“Docket No. 88-1393 SECRETARY OF LABOR,Complainant,v.CHOICE ELECTRIC CORPORATION,Respondent.OSHRC Docket No. 88-1393DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Administrative Law Judge James A. Cronin, Jr., issued a defaultjudgment against Choice Electric Corporation for failing to file an answer as required byCommission Rule 34(d)(1).[[1\/]] At issue is whether Choice, appearing in this case withoutcounsel, or pro se, has established a \”sufficient\” reason to set aside thatsanction under Commission Rule 41(b).[[2\/]]The Secretary issued two citations to Choice for serious and other violations, to whichchoice responded by filing a timely Notice of Contest. The secretary then filed herComplaint on August 19, 1988. Under Commission Rule 34(d)(1), the employer must file ananswer within 30 days after service of the complaint. Approximately a month after Choice’sanswer was due, the Secretary filed a Motion for Default Judgment based on Choice’sfailure to answer. Choice did not file a response to that motion. More than a month afterthe 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 to its failure tofile an answer, as required by Commission Rule 34. The judge affirmed the two citationsthat had been issued to Choice and assessed a penalty of $520 for the serious violations.In its Petition for Discretionary Review and its Brief onReview, Choice asserts that it did not file an answer because: (1) it thought that bycompleting and returning the Secretary’s \”Notice of Appearance and Designation ofRepresentative\” form to the Solicitor’s office, as requested by the Secretary in hercover letter to Choice’s copy of the Complaint, it had responded adequately to theComplaint; (2) it had not been notified that this case was before a judge; and (3) itthought that because it had requested simplified proceedings (see Commission Rules 200through 212, 29 C.F.R. ?? 2200.200-2200.212), under which there are no pleadings, noanswer needed to be filed. Choice also asserts that it has paid the penalty of $520assessed by the judge, plus interest and administrative costs.[[3\/]]The Secretary contends that none of the reasons offered byChoice for not filing an answer are \”sufficient\” under Commission Rule 41(b).She argues that Choice had received more than adequate notice that an answer was requiredwithin 30 days of receipt of the Complaint.The Commission has broad discretion in reviewing a sanctionimposed on a party for not proceeding under Commission rules. In the only two Commissiondecisions interpreting Commission Rule 41(b), which both involved pro seemployers who failed to file timely answers, the Commission stated that the burden ofproducing evidence that there was a \”sufficient\” reason for failing to answer,as required by Commission Rule 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\”], 13 BNAOSHC 1268, 1269, 1986-87 CCH OSHD ? 27,896 p. 36,597 (No. 86-1214, 1987) [[4\/]] Thisapproach is consistent with the general rule in administrative proceedings that the movingparty has the burden of proof. \”Except as otherwise provided by statute, theproponent of a rule or order has the burden of proof.\” Section 7(c) of theAdministrative Procedure Act, 5 U.S.C. ? 556(d). See Sarasota Concrete Company, 9BNA OSHC 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 theCommission rules, the Commission has given it meaning by borrowing concepts from thefollowing Federal Rules of Civil Procedure that are analogous to Commission Rule 41: Fed.R. Civ. P. 55(c), which permits the court to set aside an entry of default \”[f ]orgood cause shown\”; and Fed. R. Civ. P. 60(b), which allows the court on motion torelieve a party from judgment for \”excusable neglect.\” See Wes Jones, 13BNA OSHC at 1279, 1986-87 CCH OSHD at p. 36,625 (burden of proving \”good cause forits failures to respond\” on employer); Byco, 13 BNA OSHC at 1269, 1986-87 CCH OSHD atp. 36,597 (burden of proof of \”good cause for its failure to respond\” onemployer; insufficient information to determine if failure to answer due to\”excusable neglect\”) Also, the Commission has wide latitude in granting relieffrom sanctions under its own Rule 41(b).Addressing how an employer can meet its burden of proof, theCommission has stated that \”[o]rdinarily we would expect a party seeking such relief[under Rule 41(b)] to make a formal motion supported by sworn affidavits or other evidenceshowing good reason for setting aside the dismissal.