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 Nos. 17-0646 & 

 

ALUMINUM SHAPES, LLC, 17-1380

Respondent.

ORDER DENYING REPONDENT’S MOTION FOR SANCTIONS

Aluminum Shapes, LLC (Respondent) filed a Motion for Sanctions (Motion) on June 3, 

2019, alleging that the Secretary of Labor (Secretary), by and through his counsel, attempted to 

contact current and former employees of Respondent it considers to be “represented persons”

under Rule 4.2 (often referred to as the “no-contact” rule) of the American Bar Association

(ABA) Model Rules of Professional Conduct (Model Rules). Specifically, Respondent moves 

this court to impose sanctions on the Secretary pursuant to Rule 101 of the Occupational Safety 

and Health Review Commission Rules of Procedure (Commission Rules). 29 C.F.R. § 

2200.101.1

 Resp’t Mot. at 1. The Secretary timely filed his opposition to Respondent’s Motion.

Subsequently, Respondent filed a reply.

1 Commission Rule 101, in pertinent part, provides:

Sanctions. 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.

29 C.F.R. § 2200.101(a).
2

Notwithstanding Respondent’s characterization of the alleged offense by the Secretary as

an ethical violation, the undersigned finds the controversy here to be, principally, a discovery 

dispute. More importantly, neither party has “clean hands” in this dispute. So, for the reasons 

that follow, Respondent’s Motion for Sanctions is DENIED.

Background

On May 29, 2019, Counsel for the Secretary sent a letter to current and former Aluminum 

Shapes employees. Resp’t Mot. at 1. Counsel for the Secretary contends that he “sent a targeted 

mailing only to certain employees believed to be rank-and-file non-managerial employees.” 

Sec’y Opp’n at 2. During a phone conference hosted by the undersigned to discuss Respondent’s 

Motion, Counsel for Aluminum Shapes advised that Counsel for the Secretary also contacted a

current employee of Respondent, by phone, and left a voicemail. According to Counsel for the 

Secretary, the attempted phone contact was made “on the well-grounded belief that he could not 

be a member of management because he had previously identified himself to OSHA as a union 

shop steward.” Id. at 3. At the time of these events, this case was in litigation and a hearing was 

scheduled though it was suspended to allow the undersigned to consider lengthy, dispositive

cross-motions filed by the parties. 

Discussion

Discovery Dispute

By Order dated December 26, 2018, the undersigned granted the parties’ Joint Motion to 

Extend Discovery Deadlines. The extension allowed for depositions of fact witnesses to 

continue into February 2019.2

 Beyond February 2019, only discovery regarding expert 

witnesses was allowed. No further discovery extensions were sought or granted. Yet, on or 

2 The original discovery schedule concluded all discovery involving fact witnesses in December 2018.
3

about May 29, 2019, Counsel for the Secretary engaged in further discovery of fact witnesses by 

sending a letter to current and former employees of Respondent inquiring about facts related to 

issues to be litigated in these cases. This was a violation of the court’s Order. 

Prior to sending the letter of inquiry that gave rise to this dispute, the Secretary 

propounded written discovery to Respondent in the form of interrogatories. Among the 

interrogatories submitted to Respondent, the Secretary asked the following:

Identify all employees, including but not limited to supervisors and managers, 

who have worked for Aluminum Shapes at any time from January 1, 2015 through 

the present. For each employee identified, provide the following information:

a. Name

b. Address

c. Telephone number(s)

d. Job Title(s)

e. Dates of employment (i.e. start and end dates)

Respondent provided the following “non-responsive” response to the interrogatory:

Respondent objects to this interrogatory as it is overly broad, unduly burdensome, 

and seeks information not reasonably calculated to lead to the discovery of 

admissible evidence. Subject to and without waiving that objection, see all 

individuals identified in the Complainant’s investigation material forming the 

basis for the citations, along with all individuals identified in the documentation 

produced by Respondent.

The Secretary contends that “[h]ad Respondent not refused to provide such a list, he would have 

been able to check Respondent’s list against the Secretary’s mailing list to confirm that no 

employees identified by Respondent as current managers or supervisors were inadvertently 

included on the mailing list.” Sec’y Opp’n at 4. Respondent argues that the Secretary’s 

interrogatory “does not determine who is represented by counsel.” Resp’t Reply at 10. I find 

that a response to the Secretary’s interrogatory would have shed some light on which employees 

would be considered “represented persons” for purposes of the no-contact rule. In any case, 

Page 2, paragraph no. 4 of the undersigned’s Notice of Hearing, Scheduling Order and Special 
4

Notices (dated June 22, 2018) put the parties on notice that “boilerplate objections are 

prohibited.” More specifically, the Order stated: Objections to interrogatories shall be stated 

with particularity. Boilerplate objections (e.g. objections without a basis, such as “overbroad, 

irrelevant, burdensome, not reasonably calculated to identify admissible evidence”) and evasive 

answers, will be treated as a failure to answer pursuant to Fed. R. Civ. P. 37(a)(4). Therefore, 

Respondent’s answer to the Secretary’s interrogatory constitutes a violation of the court’s Order. 

