UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3133
LOUIS P. ANESI, d/b/a/ ANESI PACKING COMPANY
Respondent.

DIRECTION FOR REVIEW AND ORDER

September 10, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

VAN NAMEE, COMMISSIONER:

On August 9, 1973, Judge Herbert E. Bates issued an order granting the Complainant’s motion to dismiss Respondent’s notice of contest and affirming the citation and penalties proposed therefor. The motion was predicated on the ground that Respondent failed to file an answer to the complaint as required by the Commission’s Rules of Procedure.

Pursuant to the authority vested in the members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge’s order be reviewed by the Commission. For the reasons given below we reverse and reinstate the contest.

We have reviewed the record and note that Complainant (but not the Commission) received a letter from Respondent during the period for filing an answer to the complaint. Complainant’s counsel indicates that the letter is a response to the complaint but is not an ‘answer’ within the meaning of the Commission Rule 33(b).

The following appears in the letter: ‘I’m denying all citations that you have referred to in your [complaint].’ Respondent is appearing pro se.

Obviously, Respondent’s letter does not conform with the technical aspects of what is recognized as good pleading practice. However, the letter leaves no doubt as to the substance of Respondent’s position. He denies those allegations of the complaint whereby it is averred that he violated the Act. Under these circumstances we believe that procedure should give way to substance and that Respondent should be allowed his day in court.

Accordingly, it is ORDERED that: (1) the Judge’s order be and the same is hereby set aside, (2) Complainant’s motion to dismiss is denied, and (3) the case is reinstated for further proceedings.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3133
LOUIS P. ANESI, d/b/a/ ANESI PACKING COMPANY
Respondent.

August 9, 1973

BATES, JUDGE, OSAHRC:

The Respondent, after having been expressly notified that failure to answer the Complaint in the captioned case may result in dismissal of his Notice of Contest, failed to file an Answer to the Complaint served by the Secretary on June 12, 1973, which failure contravened Commission Rule 33(b).

The Complainant consequently filed a motion that the Respondent’s Notice of Contest be dismissed because of this failure. No response has been entered by the Respondent to that motion.

In view of the foregoing, the Complainant’s motion is granted, and it is ORDERED that the Respondent’s Notice of Contest be, and is, vacated and the Citation issued on May 22, 1973, and its attendant Notification of Proposed Penalty be, and are, affirmed in all respects.