\” Wes Jones, 13 BNA OSHCat 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 thatall parties to a controversy have a full, fair, and equal opportunity to be heard. It isalso sensitive to the needs of parties appearing pro se and recognizes thatpersons who are not trained in the law may require additional consideration of theircircumstances. Thus, in view of Choice’s pro se status and apparent lack ofunderstanding of Commission procedures, we shall treat its Petition for DiscretionaryReview as a formal Motion to Set Aside Sanctions under Commission Rule 41(b).Choice’s statements relating to its reasons for not filing ananswer are briefly set forth in its Petition for Discretionary Review and Brief on Review.However, Choice has failed to provide adequate factual information from which we coulddetermine whether any of its stated reasons for failing to file an answer are\”sufficient\” to justify setting aside the default sanction. Because Choice isnot represented by counsel and seems to lack sufficient knowledge of Commissionprocedures, probably most strongly demonstrated by its claimed payment of the penalty plusinterest and costs, its failure to provide the necessary factual information will not befatal to Choice’s case at this juncture. See Wes Jones, 13 BNA OSHCat 1279, 1986-87 CCH OSHD at p. 36,625; Byco, 13 BNA OSHC at 1269, 1986-87 CCH OSHCat p. 36,597.Accordingly, we remand this case to the judge, who may hold ahearing, take evidence in the form of sworn affidavits, or follow other procedures that hemay deem appropriate to develop enough of a factual record for him to rule on whetherChoice had a \”sufficient\” reason for failing to file an answer, as would justifysetting aside the default sanction. If the sanction is lifted, then Choice would have anopportunity to file an answer. The judge could then proceed toward a determination of themerits of the case.In order to facilitate prompt resolution of this case, we orderthat all further proceedings in this case be expedited in accordance with Commission Rule103, 29 C.F.R. ? 2200.103.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: November 7, 1990MONTOYA, Commissioner, concurring in part and dissenting inpart:I agree with my colleagues that this case should be remanded tothe Administrative Law Judge. However, I disagree with their unnecessarily legalisticdisposition of this case because it involves an employer that is appearing before theCommission without an attorney, that is, a pro se employer. Employers whoappear before the Commission pro se comprise 30 to 40 percent of allemployers who appear in contested cases. In my view, the majority opinion ignores relevantCommission precedent 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 imposed under CommissionRule 41(b) and would grant the motion, thereby setting aside the judge’s default judgmentagainst Choice and reinstating Choice’s Notice of Contest. I would accept Choice’s Noticeof Contest and Brief on Review as an adequate answer to the Secretary’s Complaint, andfind that Choice has substantially complied with Rule 34(d) of the Commission’s Rules ofProcedure, which requires the filing of an answer. Finally, I join my colleagues inremanding this case to the judge for a hearing, but I would limit that hearing to themerits of the contested citation items.The majority narrowly interprets[[1\/]] the broadly-wordedCommission Rule 41(b) to impose on the party seeking relief from a sanction the burden ofshowing a \”sufficient\” reason for lifting the sanction. However, the rule itselfimposes no such burden; rather, it states that the Commission can set aside sanctions\”[f]or reasons deemed sufficient by the Commission or Judge ……\” In thedecisions relied on by the majority, the Commission never explained why it chose thatinterpretation of the rule. Wes Jones & Son. Inc., 13 BNA OSHC 1277, 1986-87CCH 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,especially when that party is, like Choice, a small business that has chosen not to incurthe expense of hiring an attorney and instead is appearing pro se, I would read CommissionRule 41(b) in the context of the commission decisions on sanctions that preceded theadoption of that rule but were not superseded by the rule.[[2\/]] In Duquesne LightCompany, 8 BNA OSHC 1218, 1222, 1980 CCH OSHD ? 