After receiving Respondent’s “non-responsive” response, the Secretary did not seek a pre-motion 

conference with the court to get a resolution, nor did he file a motion to compel in accordance 

with paragraph 3 of the court’s June 22, 2018 Order. Instead, the Secretary took matters into his 

own hands and proceeded with fact witness discovery beyond the set discovery deadline which 

gave rise to this dispute. 

By their actions, both parties have violated an Order of this court and would be subject to 

sanctions under Rule 101 of the Commission Rules. Yet, Respondent comes now and petitions 

the undersigned to sanction the Secretary without acknowledgment of its own misconduct. The 

undersigned finds that neither party has clean hands in this dispute. However, sanctions are not 

the best way to resolve this matter. 

Alleged Violation of ABA Model Rule 4.2

Rule 4.2 of the ABA Model Rules states:

“[i]n representing a client, a lawyer shall not communicate about the subject of the representation 

with a person the lawyer knows to be represented by another lawyer in the matter, unless the 

lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
5

Annotated Model Rules of Professional Conduct (7th Ed.). Government attorneys are required to 

comply with the rules of ethical conduct of the court before which a particular case is pending. 

28 C.F.R. § 77.4(a).

Rule 104 of the Occupational Safety and Health Review Commission Rules of Procedure 

states: [a]ll representatives appearing before the Commission and its Judges shall comply with 

the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. 

29 C.F.R. § 2200.104. 

Under the ABA Model Rules and rulings in jurisdictions that have adopted a version of 

the no-contact rule, “knowledge” that a person is represented for purposes of Rule 4.2 can 

generally be actual or constructive in that it may be “inferred from the circumstances.”3

 See, e.g. 

Jorgensen v. Taco Bell Corp., 58 Cal Rptr. 2d 178 (Ct. App. 1996) (rejecting argument that 

because lawyer for potential plaintiff in a suit against corporation knew corporation had in-house 

counsel, he should have known employee he interviewed was represented). Here, the Secretary 

3 Although not applied here, it is important to note that the State of New Jersey, where Respondent has its 

headquarters, has adopted its own version of the no-contact rule. The District of Columbia, where either party is 

permitted to file an appeal, has also adopted its own version of the no-contact rule. Both jurisdictions require the 

element of “knowledge”, although, in New Jersey, “knowledge” can be actual or constructive.

Rule 4.2 of the New Jersey Disciplinary Rules of Professional Conduct states in relevant part: 

In representing a client, a lawyer shall not communicate about the subject of the representation 

with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be 

represented by another lawyer in the matter, including members of an organization's litigation 

control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is 

authorized by law or court order to do so, or unless the sole purpose of the communication is to 

ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be 

limited to, a specific inquiry of the person as to whether that person is represented by counsel. 

Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member 

or former member of an organization's litigation control group who seeks independent legal 

advice. Former agents and employees who were members of the litigation control group shall 

presumptively be deemed to be represented in the matter by the organization's lawyer but may at 

any time disavow said representation. 

Rule 4.2 of the District of Columbia Rules of Professional Conduct states in relevant part:

(a) During the course of representing a client, a lawyer shall not communicate or cause another to 

communicate about the subject of the representation with a person known to be represented by 

another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing 

such other person or is authorized by law or a court order to do so.
6

asserts that he only sent letters to “certain employees believed to be rank-and-file non managerial

employees.” Sec’y Opp’n at 2. Additionally, the introductory letter sent by the Secretary to 

current and former employees of Respondent makes clear that the sender, Counsel for the 

Secretary, does not know if the recipient is a “represented person” or member of Respondent’s 

“litigation control group.” Sec’y Opp’n at Ex. A. Regarding the employee contacted by phone, 

the Secretary reasonably believed that he was a “rank and file non-managerial employee” based 

on his own representation of himself as a union shop steward. Id. at 3. In fact, the employee is 

listed as a shop steward on the current collective bargaining agreement with Teamsters Local 

107. Id. at Ex. A, pg. 24. The circumstances surrounding the letters of inquiry and the phone 

call and voicemail left for one employee reveal that the Secretary had no knowledge, actual or 

constructive, that any of the employees he attempted to contact were “represented” pursuant to 

Rule 4.2 Indeed, the wording of the Secretary’s letter indicates that his counsel does not want to 

speak to employees who could be considered “represented” under Rule 4.2. The letter states “[i]f 

you are currently employed at Aluminum Shapes, please disregard this letter as the Department

of Labor is not seeking to communicate with you.” Resp’t Mot. for Sanctions at Ex. A, pg. 2. 

