“SECRETARY OF LABOR,Complainant,v.CHOICE ELECTRIC CORPORATION,Respondent.OSHRC Docket No. 88-1393_DECISION AND ORDER_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Administrative Law Judge James A. Cronin, Jr., issued a default judgmentagainst Choice Electric Corporation for failing to file an answer asrequired by Commission Rule 34(d)(1).[[1\/]] At issue is whether Choice,appearing in this case without counsel, or pro se, has established a\”sufficient\” reason to set aside that sanction under Commission Rule41(b).[[2\/]]The Secretary issued two citations to Choice for serious and otherviolations, to which choice responded by filing a timely Notice ofContest. The secretary then filed her Complaint on August 19, 1988.Under Commission Rule 34(d)(1), the employer must file an answer within30 days after service of the complaint. Approximately a month afterChoice’s answer was due, the Secretary filed a Motion for DefaultJudgment based on Choice’s failure to answer. Choice did not file aresponse to that motion. More than a month after the motion was filed,the judge issued his decision, in which he declared Choice to be indefault, pursuant to Commission Rule 41(a)(2) (see note 2 supra),due toits failure to file an answer, as required by Commission Rule 34. Thejudge affirmed the two citations that had been issued to Choice andassessed a penalty of $520 for the serious violations.In its Petition for Discretionary Review and its Brief on Review, Choiceasserts that it did not file an answer because: (1) it thought that bycompleting and returning the Secretary’s \”Notice of Appearance andDesignation of Representative\” form to the Solicitor’s office, asrequested by the Secretary in her cover letter to Choice’s copy of theComplaint, it had responded adequately to the Complaint; (2) it had notbeen notified that this case was before a judge; and (3) it thought thatbecause it had requested simplified proceedings (see Commission Rules200 through 212, 29 C.F.R. ?? 2200.200-2200.212), under which there areno pleadings, no answer needed to be filed. Choice also asserts that ithas paid the penalty of $520 assessed by the judge, plus interest andadministrative costs.[[3\/]]The Secretary contends that none of the reasons offered by Choice fornot filing an answer are \”sufficient\” under Commission Rule 41(b). Sheargues that Choice had received more than adequate notice that an answerwas required within 30 days of receipt of the Complaint.The Commission has broad discretion in reviewing a sanction imposed on aparty for not proceeding under Commission rules. In the only twoCommission decisions interpreting Commission Rule 41(b), which bothinvolved _pro_ _se_ employers who failed to file timely answers, theCommission stated that the burden of producing evidence that there was a\”sufficient\” reason for failing to answer, as required by CommissionRule 34(d)(1), is on the sanctioned employer. _Wes Jones & Son, Inc.,_13 BNA OSHC 1277, 1279, 1986-87 CCH OSHD ? 27,924 p. 36,625 (No.86-1095, 1987); _Bywater Sales & Service, Byco-MCS Div_. [\”_Byco_\”], 13BNA OSHC 1268, 1269, 1986-87 CCH OSHD ? 27,896 p. 36,597 (No. 86-1214,1987) [[4\/]] This approach is consistent with the general rule inadministrative proceedings that the moving party has the burden ofproof. \”Except as otherwise provided by statute, the proponent of a ruleor order has the burden of proof.\” Section 7(c) of the AdministrativeProcedure Act, 5 U.S.C. ? 556(d)._See Sarasota Concrete Company,_ 9 BNAOSHC 1608, 1612 & n.9, 1981 CCH OSHD ? 25,360, p. 31,531 & n.9 (No.78-5264, 1981), _aff’d,_ 693 F.2d 1061 (11th Cir. 1982).Although the term \”sufficient\” is not defined in the Commission rules,the Commission has given it meaning by borrowing concepts from thefollowing Federal Rules of Civil Procedure that are analogous toCommission Rule 41: Fed. R. Civ. P. 55(c), which permits the court toset aside an entry of default \”[f ]or good cause shown\”; and Fed. R.Civ. P. 60(b), which allows the court on motion to relieve a party fromjudgment for \”excusable neglect.\” _See Wes Jones_, 13 BNA OSHC at 1279,1986-87 CCH OSHD at p. 36,625 (burden of proving \”good cause for itsfailures to respond\” on employer); Byco, 13 BNA OSHC at 1269, 1986-87CCH OSHD at p. 36,597 (burden of proof of \”good cause for its failure torespond\” on employer; insufficient information to determine if failureto answer due to \”excusable neglect\”) Also, the Commission has widelatitude in granting relief from sanctions under its own Rule 41(b).Addressing how an employer can meet its burden of proof, the Commissionhas stated that \”[o]rdinarily we would expect a party seeking suchrelief [under Rule 41(b)] to make a formal motion supported by swornaffidavits or other evidence showing good reason for setting aside thedismissal.