UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 21, 1987

ORDER OF REMAND

Before BUCKLEY, Chairman; 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. §§ 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 the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

On July 25, 1986, a compliance officer from OSHA inspected a construction site in New Brunswick, New Jersey, where Wes Jones & Son, Inc., was a subcontractor. As a result of that inspection, OSHA issued Wes Jones & Son a citation alleging two serious violations of the construction safety standards in 29 C.F.R. Part 1926.

After Wes Jones & Son received the citation, Daniel J. Hoar, the president of the company, apparently held a telephone conversation with the OSHA area director who had issued the citation. Mr. Hoar then sent a letter to the area director saying, in part, “we take emphatic exception to these violations.” This letter was interpreted by OSHA as a notice of contest under section 10(a) of the Act, 29 U.S.C. § 659(a). OSHA then forwarded a copy of the notice of contest to the Review Commission, as it is required to do by our rules. 29 C.F.R. § 2200.33.

The Executive Secretary of the Review Commission sent Wes Jones & Son a letter explaining its obligations under law as a party to a proceeding before the Review Commission. Enclosed with the letter was a copy of the Review Commission’s Rules of Procedure. Two of the requirements stated in the letter were that Wes Jones & Son post a copy of the notice of contest for its affected employees to see, and that it certify to the Review Commission that it had done so. Wes Jones & Son failed to certify that it had posted a copy of the notice of contest.

As was required by the Commission’s rules, the Secretary of Labor then filed a formal complaint with the Review Commission and served a copy on Wes Jones & Son, along with a notice that Wes Jones & Son was required by law to file an answer to the complaint within fifteen days. Wes Jones & Son failed to file an answer. Instead, it appears that the company communicated with the attorney who had filed the complaint on behalf of the Secretary. However, the Commission was not a party to these communications. The Commission’s judge therefore had no way of knowing that these communications were taking place.

After the time for filing an answer to the Secretary’s complaint had expired, the judge afforded Wes Jones & Son one more opportunity to respond. On November 20, 1986, the judge entered an order directing Wes Jones & Son to provide proof of employee notification and to answer the Secretary’s complaint by December 12, 1986. The order stated that Wes Jones & Son’s failure to comply by that date would be considered a withdrawal of the employer’s notice of contest. When December 12 passed with no response from Wes Jones & Son, the judge held Wes Jones & Son in default and entered an order dismissing the notice of contest. A copy of that order was sent to Wes Jones & Son, together with instructions about seeking discretionary review of the order. Wes Jones & Son, however, continued to communicate with the attorney for OSHA instead of with the Review Commission. Only when the attorney for OSHA forwarded copies of the correspondence from Wes Jones & Son to the Review Commission did the Commission become aware of the situation. At that point, the judge’s order of dismissal was directed to be reviewed by the Commission.

As stated in the first paragraph of this decision, the Review Commission is not OSHA and is not part of OSHA. It is an independent agency created by Congress to serve a function similar to that of a court. It adjudicates disputes between the Secretary of Labor, acting through OSHA, and employers such as Wes Jones & Son. Both parties were required by law to comply with the rules and orders of the Review Commission. Discussions with the attorney for OSHA did not relieve Wes Jones & Son of these obligations. Although it is perfectly proper for parties to attempt to settle their disputes, they must still comply with the Commission’s rules while these attempts are being made.1

Wes Jones & Son failed to meet two legal obligations. As Judge DeBenedetto stated in his order of November 20, 1986, Wes Jones & Son failed to certify that it had notified its employees that the citation had been contested and failed to file an answer to the complaint. Wes Jones & Son also failed to respond to the judge’s order directing it to file an answer by December 12, 1986. The judge therefore dismissed its notice of contest.

New Rule 41 of the Commission’s Rules of Procedure, codified at 29 C.F.R. § 2200.41, provides:2

§ 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.

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 showing good reason for setting aside the dismissal.3 Because Wes Jones & Son is not represented by counsel and seems unaware of the proper procedure, we will treat the company’s letters to OSHA as a formal motion under Rule 41(b) to set aside the sanctions and will overlook for the moment its failure to present evidence in support.

Because Wes Jones & Son’s letters and behavior suggest that the company might have believed that its communications with OSHA would fulfill its legal obligations, we remand this case to the judge for him to rule on Wes Jones & Son’s motion to set aside the sanctions. The judge may hold a hearing, take evidence in the form of a sworn affidavit, or follow whatever other procedure he deems appropriate to determine whether there is good reason to set aside his order finding Wes Jones & Son in default. The burden of producing evidence that there was good cause for its failures to respond is on Wes Jones & Son. Only if the judge makes a determination that the company’s failures to comply should be excused need he set aside his order and schedule a hearing on the merits of the citations.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

April 21, 1987

1 Wes Jones & Son is not represented by an attorney. Because the company did not seek legal assistance, it is possible that Wes Jones & Son failed to understand that the Review Commission’s requirements cannot be waived by OSHA’s attorney. It may be that, because it was in the process of negotiating with OSHA, Wes Jones & Son believed that it could ignore the letters sent to it by the Review Commission as well as OSHA’s notice in the complaint stating that it was required to answer.

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 Because Wes Jones & Son’s letter to OSHA’s attorney has not been admitted into evidence, the assertions it makes cannot yet be considered evidence. Moreover, the letter does not provide sufficient information for us to make a finding that Wes Jones & Son’s failure to file a pleading was excusable.