The letter goes on to state, “[i]f you are a former manager or supervisor no longer employed by 

Aluminum Shapes, you may contact us if you choose to disavow representation by Aluminum 

Shapes’ attorneys in this matter.” Id.

According to Black’s Law Dictionary (Garner, 2009), the spirit of the law represents its 

“general meaning or purpose, as opposed to its literal content,” namely, the intention of the law. 

The purpose of this rule is to: (1) protect a person who has chosen to be represented by a lawyer 

in a matter against possible overreaching by other lawyers who are participating in the same 

matter; and (2) prevent interference with the client-lawyer relationship; and (3) prevent 
7

uncounseled disclosure of information related to such representation. Annotated Model Rules of 

Professional Conduct, Comment 1 (7th Ed.). The facts here do not indicate that the Secretary was 

in any way attempting to interfere with the attorney-client relationship between Respondent and 

its current/former employees. Nor do the facts show that the Secretary’s counsel was attempting

to seek discovery of information that is otherwise protected from disclosure.

The Commission has held that ex parte communications between opposing counsel and 

an organization's employee are prohibited only if the employee is a person: “[1] who supervises, 

directs or regularly consults with the organization's lawyer concerning the matter or has authority 

to obligate the organization with respect to the matter or [2] whose act or omission in connection 

with the matter may be imputed to the organization for purposes of civil or criminal liability.” 

Lanzo Constr. Co., Inc., 20 BNA OSHC 1641 (No. 97-1821, 2004). Respondent relies heavily 

on the Lanzo decision in making its argument that the Secretary violated Rule 4.2 and should be 

sanctioned. Resp’t Reply at 3-4. In Lanzo, the Commission was confronted with contacts 

between the Secretary’s attorney and an employee of Respondent as well as contacts between the 

OSHA compliance officer and the same employee all after the notice of contest was filed and 

without the consent and prior knowledge of Lanzo’s attorney. Lanzo at 1642-43. In reaching its

decision, the Commission relied on the revised version of the ABA Model Rules, which stated:

In the case of a represented organization, this Rule prohibits communications with 

a constituent of the organization [1] who supervises, directs or regularly consults 

with the organization’s lawyer concerning the matter or has authority to obligate 

the organization with respect to the matter or [2] whose act or omission in 

connection with the matter may be imputed to the organization for purposes of 

civil or criminal liability.

ABA Model Rules of Professional Conduct, Rule 4.2, Comment 7 (2002).

The Commission held that the Secretary’s contacts with Lanzo’s employee were not prohibited 

under the first prong of comment 7 to Rule 4.2 because the employee had no managerial 
8

responsibility and there was no evidence to indicate the employee regularly consulted with

Lanzo’s attorney regarding the matter or had the authority to obligate Lanzo in the matter. 20 

BNA OSHC at 1645. Regarding the second prong of comment 7, the Commission did not make 

a finding that the contacted employee’s act or omission in connection with the matter could have

been imputed to the organization for purposes of civil or criminal liability, but rather concluded 

that the judge did not actually impute the employee’s act to Lanzo for the purpose of civil 

liability under the Act and therefore the second prong was not violated. Id. 

Courts across the country are divided on the application of Rule 4.2—particularly as it

relates to informal discovery. For example, one court rejected a party’s argument for application 

of the no-contact rules to its current employees on the grounds that such broad interpretation 

would transform the rule from one of ethics to “a rule of political and economic power that 

shelters organizations” from the legitimate and less costly pursuit of factual information through 

informal discovery. See Weider Sports Equip. v. Fitness First, Inc., 912 F. Supp. 502, 508 (D. 

Utah 1996). In Lang v Reedy Creek Improvement Dist., 888 F. Supp. 1143 (M.D. Fla. 1995), the 

court utilized parts of various tests used by other courts but ultimately applied a balancing test

that weighed “the Plaintiff’s need for informal discovery and Defendant’s need for effective legal 

counsel” to decide which current and former employees were subject to the no-contact rule. 888 

F. Supp. at 1145. 

In this case, Respondent argues that all employees, including rank-and-file employees, 

whose acts or omissions in connection with the pending action may be imputed to Aluminum 

Shapes, are protected from ex parte communication. Resp’t Reply at 3. By this interpretation, 

the Secretary would not be able to communicate with any employee of an employer without 

authorization from the employer’s counsel. Such an application of Rule 4.2 is unreasonable 
9

because it is impossible to determine which employees are “represented persons” without a 

threshold inquiry by the Secretary in the absence of prior designation by Respondent’s Counsel.

