SECRETARY OF LABOR,
Complainant,

v.

BYCO-MCS DIVISION OF BYWATER SALES
& SERVICE, AND ITS SUCCESSORS,
Respondent.

OSHRC Docket No. 86-1214

ORDER OF REMAND

Before: BUCKLEY, Chairman; and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. sections 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions, brought by the Secretary of Labor under Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

On May 5 and 6, 1986, a representative of OSHA inspected the workplace of Byco-MCS Division of Bywater Sales and Service ("Byco"). As a result of that inspection, OSHA issued Byco two citations on July 29, 1986. One of the citations alleged a number of serious violations of safety and health standards in 29 C.F.R. Part 1910; the other citation alleged that Byco had committed other than serious violations of some of those standards. On August 13, 1986, Jay F. Folse, whose title was not given, wrote a letter to OSHA giving notice that Byco contested the citations. OSHA forwarded the letter to the Review Commission, which assigned the dispute to Administrative Law Judge E. Carter Botkin. Byco was sent a copy of the Commission's Rules of Procedure.

On October 10, 1986, the Secretary of Labor filed the formal complaint required by former Rule 33(a) of the Commission's Rules of Procedure.[[1]] Under former Rule 33(b), Byco was required to answer the complaint within fifteen days. When Byco failed to do so, Judge Botkin entered an order on November 24, 1986, directing Byco to file an answer by December 12, 1986, or show cause why its notice of contest should not be dismissed. When no response to the judge's order was filed, the judge entered an order on January 13, 1987, vacating Byco's notice of contest and affirming all items of the two citations. On February 6, 1987, Wilmer O. Rowe wrote the Commission, representing that he was the new owner of Byco and requesting review of the judge's order.

New Rule 41 of the Commission's Rules of Procedure, codified at 29 C.F.R. 2200.41, applies to the situation here.[[2]] That rule provides:

2200.41 Failure to obey rules.

(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default either: (1) on the initiative of the Commission or Judge, after having been afforded an opportunity 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, may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.

(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commission or judge and upon motion expeditiously made, the Commission or Judge may set aside a sanction imposed under paragraph (a) of this rule.

When Byco failed to file an answer to the Secretary's complaint, the judge afforded Byco an opportunity to show cause why it should not be found in default, the procedure prescribed by Rule 41(a). Under that rule, it was within the judge's discretion to strike the notice of contest.

New Rule 41(b) permits a party to seek relief from the judge's dismissal. Ordinarily we would expect a party seeking such relief to make a formal motion supported by sworn affidavits or other evidence of good reason for setting aside the dismissal. Because Mr. Rowe's unsworn letter has not been admitted into evidence, the statements in the letter cannot yet be considered evidence. Moreover the letter does not provide sufficient information for us to determine whether Byco's failure to file a pleading was excusable neglect.[[3]] Because Byco is not represented by counsel and seems unaware of the proper procedure, we will treat Byco's pro se request for review as a formal motion under Rule 41(b) to set aside the sanctions and will overlook for now its failure to present evidence in support of its request to set aside the judge's order.

Because Byco has so far presented insufficient information to determine whether its failure was excusable, we remand this case to the judge for him to rule on Byco's motion to set aside the sanctions. The judge may hold a hearing, take evidence in the form of sworn affidavits, or follow whatever other procedures he deems appropriate to determine whether there is good reason to set aside his order of default against Byco. We emphasize that the burden of producing evidence that there was good cause for its failure to respond is on Byco. Only if the judge makes a determination that Byco's failure to respond to his order should be excused need he set aside the order and schedule a hearing on the merits of the citations.

FOR THE COMMISSION

Ray H. Darling
Executive Secretary


DATED: APR 21, 1987


SECRETARY OF LABOR,
Complainant,

v.

BYCO-MCS DIVISION OF BYWATER
SALES & SERVICE, AND ITS SUCCESSORS,
Respondent

OSHRC DOCKET NO. 86-1214

ORDER

BOTKIN, Judge:

Respondent has failed to file an answer to the Secretary's complaint filed on October 10, 1986. As a result, an order was issued by the undersigned on November 24, 1986, requiring that on or before December 12, 1986, the Respondent shall file an answer or show cause why its notice of contest should not be dismissed for abandonment thereof.

Respondent has failed to respond to my order dated November 24, 1986. As a consequence thereof, Respondent's notice of contest, dated August 13, 1986, is VACATED. All items of both citations (serious and other) issued on July 29, 1986, alleging violations of specified standards, are AFFIRMED. The civil penalties, as proposed, are ASSESSED.

This proceeding is TERMINATED.

E. CARTER BOTKIN
Administrative Law Judge


Date: January 13, 1987


FOOTNOTES:

[[1]] The Commission's Rules have since been revised.

[[2]] The revised rules took effect December 8, 1986, and apply to all cases pending on that date unless it would be infeasible to apply them or would work an injustice. 51 Fed. Reg. 32002 (1986).

[[3]] We note that the attorney for the Secretary of Labor apparently discussed this case with Mr. Rowe by telephone and mailed him a copy of the complaint on November 7, 1986, more than two months before the judge entered his order dismissing Byco's notice of contest. Further, the judge mailed a copy of his November 24, 1986 order to show cause to Mr. Rowe personally.