“Docket No. 91-1004 SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004DECISION AND ORDERThis case was directed for review pursuant to 29 U. S. C. ?661(J) and 29 C.F.R. ? 2200.92(a). The employer, Right-Gard Corporation, which hasappeared pro se throughout these proceedings, sought review of a Commission administrativelaw judge’s decision dismissing Right-Gard’s notice of contest because of failure to filethe additional responses that were required in the proceedings. Right-Gard claims that thejudge’s action of dismissing the notice of contest was inappropriate because the companyhad not received any of the documents filed in the case and therefore could not respond asrequired. For the following reasons, we remand the case for further proceedings asappropriate, including an opportunity for Right-Gard to show that, notwithstanding thenotice procedures that were followed in this case, which we outline below, the company didnot receive due notice prior to the dismissal and therefore was unaware that it wasrequired to respond in the proceedings.The evidence before the Commission demonstrates thatappropriate procedures for affording due notice were followed in this case. Ourexamination of the record reveals that, though there was some initial confusion as toRight-Gard’s street address, inasmuch as the citation stated an incorrect street number.Right-Gard did successfully file a notice of contest and, thereafter, every document towhich a response was required was sent to the street number stated by Right-Gard itself onits notice of contest. Specifically, the Secretary’s certificate of service filed with hercomplaint, see Commission Rule 7(a), (c) and (d), states that it was mailed to \”1551Industry Road.\” Right-Gard did not file an answer to the complaint; therefore, thejudge issued an order to show cause for the failure to answer. See Commission Rule 41 (a),29 C.F.R. ? 2200.41(a). To this order was attached a statement of notice which shows thatthe judge addressed his order to \”1551 Industry Road.\” In fact, the judge’sstatement of notice was folded into a window envelope with the order and, on July 16,1991, was sent by certified mail to the stated address. See Commission Rule 41(d), 29C.F.R. ? 2200.41(d). On August 2, 1991, however, the certified mailing, including theblank return receipt, came back to the judge with the following official notations by theUnited States Postal Service, which we quote and explain below:(1) \”Unclaimed\” –which, we note, indicates that the certified mailing remainedunclaimed at the post office until the post office returned it to the sender; and(2) \”1st Notice 7\/18,\” \”2nd Notice 7\/23,\” \”Return8\/2,\”–which, we note, together indicate that postal employees left at Right-Gard’sstreet address not just one but two notices that a certified mailing was being held at andshould be retrieved from the post office, and that for more than ten days the certifiedmailing was so held, waiting for the addressee to retrieve it.On August 6, 1991, the judge, having received the unclaimedcertified mailing and the blank return receipt, and having received no response to hisorder to show cause, dismissed Right-Gard’s notice of contest. This action was proper,inasmuch as the judge had followed the Commission’s rules for assuring due notice to aparty and had in fact received sufficient information from the Postal Service to indicatethat Right-Gard had adequate opportunity to receive notice. Cf., Action Group, Inc., 14BNA OSHC 1934, 1935 n.3, 1987-90 CCH OSHD ? 29,166, p. 39,018 n.3 (No. 88-2058, 1990)(\”in order to eliminate uncertainty regarding when orders to show cause are received,the Commission now requires that such orders be sent by certified mail, return receiptrequested\”); 29 C.F.R. ? 2200.7(c)(\”[s]ervice is deemed effected at the time ofmailing\”). In the circumstances, therefore, there is no basis for reinstatingRight-Gard’s notice of contest unless Right-Gard can demonstrate \”sufficient\”reason within the meaning of Commission Rule 41(b), 29 C.F.R. ? 2200.41(b).Ordinarily we would expect a party seeking such relief to makea formal motion supported by sworn affidavits or other evidence of good reason for settingaside the dismissal. Because Right-Guard’s statements are unsworn, they cannot beconsidered evidence. Moreover, further evidence appears necessary to determine whetherRight-Gard’s failure to file a pleading was excusable neglect. Because Right-Gard is notrepresented by counsel and seems unaware of the proper procedure, we will treatRight-Gard’s pro se request for review as a formal motion under Rule 41(b) to set asidethe sanctions and will overlook for now its failure to present evidence in support of itsrequest to set aside the judge’s order.Accordingly, we remand the case for further proceedings,including an opportunity for Right-Gard to demonstrate that the company did not receiveeither the complaint or the certified mail notice of the show cause order, or todemonstrate any other reason that might he deemed sufficient to justify excusing thefailures to respond. See Action Group, 14 BNA OSHC at 1935-36, 1987-90 CCH OSHD at p.39,018; Choice Elec. Corp., 14 BNA OSHC 1899, 1900-01, 1987-90 CCH OSHD ? 