SECRETARY OF
LABOR, |
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Complainant, |
|
v. |
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WR EXTERIOR DESIGN CONSTRUCTION, INC., |
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Respondent, |
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APPEARANCES:
Diane
C. Sherman, Attorney; Patricia M. Rodenhausen,
Regional Solicitor; Gregory F. Jacob, Solicitor;
Wladyslaw
Rudzinski;
REMAND ORDER
In an order
dated September 15, 2008, Chief Administrative Law Judge Irving Sommer granted
the Secretary’s motion to dismiss WR Exterior Design Construction’s
(“WR’s”) notice of contest
(“NOC”) for its failure to file a timely answer. In his order, the
judge affirmed the citations and assessed the total proposed penalty of
$19,600. For the reasons that follow, we set aside the dismissal order and
remand this case to the judge.
Background
Following the issuance of the
citations in this case, WR, appearing pro se, timely filed a NOC and, on
April 28, 2008, the Secretary timely filed a complaint. Under Commission Rule
34(b)(1), 29 C.F.R. § 2200.34(b)(1), WR was
required to file an answer by May 21. Having received no answer from WR, the
judge sua sponte issued
an order on May 27 directing WR to show cause, on or before June 6, why its NOC
should not be dismissed. The envelope containing the show cause
order—sent via certified mail to WR—was returned to the Commission
on June 13 unopened and without signature.
On August
29, the Secretary filed a motion to dismiss the NOC based on WR’s failure to file an answer and respond to the
show cause order. In her motion, the Secretary did not state whether
“any other party opposes or does not oppose the motion” as required
by Commission Rule 40(a), 29 C.F.R. § 2200.40(a). The judge granted the
Secretary’s motion on September 15, and on October 24, WR’s owner filed a petition seeking review of the
judge’s order. In the petition, WR’s
owner explains that he has a “limited command of the English
language.”
Discussion
The
Commission has consistently held that “‘dismissal of a citation is
too harsh a sanction for failure to comply with certain prehearing orders
unless the record shows contumacious
conduct by the noncomplying party or prejudice to the
opposing party.’” AA Plumbing, Inc., 20 BNA OSHC 2203, 2204,
2005 CCH OSHD ¶ 32,795, p. 52,446 (No. 04-1299, 2005) (quoted case
omitted). Here, the record indicates that WR never received the judge’s
show cause order. See, e.g., Rakich Masonry, 21
BNA OSHC 1928, 1928-29 (No. 06-1159, 2007) (remanding for further development
of the record because, inter alia, envelope containing show cause order was returned unopened and without
signature); Samuel Filisko,
20 BNA OSHC 2204, 2205-06, 2005 CCH OSHD ¶ 32,855, pp. 52,962-63 (No.
04-1465, 2005) (same). Additionally, in filing her motion to dismiss, the
Secretary failed to comply with Commission Rule 40(a). As we have recently
explained, one function of this rule is “to ensure that a party in
jeopardy of being defaulted is warned of that possibility by the moving
party,” and the rule’s application is particularly important where,
as here, the employer is appearing pro se. Elan
Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1339 (No. 08-0700,
2008). Moreover, based on the representation in his petition, it appears WR’s owner may have had some difficulty understanding
the filings and orders in this case, possibly because of a lack of
comprehension of the English language. Finally, the Secretary does not claim
that she was prejudiced by WR’s failure to file
a timely answer.
Under
these circumstances, we conclude the record presently lacks sufficient evidence
to support the sanction of dismissal. See Samuel Filisko,
20 BNA OSHC at 2206, 2005 CCH OSHD at p. 52,963 (“[L]ate filing alone
without evidence of prejudice, contumacious conduct and/or a pattern of
disregard for Commission rules would not be a basis for dismissing this
case.”). Accordingly, we set aside the judge’s order and remand
this case to allow WR an opportunity to explain why its failure to file an
answer and respond to the show cause order should be excused. See Commission
Rule 101(b), 29 C.F.R. § 2200.101(b) (sanction may be set aside for
reasons deemed sufficient by the Commission or Judge). On remand, the judge
should also evaluate whether WR’s owner
requires the services of a qualified interpreter to effectively communicate
with the Commission throughout the proceedings. See Oscar Renda Contracting, Inc., 17 BNA OSHC 1883, 1887,
1995-97 CCH OSHD ¶ 31,225, p. 43,779 (No. 93-1886, 1997)
(“[F]ailure to provide those invited to appear
before us with the basic means to be effectively understood, particularly on
their explicit request, demeans both the witness and the forum and undermines
the credibility, much less the civility, of the adjudicative process.”).
SO
ORDERED.
_/s/______________________________
Horace A. Thompson III
Chairman
Dated:
November 4,
2008 _/s/______________________________
Thomasina V. Rogers
Commissioner