“SECRETARY OF LABOR,Complainant,v.ACTION GROUP, INC.,Respondent.OSHRC Docket No. 88-2058DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:An order of Administrative Law Judge Paul L. Brady dismissing a noticeof contest filed by Respondent, Action Group, Inc. (\”Action\”), is beforeus for review pursuant to section 12(j) of the Occupational Safety andHealth Act of 1970 (\”the Act\”), 29 U.S.C. ? 661(j), and Commission Rule92, 29 C.F.R. ? 2200.92. For the reasons that follow, we set aside thejudge’s order and remand this matter for further proceedings.Action was issued notifications alleging that it had failed to abatefour violations of the Act within the period of time permitted for theircorrection. The Secretary proposed an aggregate penalty of $4,200 forthe alleged failure to abate. Action’s president, Frank Denutte,contested this penalty, asserting that it was burdensome and excessivein view of the expenditure Action was making to correct the violations.After Action failed to file an answer to the Secretary’s complaint asrequired by commission Rule 34(d)(1), 29 C.F.R. ? 2200.34(d)(1), [[1\/]]the judge ordered that Action \”show cause within seven days of receiptof this order why it should not be declared in default for failure toplead.\” The judge issued this order under Rule 41, 29 C.F.R. ? 2200.41,which allows a judge to impose sanctions on a party for failure tocomply with the Commission’s rules.[[2\/]]Action responded to the show cause order through a letter dated February26, 1989, signed by its plant manager, Ralph Fields. Fields advised thathe had assumed the position of general plant manager on January 15,1989, which was approximately two months after the complaint had beenfiled and one month after Action’s answer was due. He also asserted that\”[n]o files remain from the previous plant manager.\” However, Fieldsstated that ”[b]ased on information available to me, it is myunderstanding that the matter has been resolved between O.S.H.A. andAction Group, Inc. and a $500.00 [penalty] was agreed upon.\” Althoughthis letter was dated within the seven-day period permitted by the judgefor a response, [[3\/]] the judge did not receive the letter until afterhe had issued his dismissal order. Accordingly, Action’s letter wastreated by the Commission as a petition for discretionary review of thejudge’s order.The Commission has observed that, generally speaking, employersappearing pro se, like Action here, are often confused by legalterminology and may not be fully cognizant of the legal technicalitiesof the judicial process. Browar Wood Products Co., 7 BNA OSHC 1165, 1979CCH OSHD ? 23, 326 (No. 78-2230, 1979); Monroe & Sons, 4 BNA OSHC 2016,1976-77 CCH OSHD ? 21,470 (No. 6031, 1977), aff’d, 615 F.2d 1156 (6thCir. 1980). A pro se employer could reasonably conclude that it need notfile an answer to the complaint if the case is in the process of beingsettled. However, on the limited record before us here, we cannotdetermine whether Action’s belief that it had satisfied the Commission’sprocedural requirements was reasonable.While there is some indication that the parties engaged in settlementdiscussions, there is no indication that the parties ever reached asettlement, or even that they came close to doing so. [[4]] Since thejudge had not received Action’s letter before he issued his dismissalorder, he had no opportunity to consider whether Action has made asufficient response to his show cause order. Accordingly, we remand forthe judge to decide whether Action has, stated adequate grounds tojustify its failure to file an answer in the circumstances presentedhere. The judge may, if necessary, conduct further evidentiaryproceedings to determine whether there is good reason to allow this caseto be reinstated, including making findings on whether Action reasonablybelieved that there was a settlement. See Choice Electric Corp., No.88-1393 (Nov. 7, 1990) (case remanded to allow prose employer todemonstrate that it had reason for failing to file an answer that wouldjustify setting aside a dismissal sanction); Bywater Sales & Service, 13BNA OSHC 1268, 1986-87 CCH OSHD ? 27,896 (No. 86-1214, 1987).Should the judge conclude that Action has stated grounds to excuse itsfailure to answer, the judge shall afford Action the opportunity to filean answer that complies with the requirements of the Commission’s rules.Although the judge’s show cause order satisfies Rule 41, the order doesnot make clear what an answer must include. For the benefit of Actionand other Pro se employers, we emphasize that the substance of an answeris addressed in Rule 36, 29 C.F.R. ? 