” SECRETARY OF LABOR,Complainant,v.PENROD’S PALACE,Respondent.OSHRC Docket No. 88-1078_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Administrative Law Judge Paul L. Brady issued a default judgementagainst Penrod’s Palace (\”Penrod’s\”) for its failure to file an answerto the Secretary of Labor’s (\”Secretary’s\”) Complaint as required byCommission Rule 34(d)(1).[[1\/]] At issue is whether there is\”sufficient\” reason to set aside the judge’s order under Commission Rule41(b).[[2\/]]I. BackgroundOn April 7, 1988, the Secretary issued to Penrod’s a citation for awillful violation. Penrod’s filed a timely Notice of Contest, and theCommission docketed the case. The Commission sent Penrod’s a Notice ofDocketing, copies of \”A Guide to Procedures of the United StatesOccupational Safety and Health Review Commission,\” and the Commission’sRules of Procedure.The Secretary filed her Complaint on June 20, 1988. Under CommissionRule 34(d)(1), Penrod’s had 30 days from the service of the complaint tofile an answer. On June 21, the Commission gave notice to Penrod’s thatthe case was assigned to Judge Brady and that all pleadings should befiled with him until he released jurisdiction of the case.On August 1, after the time for filing an answer to the Secretary’sComplaint had expired, the judge issued an order requiring Penrod’s toshow cause, within 10 days of receipt of the order, why it should not bedeclared in default for its failure to answer the Secretary’sComplaint. On August 23, having received no response from Penrod’s, thejudge issued an order dismissing Penrod’s Notice of Contest. He notedthat Penrod’s had both failed to respond to the show cause order andfailed to answer the Secretary’s Complaint. The judge affirmed thecitation that had been issued to Penrod’s and assessed a penalty of $3,200.II. Contentions of the PartiesOn review, Penrod’s asserts that it did not file an answer to theSecretary’s Complaint because Penrod’s counsel believed that he hadobtained from the Secretary’s counsel an extension of time in which tofile an answer. Penrod’s submitted with its Petition for DiscretionaryReview a copy of a letter addressed to the Regional Solicitor datedAugust 11th, in which Penrod’s counsel stated \”[t]his confirms yourgranting an extension of time in which to file a responsive pleading.\”[[3\/]]Penrod’s claims that when its counsel telephoned the Secretary’s counselto obtain an extension of time, the Secretary’s counsel \”must have knownabout the Order to Show Cause in this matter, and this nondisclosuredirectly resulted in the entry of the Order of Dismissal in this case.\” Penrod’s argues that it would be \”unfair and improper\” to allow theOrder of Dismissal to stand, because the Secretary’s counsel agreed toan extension of time, \”knowing full well that an Order to Show Cause hadbeen issued, while the undersigned counsel had not received thisdocument until the time when the Motion to Reinstate was filed.\” Penrod’s counsel admits that \”[a]pparently, the notice had been servedon [Penrod’s], and a copy had not been provided to the undersignedcounsel.\” Penrod’s claims that because its counsel did not receive acopy of the order from its client until after the judge dismissed thecase, counsel was prevented from answering the order in time.The Secretary contends that \”if the purported facts appearing only asaverments in [Penrod’s] pleadings are not competent evidence . . . thenthere are almost no facts upon which the Commission could find thatrespondent has provided ‘reasons deemed sufficient’ to warrant thegranting of relief under Rule 41.\” The Secretary makes a conditionalrequest that if the Commission decides to consider Penrod’s averments asevidence, then the Commission should also accept the Secretary’saverment that, at the time of the telephone conversation with Penrod’scounsel, the Secretary’s trial counsel had not yet seen or otherwiselearned of the show cause order issued to Penrod’s. The Secretary notesthat Penrod’s does not allege that the Secretary’s attorney deceivedPenrod’s attorney as to the requirement of filing a motion with the judge.The Secretary also submits that it is not her obligation to notify anemployer of a show cause order, since that responsibility rests with thejudge issuing the order. She argues that the judge properly dischargedthat responsibility by sending a copy of the order to Penrod’spresident, its only representative of record at that point sincePenrod’s counsel failed to file an entry of appearance. The Secretaryconcludes that the dismissal of Penrod’s Notice of Contest is due to twofactors: the failure of Penrod’s president to forward or otherwiseadvise its counsel of the show cause order, and Penrod’s failure to filea motion for extension of time. The Secretary contends that \”[t]o grantrelief in these circumstances . . ., particularly when there isvirtually no record evidence supporting respondent’s claims, wouldeffectively declare the provisions of Rule 41(b) to be withoutmeaningful content or neutral application.