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

PENDING COMMISSION REVIEW

 

 

 

 

 

OSHRC DOCKETS 

NO. 23-0236 

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

This proceeding is before the U.S. 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 Respondent’s worksite in Kodiak, Alaska on July 18, 2022. As a result 

of the investigation, OSHA issued a Citation and Notification of Penalty to Respondent alleging a 

total of twenty-two serious, two repeat, and one other-than-serious violations of the Act with a 

combined total penalty of $208,983.00. Respondent contested the citation items. 

On March 3, 2023, the undersigned was assigned to preside over Mandatory Settlement 

Proceedings in this case pursuant to OSHRC Rule 120(b), 29 C.F.R. §2200.120(b). On March 14, 

2023, the Court issued two orders: (1) Order to Respondent to Register for Electronic Filing, 

requiring Respondent’s representative to register by March 29, 2023, and (2) Order to Appear for 

Mandatory Settlement Proceeding Conference Call, requiring the parties to participate in a 

conference call with the Court on April 18, 2023. Both Orders were served on Complainant 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

EAST WEST SEAFOODS, LLC, 

 

 Respondent, 
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electronically through OSHRC’s docketing system, and by U.S. Mail to Respondent. 

To date, Respondent has failed to register for electronic filing, as ordered, and failed to 

request exemption from electronic filing pursuant to Commission Rule 8(c)(2). On April 18, 2023, 

Complainant appeared for the court-ordered conference call, ready to proceed. Respondent failed 

to appear. Respondent also failed to file an Answer, or other response, to the Secretary’s 

Complaint. 

Accordingly, on May 16, 2023, the Court issued an Order to Respondent to Show Cause. 

Respondent was ordered to show cause “as to why the Court should not vacate its Notice of 

Contest, affirming all alleged violations and penalties in this case, for: (1) failing to comply with, 

or otherwise respond to, the Court’s March 14, 2023 Order to Respondent to Register for 

Electronic Filing; (2) failing to appear for the court-ordered conference call on April 18, 2023; 

and (3) failing to file an Answer, or other responsive pleading, to the Complaint.” Respondent 

never filed a response to the Order to Respondent to Show Cause. However, the Court learned 

through the filing of Secretary of Labor’s Reply to Respondent’s May 26, 2023 Letter that 

Respondent sent an e-mail to Complainant after the Order to Respondent to Show Cause. 

Respondent’s emailed letter to Complainant acknowledges receiving the Court’s Order to 

Respondent to Show Cause, but does not address the three deficiencies outlined in the Order. In 

summary, Respondent’s letter basically states that Respondent “does not have any money at all.” 

Respondent’s letter was not filed with the Court. 

Out of an abundance of caution, the Court issued a Second Order to Respondent to Show 

Cause on June 15, 2023. Respondent was afforded another opportunity to explain “why the Court 

should not vacate its Notice of Contest, affirming all alleged violations and penalties in this case, 

for: (1) failing to comply with, or otherwise respond to, the Court’s March 14, 2023 Order to 
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Respondent to Register for Electronic Filing; (2) failing to appear for the court-ordered conference 

call on April 18, 2023; (3) failing to file an Answer, or other responsive pleading, to the Complaint; 

and (4) failing to file a response to the Order to Respondent to Show Cause issued on May 16, 

2023.” Respondent was warned that “If Respondent does not respond to this Second Order to 

Respondent to Show Cause, or fails to establish good cause, it may result in sanctions pursuant to 

Commission Rules 8(c) and 101, including dismissal of Respondent’s Notice of Contest and 

affirming the violations and penalties alleged in this case.” Respondent never filed any type of 

response to the Second Order to Respondent to Show Cause. 

Commission Rule 101(a) provides "[w]hen 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 ... [t]hereafter, the 

Commission or Judge, in their discretion, may enter a decision against the defaulting party ..." The 

Court finds that Respondent has either abandoned its contest in this case or demonstrated a pattern 

of disregard for the procedural requirements and authority of the Commission by: (1) failing to 

comply with, or otherwise respond to, the Court’s March 14, 2023 Order to Respondent to Register 

for Electronic Filing; (2) failing to appear for the court-ordered conference call on April 18, 2023; 

(3) failing to file an Answer, or other responsive pleading, to the Complaint; (4) failing to file a 

response to the Order to Respondent to Show Cause issued on May 16, 2023; and (5) failing to file 

a response to the Second Order to Respondent to Show Cause issued on June 15, 2023. 

Respondent’s repeated failure to timely participate in this proceeding constitutes abandonment, 

and/or contumacious conduct justifying sanctions. Philadelphia Construction Equipment, Inc., 16 

BNA OSHC 1128, 1993 CCH OSHD ¶30,051 (No. 92-0899, 1993); Sealtite Corporation, 15 BNA 
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OSHC 1130, 1991 CCH OSHD ¶29,398 (No. 88-1431, 1991). 

Accordingly, Respondent’s Notice of Contest is hereby VACATED in Docket No. 23-

0236, and the violations and penalties alleged in the Citation and Notification of Penalty for OSHA 

Inspection No. 1608381 are AFFIRMED.

SO ORDERED.

 /s/ Brian A. Duncan Date: July 19, 2023 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission