“Docket No. 88-1078 \u00a0SECRETARY OF LABOR, Complainant, v. PENROD’S PALACE, Respondent.OSHRC Docket No. 88-1078DECISION Before: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners.BY THE COMMISSION:Administrative Law Judge Paul L. Brady issued adefault judgement against Penrod’s Palace (\”Penrod’s\”) for its failure to filean answer to the Secretary of Labor’s (\”Secretary’s\”) Complaint as required byCommission Rule 34(d)(1).[[1\/]]\u00a0 At issue is whether there is \”sufficient\”reason to set aside the judge’s order under Commission Rule 41(b).[[2\/]]I. BackgroundOn April 7, 1988, the Secretary issued toPenrod’s a citation for a willful violation.\u00a0 Penrod’s filed a timely Notice ofContest, and the Commission docketed the case.\u00a0 The Commission sent Penrod’s a Noticeof Docketing, copies of \”A Guide to Procedures of the United States OccupationalSafety and Health Review Commission,\” and the Commission’s Rules of Procedure.The Secretary filed her Complaint on June 20,1988.\u00a0 Under Commission Rule 34(d)(1), Penrod’s had 30 days from the service of thecomplaint to file an answer.\u00a0 On June 21, the Commission gave notice to Penrod’s thatthe case was assigned to Judge Brady and that all pleadings should be filed with him untilhe released jurisdiction of the case.On August 1, after the time for filing an answerto the Secretary’s Complaint had expired, the judge issued an order requiring Penrod’s toshow cause, within 10 days of receipt of the order, why it should not be declared indefault for its failure to answer the Secretary’s Complaint.\u00a0 On August 23, havingreceived no response from Penrod’s, the judge issued an order dismissing Penrod’s Noticeof Contest.\u00a0 He noted that Penrod’s had both failed to respond to the show causeorder and failed to answer the Secretary’s Complaint.\u00a0 The judge affirmed thecitation that had been issued to Penrod’s and assessed a penalty of $3,200.II. Contentions of the PartiesOn review, Penrod’s asserts that it did not filean answer to the Secretary’s Complaint because Penrod’s counsel believed that he hadobtained from the Secretary’s counsel an extension of time in which to file an answer.\u00a0 Penrod’s submitted with its Petition for Discretionary Review a copy of a letteraddressed to the Regional Solicitor dated August 11th, in which Penrod’s counsel stated\”[t]his confirms your granting an extension of time in which to file a responsivepleading.\”[[3\/]]Penrod’s claims that when its counsel telephonedthe Secretary’s counsel to obtain an extension of time, the Secretary’s counsel \”musthave known about the Order to Show Cause in this matter, and this nondisclosure directlyresulted in the entry of the Order of Dismissal in this case.\”\u00a0 Penrod’s arguesthat it would be \”unfair and improper\” to allow the Order of Dismissal to stand,because the Secretary’s counsel agreed to an extension of time, \”knowing full wellthat an Order to Show Cause had been issued, while the undersigned counsel had notreceived this document until the time when the Motion to Reinstate was filed.\”\u00a0 Penrod’s counsel admits that \”[a]pparently, the notice had been served on[Penrod’s], and a copy had not been provided to the undersigned counsel.\” Penrod’sclaims that because its counsel did not receive a copy of the order from its client untilafter the judge dismissed the case, counsel was prevented from answering the order intime.The Secretary contends that \”if thepurported facts appearing only as averments in [Penrod’s] pleadings are not competentevidence . . . then there are almost no facts upon which the Commission could find thatrespondent has provided ‘reasons deemed sufficient’ to warrant the granting of reliefunder Rule 41.\”\u00a0 The Secretary makes a conditional request that if theCommission decides to consider Penrod’s averments as evidence, then the Commission shouldalso accept the Secretary’s averment that, at the time of the telephone conversation withPenrod’s counsel, the Secretary’s trial counsel had not yet seen or otherwise learned ofthe show cause order issued to Penrod’s.\u00a0 The Secretary notes that Penrod’s does notallege that the Secretary’s attorney deceived Penrod’s attorney as to the requirement offiling a motion with the judge.The Secretary also submits that it is not herobligation to notify an employer of a show cause order, since that responsibility restswith the judge issuing the order.\u00a0 She argues that the judge properly discharged thatresponsibility by sending a copy of the order to Penrod’s president, its onlyrepresentative of record at that point since Penrod’s counsel failed to file an entry ofappearance.\u00a0 The Secretary concludes that the dismissal of Penrod’s Notice of Contestis due to two factors:\u00a0 the failure of Penrod’s president to forward or otherwiseadvise its counsel of the show cause order, and Penrod’s failure to file a motion forextension of time.