SECRETARY OF LABOR,
Complainant.
v.
LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407


DECISION AND ORDER

In this case Administrative Law Judge Michael H. Schoenfeld dismissed a notice of contest filed by Respondent, LaRosa & Lamar Janitorial Services ("LaRosa"), because LaRosa did not respond to a show cause order warning that it would be found in default if it failed to file an answer to the Secretary's complaint. However, while the judge sent his show cause order by certified mail, he did not send it return receipt requested, as required by Commission Rule 41(d), 29 C.F.R. 2200.41(d).[[1]]


The purpose of the return receipt requirement is to make certain that the affected party receives a show cause order in a manner sufficient to ensure a timely response. 55 Fed. Reg. 22,780 (1990). We therefore remand this matter to afford LaRosa an opportunity to demonstrate that it did not receive the judge's order, or to show any other grounds to justify its failure to file an answer in a timely fashion. See Bywater Sales & Serv. Byco-MCS Div., 13 BNA OSHC 1268,1986-87 CCH OSHD 27,896 (No. 86-1214,1987). Should the judge determine that LaRosa is entitled to reinstatement of its notice of contest, he may in his discretion accept LaRosa's letter of November 5, 1991, as a sufficient response to the allegations of the complaint, or he may afford LaRosa a further opportunity to file an answer conforming to section 2200.36 before addressing the merits of the case.


Accordingly, the judge's order of dismissal is set aside, and this case is remanded for further proceedings consistent with this opinion.


Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner


Dated: March 26, 1992



SECRETARY OF LABOR,

Complainant.
v.
LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407


ORDER


DISMISSING NOTICE OF CONTEST


Respondent has failed to file any response to the complaint filed by the Secretary despite specific notices that a responsive pleading is required under the Commission Rules of Procedure.[[1]]


An Order dated September 4, 1991, informed Respondent that its failure to answer the complaint or file a statement that it wished to continue its contest, could result in the dismissal of its notice of contest and a decision being entered against it without a hearing. Despite these specific notifications that the citations and proposed penalties would be affirmed without a hearing, Respondent has not replied.

Respondent's flagrant failure to plead or otherwise proceed is provided by the Commission's Rules of Procedure warrants it being declared in default under Rule 11(a).

Accordingly, Respondent's notice of contest is dismissed and Citation No.1 is hereby affirmed. The proposed penalties totaling $6450 are hereby assessed.


MICHAEL H. SCHOENFELD

Judge, OSHRC

NOV 5 1991

Washington, D.C.

 

SECRETARY OF LABOR,
Complainant.
v.
LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407

Appearances: Anita Eve Wright, Esq. Office of the Solicitor
United States Department of Labor For Complainant
LaRosa Boyce Pro Se
For Respondent



DECISION AND ORDER


In its Decision and Order of March 26,1992, the Commission set aside the Order of Dismissal of November 5,1991, and remanded this case "to afford LaRosa an opportunity to demonstrate that it did not receive the judge's order,[[1]] or to show any other grounds to justify its failure to file an answer in a timely fashion." (Citation omitted.)


[[1]] The order of dismissal was based upon the lack of a response to a September 4, 1991, order directing Respondent to file "an answer to the Secretary's Complaint or a statement that it wishes to continue its contest." (All capitals in original.)

Pursuant to the order of the Commission a hearing was convened on May 6, 1992. Mr. LaRosa Boyce appeared and testified.


Mr. Boyce acknowledged that he understood the proceedings and declined an offer of a continuance to engage an attorney. (TR 3 - 5.) In lieu of an opening statement, Mr. Boyce initially took the position that he did not respond to the order to file an answer or face default because he did not believe he had received it. (TR 7, lines 11-13). Given that position, Mr. Boyce was sworn in as a witness. Mr. Boyce, once under oath, testified as follows regarding the Order for Respondent to File Answer or Face Default dated September 4, 1991, a copy of which he was handed;


Q. Have you seen that before, sir?
A. Yes.
Q. Do you recall when you received that?
A. I remember reading about rules and regulations, where you have the time to respond.
Q. Do you recall receiving that Order at your offices, at 6201 Pine Street
A. Yes.
Q. Do you recall getting that in the mail?
A. I think I might have. I'm not exactly sure. I might have, yes.


The Commission's order of remand cites the decision in Bywater Sala & Service Byco- MCS Div., 13 BNA OSHC 1269 (No. 86-1214, 1987) ("Bywater"), which states that where a Respondent fails to file an answer, Rule 41(b), 29 C.F.R. 2200.41(b) (1990), "permits a party to seek relief from the judge's dismissal." Here, as in Bywater, the Commission directs that procedures be conducted to determine whether there is good reason to set aside the dismissal. The Commission specifically emphasized in Bywater that "the burden of producing evidence that there was good cause for its failure to respond" is on the Respondent from whom no response was received. The Commission went on to instruct the administrative law judge that "[o]nly if the judge makes the determination that [Respondent's] failure to respond to his order should be excused need he set aside the order...."


Applying the principles of Bywater to this case, I find as fact that Respondent has not shown that the order was not received, nor has it produced any evidence which would warrant setting aside the order of dismissal. Regardless of whose burden of proof it was to present such evidence, I find that a preponderance of all of the evidence of record leads to the sole reasonable inference that it is more likely than not that the order of September 4, 1991, directing Respondent to file an answer or face default was received by Respondent.


Mr. Boyce's testimony that his business mail address has been consistent, that he has routinely received business mail at that address, that has received all other pleadings and orders at that address, and that he "might have" or did receive the order, compels the factual conclusion that the order was received by Respondent. I so find. Further, Mr. Boyce presented no reason, excusable or otherwise, for Respondent's failure to respond to the order. That Respondent's business may be small or the proposed penalties thought by the business owner to be excessive, even if true, are not reasons which would excuse a failure to file on answer or respond to the September 4, 1991, order. I thus conclude that Respondent is not entitled to reinstatement of its notice of contest.


Accordingly, IT IS ORDERED that the Order of Dismissal of November 5, 1991, dismissing Respondent's notice of contest is reinstated.


MICHAEL H. SCHOENFELD

Judge, OSHRC

Dated: June 29, 1992
Washington, D.C.


FOOTNOTES:
[[1]]Rule 41 of the Commission's Rules of Procedure provides in pertinent part as follows: 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.
(d) Show cause orders. All show cause orders issued by the Commission or Judge under paragraph (a) of this section shall be served upon the affected party by certified mail, return receipt requested.

[[1]] Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R.. 2200.1-212, amended( 55 Fed. Reg. 22780 - 4 (June 4, 1990).


[[2]] The record shows that Respondent's business has consistently used the same mailing address for approximately the three years it has been in business. (TR 13-14.)