29,141, p.38,942 (No. 88-1393, 1990); Bywater Sales & Service, 13 BNA OSHC 1268, 1269,1986-87CCH OSHD 27,896, p. 36,597 (No. 86-1214, 1987). Compare Vern’s Mfg., Inc. 14 BNA OSHC1846, 1847, 1987-90 CCH OSHD ? 29,113, p. 38,905 (No. 89-3082, 1990) (remand for evidencerelating to the pro se employer’s unsworn claims). Only if the judge makes a determinationthat Right-Gard’s failure to respond to his order should be excused need he set aside theorder and schedule a hearing on the merits of the citations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: February 20, 1992SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004ORDEROn July 16, 1991, an ORDER was issued directing Respondent toshow cause why the citations and penalties should not be affirmed due to its failure tofile an answer to the Secretary’s Complaint. Despite this specific notification,Respondent has not replied.Respondent’s flagrant failure to plead or otherwise proceed asprovided by the Commission’s Rules of Procedure warrants it being declared in default asprovided by Rule 41(a).Accordingly, Respondent’s Notice of Contest is dismissed, andCitations 1, 2, and 3, are hereby affirmed. The proposed penalties totaling $13,470.00 arehereby assessed.IRVING SOMMERJudge, OSHRC\u00a0SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004Appearances: Michael Rosenthal, Esquire [[1]]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Richard and Jane McGrath, pro seOffice of the Solicitor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 RightGard Corporation United States Department of LaborFor Complainant\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ForRespondent BEFORE: Administrative Law Judge John H Frye, IIIDECISION AND ORDERIn this case, Respondent Right-Gard Corporation seeks to setaside an Order entered August 26, 1991, which dismissed its Notice of Contest and affirmedthe Secretary’s citations, involving penalties totaling $13,470, entered against it. TheAugust 26 Order was entered after Respondent failed to answer both the Secretary’scomplaint and a July 16 Order to Show Cause why the citations should not be affirmed inlight of this failure.On learning of the August 26 Order, Respondent’s President,Richard McGrath, dispatched a lengthy letter on September 12 to the Commission’s ExecutiveSecretary. This letter was treated as a Petition for Discretionary Review of the August 26Order and was granted on September 25, On February 20, 1992, the Commission entered itsDecision and Order of Remand in this proceeding.In its decision, the Commission noted that Respondent claimsthat it had not received any of the documents filed in the case and thus was unable toproperly respond. The Commission further noted that the procedures followed to ensure thatRespondent received notice were proper. However, it remanded the case to provideRespondent an opportunity to demonstrate that, notwithstanding those procedures, it\”…did not receive due notice prior to the dismissal and therefore was unaware thatit was required to respond ….\”[[2]] The Commission also stated that it remanded thecase to afford Respondent an opportunity to demonstrate that it \”…did not receiveeither the complaint or the certified notice of the show cause order, or to demonstrateany other reason that might be deemed sufficient to justify excusing the failure torespond.[[3]] Respondent was afforded that opportunity at a hearing held on Wednesday,March 11, 1992, in Philadelphia, Pennsylvania.[[4]]The Commission decision affords Respondent an opportunity todemonstrate that it did not receive \”due notice\” and thus was unaware of therequirement to respond to the complaint. The Commission decision also affords Respondentan opportunity to demonstrate that it did not receive \”either the complaint or thecertified notice of the show cause order,\” which advised Respondent of therequirement to respond. It appears that the Commission’s overriding concern in remandingthis case was to ensure that Respondent, proceeding pro se, not be held in default forfailure to answer the complaint if it was justifiably unaware of this requirement. TheCommission carefully reviewed the procedures followed and concluded that those procedureswere proper. Further, the Commission stated that \”[i]n the circumstances … there isno basis for reinstating Right-Gard’s notice of contest unless Right-Gard can demonstrate’sufficient’ reason within the meaning of Commission rule 41(b), 29 CFR ?2200.41(b).