\”III. AnalysisThe Commission has broad discretion in reviewing a sanction imposed on aparty for not proceeding under the Commission’s rules. Under CommissionRule 41(b), the Commission may set aside a sanction imposed under Rule41(a) \”[f]or reasons deemed sufficient by the Commission.\” Normally, werequire a party seeking relief under Rule 41(b) to make a formal motionsupported by sworn affidavits or other evidence showing good reason forsetting aside the dismissal. We have overlooked these requirements whenan employer is not represented by counsel and seems unaware of theproper procedure. _Action Group, Inc_., 14 BNA OSHC 1934, 1990 CCH OSHD? 29,166 (No. 88-2058, 1990); _Choice Electric Corp._, 14 BNA OSHC 1899,1990 CCH OSHD ? 29,141 (No. 88-1393, 1990) ; _Wes Jones & Son, Inc._, 13BNA OSHC 1277, 1279, 1986-87 CCH OSHD ? 27,924 p. 36,625 (No. 86-1095,1987); _Bywater Sales & Service, Byco-MCS Div_. [_\”Byco\”_], 13 BNA OSHC1268, 1269, 1986-87 CCH OSHD ? 27,896 p. 36,597 (No. 86-1214, 1987).Here, although Penrod’s is represented by counsel, it has failed to makea formal motion to set aside the sanction under Commission Rule 41(b). Instead, Penrod’s claims that under Commission Rule 5, [[4\/]] its Noticeof Contest should not have been dismissed because an extension of timehad been agreed to by the Solicitor’s Office. However, Rule 5 clearlyrequires that a motion for an extension of time must be made to thejudge or Commission. Penrod’s failed to do this.Even if we treated Penrod’s Petition for Discretionary Review as aformal Motion to Set Aside Sanctions under Commission Rule 41(b),Penrod’s has not provided a sufficient reason to set aside the judge’ssanction. As stated, Penrod’s claims that it should be relieved of thesanction because it had received an extension of time in which to answerthe complaint from the Secretary’s counsel, and because the Secretary’scounsel failed to inform Penrod’s counsel that the judge had issued ashow cause order to Penrod’s. However, based on the record before us, wefind no act or omission on the part of the Secretary’s counsel thatwould justify a decision to set aside the judge’s dismissal order.There is no evidence of record to substantiate Penrod’s assertion thatthe Secretary purported to grant it an extension of time in which tofile an answer. The Secretary’s counsel may not have objected toPenrod’s request, but he is not empowered to grant an extension of time,and Penrod’s has not provided us with any reason to believe that theSecretary’s counsel misrepresented his authority when he spoke toPenrod’s counsel concerning the extension. Commission Rule 5 clearlystates that only the Commission or one of its administrative law judgesmay grant an extension of time. Penrod’s counsel may have been unawareof the requirements of this rule, but his client was sent a copy of theCommission’s rules with the Notice of Docketing. The Commission’s ruleon extensions of time is similar to rules in other adjudicative forums. It is standard practice in the federal courts to seek the court’spermission for an extension of time. _See_ Fed. R. Civ. P.6(b). Neither inadvertence by Penrod’s in transmitting the copy of theCommission’s Rules of Procedure to its counsel nor its counsel’sapparent failure to otherwise acquaint himself with the Commission’srules qualify as grounds for relief.There is also no evidence of record that the Secretary’s counsel knew ofthe show cause order at the time of his conversation with Penrod’scounsel. Penrod’s assumes that the Secretary’s counsel knew of the showcause order, but the Secretary has made a proffer in her briefindicating that, at the time of the conversation, the Secretary’scounsel did not know of the show cause order. Moreover, the Secretary iscorrect in arguing that her counsel was under no obligation to notifyPenrod’s counsel of the show cause order. We also conclude that thereis nothing in the record that suggests deception on the part of theSecretary.The failure of Penrod’s counsel to learn of the show cause order fromhis client does not establish a sufficient cause for relief from thesanction.Penrod’s argues that the standard of review in this case should be\”liberal\” because Penrod’s was an employer proceeding without counsel\”up to the point when counsel was retained.