\” _Wes Jones, _13 BNA OSHC at 1279, 1986-87 CCH OSHD at p.36,625; _see_ _Byco,_ 13 BNA OSHC at 1269, 1986-87 CCH OSHD at p.36,597. In this case, such information is lacking.However, the Commission is under an obligation to ensure that allparties to a controversy have a full, fair, and equal opportunity to beheard. It is also sensitive to the needs of parties appearing _pro_ _se_and recognizes that persons who are not trained in the law may requireadditional consideration of their circumstances. Thus, in view ofChoice’s _pro_ _se _status and apparent lack of understanding ofCommission procedures, we shall treat its Petition for DiscretionaryReview as a formal Motion to Set Aside Sanctions under Commission Rule41(b).Choice’s statements relating to its reasons for not filing an answer arebriefly set forth in its Petition for Discretionary Review and Brief onReview. However, Choice has failed to provide adequate factualinformation from which we could determine whether any of its statedreasons for failing to file an answer are \”sufficient\” to justifysetting aside the default sanction. Because Choice is not represented bycounsel and seems to lack sufficient knowledge of Commission procedures,probably most strongly demonstrated by its claimed payment of thepenalty plus interest and costs, its failure to provide the necessaryfactual information will not be fatal to Choice’s case at this juncture._See_ _Wes_ _Jones_, 13 BNA OSHC at 1279, 1986-87 CCH OSHD at p. 36,625;_Byco_, 13 BNA OSHC at 1269, 1986-87 CCH OSHC at p. 36,597.Accordingly, we remand this case to the judge, who may hold a hearing,take evidence in the form of sworn affidavits, or follow otherprocedures that he may deem appropriate to develop enough of a factualrecord for him to rule on whether Choice had a \”sufficient\” reason forfailing to file an answer, as would justify setting aside the defaultsanction. If the sanction is lifted, then Choice would have anopportunity to file an answer. The judge could then proceed toward adetermination of the merits of the case.In order to facilitate prompt resolution of this case, we order that allfurther proceedings in this case be expedited in accordance withCommission Rule 103, 29 C.F.R. ? 2200.103.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: November 7, 1990————————————————————————MONTOYA, Commissioner, concurring in part and dissenting in part:I agree with my colleagues that this case should be remanded to theAdministrative Law Judge. However, I disagree with their unnecessarilylegalistic disposition of this case because it involves an employer thatis appearing before the Commission without an attorney, that is, a _pro__se_ employer. Employers who appear before the Commission_pro_ _se_comprise 30 to 40 percent of all employers who appear in contestedcases. In my view, the majority opinion ignores relevant Commissionprecedent that addresses some of the difficulties encountered by smallemployers appearing _pro_ _se_. I would consider Choice’s Petition forDiscretionary Review to be a motion to set aside the sanctions imposedunder Commission Rule 41(b) and would grant the motion, thereby settingaside the judge’s default judgment against Choice and reinstatingChoice’s Notice of Contest. I would accept Choice’s Notice of Contestand Brief on Review as an adequate answer to the Secretary’s Complaint,and find that Choice has substantially complied with Rule 34(d) of theCommission’s Rules of Procedure, which requires the filing of an answer.Finally, I join my colleagues in remanding this case to the judge for ahearing, but I would limit that hearing to the merits of the contestedcitation items.The majority narrowly interprets[[1\/]] the broadly-worded CommissionRule 41(b) to impose on the party seeking relief from a sanction theburden of showing a \”sufficient\” reason for lifting the sanction.However, the rule itself imposes no such burden; rather, it states thatthe Commission can set aside sanctions \”[f]or reasons deemed sufficientby the Commission or Judge ……\” In the decisions relied on by themajority, the Commission never explained why it chose thatinterpretation of the rule. _Wes Jones & Son. Inc.,_ 13 BNA OSHC 1277,1986-87 CCH OSHD ? 27,924 (No. 86-1095, 1987); _Bywater Sales & Service,Byco-MCS Div._, 13 BNA OSHC 1268, 1986-87 CCH OSHD ? 27,896 (No. (?)1214, 1987).Rather than imposing such a burden on the sanctioned party, especiallywhen that party is, like Choice, a small business that has chosen not toincur the expense of hiring an attorney and instead is appearing pro se,I would read Commission Rule 41(b) in the context of the commissiondecisions on sanctions that preceded the adoption of that rule but werenot superseded by the rule.