\u00a0 The Secretary contends that \”[t]o grant relief in thesecircumstances . . ., particularly when there is virtually no record evidence supportingrespondent’s claims, would effectively declare the provisions of Rule 41(b) to be withoutmeaningful content or neutral application.\”III. AnalysisThe Commission has broad discretion in reviewinga sanction imposed on a party for not proceeding under the Commission’s rules. UnderCommission Rule 41(b), the Commission may set aside a sanction imposed under Rule 41(a)\”[f]or reasons deemed sufficient by the Commission.\”\u00a0 Normally, we requirea party seeking relief under Rule 41(b) to make a formal motion supported by swornaffidavits or other evidence showing good reason for setting aside the dismissal.\u00a0 Wehave overlooked these requirements when an employer is not represented by counsel andseems unaware of the proper procedure.\u00a0 Action Group, Inc., 14 BNA OSHC 1934,1990 CCH OSHD ? 29,166 (No. 88-2058, 1990); Choice Electric Corp., 14 BNA OSHC1899, 1990 CCH OSHD ? 29,141 (No. 88-1393, 1990) ; Wes Jones & Son, Inc., 13BNA OSHC 1277, 1279, 1986-87 CCH OSHD ? 27,924 p. 36,625 (No. 86-1095, 1987); BywaterSales & Service, Byco-MCS Div. [\”Byco\”], 13 BNA OSHC 1268, 1269,1986-87 CCH OSHD ? 27,896 p. 36,597 (No. 86-1214, 1987).Here, although Penrod’s is represented bycounsel, it has failed to make a formal motion to set aside the sanction under CommissionRule 41(b).\u00a0 Instead, Penrod’s claims that under Commission Rule 5, [[4\/]] its Noticeof Contest should not have been dismissed because an extension of time had been agreed toby the Solicitor’s Office.\u00a0 However, Rule 5 clearly requires that a motion for anextension of time must be made to the judge or Commission.\u00a0 Penrod’s failed to dothis.Even if we treated Penrod’s Petition forDiscretionary Review as a formal Motion to Set Aside Sanctions under Commission Rule41(b), Penrod’s has not provided a sufficient reason to set aside the judge’s sanction.\u00a0 As stated, Penrod’s claims that it should be relieved of the sanction because ithad received an extension of time in which to answer the complaint from the Secretary’scounsel, and because the Secretary’s counsel failed to inform Penrod’s counsel that thejudge had issued a show cause order to Penrod’s. However, based on the record before us,we find no act or omission on the part of the Secretary’s counsel that would justify adecision to set aside the judge’s dismissal order.There is no evidence of record to substantiatePenrod’s assertion that the Secretary purported to grant it an extension of time in whichto file an answer.\u00a0 The Secretary’s counsel may not have objected to Penrod’srequest, but he is not empowered to grant an extension of time, and Penrod’s has notprovided us with any reason to believe that the Secretary’s counsel misrepresented hisauthority when he spoke to Penrod’s counsel concerning the extension.\u00a0 CommissionRule 5 clearly states that only the Commission or one of its administrative law judges maygrant an extension of time.\u00a0 Penrod’s counsel may have been unaware of therequirements of this rule, but his client was sent a copy of the Commission’s rules withthe Notice of Docketing.\u00a0 The Commission’s rule on extensions of time is similar torules in other adjudicative forums.\u00a0 It is standard practice in the federal courts toseek the court’s permission for an extension of time.\u00a0 See Fed. R. Civ.P.6(b).\u00a0 Neither inadvertence by Penrod’s in transmitting the copy of theCommission’s Rules of Procedure to its counsel nor its counsel’s apparent failure tootherwise acquaint himself with the Commission’s rules qualify as grounds for relief.There is also no evidence of record that theSecretary’s counsel knew of the show cause order at the time of his conversation withPenrod’s counsel.\u00a0 Penrod’s assumes that the Secretary’s counsel knew of the showcause order, but the Secretary has made a proffer in her brief indicating that, at thetime of the conversation, the Secretary’s counsel did not know of the show cause order.Moreover, the Secretary is correct in arguing that her counsel was under no obligation tonotify Penrod’s counsel of the show cause order.\u00a0 We also conclude that there isnothing in the record that suggests deception on the part of the Secretary.The failure of Penrod’s counsel to learn of theshow cause order from his client does not establish a sufficient cause for relief from thesanction.Penrod’s argues that the standard of review inthis case should be \”liberal\” because Penrod’s was an employer proceedingwithout counsel \”up to the point when counsel was retained.\”\u00a0 However,Penrod’s claim for relief is based on the actions of its counsel.\u00a0 In particular, itwas Penrod’s counsel who claimed that upon receiving this case, he telephoned theSecretary’s counsel to receive from the Secretary an \”extension of time\” inwhich to file a responsive pleading.