OSHRC Docket No. 80-3689A

Occupational Safety and Health Review Commission

January 29, 1982


Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.


Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Clinton S. McHenry, Better Baked Foods, Inc., for the employer




An order of Chief Administrative Law Judge Paul A. Tenney is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").

On January 15, 1981, Chief Judge Tenney issued an order to Respondent, Better Baked Foods, Inc., to show cause within 10 days why its notice of contest should not be dismissed for its failure to file proof that it posted its notice of contest, as required by Commission Rule 7, 29 C.F.R. 2200.7. On March 11, 1981, Chief Judge Tenney vacated Respondent's notice of contest for Respondent's failure to respond to his January 15th order.

On April 9, 1981, Respondent's General Manager Ralph W. Wilson sent a telegram to the Commission stating that although Commission records indicate that Respondent's mail clerk signed a receipt for Chief Judge Tenney's January 15, 1981 order, the General Manager never saw the order, and has searched his [*2] records and can find no trace of it. He stated the failure to respond to the order was inadvertant and requested reinstatement of Respondent's notice of contest. On April 10, 1981, Commissioner Cleary granted Respondent's request for review.

Dismissal for failure to comply with the Commission's procedural rules is a matter for the Judge's sound exercise of discretion but a decision on the merits rather than on a procedural flaw is favored. See Asarco, Inc., El Paso Div., 80 OSAHRC 99/A3, 8 BNA OSHC 2156, 1980 CCH OSHD P24,838 (No. 79-6850, 1980). Respondent requests reinstatement and offers an explanation for its failure to comply with the Commission's procedural rules. In order to give the parties an opportunity to present any evidence and argument about the requested reinstatement and to permit the judge to rule on it, we set aside the Chief Judge's dismissal and remand for appropriate further proceedings. SO ORDERED.