[[2\/]] In _Duquesne Light Company,_ 8 BNAOSHC 1218, 1222, 1980 CCH OSHD ? 24,384 p. 29,719 (No. 78-5034, 1980),the Commission concluded that, in the \”absence of contumacious conducton the part of the delaying party, we consider lack of prejudice to [theopposing party] as the controlling factor in determining that dismissalis too harsh a sanction under the circumstances.\”As the majority correctly points out, _Duquesne Light_ was decided priorto a major revision of the Commission’s Rules of Procedure in September1986. 51 Fed. Reg. 32,002, 32,015 (1986). This revision included theadoption of Commission Rule 41, which is the rule at issue in this case.The purpose of this rules change was to establish procedures for theimposition and lifting of sanctions for violations of the Commission’srules. Nevertheless, despite this change, I conclude that _DuquesneLight_ is based on a principle that is still valid in interpreting andapplying the Commission’s current procedural rules, and I wouldtherefore follow the reasoning, as well as the express holding, of_Duquesne Light _in interpreting and applying Rule 41.The central premise of _Duquesne Light _is the policy favoring theresolution of cases on their merits rather than the dismissal of casesfor the failure of a party to comply with procedural rules. As theCommission stated in _Duquesne Light,_ \”there is a policy in the law infavor of deciding cases on their merits.\” 8 BNA OSHC at 1222, 1980 CCHOSHD at p. 29,719. _See_ _Pearson v, Dennison,_ 353 F.2d 24, 28-29 (9thCir. 1965); 9 C. Wright and A. Miller, _Federal practice and Procedure_? 2370 at 216-17 (1971). Thus, _Duquesne Light_ should be viewed in thecontext of a vast body of case law arising under the Act in which theCommission and the court’s have consistently shown an antagonism towardthe dismissal of cases on procedural grounds because this dispositiondeprives all of the parties of a resolution of contested citations ontheir merits. _See,_ _e.g.,_ _Stephenson Enterprises Inc. v. Marshall,_578 F.2d 1021, 1023 (5th Cir. 1978) (Secretary’s failure to issuecitations with reasonable promptness); _Marshall v. WesternWaterproofing Co._, 560 F.2d 947, 951-52 (8th Cir. 1977) (Secretary’sfailure to comply with procedures for walkaround and presentation ofcredentials);_Accu-Namics, Inc. v. OSHRC,_ 515 F.2d 828, 833-34 (5thCir. 1975), _cert_. _denied,_ 96 S. Ct. 1492 (1976) (same); _AtlanticMarine, Inc. v, OSHRC,_ 524 F.2d 476, 478 (5th Cir. 1975) (employer’sfailure to file timely notice of notice); _Samsonite Corporation_, 10BNA OSHC 1583, 1587, 1982 CCH OSHD ? 26,054, p. 32,736 (No. 79-5649,1982) (Secretary’s noncompliance with discovery rules and orders); _TheBoardman Company,_ 9 BNA OSHC 1163, 1164, 1981 CCH OSHD ? 25,017, p.30,905 (No. 80-75, 1980) (Secretary’s failure to file timely complaint);_Browar Wood Products Co.,_ 7 BNA OSHC 1165, 1166-67, 1979 CCH OSHD ?23,326, pp. 28,214-15 (No. 78-2230, 1979) (employer’s noncompliance withtechnical procedural requirements).I see no reason to depart from this fundamental policy merely becausethe Commission’s procedural rules have been changed. There is noindication in the official record of the rules change that theCommission deliberately intended to shift the burden of proof from theparty seeking dismissal on procedural grounds to the party seeking topreserve its right to a hearing on the merits. _Rules of Procedure,__Final Rule, _51 Fed. Reg. 32,002, 32,009 (Sept. 8, 1986); _Rules ofprocedure,_ _Proposed Rule_, 51 Fed. Reg. 23,184, 23,187 (June 25,1986). The policy underlying the majority’s opinion in this case is onethat will turn the Commission’s procedures into an obstacle course forunwary pro se employers, who may find themselves \”stepping on landmines,\” that is, unexpectedly losing their right to a hearing on themerits, at any one of several points along the way. In my opinion, theCommission should give greater weight to the Congressional objective, increating the Commission, of providing a forum for employer challenges toOSHA citations than to the Commission’s own objective of ensuring strictcompliance with our own procedural rules.Applying the _Duquesne Light_ test to this case, the Commission shoulddeny Choice’s motion to set aside the default judgment only if Choiceengaged in contumacious conduct or the Secretary demonstrated that shewas prejudiced in the preparation or presentation of her case. There isno evidence of either factor here. Choice’s failure to file an answerwas not due to any contumacious conduct. Rather, it was the result ofits confusion over the Commission’s procedural rules, which theSecretary and the judge could have, but did not, clarify. The