SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC Docket No. 06-1159

RAKICH MASONRY,

	

 

Respondent.

	

 

 

REMAND ORDER

In an order dated November 24, 2006, Chief Administrative Judge Irving
Sommer dismissed Rakich Masonry’s notice of contest for its failure
either to file an answer to the Secretary’s complaint or respond to the
judge’s subsequent show cause order. In his order dismissing the case,
the judge also affirmed the serious citation and proposed penalties
totaling $3,000.

On November 30, 2006, however, the judge received a letter from the
owner of Rakich Masonry, Drago Rakich, appearing pro Se, which the
Commission treated as a petition for discretionary review. In his
letter, Mr. Rakich explains that he does not intend to cause delay and
has not abandoned his case but describes his difficulty in receiving
mail due to his incarceration in the Rockwall (Texas) County Jail since
August 2006 on unrelated charges. Mr. Rakich’s only proof of
incarceration is a blank form from the Rockwall County Jail entitled
“Inmate Worker (Trusty) Request Form.” We also note that the judge’s
show cause order, sent via certified mail, was returned to the
Commission unopened with the unsigned return-receipt card on November
13, 2006.

Based on Mr. Rakich’s letter, the alleged circumstances may represent a
“sufficient” reason for Rakich Masonry’s failure to file an answer or
respond to the show

 

 

 

cause order under Commission Rule of Procedure 101(b), 29 C.F.R. §
2200.101(b). However, the Commission has not been presented with a
sufficient factual record to make such a decision.

Accordingly, we set aside the judge’s order of dismissal and remand for
further proceedings consistent with this order.

 

SO ORDERED.

 

/s/_____________________________

W. Scott Railton

Chairman

 

 

 

/s/____________________________

Thomasina V. Rogers

Commissioner 

 

 

 

/s/_____________________________

                                                            Horace A.
Thompson

                                                            Commissioner

 

Date: January 12, 2007

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

 

Secretary of Labor,

	

 

                    Complainant,

	

 

               V.

	

OSHRC DOCKET NO. 06-1159

RAKICH MASONRY,

	

 

                     Respondent.

	

 

 

ORDER

 

On 10/10/06 the undersigned issued an ORDER TO SHOW CAUSE to the
Respondent as to why his Notice of Contest should not be dismissed for
failure to file an answer to the complaint as requfred by the Commission
Rules of Procedure. The Respondent failed to reply to the ORDER. His
actions demonstrate either that he has abandoned the case or treats the
Rules of Procedure of the Commission with disdain. This cannot be
countenanced as it seriously impedes the administration of justice.

 

Accordingly, the Notice of Contest filed by the Respondent is dismissed.
The Secretary’s citation(s) and proposed penalties are AFFIRMED in all
respects.

 

 

 

 

 

                                                                               /s/

                                                                               IRVING
SOMMER

                                                                                   Chief
Judge

DATE: November 24, 2006

 Washington, D.C.