\” However, Penrod’s claimfor relief is based on the actions of its counsel. In particular, itwas Penrod’s counsel who claimed that upon receiving this case, hetelephoned the Secretary’s counsel to receive from the Secretary an\”extension of time\” in which to file a responsive pleading. Yet, theconduct of Penrod’s counsel does not provide a basis for equitablerelief since it was Penrod’s counsel who never filed a motion for anextension of time with the judge, as required by Commission Rule 5, orentered an appearance with the judge, as required under Commission Rule23(a)(3).[[5\/]]Even if we consider Penrod’s actions before it was represented bycounsel, there still is no basis for relief from the judge’s sanction.In some circumstances, we have remanded cases to a judge to determinewhether employers proceeding without counsel had a sufficient reason forfailing to file an answer. However, the employers in those cases madesome factual claims before the Commission that, if proven, might havejustified an order setting aside the sanctions. _See, e.g., ActionGroup, Inc._, 14 BNA OSHC 1934, 1990 CCH OSHD ? 29,166 (No. 88-2058,1990) (employer proceeding without counsel failed to answer thecomplaint because he believed the case had settled); _Choice ElectricCorp._, 14 BNA OSHC 1899, 1990 CCH OSHD ? 29,141 (No. 88-1393, 1990)(employer proceeding without counsel failed to file an answer in thebelief that it had already responded to the complaint). Where, as here,the employer offers only claims that even if proven would not justifyrelief, there is no reason to remand for further proceedings.We find that the judge did not err in dismissing Penrod’s Notice ofContest. Accordingly, the judge’s decision is affirmed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: January 15, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.PENROD’S PALACE,Respondent.OSHRC Docket No. 88-1078_ORDER DISMISSING NOTICE OF CONTEST _Respondent having failed to respond to an order to show cause andpursuant to Rule 41(a) of the Commission’s Rules of Procedure [29 C.F.R.? 2200.41(a)], respondent is hereby declared in default for its failureto comply with Commission Rule 36, 2200.36, requiring the filing of ananswer to the complaint in this cause.Therefore, it is ORDERED:1. The notice of contest is dismissed.2. The citation is affirmed and a penalty in the sum of $3,200.00 ishereby assessed.Dated this 23rd day of August, 1988.PAUL L. BRADYJudgeFOOTNOTES:[[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 otherwiseproceed as provided by these rules or as required by the Commission orJudge, he may be declared to be in default either:(1) On the initiative of the Commission or Judge, after having beenafforded an opportunity to show cause why he should not be declared tobe in default; or(2) On the motion of a party. Thereafter, the Commission or Judge, intheir discretion, may enter a decision against the defaulting party orstrike any pleading or document not filed in accordance with these rules.(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\/]] Penrod’s did not aver that the letter was mailed to the Secretary.[[4\/]] Commission Rule 5 provides as follows:*? 2200.5 Extensions of time.*Upon notion of a party for good cause shown, the Commission or Judge mayenlarge any time prescribed by these rules or prescribed by an order. All such motions shall be in writing but, in exigent circumstances incases pending before Judges, an oral request may be made and followed bya written motion. A request for an extension of time should be receivedin advance of the date on which the pleading or document is due to befiled. However, an extension of time may be granted even though therequest was filed after the designated time for filing has expired, butin such circumstances, the party requesting the extension must show goodcause for his failure to make the request before the time prescribed forthe filing had expired. The motion may be acted upon before the timefor response has expired.[[5\/]] Commission Rule 23(a)(3) is part of Commission Rule 23, 29 C.F.R.? 2200.23, which provides:*? 2200.23 Appearances and withdrawals. *(a) _Entry of appearance_.(1) _General_. A representative of a party . . . shall enter anappearance by . . . filing an entry of appearance in accordance withparagraph (a) (3) of this section.* * *(3) _Subsequent appearance_. Where a representative has not previouslyappeared on behalf of a party . . . , he shall file an entry ofappearance with the Executive Secretary, or Judge if the case has beenassigned. . . .”