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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 OSHRC DOCKET NO. 16-1231 

Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri 

 For Complainant

Brent Lawrenz, Hayseville, Kansas 

 For Respondent

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER OF DISMISSAL OF NOTICE OF CONTEST 

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 BML Construction (“Respondent”) worksite in Kansas City, 

Missouri on May 12, 2016. As a result of the inspection, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent alleging two serious violations of the Act with 

a penalty of $4,320.00. The Citation was issued on May 23, 2016. Respondent filed a Notice of 

Contest with Complainant. This case was designated to proceed under simplified proceedings of 

the Commission. See 29 C.F.R. § 2200.203. Therefore, no Complaint or Answer were required. 

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 USC § 659(c). Respondent is an employer 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

BML CONSTRUCTION

 

 Respondent.
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engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the 

Act, 29 U.S.C. § 652(5). See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). The 

Commission has stated “[t]here is an interstate market in construction materials and services and 

therefore construction work affects interstate commerce.” Id., citing NLRB v. Int’l Union of 

Operating Engineers, Local 571, 317 F.2d 638, 643 n. 5 (8th Cir. 1963) (judicial notice taken 

that construction industry affects interstate commerce). Because Respondent is engaged in 

construction work, the undersigned finds it is engaged in a business affecting interstate 

commerce. 

Procedural History 

 On September 9, 2016 the Court issued a Pretrial Conference Order directing the parties 

to appear on a conference call on October 12, 2016. The Pretrial Conference Order was not 

returned as “undeliverable” on either party by the United States Postal Service. Complainant 

appeared through counsel. Respondent did not appear. 

On October 31, 2016, 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. On September 12, 2016, Complainant sent Respondent the unprivileged portion of the 

investigation file along with a letter requesting Respondent call counsel to discuss the 

issues set forth in the Pretrial Conference Order. Respondent did not make contact with 

the Solicitor. 

2. On October 6, 2016, Complainant sent Respondent a second letter asking Respondent to 

contact the Solicitor to discuss issues set forth in the Pretrial Conference Order. 

Respondent did not make contact with the Solicitor. 
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3. Neither communication was returned “undeliverable” by the United States Postal Service. 

4. Finally, Complainant represents that Respondent failed to attend the scheduled 

conference call with the Court set forth in the Pretrial Conference Order. 

See generally Secretary’s Motion for Sanctions. 

In response to Complainant’s Motion for Sanctions, the Court issued an Order to Show 

Cause, directing Respondent to “SHOW CAUSE WITHIN ELEVEN (11) DAYS why the Court 

should not issue judgment against Respondent, affirming the proposed violations in this case for: 

(1) failure to attend a Pretrial Conference set forth in the Pretrial Conference Order dated 

September 9, 2016; and (2) failure to respond to respond to the Motion for Sanctions. To date, 

Respondent has failed to file a response to the Court’s Order to Show Cause.

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Discussion

 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 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 . . . . Thereafter, the Commission or Judge, in 

their discretion, may enter a decision against the defaulting party . . . . 

As noted above, Respondent has been provided an opportunity to show cause why it should not 

be held in default and failed to respond to the Court’s request. 

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.” According to the 

Commission, “[D]ismissal is too harsh a sanction for failure to comply with certain pre-hearing 

 

1. The Court’s Order to Show Cause has not been returned as “Unclaimed” by the United States Post Service by the 

date of this Order. 
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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). 

As noted, none of the communications sent to Respondent have been returned as 

‘undeliverable.” by the United States Postal Service.2 All communications were sent to the 

address provided Respondent in its Notice of Contest. Under Commission Rule 6, it is 

Respondent’s duty to advise the Court of any change of address. See 29 C.F.R.§ 2200.6.3

Respondent has not filed a change of address with the Court. 

The Court finds that Respondent’s repeated failures to engage in the litigation process 

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, and the Court has yet to receive any communication or contact from 

Respondent. Based on the representations of Complainant,4 the Court finds that the delays in this 

case are wholly attributable to Respondent, including Respondent’s failure to respond to or 

collect mail that was sent to the address that he specifically provided on multiple occasions. See 

 

2 In Crude Oil Corp. v. Commissioner, 161 F.2d 809 (10th Cir.1947), the Court stated that “[w]hen mail matter is 

properly addressed and deposited in the United States mails, with postage duly prepaid thereon, there is a rebuttable 

presumption of fact that it was received by the addressee in the ordinary course of mail.” Id. at 810. See also 

Arkansas Motor Coaches, Ltd., Inc. v. C.I.R., 198 F.2d 189, 191 (8th Cir. 1952); Central Paper Co. v. C.I.R., 199 F. 

902, 904 (6th Cir. 1952); Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976). 

3 Rule 6 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.6, provides that:

Record Address: Every pleading or document filed by any party or intervenor shall contain the name, current 

address and telephone number of his representative or, if he has no representative, his own name, current address 

and telephone number. Any change in such information shall be communicated promptly in writing to the Judge, 

or the Executive Secretary if no Judge has been assigned, and to all other parties and intervenors. A party or 

intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service 

under these rules.

29 C.F.R. § 2200.6 (emphasis added).

4. Because Respondent has failed to submit a response to either the Court’s Orders or Complainant’s Motion, the 

Court accepts Complainant’s representations of the facts as true. 
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supra note 2. In that regard, the Court finds that Respondent’s pattern of disregard for the 

Commission’s proceedings constitutes contumacious conduct warranting the sanction of 

dismissal. 

In addition, the Court finds that 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. At every instance, Respondent has failed to 

take advantage of the opportunity to advise the Court that it has not abandoned its case before the 

Commission. Every indication before the Court is that Respondent has walked away from its 

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

to proceed to a hearing when there is 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 Court finds that Respondent relinquished its case 

with the intent to abandon. 1 C.J.S. Abandonment § 13 (2013). 

 Accordingly, with respect to the above-referenced docket, Respondent’s Notice of

Contest is hereby VACATED and the violations and penalties alleged in the Citation and 

Notification of Penalty are AFFIRMED.

ORDER

 Based on the foregoing, it is ORDERED that:

1. Citation 1, Item 1, and the corresponding penalty of $2,160.00 are hereby AFFIRMED as 

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

2. Citation 1, Item 2, and the corresponding penalty of $2,160.00 are hereby AFFIRMED as

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

 /s Patrick B. Augustine

Patrick B. Augustine

Judge, OSHRC

Date: December 23, 2016 

 Denver, Colorado