\” Therefore, I conclude that if Respondent is to prevail, it must showthat, for reasons beyond its control, it was unaware of the need to answer the Secretary’sformal complaint.At the hearing, Respondent was represented by its owners,Richard and Jane McGrath,[[5]] both of whom testified. From Mr. McGrath’s testimony, itappears that the following sequence of events took place with regard to this case. OSHA’sAllentown office issued the citations in question on March 20, 1991. Following theirreceipt, Respondent’s representative, Jim Sullivan, went to the Allentown office todiscuss them on March 26. According to Mr. McGrath, Sullivan resigned within 24 hours ofthat meeting, apparently without informing Mr. McGrath of the results of the meeting. OnApril 9, Mr. McGrath wrote to Mr. George J. Tomchick, Director of OSHA’s Allentown office,\”…submitting my appeal to the informal settlement agreement issued on3\/20\/91.\”[[6]]In addition, Mr. McGrath contacted an OSHA attorney with whomhe had dealt concerning earlier citations.[[7]] Mr. McGrath maintains that, in exchangefor making a scheduled payment in accord with the settlement of the earlier citations, hewas promised a meeting to discuss the instant citations prior to any final adjudication byOSHA. However, despite his efforts to pursue the matter, he heard nothing further fromOSHA.[[8]]Mr. McGrath acknowledges that he received the complaint filedby OSHA in this case, spent about one-half hour reading it, and was aware of the necessityto respond in thirty days.[[9]] Although he was aware of the need to respond in thirtydays, a requirement stated in the Notice to Respondent which accompanied the complaint,Mr. McGrath apparently was unaware of the need to direct that response to the Commission.This requirement was stated in the Notice to Respondent along with the thirty-dayrequirement for a response. He maintains that he answered the complaint in a June 26letter to Mr. Tomchick, Director of OSHA’s Allentown office.[[10]] While he did not have acopy of that letter and was unable to testify as to its contents, he introduced a copy ofMr. Tomchick’s letter to him of August 9. The latter acknowledges Mr. McGrath’s June 26Ietter; Mr. McGrath introduced it to show that the June 26 letter was written.[[11]]Mr. McGrath also acknowledges that employees of Respondent andMrs. McGrath were aware of the existence of certified mail at the Post Office containingthe July 16 Order to Show Cause at the time the Post Office attempted delivery,[[12]] butwere unaware of the identity of the sender. He asserts that he did not learn of it untillate in August. During the period in question, he was not on the Respondent’s payroll, butwas travelling as a sales representative for another firm and working out of his homeoffice.[[13]] Mr. McGrath maintains that the Post Office would not release the letter toanyone other than himself because it was addressed to him individually rather than asPresident of Respondent. Mrs. McGrath testified that her attempt to pick up the letter atthe Post Office was unsuccessful.[[14]]It is clear that Respondent was aware of the existence of thecomplaint and the need to answer it in thirty days. It is also clear that Respondent wasaware of the existence of a certified letter at the Post Office addressed to Mr. McGrath,although Mr. McGrath insists that the sender of the letter was not known. Respondent’scase for setting aside the Order holding it in default may be summarized as follows.First, that it answered the complaint in Mr. McGrath’s June 26 letter to Mr. Tomchick.Second, that it was attempting to settle this case and was awaiting the scheduling of ameeting for that purpose.Respondent’s first argument fails for the following reasons.Respondent did not address the fact that the June 26 letter was improperly filed with theOSHA area office, rather than the Commission. I believe it to be reasonable for a businessowner, when confronted with a formal complaint of the Secretary of Labor which recites inits introductory paragraph that the Occupational Safety and Health Act of 1970 (Act) hasbeen violated and charges that the business is responsible, to investigate carefully inorder to determine what must he done to protect the business. Mr. McGrath’s investigationwent only far enough to disclose that an answer was due in thirty days, a fact stated inthe first sentence of the one-paragraph Notice to Respondents. It is reasonable to expectan employer also to read the last sentence of that paragraph which indicates that theanswer is to be directed to the Commission.