24,384 p. 29,719 (No. 78-5034, 1980),the Commission concluded that, in the \”absence of contumacious conduct on the part ofthe delaying party, we consider lack of prejudice to [the opposing party] as thecontrolling factor in determining that dismissal is too harsh a sanction under thecircumstances.\”As the majority correctly points out, Duquesne Light wasdecided prior to a major revision of the Commission’s Rules of Procedure in September1986. 51 Fed. Reg. 32,002, 32,015 (1986). This revision included the adoption ofCommission Rule 41, which is the rule at issue in this case. The purpose of this ruleschange was to establish procedures for the imposition and lifting of sanctions forviolations of the Commission’s rules. Nevertheless, despite this change, I conclude that DuquesneLight is based on a principle that is still valid in interpreting and applying theCommission’s current procedural rules, and I would therefore follow the reasoning, as wellas the express holding, of Duquesne Light in interpreting and applying Rule 41.The central premise of Duquesne Light is the policyfavoring the resolution of cases on their merits rather than the dismissal of cases forthe failure of a party to comply with procedural rules. As the Commission stated in DuquesneLight, \”there is a policy in the law in favor of deciding cases on theirmerits.\” 8 BNA OSHC at 1222, 1980 CCH OSHD at p. 29,719. See Pearson v,Dennison, 353 F.2d 24, 28-29 (9th Cir. 1965); 9 C. Wright and A. Miller, Federalpractice and Procedure ? 2370 at 216-17 (1971). Thus, Duquesne Light should beviewed in the context of a vast body of case law arising under the Act in which theCommission and the court’s have consistently shown an antagonism toward the dismissal ofcases on procedural grounds because this disposition deprives all of the parties of aresolution of contested citations on their merits. See, e.g., StephensonEnterprises Inc. v. Marshall, 578 F.2d 1021, 1023 (5th Cir. 1978) (Secretary’s failureto issue citations with reasonable promptness); Marshall v. Western Waterproofing Co.,560 F.2d 947, 951-52 (8th Cir. 1977) (Secretary’s failure to comply with procedures forwalkaround and presentation of credentials); Accu-Namics, Inc. v. OSHRC, 515 F.2d828, 833-34 (5th Cir. 1975), cert. denied, 96 S. Ct. 1492 (1976) (same); AtlanticMarine, Inc. v, OSHRC, 524 F.2d 476, 478 (5th Cir. 1975) (employer’s failure to filetimely notice of notice); Samsonite Corporation, 10 BNA OSHC 1583, 1587, 1982 CCHOSHD ? 26,054, p. 32,736 (No. 79-5649, 1982) (Secretary’s noncompliance with discoveryrules and orders); The Boardman 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); BrowarWood Products Co., 7 BNA OSHC 1165, 1166-67, 1979 CCH OSHD ? 23,326, pp. 28,214-15(No. 78-2230, 1979) (employer’s noncompliance with technical procedural requirements).I see no reason to depart from this fundamental policy merelybecause the Commission’s procedural rules have been changed. There is no indication in theofficial record of the rules change that the Commission deliberately intended to shift theburden of proof from the party seeking dismissal on procedural grounds to the partyseeking to preserve its right to a hearing on the merits. Rules of Procedure, FinalRule, 51 Fed. Reg. 32,002, 32,009 (Sept. 8, 1986); Rules of procedure, ProposedRule, 51 Fed. Reg. 23,184, 23,187 (June 25, 1986). The policy underlying themajority’s opinion in this case is one that will turn the Commission’s procedures into anobstacle course for unwary pro se employers, who may find themselves \”stepping onland mines,\” that is, unexpectedly losing their right to a hearing on the merits, atany one of several points along the way. In my opinion, the Commission should give greaterweight to the Congressional objective, in creating the Commission, of providing a forumfor employer challenges to OSHA citations than to the Commission’s own objective ofensuring strict compliance with our own procedural rules.Applying the Duquesne Light test to this case, theCommission should deny Choice’s motion to set aside the default judgment only if Choiceengaged in contumacious conduct or the Secretary demonstrated that she was prejudiced inthe preparation or presentation of her case. There is no evidence of either factor here.Choice’s failure to file an answer was not due to any contumacious conduct. Rather, it wasthe result of its confusion over the Commission’s procedural rules, which the Secretaryand the judge could