SECRETARY OF LABOR,

Complainant,

v.

VIRGIL ALAN HICKMAN & SHERRY K. LOWE, d/b/a
AL KIM PAINTING,

Respondent.

OSHRC Docket No. 90-1169

DIRECTION FOR REVIEW AND REMAN ORDER

Respondents, Virgil Alan Hickman & Sherry K. Lowe, d/b/a Al Kim Painting, filed a Petition for Discretionary Review in this case on February 28, 1991.  In their Petition, the Respondents allege that they have been aggrieved by the Decision and Order of Administrative Law Judge Paul L. Brady, which was docketed with the Commission's Executive Secretary on February 22, 1991. Complainant, the Secretary of Labor, filed a responsive letter on March 8, 1991, in which she stated that "[t]he Secretary supports respondent's request for review."  Pursuant to 29 U.S.C. 661(j) and 29 C.F.R. 2200.92(a), the decision of the Administrative Law Judge is directed for review.  For the reasons that follow, that decision is set aside and the case is remanded to the Judge for further proceedings.

The proceeding before us was initiated when the Respondents contested two citations issued by the Secretary to Al Kim Painting, alleging 26 serious and four willful violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, and proposing penalties totaling $57,000.  The handwritten notice of contest, signed by Sherry K. Lowe and Alan Hickman, included the following denial of responsibility for the alleged violations:

We were assumed to be the owners but were in fact employees of Moritz, Inc.  We are contesting all citations and notices of penalties, and are not responsible for any alleged violations.

Lowe and Hickman have continued to appear on a pro se basis throughout this proceeding.

Following the filing of the Secretary's complaint, the Respondents received two extensions of time from Judge Brady for the filing of their answer.  Nevertheless, they failed to file an answer on or before the revised deadline of November 1, 1990.  Accordingly, on December 19, 1990, pursuant to Commission Rule 41(a), 29 C.F.R. 2200.41(a), Judge Brady issued a show cause order to the Respondents, requiring them to show cause "within ten days of receipt of this order" why they should not be "declared in default for failure to plead".   When the Respondents failed to reply to this show cause order, the Judge issued a second order on January 29, 1991, declaring the Respondents in default, dismissing their notice on contest, affirming the two contested citations and assessing the proposed penalties totaling $57,000.  It is this second order that is now before us on review.

Given the fact that Lowe and Hickman are appearing before us pro se, we will construe their Petition for Discretionary Review as a motion to set aside sanctions under Commission Rule 41(b), 29 C.F.R. 2200.41(b).  That rule grants us the authority to set aside sanctions imposed under Rule 41(a), such as the Judge's dismissal order in this case, for any reasons that we deem to be "sufficient".  Having reviewed the record in this case, we now find that there is "sufficient" reason to set aside the Judge's order and to grant the Respondents one final opportunity to file an answer to the Secretary's complaint.

The most significant factor in our determination is the fact that the Respondents did not receive the Judge's show cause order. Receipt of this order would have placed the Respondents on notice that they were at risk of having the most severe possible sanction, dismissal of their notice of contest without a hearing, imposed.  However, the record establishes that Respondents' copy of the show cause order was not claimed at their post office box and was instead ultimately returned to the Judge.  While the record does not conclusively establish the reason for this nondelivery, it does suggest that the reason was not a deliberate refusal of service by the Respondents.  In their Petition for Discretionary Review, the Respondents state that "[w]e have been out of town and were not aware we were to respond. . . ." Presumably, therefore, the failure to accomplish delivery of the show cause order was the result of the Respondents being "out of town" and unable to accept delivery of the order, which had been sent by certified mail to their post office box.

Several other factors have contributed to our determination.  Among those are:  the seriousness of the charges and the size of the penalty; the Respondents' claim that they were employees of another company, rather than being the employer responsible for the alleged violations; the Respondents' small size, if in fact they were employers[[1/]]; and the Secretary's support for their Petition for Discretionary Review.

Under the unusual circumstances presented by this case, and to avoid any further delay, we conclude that the most expeditious course of action is to set aside the Judge's order, remand the case to the Judge, and provide the Respondents with another opportunity to file their answer with the Judge.   Accordingly, we set aside the dismissal order under Rule 41(b) and remand this case to the Judge.  The Respondents are ordered to file their answer to the Secretary's complaint with Judge Brady within 30 days of their receipt of this Commission order.   An additional copy of the Commission's Rules of Procedure, which explain the requirements for filing an answer, is forwarded to the Respondents along with this order.   See Rule 36, 29 C.F.R. 2200.36.  If the Respondents fail to comply with this order by not filing their answer in a timely manner, the Judge is authorized to reinstate his dismissal order, affirming the contested citations and assessing the proposed penalties.


Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: March 22, 1991


FEBRUARY 28, 1991


DEAR SIRS,

IN REGARDS TO DOCKET NO. 90-1169, WE WOULD LIKE TO FILE A PETITION FOR DISCRETIONARY REVIEW.

WE HAVE BEEN OUT OF TOWN AND WERE NOT AWARE WE WERE TO RESPOND TO THE PREVIOUS LETTERS MAILED.

THANK YOU FOR YOUR TIME IN THIS MATTER.

SINCERELY,

ALAN HICKMAN
SHERRY LOWE
ALKIM PAINTING



March 8, 1991


Ray H. Darling, Jr.
Executive Secretary
Occupational Safety and Health
Review Commission


Re: Secretary of Labor v. Alkim Painting
OSHRC Docket No. 90-1169

Dear Mr. Darling:

On February 28, 1991, respondent filed a petition for review of the judge's order in the above case.  The Secretary supports respondent's request for review.

Sincerely,

Daniel J. Mick
Counsel for Regional
Trial Litigation

cc:  Alan Hickman, Sherry Lowe
Alkim Painting

William Kloepfer
Regional Solicitor


SECRETARY OF LABOR,

Complainant,

v.

VIRGIL ALAN HICKMAN &
SHERRY K. LOWE, d/b/a
AL KIM PAINTING,

Respondent.

OSHRC Docket No. 90-1169

ORDER DISMISSING NOTICE OF CONTEST

Respondent, having failed to respond to an order to show cause and pursuant to Rule 41(a) of the Commission's Rules of Procedure [29 C.F.R. Section 2200.4(a)], is hereby declared in default for its failure to comply with Commission Rule 36, 2200.36, requiring the filing of an answer to the complaint in this cause.

Therefore, it is ORDERED;
1.  The notice of contest is dismissed.
2.  Citation No. 1 is hereby affirmed and a penalty in the sum of $22,000 is assessed.
3.  Citation No. 2 is hereby affirmed and a penalty in the sum of $35,000 is assessed.

Dated this 29th day of January, 1991.

PAUL L. BRADY
Judge



FOOTNOTES:

[[1/]] The Secretary's complaint alleges that Respondents Hickman and Lowe were doing business as Al Kim Painting, that they had four employees, that they were a sole proprietorship, and that they had a place of business in Mansfield, Ohio, where they were engaged in the cleaning and painting of horse trailers.  As indicated, Hickman and Lowe claimed in their notice of contest that they were employees of Moritz, Inc.