2200.36, entitled \”Content of theanswer,\” which provides as follows:The answer shall contain in short and plain terms a response to eachallegation of the complaint. It shall specifically admit or deny eachallegation or, if the employer is without knowledge of the facts, theanswer shall so state. A statement of lack of knowledge has the effectof a denial. A failure to respond to an allegation shall be treated asan admission that the allegation is true.In other words, the answer should respond to each specific paragraph ofthe complaint. It should state whether the allegations in each paragraphare correct or incorrect, or, if the employer does not have enoughinformation to either admit or deny any portion of the complaint, theanswer should so state. In short, the essential purpose of both thecomplaint and the answer is to put both the parties and the judge onnotice of what issues are in controversy and what matters are notdisputed.[[5\/]] If the judge concludes that Action is entitled toanother opportunity to file an answer in this case, the answer is to befiled with the judge, but Action must also send a copy of its answer tothe attorney representing the Secretary. If under these circumstancesAction fails to file an answer in a timely fashion, the judge shallaffirm the failure to abate notifications and dismiss Action’s notice ofcontest.One final observation must be made. The Secretary originally proposed atotal penalty of $4,200. However, apparently through clerical error, thejudge assessed a penalty of only $1,400 in his dismissal order. Shouldthe judge conclude that Action has not stated grounds for its failure toanswer, the judge may reinstate his dismissal order, but the penaltyassessment in that event shall be $4,200. Should the judge conclude thatAction has stated sufficient grounds to explain its failure to answerand provide Action with the further opportunity to answer, and shouldAction thereafter fail to file an answer in a timely manner, the penaltyto be assessed upon dismissal of Action’s notice of contest shalllikewise be $4,200.Accordingly, this matter is remanded for further proceedings consistentwith this opinion.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: December 4, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.ACTION GROUP, INC.,Respondent.OSHRC Docket No. 88-2058ORDER DISMISSING NOTICE OF CONTESTRespondent, having failed to respond to an order to show cause andpursuant to Rule 41(a) of the Commission’s Rules of Procedure [29 C.F.R.? 2200.41(a)], is hereby declared in default for its failure to complywith Commission Rule 36, 2200.36, requiring the filing of an answer tothe complaint in this cause.Therefore, it is ORDERED:1. The notice of contest is dismissed.2. The citations are affirmed and a penalty in the amount of $1,400.00is hereby assessed.Dated this 7th day of March, 1989.PAUL L. BRADYJudge————————————————————————FOOTNOTES:[[1\/]] This rule requires that \”the employer shall file with theCommission an answer conforming to the requirements of ? 2200.36 within30 days after service of the complaint.\”[[2\/]] Rule 41(a) provides, in pertinent part, as follows:When any party has failed to plead or otherwise proceed as provided bythese rules or as required by the Commission or Judge, he may bedeclared to be in default either:(1) On the initiative of the Commission or Judge, after having beenafforded an opportunity to show cause why he should not be declared tobe in default. . . .[[3\/]] The complaint was served on Action by mail on November 16, 1988,under Rule 7, which permits pleadings to be served by first class mail.Allowing three days for mailing under Commission Rule 4(b), Action’sanswer was due by December 19, 1988. Judge Brady issued his show causeorder on February 16, 1989. Assuming three days for mailing, Actionreceived the order Tuesday, February 21 (Monday, February 20, 1989 was aFederal and postal holiday), and thus the seventh day from receipt wouldhave been February 28. Under Commission Rule 8, responses to orders sentby mail are deemed filed at the time of mailing. Assuming, in theabsence of evidence to the contrary, that Action’s letter was mailed onor about February 26, 1989, the date appearing on the letter, itsresponse was timely.We note, however, that in order to eliminate uncertainty regarding whenorders to show cause are received, the Commission now requires that suchorders be sent by certified mail, return receipt requested. 55 Fed. Reg.22780, 22782 (1990).[[4\/]] The file contains a handwritten narrative of an informalconference between Action’s president and representatives of theSecretary. The narrative is written on an OSHA form used for keepingrecords of informal conferences. It appears to be OSHA’s official recordof the conference with Action. According to this document, theSecretary’s representatives would not agree to a penalty less than$2,120, Action thought that amount was still excessive, and \”nosettlement agreement was signed.\”[[5\/]] A copy of the Commission’s rules is sent to each employer when acase is docketed. In addition, each employer also receives a copy of theCommission’s publication, \”A Guide to Procedures of the United StatesOccupational Safety and Health Review Commission,\” which also contains abrief description of the contents of an answer.”