have, but did not, clarify. The Secretary does not even suggest thatshe was prejudiced by the lack of an answer. Choice gave her fair notice of its primarydefense to the alleged violations early in the case when it filed its Notice of Contest.Choice supplemented this in its Brief on Review. Therefore, the default judgment sanctionagainst Choice should be set aside.In addition to disagreeing with the majority as to the burdenof proof imposed on Choice, I also take issue with the procedural requirements that themajority imposes on Choice once the case is remanded to the judge. The majority relies onlanguage in Wes Jones that provides that the party seeking relief from the sanctionis expected to \”make a formal motion supported by sworn affidavits or other evidenceshowing good reason 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 CCH OSHD at p.36,597. Especially where it is a pro se employer who is seeking relief underRule 41(b), the procedure of obtaining notarized affidavits in support of its motion isparticularly burdensome. See note 2 supra. This was recognized in Browar WoodProducts Co., 7 BNA OSHC at 1167, 1979 CCH OSHD at p. 28,215, where the Commissionadmitted into evidence unsworn statements made by the employer because it was a smallbusiness appearing pro se and \”may not have been aware of the legal technicalities ofthe judicial process and the need to submit affidavits in support of its motion.\” Aneven greater burden for this employer would be imposed if it chooses the option ofparticipating in a separate hearing solely on the procedural question of \”whether anyof its stated reasons for failing to file an answer are ‘sufficient’ to justify settingaside the default sanction.\” The majority’s disposition of this case will forceChoice to decide whether to make what I find to be unnecessary expenditures of time andresources for affidavits or a hearing that does not even address the merits of the case,or to abandon its challenge to the Secretary’s citations.Even if the burden of proving a sufficient reason were onChoice, I believe that the explanations that Choice presents in its Petition forDiscretionary Review and Brief on Review, as summarized in the majority opinion, satisfythat burden. Thus, contrary to the majority, I would find that Choice has providedadequate factual information from which we could determine that Choice’s reasons forfailing to file an answer are \”sufficient\” to justify setting aside the defaultsanctions. As I noted above, the Commission has great flexibility under Commission Rule41(b) in determining when to set aside a sanction, and it need not be bound by thestrictures of the Federal Rules of Civil Procedure.Particularly compelling is Choice’s explanation that it did notfile an answer because it thought that by completing and returning the \”Notice ofAppearance and Designation of Representative\” form to the Regional Solicitor’soffice, as requested by the Secretary, it had responded to the complaint. I consider thisto be a credible reason given the confusing nature of the form. Although the form isattached to the back of the complaint for return to the Regional Solicitor’s Office, a prose employer could reasonably conclude that, by completing and sending back theform, it was entering an appearance before the Commission under commission Rule23(a).[[3\/]] Choice’s president asserts in the Petition for Discretionary Review that hethought that, by completing and returning the form as directed, \”we assumed that OSHAwould realize that we were pleading not guilty.\” His assumption is understandable.Having voted to set aside the default judgment and reinstateChoice’s Notice of Contest, I would not require Choice to file a separate new documentcalled an \”Answer.\” Choice’s response to the allegations in the Complaint isclearly set forth in its Brief on Review, which reiterates and expands upon points made inits Notice of Contest. Among Choice’s defenses on the merits of the case are that itlacked the requisite knowledge for the violations to be \”serious\” under section17(k) of the Act because its office was 240 miles away from the worksite. Choice alsoasserts that it had no knowledge of the unguarded open \”pits\” and open-sidedfloors involved in the citations because they were constructed by another contractor onthe multi-employer site. In addition, regarding one of the citation items, Choice arguesthat the cited standard requiring protective covers, 29 C.F.R. ? 