SECRETARY OF LABOR,
Complainant,

v.

E & R ERECTORS, INC.,
Respondent.

OSHRC Docket No. 86-0545

_ORDER
_
By order dated September 18, 1986, the administrative law judge
dismissed Respondent's notice of contest of certain citations because
the Respondent had not provided proof of notice to affected employees.
The judge's order became final on October 20, 1986.

Thereafter, however, Respondent filed a motion to allow an answer and a
statement of position. In this statement, Respondent avows that it
failed to provide the required proof of notice to affected employees
because Respondent is "strictly a leasing company with one paid
employee, its controller, who was not exposed to anything, since he was
not on the [work]site." Respondent further states:

The controller . . . , not really knowing much about anything but
accounting, thought he was asking for a conference when he sent in the
notice of contest. Not having experience in administrative proceedings,
he failed to cause an answer to be filed to the pleadings or do anything
else until he received a hearing notice, when he called his attorney.

In defense to the citations, Respondent asserts that it should not have
been cited because it did not control the worksite or the use of the
equipment that is the subject of the citations. According to Respondent,
an uncited subcontractor which rented the particular equipment from
Respondent controlled operations and created any hazardous conditions.
Respondent emphasizes, also, that its one employee was never exposed to
any hazard and questions whether other employees were exposed.

Essentially, Respondent requests us to reinstate its contest. The
attorney appearing now for Respondent alleges that he "has investigated
this matter diligently after being brought into the case and believes
that no prejudice will be suffered by allowing the pleading. . . . "

In view of the circumstances of mistake, inadvertence, and excusable
neglect stated by Respondent, we set aside the final order and reinstate
the notice of contest pursuant to Rule 60(b)(1) and (6) of the Federal
Rules of Civil Procedure. We remand the case to the administrative law
judge for further proceedings. With respect to the matter of notice to
the affected employees, we direct the judge to permit the Secretary to
present any argument he may wish in response to Respondent's assertion
that there are no affected employees within the meaning of our rules,
and determine whether Respondent need comply with this notice
requirement. See commission Rules 1(e) and 7(g) and (h), 29 C.F.R. §
2200.1(e) and 7(g) and (h). SO ORDERED.

Ray H. Darling, Jr.
Executive Secretary

DATED: November 24, 1986

------------------------------------------------------------------------

SECRETARY OF LABOR
Complainant

v.

E & R ERECTORS, INC.
Respondent

DOCKET NO. 86-0545

_ORDER
_
1. No response has been filed to my order dated June 18, 1986, noting
that the contesting employer has not complied with Commission Rule 7, 29
C.F.R. § 2200.7, requiring that notice of a contested case be given to
affected employees or their authorized representative, if any. See
paragraph number 3 of the June 18, 1986, order.

2. Accordingly, the notice of contest is hereby dismissed to the extent
that citations numbered W2587-495 issued April 15, 1986, are contested.
The failure to provide proof of service is found to prejudice the rights
of affected employees to participate in this proceeding. Commission Rule
20, 29 C.F.R. § 2200.20. Nevertheless, the proposed penalties contested
will remain in issue.

3. Pursuant to Commission Rule 10, 29 C.F.R. § 2200.10, the citations
and penalty allegations are hereby severed and designated respectively
as docket numbers 86-545 and 86- 1090. As explained in a separate
document issued this date, the employer may seek Commission review on
the disposition of the citations under the prescribed procedures.


PAUL A. TENNEY
Judge, OSHRC

Dated: September 18, 1986
Washington, D. C.