Secretarydoes not even suggest that she was prejudiced by the lack of an answer.Choice gave her fair notice of its primary defense to the allegedviolations early in the case when it filed its Notice of Contest. Choicesupplemented this in its Brief on Review. Therefore, the defaultjudgment sanction against Choice should be set aside.In addition to disagreeing with the majority as to the burden of proofimposed on Choice, I also take issue with the procedural requirementsthat the majority imposes on Choice once the case is remanded to thejudge. The majority relies on language in _Wes Jones_ that provides thatthe party seeking relief from the sanction is expected to \”make a formalmotion supported by sworn affidavits or other evidence showing goodreason for setting aside the dismissal.\” 13 BNA OSHC at 1279, 1986- 87CCH OSHD at p. 36,625; _see_ _Byco_, 13 BNA OSHC at 1269, 1986-87 CCHOSHD at p. 36,597. Especially where it is a _pro_ _se _employer who isseeking relief under Rule 41(b), the procedure of obtaining notarizedaffidavits in support of its motion is particularly burdensome. See note2 _supra_. This was recognized in _Browar Wood Products Co.,_ 7 BNA OSHCat 1167, 1979 CCH OSHD at p. 28,215, where the Commission admitted intoevidence unsworn statements made by the employer because it was a smallbusiness appearing pro se and \”may not have been aware of the legaltechnicalities of the judicial process and the need to submit affidavitsin support of its motion.\” An even greater burden for this employerwould be imposed if it chooses the option of participating in a separatehearing solely on the procedural question of \”whether any of its statedreasons for failing to file an answer are ‘sufficient’ to justifysetting aside the default sanction.\” The majority’s disposition of thiscase will force Choice to decide whether to make what I find to beunnecessary expenditures of time and resources for affidavits or ahearing that does not even address the merits of the case, or to abandonits challenge to the Secretary’s citations.Even if the burden of proving a sufficient reason were on Choice, Ibelieve that the explanations that Choice presents in its Petition forDiscretionary Review and Brief on Review, as summarized in the majorityopinion, satisfy that burden. Thus, contrary to the majority, I wouldfind that Choice has provided adequate factual information from which wecould determine that Choice’s reasons for failing to file an answer are\”sufficient\” to justify setting aside the default sanctions. As I notedabove, the Commission has great flexibility under Commission Rule 41(b)in determining when to set aside a sanction, and it need not be bound bythe strictures of the Federal Rules of Civil Procedure.Particularly compelling is Choice’s explanation that it did not file ananswer because it thought that by completing and returning the \”Noticeof Appearance and Designation of Representative\” form to the RegionalSolicitor’s office, as requested by the Secretary, it had responded tothe complaint. I consider this to be a credible reason given theconfusing nature of the form. Although the form is attached to the backof the complaint for return to the Regional Solicitor’s Office, a _pro__se_ employer could reasonably conclude that, by completing and sendingback the form, it was entering an appearance before the Commission undercommission Rule 23(a).[[3\/]] Choice’s president asserts in the Petitionfor Discretionary Review that he thought that, by completing andreturning the form as directed, \”we assumed that OSHA would realize thatwe were pleading not guilty.\” His assumption is understandable.Having voted to set aside the default judgment and reinstate Choice’sNotice of Contest, I would not require Choice to file a separate newdocument called an \”Answer.\” Choice’s response to the allegations in theComplaint is clearly set forth in its Brief on Review, which reiteratesand expands upon points made in its Notice of Contest. Among Choice’sdefenses on the merits of the case are that it lacked the requisiteknowledge for the violations to be \”serious\” under section 17(k) of theAct because its office was 240 miles away from the worksite. Choice alsoasserts that it had no knowledge of the unguarded open \”pits\” andopen-sided floors involved in the citations because they wereconstructed by another contractor on the multi-employer site. Inaddition, regarding one of the citation items, Choice argues that thecited standard requiring protective covers, 29 C.F.R. ? 1926.500(b)(5),does not apply because the cited planter boxes were not \”pits.\” Thoseand other statements in its Brief on Review constitute an adequateanswer under Commission Rule 34(d), requiring the filing of an answer,as well as Commission Rule 36, prescribing the content of the answer.