“Docket No. 86-1214 SECRETARY OF LABOR,Complainant,v.BYCO-MCS DIVISION OF BYWATER SALES & SERVICE, AND ITS SUCCESSORS, Respondent.OSHRC Docket No. 86-1214ORDER OF REMAND Before: BUCKLEY, Chairman; and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. sections 651-678 (\”the Act\”). The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”). It was established to resolve disputes arising out ofenforcement 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 workplace of Byco-MCSDivision of Bywater Sales and Service (\”Byco\”). As a result of that inspection,OSHA issued Byco two citations on July 29, 1986. One of the citations alleged a number ofserious violations of safety and health standards in 29 C.F.R. Part 1910; the othercitation alleged that Byco 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 toOSHA giving notice that Byco contested the citations. OSHA forwarded the letter to theReview Commission, which assigned the dispute to Administrative Law Judge E. CarterBotkin. Byco was sent a copy of the Commission’s Rules of Procedure.On October 10, 1986, the Secretary of Labor filed the formal complaint required byformer Rule 33(a) of the Commission’s Rules of Procedure.[[1]] Under former Rule 33(b),Byco was required to answer the complaint within fifteen days. When Byco failed to do so,Judge Botkin entered an order on November 24, 1986, directing Byco to file an answer byDecember 12, 1986, or show cause why its notice of contest should not be dismissed. Whenno response to the judge’s order was filed, the judge entered an order on January 13,1987, vacating Byco’s notice of contest and affirming all items of the two citations. OnFebruary 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 29 C.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 proceed as providedby these rules or as required by the Commission or Judge, he may be declared to be indefault either: (1) on the initiative of the Commission or Judge, after having beenafforded an opportunity to show cause why he should not be declared to be in default; or(2) on the motion of a party. Thereafter, the Commission or Judge, in their discretion,may enter a decision against the defaulting party or strike any pleading or document notfiled in accordance with these rules.(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commissionor judge and upon motion expeditiously made, the Commission or Judge may set aside asanction imposed under paragraph (a) of this rule.When Byco failed to file an answer to the Secretary’s complaint, the judgeafforded Byco an opportunity to show cause why it should not be found in default, theprocedure prescribed by Rule 41(a). Under that rule, it was within the judge’s discretionto strike the notice of contest.New Rule 41(b) permits a party to seek relief from the judge’s dismissal.Ordinarily we would expect a party seeking such relief to make a formal motion supportedby sworn affidavits or other evidence of good reason for setting aside the dismissal.Because Mr. Rowe’s unsworn letter has not been admitted into evidence, the statements inthe letter cannot yet be considered evidence. Moreover the letter does not providesufficient information for us to determine whether Byco’s failure to file a pleading wasexcusable neglect.[[3]] Because Byco is not represented by counsel and seems unaware ofthe proper procedure, we will treat Byco’s pro se request for review as a formal motionunder Rule 41(b) to set aside the sanctions and will overlook for now its failure topresent evidence in support of its request to set aside the judge’s order.Because Byco has so far presented insufficient information to determine whether itsfailure was excusable, we remand this case to the judge for him to rule on Byco’s motionto set aside the sanctions. The judge may hold a hearing, take evidence in the form ofsworn affidavits, or follow whatever other procedures he deems appropriate to determinewhether there is good reason to set aside his order of default against Byco. We emphasizethat the burden of producing evidence that there was good cause for its failure to respondis on Byco. Only if the judge makes a determination that Byco’s failure to respond to hisorder should be excused need he set aside the order and schedule a hearing on the meritsof the citations.FOR THE COMMISSIONRay H. DarlingExecutive SecretaryDATED: APR 21, 1987SECRETARY OF LABOR, Complainant, v. BYCO-MCS DIVISION OF BYWATER SALES & SERVICE, AND ITS SUCCESSORS, RespondentOSHRC DOCKET NO. 86-1214ORDERBOTKIN, Judge:Respondent has failed to file an answer to the Secretary’s complaint filed on October 10,1986. As a result, an order was issued by the undersigned on November 24, 1986, requiringthat on or before December 12, 1986, the Respondent shall file an answer or show cause whyits notice of contest should not be dismissed for abandonment thereof.Respondent has failed to respond to my order dated November 24, 1986. As aconsequence thereof, Respondent’s notice of contest, dated August 13, 1986, is VACATED.All items of both citations (serious and other) issued on July 29, 1986, allegingviolations of specified standards, are AFFIRMED. The civil penalties, as proposed, areASSESSED. This proceeding is TERMINATED.E. CARTER BOTKINAdministrative Law JudgeDate: January 13, 1987FOOTNOTES: [[1]] The Commission’s Rules have since been revised.[[2]] The revised rules took effect December 8, 1986, and apply to all casespending on that date unless it would be infeasible to apply them or would work aninjustice. 51 Fed. Reg. 32002 (1986).[[3]] We note that the attorney for the Secretary of Labor apparently discussedthis case with Mr. Rowe by telephone and mailed him a copy of the complaint on November 7,1986, more than two months before the judge entered his order dismissing Byco’s notice ofcontest. Further, the judge mailed a copy of his November 24, 1986 order to show cause toMr. Rowe personally.”