“Docket No. 88-2058 SECRETARY OF LABOR, Complainant, v. ACTION GROUP, INC., Respondent.OSHRC Docket No. 88-2058DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:An order of Administrative Law Judge Paul L. Brady dismissing anotice of contest filed by Respondent, Action Group, Inc. (\”Action\”), is beforeus for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970(\”the Act\”), 29 U.S.C. ? 661(j), and Commission Rule 92, 29 C.F.R. ? 2200.92.For the reasons that follow, we set aside the judge’s order and remand this matter forfurther proceedings.Action was issued notifications alleging that it had failed toabate four violations of the Act within the period of time permitted for their correction.The Secretary proposed an aggregate penalty of $4,200 for the alleged failure to abate.Action’s president, Frank Denutte, contested this penalty, asserting that it wasburdensome and excessive in view of the expenditure Action was making to correct theviolations. After Action failed to file an answer to the Secretary’s complaint as requiredby commission Rule 34(d)(1), 29 C.F.R. ? 2200.34(d)(1), [[1\/]] the judge ordered thatAction \”show cause within seven days of receipt of this order why it should not bedeclared in default for failure to plead.\” The judge issued this order under Rule 41,29 C.F.R. ? 2200.41, which allows a judge to impose sanctions on a party for failure tocomply with the Commission’s rules.[[2\/]]Action responded to the show cause order through a letter datedFebruary 26, 1989, signed by its plant manager, Ralph Fields. Fields advised that he hadassumed the position of general plant manager on January 15, 1989, which was approximatelytwo months after the complaint had been filed and one month after Action’s answer was due.He also asserted that \”[n]o files remain from the previous plant manager.\”However, Fields stated that ”[b]ased on information available to me, it is myunderstanding that the matter has been resolved between O.S.H.A. and Action Group, Inc.and a $500.00 [penalty] was agreed upon.\” Although this letter was dated within theseven-day period permitted by the judge for a response, [[3\/]] the judge did not receivethe letter until after he had issued his dismissal order. Accordingly, Action’s letter wastreated by the Commission as a petition for discretionary review of the judge’s order.The Commission has observed that, generally speaking, employersappearing pro se, like Action here, are often confused by legal terminology and may not befully cognizant of the legal technicalities of the judicial process. Browar Wood ProductsCo., 7 BNA OSHC 1165, 1979 CCH OSHD ? 23, 326 (No. 78-2230, 1979); Monroe & Sons, 4BNA OSHC 2016, 1976-77 CCH OSHD ? 21,470 (No. 6031, 1977), aff’d, 615 F.2d 1156 (6th Cir.1980). A pro se employer could reasonably conclude that it need not file an answer to thecomplaint if the case is in the process of being settled. However, on the limited recordbefore us here, we cannot determine whether Action’s belief that it had satisfied theCommission’s procedural requirements was reasonable.While there is some indication that the parties engaged insettlement discussions, there is no indication that the parties ever reached a settlement,or even that they came close to doing so. [[4]] Since the judge had not received Action’sletter before he issued his dismissal order, he had no opportunity to consider whetherAction has made a sufficient response to his show cause order. Accordingly, we remand forthe judge to decide whether Action has, stated adequate grounds to justify its failure tofile an answer in the circumstances presented here. The judge may, if necessary, conductfurther evidentiary proceedings to determine whether there is good reason to allow thiscase to be reinstated, including making findings on whether Action reasonably believedthat there was a settlement. See Choice Electric Corp., No. 88-1393 (Nov. 7, 1990) (caseremanded to allow prose employer to demonstrate that it had reason for failing to file ananswer that would justify setting aside a dismissal sanction); Bywater Sales &Service, 13 BNA OSHC 1268, 1986-87 CCH OSHD ? 27,896 (No. 86-1214, 1987).Should the judge conclude that Action has stated grounds toexcuse its failure to answer, the judge shall afford Action the opportunity to file ananswer that complies with the requirements of the Commission’s rules. Although the judge’sshow cause order satisfies Rule 41, the order does not make clear what an answer mustinclude. For the benefit of Action and other Pro se employers, we emphasize that thesubstance of an answer is addressed in Rule 36, 29 C.F.R. ? 