[[4\/]]Having concluded that Choice has substantially satisfied the answerrequirements, I would remand this case to the judge for a hearinglimited to the merits of the contested citation items.Velma MontoyaCommissionerDated: November 7, 1990————————————————————————UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,Complainant,v.CHOICE ELECTRIC CORPORATION,Respondent.OSHRC DOCKET NO.88-1393_DECISION AND ORDER_Complainant moves for a default judgment in this proceeding. Respondenthas not filed any response to this motion.Commission Rule 34 requires that an employer shall file with theCommission an answer to the complaint within 30 days after service ofthe complaint. The complaint was filed on August 19, 1988. No answer tothe complaint has been filed by respondent employer.Because of respondent’s failure to file an answer, respondent is in default.Accordingly, it is ORDERED:1. Citation No.1 and Citation No. 2, issued May 18, 1988, are AFFIRMED.2. The total proposed penalty of $520.00 for Citation No. 1, issued May18, 1988 is ASSESSED.James A. Cronin, Jr.Judge, OSHRCDated: December 14, 1988————————————————————————FOOTNOTES:[[1\/]] Commission Rule 34(d)(1), 29 C.F.R. ? 2200.34(d)(1), providesthat, with specific exceptions not applicable to this case,the employer shall file with the Commission an answer conforming to therequirements of ? 2200.36 [rule on content of the answer] within 30 daysafter service of the complaint.[[2\/]] Rule 41(b) is part of Commission Rule 41, 29 C.F.R. ? 2200.41,which provides:? 2200.41 Failure to obey rules.(a) Sanctions. when any party has failed to plead or otherwise proceedas provided by these rules …, he may be declared to be in defaulteither: (1) On the initiative of the Commission or Judge, after havingbeen afforded an opportunity to show cause why he should not be…..; or(2) On the motion of a party……(b) _Motion to set aside sanctions._ For reasons, deemed sufficient bythe Commission or Judge and upon motion expeditiously made, theCommission or Judge may set aside a sanction imposed under paragraph (a)of this rule……[[3\/]] In response to Choice’s request that the Commission return itspenalty payment, we note that civil penalties for OSHA violations arepaid to the Secretary, not the Commission. _See _Section 17(1) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 666(1).Therefore, the Commission can provide no relief to Choice regarding thisrequest.[[4\/]] Unlike these two decisions that directly address thecircumstances at issue in this case, such pre-Rule 41(b) decisions as_Duquesne Light Company_, 8 BNA OSHC 1218, 1980 CCH OSHD ? 24,384 (No.78-5034, 1980), where the Commission considered whether the judge abusedhis discretion in sanctioning the Secretary for failing to file a timelyconference report, are inapposite. In that case, there could be noconsideration of the approach set forth in Commission Rule 41(b) becausethe Commission had not yet adopted it. Moreover, the Commission noted inthat case that, because it was the Secretary (not the employer) who wasbeing sanctioned, to dismiss the complaint and vacate the citationswould frustrate the remedial purposes of the Act.[[1\/]] The majority relies on provisions in the Federal Rules of CivilProcedure to interpret Commission Rule 41(b) . However, the Commissionadopted its own rules to free itself of the constraints of the FederalRules of Civil Procedure, which would otherwise apply. See CommissionRule 2(b), 29 C.F.R. ? 2200.2(b).[[2\/]] I emphasize that this case involves an employer appearing pro seand that the sanction imposed by the judge was the most extreme sanctionpossible, dismissal of the employer’s Notice of Contest. This results inaffirmance of the contested citations and assessment of the proposedpenalties and also takes away the employer’s opportunity to present itscase. In a case where both sides are represented by counsel or a caseinvolving lesser sanctions, the approach taken by my colleagues,including imposition of the burden of proof on the party seeking relieffrom sanctions, might very well be appropriate. Here, in my opinion, itis not.[[3\/]] Failure of pro se employers to understand the distinction betweenOSHA and the Review Commission is a commonplace occurrence in litigationunder the Act. Even the U.S. Courts of Appeals have frequently beenconfused about this distinction.[[4\/]] Commission Rule 36 (a), 29 C.F.R. 2200.36(a), provides thatemployer \”shall specifically admit or deny each allegation or, if theemployer is without knowledge of the facts, the answer shall so state.\”Commission Rule 36(b) requires employers to set forth their affirmativedefenses in the answer.”