“Docket No. 91-1407 SECRETARY OF LABOR, Complainant. v.LAROSA & LAMAR JANITORIAL SERVICES, Respondent.OSHRC Docket No. 91-1407DECISION AND ORDERIn this case Administrative Law Judge Michael H. Schoenfeld dismissed a notice of contestfiled by Respondent, LaRosa & Lamar Janitorial Services (\”LaRosa\”), becauseLaRosa did not respond to a show cause order warning that it would be found in default ifit failed to file an answer to the Secretary’s complaint. However, while the judge senthis show cause order by certified mail, he did not send it return receipt requested, asrequired by Commission Rule 41(d), 29 C.F.R. ? 2200.41(d).[[1]]The purpose of the return receipt requirement is to make certain that the affected partyreceives a show cause order in a manner sufficient to ensure a timely response. 55 Fed.Reg. 22,780 (1990). We therefore remand this matter to afford LaRosa an opportunity todemonstrate that it did not receive the judge’s order, or to show any other grounds tojustify its failure to file an answer in a timely fashion. See Bywater Sales & Serv.Byco-MCS Div., 13 BNA OSHC 1268,1986-87 CCH OSHD ? 27,896 (No. 86-1214,1987). Should thejudge determine that LaRosa is entitled to reinstatement of its notice of contest, he mayin his discretion accept LaRosa’s letter of November 5, 1991, as a sufficient response tothe allegations of the complaint, or he may afford LaRosa a further opportunity to file ananswer conforming to section 2200.36 before addressing the merits of the case.Accordingly, the judge’s order of dismissal is set aside, and this case is remanded forfurther proceedings consistent with this opinion.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: March 26, 1992SECRETARY OF LABOR, Complainant. v.LAROSA & LAMAR JANITORIAL SERVICES, Respondent.OSHRC Docket No. 91-1407ORDERDISMISSING NOTICE OF CONTESTRespondent has failed to file any response to the complaint filed by the Secretary despitespecific notices that a responsive pleading is required under the Commission Rules ofProcedure.[[1]]An Order dated September 4, 1991, informed Respondent that its failure to answer thecomplaint or file a statement that it wished to continue its contest, could result in thedismissal of its notice of contest and a decision being entered against it without ahearing. Despite these specific notifications that the citations and proposed penaltieswould be affirmed without a hearing, Respondent has not replied.Respondent’s flagrant failure to plead or otherwise proceed is provided by theCommission’s Rules of Procedure warrants it being declared in default under Rule 11(a).Accordingly, Respondent’s notice of contest is dismissed and Citation No.1 is herebyaffirmed. The proposed penalties totaling $6450 are hereby assessed.MICHAEL H. SCHOENFELD Judge, OSHRCNOV 5 1991Washington, D.C.\u00a0SECRETARY OF LABOR, Complainant. v.LAROSA & LAMAR JANITORIAL SERVICES, Respondent.OSHRC Docket No. 91-1407Appearances: Anita Eve Wright, Esq. Office of theSolicitorUnited States Department of Labor For ComplainantLaRosa Boyce Pro SeFor RespondentDECISION AND ORDERIn its Decision and Order of March 26,1992, the Commission set aside the Order ofDismissal of November 5,1991, and remanded this case \”to afford LaRosa an opportunityto demonstrate that it did not receive the judge’s order,[[1]] or to show any othergrounds to justify its failure to file an answer in a timely fashion.\” (Citationomitted.)[[1]] The order of dismissal was based upon the lack of a response to a September 4, 1991,order directing Respondent to file \”an answer to the Secretary’s Complaint or astatement that it wishes to continue its contest.\” (All capitals in original.)Pursuant to the order of the Commission a hearing was convened on May 6, 1992. Mr. LaRosaBoyce appeared and testified.Mr. Boyce acknowledged that he understood the proceedings and declined an offer of acontinuance to engage an attorney. (TR 3 – 5.) In lieu of an opening statement, Mr. Boyceinitially took the position that he did not respond to the order to file an answer or facedefault because he did not believe he had received it. (TR 7, lines 11-13). Given thatposition, Mr. Boyce was sworn in as a witness. Mr. Boyce, once under oath, testified asfollows regarding the Order for Respondent to File Answer or Face Default dated September4, 1991, a copy of which he was handed;Q. Have you seen that before, sir? A. Yes.Q. Do you recall when you received that?A. I remember reading about rules and regulations, where you have the time to respond.Q. Do you recall receiving that Order at your offices, at 6201 Pine StreetA. Yes.Q. Do you recall getting that in the mail?A. I think I might have. I’m not exactly sure. I might have, yes.The Commission’s order of remand cites the decision in Bywater Sala & Service Byco-MCS Div., 13 BNA OSHC 1269 (No. 86-1214, 1987) (\”Bywater\”), which states thatwhere a Respondent fails to file an answer, Rule 41(b), 29 C.F.R. ? 2200.41(b) (1990),\”permits a party to seek relief from the judge’s dismissal.\” Here, as inBywater, the Commission directs that procedures be conducted to determine whether there isgood reason to set aside the dismissal. The Commission specifically emphasized in Bywaterthat \”the burden of producing evidence that there was good cause for its failure torespond\” is on the Respondent from whom no response was received. The Commission wenton to instruct the administrative law judge that \”[o]nly if the judge makes thedetermination that [Respondent’s] failure to respond to his order should be excused needhe set aside the order….\”Applying the principles of Bywater to this case, I find as fact that Respondent has notshown that the order was not received, nor has it produced any evidence which wouldwarrant setting aside the order of dismissal. Regardless of whose burden of proof it wasto present such evidence, I find that a preponderance of all of the evidence of recordleads to the sole reasonable inference that it is more likely than not that the order ofSeptember 4, 1991, directing Respondent to file an answer or face default was received byRespondent.Mr. Boyce’s testimony that his business mail address has been consistent, that he hasroutinely received business mail at that address, that has received all other pleadingsand orders at that address, and that he \”might have\” or did receive the order,compels the factual conclusion that the order was received by Respondent. I so find.Further, Mr. Boyce presented no reason, excusable or otherwise, for Respondent’s failureto respond to the order. That Respondent’s business may be small or the proposed penaltiesthought by the business owner to be excessive, even if true, are not reasons which wouldexcuse a failure to file on answer or respond to the September 4, 1991, order. I thusconclude that Respondent is not entitled to reinstatement of its notice of contest.Accordingly, IT IS ORDERED that the Order of Dismissal of November 5, 1991, dismissingRespondent’s notice of contest is reinstated.MICHAEL H. SCHOENFELD Judge, OSHRCDated: June 29, 1992 Washington, D.C.FOOTNOTES: [[1]]Rule 41 of the Commission’s Rules of Procedure provides in pertinent part as follows:? 2200.41 Failure to obey rules.(a) Sanctions. When any party has failed to plead or otherwise proceed as provided bythese rules or as required by the Commission or Judge, he may be declared to be in defaulteither: (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.Thereafter, the Commission or Judge, in their discretion, mayenter a decision against the defaulting party or strike any pleading or document not filedin accordance with these rules.(d) Show cause orders. All show cause orders issued by the Commission or Judge underparagraph (a) of this section shall be served upon the affected party by certified mail,return receipt requested.[[1]] Rules of Procedure of the Occupational Safetyand Health Review Commission, 29 C.F.R.. ?? 2200.1-212, amended( 55 Fed. Reg. 22780 – 4(June 4, 1990).[[2]] The record shows that Respondent’s business has consistently used the same mailingaddress for approximately the three years it has been in business. (TR 13-14.)”