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Commission Returns Case to Chief Judge As Employer Claims It Had False Counsel

Thursday, January 31, 2013

The Occupational Safety and Health Review Commission remanded a case to its chief administrative law judge Jan. 24 after the respondent employer claimed it was victimized by someone who misrepresented himself as an attorney (Secretary of Labor v. Neupauer Masonry Inc., OSHRC, No. 12-1336, 1/24/13).

The Occupational Safety and Health Administration had cited Neupauer Masonry Inc., for three alleged violations, with a penalty of $43,560. According to the OSHA inspection report, the employer was cited at a home construction site in Darien, Ill., for serious and repeat violations, mostly of scaffolding rules.

Chief Administrative Law Judge Covette Rooney sent Neupauer an order to show cause on Sept. 19, 2012, giving the employer until Oct. 1 to explain why it should not be held in default for failing to answer the secretary of labor's complaint within the 20-day deadline. A return receipt indicated that Neupauer received the order within six days. It did not respond. The judge dismissed its notice of contest based on its failure to respond on Dec. 12 and affirmed the citations as written.

Contumacious Conduct

Rooney also cited the employer for contumacious conduct that prejudiced the secretary because it impeded her ability to proceed with the case.

In a subsequent petition for review, Neupauer claimed that it had hired someone named Julio Vargas to represent it in the matter. Neupauer, now represented by other counsel, said that it had forwarded the judge's order to Vargas, who assured the company that he would respond before the deadline.

According to Neupauer, it learned subsequently that Vargas was not an attorney.

In its remand order, the commission noted that its rules do not require that an employer be represented by an attorney, that any representative will suffice. It noted as well that the case file it maintained did not mention anyone named Vargas.

The commission also explained, “Parties are generally bound by the actions of their hired representatives.” However, in this case, it continued, “the claims alleged by Neupauer in its petition raise serious issues that the judge did not have before her when determining whether default was appropriate.”

Therefore, the commission returned the case to the chief judge with instructions to take appropriate action, including a reconsidering the default decision, based on Neupauer's claims that it suffered because it relied on someone who misrepresented himself.

By David Schwartz


The remand order of the Occupational Safety and Health Review Commission in Secretary of Labor v. Neupauer Masonry Inc. is available at http://op.bna.com/env.nsf/r?Open=jstn-94euc8.