\u00a0 Yet, the conduct of Penrod’s counsel does notprovide a basis for equitable relief since it was Penrod’s counsel who never filed amotion for an extension of time with the judge, as required by Commission Rule 5, orentered an appearance with the judge, as required under Commission Rule 23(a)(3).[[5\/]]Even if we consider Penrod’s actions before itwas represented by counsel, there still is no basis for relief from the judge’s sanction.In some circumstances, we have remanded cases to a judge to determine whether employersproceeding without counsel had a sufficient reason for failing to file an answer.\u00a0 However, the employers in those cases made some factual claims before theCommission that, if proven, might have justified an order setting aside the sanctions.\u00a0 See, e.g., Action Group, Inc., 14 BNA OSHC 1934, 1990 CCH OSHD ? 29,166(No. 88-2058, 1990) (employer proceeding without counsel failed to answer the complaintbecause he believed the case had settled); Choice Electric Corp., 14 BNA OSHC 1899,1990 CCH OSHD ? 29,141 (No. 88-1393, 1990) (employer proceeding without counsel failed tofile an answer in the belief that it had already responded to the complaint). Where, ashere, the employer offers only claims that even if proven would not justify relief, thereis no reason to remand for further proceedings.We find that the judge did not err in dismissingPenrod’s Notice of Contest.\u00a0 Accordingly, the judge’s decision is affirmed.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: January 15, 1991SECRETARY OF LABOR, Complainant, v. PENROD’S PALACE, Respondent.OSHRC Docket No. 88-1078ORDER DISMISSING NOTICE OF CONTEST Respondent having failed to respond to an orderto show cause and pursuant to Rule 41(a) of the Commission’s Rules of Procedure [29 C.F.R.? 2200.41(a)], respondent is hereby declared in default for its failure to comply withCommission Rule 36, 2200.36, requiring the filing of an answer to the complaint in thiscause.Therefore, it is ORDERED:1. The notice of contest is dismissed.2. The citation is affirmed and a penalty in the sum of $3,200.00 is hereby assessed.Dated this 23rd day of August, 1988.PAUL L. BRADY JudgeFOOTNOTES: [[1\/]] Commission Rule 34 (d) (1), 29 C.F.R. ?2200.34 (d)(1) , provides that, with specific exceptions not applicable to this case,the employer shall file with the Commission an answer conforming to the requirements of ?2200.36 [rule on content of the answer] within 30 days after service of the complaint.[[2\/]] Rule 41(b) is part of Commission Rule 41,29 C.F.R. ? 2200.41, which provides:? 2200.41 Failure to obey rules.(a) Sanctions.\u00a0 When any party has failed to plead or otherwise proceed asprovided by these rules or as required by the Commission or Judge, he may be declared tobe in default either:(1) On the initiative of the Commission or Judge, after having been afforded anopportunity to show cause why he should not be declared to be in default; or(2) On the motion of a party.\u00a0 Thereafter, the Commission or Judge, in theirdiscretion, may enter a decision against the defaulting party or strike any pleading ordocument not filed in accordance with these rules.(b) Motion to set aside sanctions.\u00a0 For reasons deemed sufficient by theCommission or Judge and upon motion expeditiously made, the Commission or Judge may setaside a sanction imposed under paragraph (a) of this rule. . . .[[3\/]] Penrod’s did not aver that the letter wasmailed to the Secretary.[[4\/]] Commission Rule 5 provides as follows:? 2200.5 Extensions of time.Upon notion of a party for good cause shown, the Commission or Judge may enlarge any timeprescribed by these rules or prescribed by an order.\u00a0 All such motions shall be inwriting but, in exigent circumstances in cases pending before Judges, an oral request maybe made and followed by a written motion.\u00a0 A request for an extension of time shouldbe received in advance of the date on which the pleading or document is due to be filed.\u00a0 However, an extension of time may be granted even though the request was filedafter the designated time for filing has expired, but in such circumstances, the partyrequesting the extension must show good cause for his failure to make the request beforethe time prescribed for the filing had expired.\u00a0 The motion may be acted upon beforethe time for response has expired.[[5\/]] Commission Rule 23(a)(3) is part ofCommission Rule 23, 29 C.F.R. ? 2200.23, which provides:? 2200.23 Appearances and withdrawals. (a) Entry of appearance.(1) General.\u00a0 A representative of a party . . . shall enter an appearance by .. . filing an entry of appearance in accordance with paragraph (a) (3) of this section.* * *(3) Subsequent appearance.\u00a0 Where a representative has not previously appearedon behalf of a party . . . , he shall file an entry of appearance with the ExecutiveSecretary, or Judge if the case has been assigned. . . .”