UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K St., N.W. 4^th FLOOR WASHINGTON, D.C. 20006-1246 FAX 8/(202) 634-4008 ____________________________________ SECRETARY OF LABOR, : : Complainant, : OSHRC Docket No. 91-3393 : ECONOMY SOD, INC., : : Respondent. : ____________________________________: DIRECTION FOR REVIEW AND ORDER On May 28, 1992, Administrative Law Judge James D. Burroughs issued an Order Granting the Secretary's Motion to Dismiss Notice of Contest in the referenced case. Issuance of that Order was based on the Respondent having failed to answer an earlier Order to Show Cause why the notice of contest should not be dismissed. Judge Burroughs' Order was docketed with the Commission on June 4, 1992. On June 8, 1992, the Respondent filed a Petition for Discretionary Review with the Commission. The Respondent's petition was predicated on a belief that it had, in fact, properly responded to the Order to Show Cause in a timely fashion. Pursuant to 29 U.S.C. § 651(j) and Commission Rule 92(a), 29 C.F.R. § 2200.92(a), the aforementioned Final Order of the Administrative Law Judge is directed for review. -2- Based on a review of the official record, there is ample evidence to support a finding that the Respondent did timely respond to the Order to Show Cause and that such timely response was overlooked by the Commission due to clerical error. Accordingly, we hereby vacate the judge's Order Granting Secretary's Motion to Dismiss Notice of Contest and remand this case for further, appropriate proceedings. /s/ Edwin G. Foulke, Jr. Chairman /s/ Donald G. Wiseman Commissioner /s/ Velma Montoya Commissioner Dated: June 18, 1992 NOTICE OF DIRECTION FOR REVIEW AND ORDER The attached Direction for Review and Order by the Occupational Safety and Health Review Commission was issued and served on the following on June 18, 1992: Daniel J Mick, Esq. Counsel for Regional Trial Litigation Office of the Solicitor, USDOL 200 Constitution Ave., N.W. Room S4004 Washington, D.C. 20210 Don McCoy, Esq. Associate Regional Solicitor Office of the Solicitor, USDOL Room 407B, Federal Building 299 East Broward Boulevard Ft. Lauderdale, FL 33301 Julio Izquierdo, President Economy Sod, Inc. 18200 West Okeechobee Road Miami, FL 33015 James D. Burroughs Administrative Law Judge Occupational Safety and Heaith Review Commission Room 240 1365 Peachtree Street, N.E. Atlanta, GA 30309-3119 FOR THE COMMISSION /s/ Ray H. Darling, Jr. Executive Secretary ------------------------------------------------------------------------ /Quality Sod & Landscaping, Inc./ (Graphic Images Unavailable) 18200 W. Okeechobee Rd. Miami, FL. 33015 Tel. (305) 829-2800 Fax.. (305) 829-0904 /June 8, 1992/ /Mr. Ray H. Darling, Jr./ /Executive Secretary/ /Occupational Safety and Health/ /Review Commission/ /1825 K Street NW Room 401/ /Vashington, D. C . 20006-1246/ ///Re: OSHRC DOCKET No. 91 -3393/ /Dear Mr. Darling:/ /We hereby like to petition for discretionary review of Judge Burroughs decision on above referenced case./ ///The decision for dismissing the hearing on this case was based on an erroneous quote: one that states - "we didn't answer Judge Irving Sommer's order showing cause as to why notice of contest should not he dismissed"./ // /As you can see - by the enclosed proof - we did answer both of the judges' letters. (Sommers & Burroughs)/ /I believe the dismissal has no valid grounds if only an answer explaining the reason for contesting the citation is alll they reguired from us; therefore, since we complied with the order like we were to do I think we are entitled to a hearing on the matter. / /I thank for your cooperation and understanding. - Hopefully this time everything will be cleared./ /Sincerely,/ //s// /Omar Izquierdo/ /for Economy Sod/ /OI/fh./ /cc: Daniel J Mick, Esq./ /Counsel for Regional Trial Litigation/ /Office of the Solicitor, USDOL/ /200 Constitution Ave., N.W. Room S4004/ /Washington, D.C. 20210/