In Lanzo, the Commission declined to interpret Rule 4.2 so broadly.4

 20 BNA OSHC at 1645-

46. The undersigned rejects Respondent’s broad application of Rule 4.2 to prevent all current

and former employees from being contacted without its approval. For the aforementioned 

reasons, I find that the Secretary’s May 29th inquiry was untimely. However, in this instance, it 

did not run afoul of Commission Rule 104 because it did not violate the letter or the spirit of

Rule 4.2 of the ABA Model Rules. 29 C.F.R. §2200.104. 

ORDER

Respondent’s Motion for Sanctions is DENIED and the parties are hereby ORDERED to 

do the following:

1. The Secretary shall provide a copy of the list of Aluminum Shapes employees (current

and former) to whom a copy of the letter of inquiry was sent save the name(s) of 

employee(s) that would vitiate the informant’s privilege.

2. After receiving the Secretary’s list, Respondent shall provide the names of those 

employees to whom the letter of inquiry was sent who meet the definition of “represented 

persons” under ABA Model Rule 4.2.

3. Thereafter, the parties shall meet and confer to resolve any issues regarding the status of 

an employee on the Secretary’s list.

4. The Secretary may not engage in further fact witness discovery without leave of the

court.

4 Even if the “litigation control group” test used by the State of New Jersey was applied, it would be unclear which 

of the employees were members of the group without a threshold inquiry. See Michaels v. Woodland, 988 F. Supp. 

468, 473-74 (D.N.J. 1997) (allowing plaintiff’s counsel to contact current and former nurses employed by defendant 

in medical malpractice action because none of the employees were members of the litigation control group and none 

had consented to legal representation by defense counsel). 
10

SO ORDERED.

 /s/Keith E. Bell

 Hon. Keith E. Bell

Judge, OSHRC

Dated: September 9, 2019

Washington, D.C.
11

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 Nos. 17-0646 &

ALUMINUM SHAPES, LLC, 17-1380

Respondent.

ORDER CLARIFYING ORDER DENYING RESPONDENT’S MOTION FOR SANCTIONS

On September 9, 2019, the undersigned issued an Order Denying Respondent’s Motion 

for Sanctions (Denial Order). In that Denial Order the undersigned made the following rulings:

1. The Secretary shall provide a copy of the list of Aluminum Shapes employees 

(current and former) to whom a copy of the letter of inquiry was sent save the 

name(s) of employee(s) that would vitiate the informant’s privilege.

2. After receiving the Secretary’s list, Respondent shall provide the names of 

those employees to whom the letter of inquiry was sent who meet the 

definition of “represented persons” under ABA Model Rule4.2.

3. Thereafter, the parties shall meet and confer to resolve any issues regarding 

the status of an employee on the Secretary’s list.

4. The Secretary may not engage in further fact witness discovery without leave 

of the court.

In a joint conference call on September 12, 2019, with both parties represented, the 

Secretary asked for clarification of rulings 1 and 4 in the Denial Order. In addition, the Denial 

Order did not specify the deadlines by which the parties must comply with their respective 

obligations. This Order is to clarify ruling nos. 1 and 4 from the Denial Order. Specifically, the
2

rulings in the Denial Order are not be construed as contracting or enlarging any obligations 

related to Commission Rule 104, 29 C.F.R. § 2200.104, or Rule 4.2 of the American Bar 

Association (ABA) Model Rules of Professional Conduct (Model Rules). So, rulings no. 1 and 4 

are clarified to specify that:

By or before October 25, 2019, The Secretary shall provide Respondent’s 

Counsel with a list of the names of Aluminum Shapes employees who were sent 

the May 29, 2019, letter of inquiry and are considered “represented persons” 

under ABA Model Rule 4.2

The Secretary does not have to reveal the names of employees who are not 

“represented persons” under Rule 4.2 of the ABA Model Rules. Nor does the 

Secretary have to reveal the name(s) of employee(s) if doing so would vitiate the 

informant’s privilege. To the extent that there is any uncertainty regarding an 

employee’s status under ABAModel Rule 4.2, the Secretary should err on the side 

of disclosure.

The Secretary may interview former employees who are not “represented 

persons” under Rule 4.2 of the ABA Model Rules at any time, and for any 

purpose, and has no obligation to reveal such discussions to Respondent or the 

Court.

The parties’ obligations as specified in rulings 2 and 3 of the Denial Order, remain the 

same but must be timely completed as indicated herein:

By or before October 11, 2019, Respondent shall give the Secretary the names of 

all employees who met/meet the definition of “represented persons” under ABA 

Model Rule 4.2, from January 1, 2015 through the present along with job title and 

date(s) of employment.

Before requesting a conference with the undersigned, the parties shall meet and 

confer to resolve any disputes regarding the status of an employee (current or 

former) under ABA Model Rule 4.2.

SO ORDERED:

Dated: September 13, 2019 

Washington, D.C.

/s/ Keith E. Bell

Hon. Keith E. Bell 

Judge, OSHRC