1926.500(b)(5), does notapply because the cited planter boxes were not \”pits.\” Those and otherstatements in its Brief on Review constitute an adequate answer under Commission Rule34(d), requiring the filing of an answer, as well as Commission Rule 36, prescribing thecontent of the answer.[[4\/]] Having concluded that Choice has substantially satisfied theanswer requirements, I would remand this case to the judge for a hearing limited to themerits 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.88-1393DECISION AND ORDERComplainant moves for a default judgment in this proceeding.Respondent has not filed any response to this motion.Commission Rule 34 requires that an employer shall file withthe Commission an answer to the complaint within 30 days after service of the complaint.The complaint was filed on August 19, 1988. No answer to the complaint has been filed byrespondent employer.Because of respondent’s failure to file an answer, respondentis in default.Accordingly, it is ORDERED:1. Citation No.1 and Citation No. 2, issued May 18, 1988, areAFFIRMED.2. The total proposed penalty of $520.00 for Citation No. 1,issued May 18, 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),provides that, with specific exceptions not applicable to this case,the employer shall file with the Commission an answerconforming to the requirements of ? 2200.36 [rule on content of the answer] within 30days after 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 otherwiseproceed as provided by these rules …, he may be declared to be in default either: (1) Onthe initiative of the Commission or Judge, after having been afforded an opportunity toshow cause why he should not be…..; or(2) On the motion of a party……(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……[[3\/]] In response to Choice’s request that the Commissionreturn its penalty payment, we note that civil penalties for OSHA violations are paid tothe Secretary, not the Commission. See Section 17(1) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 666(1). Therefore, the Commission can provide no reliefto Choice regarding this request.[[4\/]] Unlike these two decisions that directly address thecircumstances at issue in this case, such pre-Rule 41(b) decisions as Duquesne LightCompany, 8 BNA OSHC 1218, 1980 CCH OSHD ? 24,384 (No. 78-5034, 1980), where theCommission considered whether the judge abused his discretion in sanctioning the Secretaryfor failing to file a timely conference report, are inapposite. In that case, there couldbe no consideration of the approach set forth in Commission Rule 41(b) because theCommission had not yet adopted it. Moreover, the Commission noted in that case that,because it was the Secretary (not the employer) who was being sanctioned, to dismiss thecomplaint and vacate the citations would frustrate the remedial purposes of the Act.[[1\/]] The majority relies on provisions in the Federal Rulesof Civil Procedure to interpret Commission Rule 41(b) . However, the Commission adoptedits own rules to free itself of the constraints of the Federal Rules of Civil Procedure,which would otherwise apply. See Commission Rule 2(b), 29 C.F.R. ? 2200.2(b).[[2\/]] I emphasize that this case involves an employerappearing pro se and that the sanction imposed by the judge was the most extreme sanctionpossible, dismissal of the employer’s Notice of Contest. This results in affirmance of thecontested citations and assessment of the proposed penalties and also takes away theemployer’s opportunity to present its case. In a case where both sides are represented bycounsel or a case involving lesser sanctions, the approach taken by my colleagues,including imposition of the burden of proof on the party seeking relief from sanctions,might very well be appropriate. Here, in my opinion, it is not.[[3\/]] Failure of pro se employers to understand thedistinction between OSHA and the Review Commission is a commonplace occurrence inlitigation under the Act. Even the U.S. Courts of Appeals have frequently been confusedabout this distinction.[[4\/]] Commission Rule 36 (a), 29 C.F.R. 2200.36(a), providesthat employer \”shall specifically admit or deny each allegation or, if the employeris without knowledge of the facts, the answer shall so state.\” Commission Rule 36(b)requires employers to set forth their affirmative defenses in the answer.”