“SECRETARY OF LABOR,Complainant,v.BYCO-MCS DIVISION OF BYWATER SALES& SERVICE, AND ITS SUCCESSORS,Respondent.OSHRC Docket No. 86-1214_ORDER OF REMAND _Before: BUCKLEY, Chairman; and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. sections 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department ofLabor and the Occupational Safety and Health Administration (\”OSHA\”). Itwas established to resolve disputes arising out of enforcement actions,brought by the Secretary of Labor under Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).On May 5 and 6, 1986, a representative of OSHA inspected the workplaceof Byco-MCS Division of Bywater Sales and Service (\”Byco\”). As a resultof that inspection, OSHA issued Byco two citations on July 29, 1986. Oneof the citations alleged a number of serious violations of safety andhealth standards in 29 C.F.R. Part 1910; the other citation alleged thatByco had committed other than serious violations of some of thosestandards. On August 13, 1986, Jay F. Folse, whose title was not given,wrote a letter to OSHA giving notice that Byco contested the citations.OSHA forwarded the letter to the Review Commission, which assigned thedispute to Administrative Law Judge E. Carter Botkin. Byco was sent acopy of the Commission’s Rules of Procedure.On October 10, 1986, the Secretary of Labor filed the formal complaintrequired by former Rule 33(a) of the Commission’s Rules ofProcedure.[[1]] Under former Rule 33(b), Byco was required to answer thecomplaint within fifteen days. When Byco failed to do so, Judge Botkinentered an order on November 24, 1986, directing Byco to file an answerby December 12, 1986, or show cause why its notice of contest should notbe dismissed. When no response to the judge’s order was filed, the judgeentered an order on January 13, 1987, vacating Byco’s notice of contestand affirming all items of the two citations. On February 6, 1987,Wilmer O. Rowe wrote the Commission, representing that he was the newowner of Byco and requesting review of the judge’s order.New Rule 41 of the Commission’s Rules of Procedure, codified at 29C.F.R. ? 2200.41, applies to the situation here.[[2]] That rule provides:? 2200.41 Failure to obey rules.(a) Sanctions. When any party has failed to plead or otherwise proceedas provided by these rules or as required by the Commission or Judge, hemay be declared to be in default either: (1) on the initiative of theCommission or Judge, after having been afforded an opportunity to showcause why he should not be declared to be in default; or (2) on themotion of a party. Thereafter, the Commission or Judge, in theirdiscretion, may enter a decision against the defaulting party or strikeany pleading or document not filed in accordance with these rules.(b) Motion to set aside sanctions. For reasons deemed sufficient by theCommission or judge and upon motion expeditiously made, the Commissionor Judge may set aside a sanction imposed under paragraph (a) of this rule.When Byco failed to file an answer to the Secretary’s complaint, thejudge afforded Byco an opportunity to show cause why it should not befound in default, the procedure prescribed by Rule 41(a). Under thatrule, it was within the judge’s discretion to strike the notice of contest.New Rule 41(b) permits a party to seek relief from the judge’sdismissal. Ordinarily we would expect a party seeking such relief tomake a formal motion supported by sworn affidavits or other evidence ofgood reason for setting aside the dismissal. Because Mr. Rowe’s unswornletter has not been admitted into evidence, the statements in the lettercannot yet be considered evidence. Moreover the letter does not providesufficient information for us to determine whether Byco’s failure tofile a pleading was excusable neglect.[[3]] Because Byco is notrepresented by counsel and seems unaware of the proper procedure, wewill treat Byco’s pro se request for review as a formal motion underRule 41(b) to set aside the sanctions and will overlook for now itsfailure to present evidence in support of its request to set aside thejudge’s order.Because Byco has so far presented insufficient information to determinewhether its failure was excusable, we remand this case to the judge forhim to rule on Byco’s motion to set aside the sanctions. The judge mayhold a hearing, take evidence in the form of sworn affidavits, or followwhatever other procedures he deems appropriate to determine whetherthere is good reason to set aside his order of default against Byco. Weemphasize that the burden of producing evidence that there was goodcause for its failure to respond is on Byco. Only if the judge makes adetermination that Byco’s failure to respond to his order should beexcused need he set aside the order and schedule a hearing on the meritsof the citations.FOR THE COMMISSIONRay H. DarlingExecutive SecretaryDATED: APR 21, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.BYCO-MCS DIVISION OF BYWATERSALES & SERVICE, AND ITS SUCCESSORS,RespondentOSHRC DOCKET NO. 86-1214_ORDER_BOTKIN, Judge:Respondent has failed to file an answer to the Secretary’s complaintfiled on October 10, 1986. As a result, an order was issued by theundersigned on November 24, 1986, requiring that on or before December12, 1986, the Respondent shall file an answer or show cause why itsnotice of contest should not be dismissed for abandonment thereof.Respondent has failed to respond to my order dated November 24, 1986. Asa consequence thereof, Respondent’s notice of contest, dated August 13,1986, is VACATED. All items of both citations (serious and other) issuedon July 29, 1986, alleging violations of specified standards, areAFFIRMED. The civil penalties, as proposed, are ASSESSED.This proceeding is TERMINATED.E. CARTER BOTKINAdministrative Law JudgeDate: January 13, 1987————————————————————————FOOTNOTES:[[1]] The Commission’s Rules have since been revised.[[2]] The revised rules took effect December 8, 1986, and apply to allcases pending on that date unless it would be infeasible to apply themor would work an injustice. 51 Fed. Reg. 32002 (1986).[[3]] We note that the attorney for the Secretary of Labor apparentlydiscussed this case with Mr. Rowe by telephone and mailed him a copy ofthe complaint on November 7, 1986, more than two months before the judgeentered his order dismissing Byco’s notice of contest. Further, thejudge mailed a copy of his November 24, 1986 order to show cause to Mr.Rowe personally.”