,prevents the Secretary from making a determination of Respondent’sdefense and the merits of any such defense.  The Court agrees withthe Secretary’s contention that Respondent’s failure to complywith the Court’s Orders has resulted in prejudice to the Secretary. Sec’y Mtn. 13.   

	The Court understands and takes seriously that the imposition ofsanctions should be guided by proportionality between the offense andthe sanction.  *See**Shea v. Donohoe Constr. Co*., 795F.2d 1071, 1077 (D.C. Cir.1986); *Butler v. Pearson*, 636 F.2d526, 531 (D.C. Cir.1980).  Here, the Court finds Respondent’sconduct to be contumacious based on his refusal to comply with theCourt’s June 28, 2023, Order granting the Secretary’s Motion toDepose Foreman Steven Fernandez at Respondent’s Expense; theCourt’s August 23, 2023 Order granting the Secretary’s Motion toCompel Respondent to Coordinate and Pay for Foreman StevenFernandez’s Deposition; and the Court’s September 14, 2023, Ordergranting the Secretary’s Motion to Compel Respondent to ProduceForeman Fernandez’s Home Address and Phone Number.  Moreover, theCourt finds that Respondent’s written and verbal refusals to complywith its Orders reflect a pattern of willful conduct and flagrantdisregard for Commission proceedings.  The Court finds that theappropriate sanction here is DEFAULT.

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, to include Citation 1, Items 1 & 2; and Citation 2,	Item 1 are AFFIRMED, and proposed penalties for each are ASSESSED.  
- The	hearing scheduled to commence on November 14, 2023, is hereby	CANCELED.

SO ORDERED.

                                                                       */s/Keith E. Bell*

Honorable Keith E. Bell 

OSHRC

Dated: November 1, 2023

Washington, D.C.

1	Respondent Anrew Trinchese is a self-represented employer in this	matter as permitted by Rule 22 of the Occupational Safety and Health	Rules of Procedure (Commission Rules).  29 C.F.R. 2200.22(a).

2	The Court adopts the Secretary’s uncontroverted recitation of the	factual and procedural background of this case as set forth in her	Motion for Sanctions.  The Court finds this background narrative to	be consistent with court filings and the undersigned’s	contemporaneous notes from prehearing conference calls held.

3	Although this motion was not specifically styled as a “Motion to	Compel,” the Secretary moved the Court to compel Respondent,	Andrew Trinchese, to provide for another deposition of his Foreman,	Steven Fernandez, at Mr. Trinchese’s expense.

4	Although the Secretary’s Motion for Sanctions (dated August 10,	2023) was properly filed based on the Court’s June 28, 2023, Order	Granting Secretary’s Motion to Depose Foreman Fernandez at	Respondent’s Expense, the Court took extra care to ensure strict	compliance with the Commission Rules and provided Respondent with	yet another opportunity and more time to comply by insisting that a	Motion to Compel be filed before sanctions would be imposed.

5	A copy of Respondent Andrew Trinchese’s deposition was previously	provided as an attachment to the Secretary’s Motion for Adverse	Inferences and to Depose Foreman Fernandez at Respondent’s	Expense.  Despite the Secretary’s initial request for five (5)	adverse inferences based on Mr. Trinchese’s deposition responses,	the Court only granted three (3) and the Secretary withdrew the	other two (2).