[[15]]Moreover, the June 26 letter was supplied both by Respondentand by counsel for the Secretary pursuant to the agreement of the parties.[[16]] Thatletter does not concern the present controversy. Rather, it clearly responds toallegations of violations of the Act raised by an unidentified third party on May 15,1991, and does not refer in any way to the complaint or citations filed in thiscase.[[17]]Respondent\”s second argument also fails. We have only Mr.McGrath’s version of conversations with several OSHA officials in which this effort wasallegedly discussed. The only OSHA official to testify was Ms. Myrna Butkovitz, counselfor the Secretary. Ms. Butkovitz acknowledged that Mr. McGrath brought this topic up intheir one conversation and that she advised him that those officials were concerned with adifferent case.[[18]] Moreover, the complaint was filed subsequent to Mr. McGrath havinginitiated his settlement efforts and clearly advised Mr. McGrath that Respondent had beenformally charged with violations of the Act arising out of the citations he claims to havebeen attempting to settle.Respondent argues that, while aware of the existence of acertified letter, which contained the Order to Show Cause, it was unaware of the sender.Mrs. McGrath testified that her attempt to pick up this letter had been unsuccessful, andMr. McGrath testified that he was not personally aware of its existence until sometime inlate August. However, Mr. McGrath was aware of the complaint, concerned over the ongoingcontroversy with OSHA, and believed that OSHA was engaging in chicanery, duplicity, andbad faith.[[19]] Under these circumstances, I believe it reasonable that the existence ofa certified letter would have generated sufficient interest to insure that steps weretaken to retrieve it from the Post Office.I cannot conclude that Respondent has shown that it wasjustifiably unaware of the need to file an answer to the complaint with the Commission inorder to preserve its rights. Consequently, I find no basis on which to excuseRespondent’s failure to answer the complaint and to set aside the Order of August 26,1991.FINDINGS OF FACTAll facts relevant and necessary to a determination of thecontested issues have been found specially and appear in the decision above. See Rule52(a) of the Federal Rules of Civil Procedure.CONCLUSIONS OF LAWThe burden rest on Respondent to demonstrate that the August26, 1991, Order entered herein dismissing its Notice of Contest and affirming theSecretary’s citations should be set aside. Choice Electric Corp., 14 BNA OSHC 1899, 1900(No. 88-1393, 1990). Respondent has not met that burden.It is so ORDERED.JOHN H FRYE, III Judge, OSHRCDated: APR 27, 1992Washington, D.C.\u00a0\u00a0FOOTNOTES: [[1]] Myrna Butkovitz, Esq., who had previously entered anappearance on behalf of complainant, withdrew as counsel when it became necessary for herto testify for complainant. [[2]] Commission Decision, p.1.[[3]] Id, p. 3.[[4]] At the close of that hearing, the Secretary’s counsel’s unopposed request to holdthe record open until March 31 to permit the parties to submit a copy of a June 26 letterfrom Mr. McGrath to George J. Tomchick, Jr., Area Director of OSHA’s Allentown office wasgranted. Tr. pp.79-80, 88.[[5]] Tr. p.4.[[6]] Tr. pp.26. 33-34. The April 9 letter was treated as a Notice of Contest and is inthe docket file.[[7]] These citations were settled immediately prior to the issuance of the citations herein question. Mr. McGrath believes that the fines imposed by the instant citationsconstitute an attempt by OSHA to reimpose fines, which were dropped as a result of thenegotiations on the earlier citations. See Mr. McGrath’s letter of September 12, 1991, tothe Commission’s Executive Secretary, to which Mr. McGrath attested (Tr. 6), in the docketfile and Tr. 24-25.[[8]] September 12, 1991, letter. p.3; Tr. pp. 15-16, 27-28, 62-64.[[9]] Tr. pp. 22, 25-27, 29, 38, 61.[[10]] Tr. pp. 22-29. As noted above, at the request of counsel for the Secretary, therecord was held open to permit the submission of this letter.[[11]] Right-Gard Ex. 1; Tr. pp.27-28. [[12]] Tr. pp.18-19, 29-30, 42-43.[[13]] Tr. pp.41-45. [[14]] Tr. p.73.[[15]] Cf. Action Group Inc., 14 BNA OSHC 1934, 35 (No. 88-2058, 1990) (Settlement of thecase would provide a reasonable basis on which to conclude that an answer need not befiled.)[[16]] See note 3, supra.[[17]] The submission by Respondent also includes the first page of another June 26 letteron Respondent’s letterhead addressed to Mr. Tomchick. This letter responds to the specificallegations raised by the third party and recites the actions taken by Respondent tocorrect any deficiencies.[[18]] Tr. p.63.[[19]] September 12 letter, p.3.”