SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC Docket No. 08-0474

WR EXTERIOR DESIGN CONSTRUCTION, INC.,

	

 

Respondent,

	

 

 

APPEARANCES:

Diane C. Sherman, Attorney; Patricia M. Rodenhausen, Regional Solicitor;
Gregory F. Jacob, Solicitor; U.S. Department of Labor, Washington, DC

                          For the Complainant

WladyslawRudzinski; Bridgewater, NJ

              For the Respondent

 

*REMAND ORDER*

In an order dated September 15, 2008, Chief Administrative Law Judge
Irving Sommer granted the Secretary’s motion to dismiss WR Exterior
Design Construction’s (“WR’s”) notice of contest (“NOC”) for its failure
to file a timely answer. In his order, the judge affirmed the citations
and assessed the total proposed penalty of $19,600. For the reasons that
follow, we set aside the dismissal order and remand this case to the judge.

*_Background_*

Following the issuance of the citations in this case, WR, appearing /pro
se/, timely filed a NOC and, on April 28, 2008, the Secretary timely
filed a complaint. Under Commission Rule 34(b)(1), 29 C.F.R. §
2200.34(b)(1), WR was required to file an answer by May 21. Having
received no answer from WR, the judge /sua//sponte /issued an order on
May 27 directing WR to show cause, on or before June 6, why its NOC
should not be dismissed. The envelope containing the show cause
order—sent via certified mail to WR—was returned to the Commission on
June 13 unopened and without signature. 

On August 29, the Secretary filed a motion to dismiss the NOC based on
WR’s failure to file an answer and respond to the show cause order.  In
her motion, the Secretary did not state whether “any other party opposes
or does not oppose the motion” as required by Commission Rule 40(a), 29
C.F.R. § 2200.40(a). The judge granted the Secretary’s motion on
September 15, and on October 24, WR’s owner filed a petition seeking
review of the judge’s order. In the petition, WR’s owner explains that
he has a “limited command of the English language.”

*_Discussion_*

The Commission has consistently held that “‘dismissal of a citation is
too harsh a sanction for failure to comply with certain prehearing
orders unless the record shows contumacious conduct by the noncomplying
party or prejudice to the opposing party.’”/AA Plumbing, Inc./, 20 BNA
OSHC 2203, 2204, 2005 CCH OSHD ¶ 32,795, p. 52,446 (No. 04-1299, 2005)
(quoted case omitted). Here, the record indicates that WR never received
the judge’s show cause order. /See, e.g., Rakich Masonry, /21 BNA OSHC
1928, 1928-29 (No. 06-1159, 2007) (remanding for further development of
the record because, /inter alia/, envelope containing show cause order
was returned unopened and without signature); /Samuel Filisko/, 20 BNA
OSHC 2204, 2205-06, 2005 CCH OSHD ¶ 32,855, pp. 52,962-63 (No. 04-1465,
2005) (same).  Additionally, in filing her motion to dismiss, the
Secretary failed to comply with Commission Rule 40(a). As we have
recently explained, one function of this rule is “to ensure that a party
in jeopardy of being defaulted is warned of that possibility by the
moving party,” and the rule’s application is particularly important
where, as here, the employer is appearing /pro se/. /Elan//Lawn &
Landscape Serv., Inc./, 22 BNA OSHC 1337, 1339 (No. 08-0700, 2008).
Moreover, based on the representation in his petition, it appears WR’s
owner may have had some difficulty understanding the filings and orders
in this case, possibly because of a lack of comprehension of the English
language. Finally, the Secretary does not claim that she was prejudiced
by WR’s failure to file a timely answer.

Under these circumstances, we conclude the record presently lacks
sufficient evidence to support the sanction of dismissal. /See Samuel
Filisko/, 20 BNA OSHC at 2206, 2005 CCH OSHD at p. 52,963 (“[L]ate
filing alone without evidence of prejudice, contumacious conduct and/or
a pattern of disregard for Commission rules would not be a basis for
dismissing this case.”). Accordingly, we set aside the judge’s order and
remand this case to allow WR an opportunity to explain why its failure
to file an answer and respond to the show cause order should be excused.
/See /Commission Rule 101(b), 29 C.F.R. § 2200.101(b) (sanction may be
set aside for reasons deemed sufficient by the Commission or Judge). On
remand, the judge should also evaluate whether WR’s owner requires the
services of a qualified interpreter to effectively communicate with the
Commission throughout the proceedings. /See/ /Oscar Renda Contracting,
Inc./, 17 BNA OSHC 1883, 1887, 1995-97 CCH OSHD ¶ 31,225, p. 43,779(No.
93-1886, 1997) (“[F]ailure to provide those invited to appear before us
with the basic means to be effectively understood, particularly on their
explicit request, demeans both the witness and the forum and undermines
the credibility, much less the civility, of the adjudicative process.”).

SO ORDERED.

 

 

_/s/______________________________

Horace A. Thompson III

            Chairman

 

 

 

Dated: November 4,
2008                                         _/s/______________________________

ThomasinaV. Rogers

Commissioner