2200.36, entitled\”Content of the answer,\” which provides as follows:The answer shall contain in short and plain terms a response toeach allegation of the complaint. It shall specifically admit or deny each allegation or,if the employer is without knowledge of the facts, the answer shall so state. A statementof lack of knowledge has the effect of a denial. A failure to respond to an allegationshall be treated as an admission that the allegation is true.In other words, the answer should respond to each specificparagraph of the complaint. It should state whether the allegations in each paragraph arecorrect or incorrect, or, if the employer does not have enough information to either admitor deny any portion of the complaint, the answer should so state. In short, the essentialpurpose of both the complaint and the answer is to put both the parties and the judge onnotice of what issues are in controversy and what matters are not disputed.[[5\/]] If thejudge concludes that Action is entitled to another opportunity to file an answer in thiscase, the answer is to be filed with the judge, but Action must also send a copy of itsanswer to the attorney representing the Secretary. If under these circumstances Actionfails to file an answer in a timely fashion, the judge shall affirm the failure to abatenotifications and dismiss Action’s notice of contest.One final observation must be made. The Secretary originallyproposed a total penalty of $4,200. However, apparently through clerical error, the judgeassessed a penalty of only $1,400 in his dismissal order. Should the judge conclude thatAction has not stated grounds for its failure to answer, the judge may reinstate hisdismissal order, but the penalty assessment in that event shall be $4,200. Should thejudge conclude that Action has stated sufficient grounds to explain its failure to answerand provide Action with the further opportunity to answer, and should Action thereafterfail to file an answer in a timely manner, the penalty to be assessed upon dismissal ofAction’s notice of contest shall likewise be $4,200.Accordingly, this matter is remanded for further proceedings consistent with this opinion.Edwin G. Foulke, Jr. ChairmanVelma MontoyaCommissionerDonald G. Wiseman CommissionerDated: December 4, 1990SECRETARY OF LABOR, Complainant, v. ACTION GROUP, INC., Respondent.OSHRC Docket No. 88-2058ORDER DISMISSING NOTICE OF CONTESTRespondent, having failed to respond to an order to show causeand pursuant to Rule 41(a) of the Commission’s Rules of Procedure [29 C.F.R. ?2200.41(a)], is hereby declared in default for its failure to comply with Commission Rule36, 2200.36, requiring the filing of an answer to the complaint in this cause.Therefore, it is ORDERED:1. The notice of contest is dismissed.2. The citations are affirmed and a penalty in the amount of$1,400.00 is hereby assessed.Dated this 7th day of March, 1989.PAUL L. BRADY JudgeFOOTNOTES: [[1\/]] This rule requires that \”the employer shall filewith the Commission an answer conforming to the requirements of ? 2200.36 within 30 daysafter service of the complaint.\”[[2\/]] Rule 41(a) provides, in pertinent part, as follows:When any party has failed to plead or otherwise proceed asprovided by these rules or as required by the Commission or Judge, he may be declared tobe in default either:(1) On the initiative of the Commission or Judge, after havingbeen afforded an opportunity to show cause why he should not be declared to be in default.. . .[[3\/]] The complaint was served on Action by mail on November 16, 1988, under Rule 7,which permits pleadings to be served by first class mail. Allowing three days for mailingunder Commission Rule 4(b), Action’s answer was due by December 19, 1988. Judge Bradyissued his show cause order on February 16, 1989. Assuming three days for mailing, Actionreceived the order Tuesday, February 21 (Monday, February 20, 1989 was a Federal andpostal holiday), and thus the seventh day from receipt would have been February 28. UnderCommission Rule 8, responses to orders sent by mail are deemed filed at the time ofmailing. Assuming, in the absence of evidence to the contrary, that Action’s letter wasmailed on or about February 26, 1989, the date appearing on the letter, its response wastimely.We note, however, that in order to eliminate uncertaintyregarding when orders to show cause are received, the Commission now requires that suchorders be sent by certified mail, return receipt requested. 55 Fed. Reg. 22780, 22782(1990).[[4\/]] The file contains a handwritten narrative of an informalconference between Action’s president and representatives of the Secretary. The narrativeis written on an OSHA form used for keeping records of informal conferences. It appears tobe OSHA’s official record of the conference with Action. According to this document, theSecretary’s representatives would not agree to a penalty less than $2,120, Action thoughtthat amount was still excessive, and \”no settlement agreement was signed.\”[[5\/]] A copy of the Commission’s rules is sent to eachemployer when a case is docketed. In addition, each employer also receives a copy of theCommission’s publication, \”A Guide to Procedures of the United States OccupationalSafety and Health Review Commission,\” which also contains a brief description of thecontents of an answer.”