A.I. SMITH ELECTRICAL CONTRACTORS, INC.

OSHRC Docket No. 10797

Occupational Safety and Health Review Commission

July 25, 1975

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Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Charles K. Chaplin dated February 11, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). The decision is a dismissal of the case without a hearing on the merits because of respondent's failure to observe procedural rules.

Respondent was cited under the provisions of the Occupational Safety and Health Act of 1970. n1 The citation alleged a violation of 29 U.S.C. 654(a)(2) for alleged noncompliance with the occupational safety and health standards codified in 29 C.F.R. at 1926.500(d)(1) n2 and 1926.552(b)(2). n3 The citation was issued following completion of an inspection which was conducted on September 19 and 20, 1974. A penalty in the amount of $250 was proposed.

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n1 84 Stat. 1590, 29 U.S.C. 651 et seq., hereinafter "the Act."

n2 1926.500(d)(1) -- Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a stndard railing or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides except when there is entrance to a ramp, stairway or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

n3 1926.552(b)(2) -- All entrances of the hoistway shall be protected by substantial gates or bars which shall guard the full width of the landing entrance. All hoistway entrance bars and gates shall be painted with diagonal contrasting colors, such as black and yellow stripes.

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Respondent timely filed a notice of contest on October 25, 1974. A complaint was filed on November 15, 1974. Respondent did not file any answer to the complaint. On January 16, 1975, Judge Chaplin issued an order to show cause why an answer had not been timely filed. When no response to that order was received the Judge dismissed respondent's Notice of Contest in his decision of February 11, 1975. In a letter to the Commission dated February 18, 1975, respondent acknowledged receipt of the February 11th dismissal of his case but pointed out that he was appearing pro se and did not understand the procedural requirements to properly defend against the citation. He asserted that "the violation was without a doubt unwarranted and unjustified" and asked "if there is any other further action I could take on this matter."

The Commission then directed review of the Judge's dismissal order and the parties were notified that briefs were invited on the question "Was respondent given an appropriate opportunity to present his defense to complainant's action?" This occurred on March 11, 1975. The [*3] views of complainant were submitted on April 30, 1975. No response has as yet been received from respondent.

Under the circumstances, we find that respondent has had a sufficient opportunity to present its defense but has chosen not to do so.

It is therefore ORDERED that the decision dismissing respondent's Notice of Contest and affirming both the citation and notice of proposed penalty is affirmed.

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: No response having been received from respondent to Order to Show Cause dated January 16, 1975, it is hereby ORDERED that:

The respondent's notice of contest is dismissed and the citation and its attendant notification of proposed penalty dated October 8, 1974, are affirmed.