“SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004_DECISION AND ORDER_This case was directed for review pursuant to 29 U. S. C. ? 661(J) and29 C.F.R. ? 2200.92(a). The employer, Right-Gard Corporation, which hasappeared pro se throughout these proceedings, sought review of aCommission administrative law judge’s decision dismissing Right-Gard’snotice of contest because of failure to file the additional responsesthat were required in the proceedings. Right-Gard claims that thejudge’s action of dismissing the notice of contest was inappropriatebecause the company had not received any of the documents filed in thecase and therefore could not respond as required. For the followingreasons, we remand the case for further proceedings as appropriate,including an opportunity for Right-Gard to show that, notwithstandingthe notice procedures that were followed in this case, which we outlinebelow, the company did not receive due notice prior to the dismissal andtherefore was unaware that it was required to respond in the proceedings.The evidence before the Commission demonstrates that appropriateprocedures for affording due notice were followed in this case. Ourexamination of the record reveals that, though there was some initialconfusion as to Right-Gard’s street address, inasmuch as the citationstated an incorrect street number. Right-Gard did successfully file anotice of contest and, thereafter, every document to which a responsewas required was sent to the street number stated by Right-Gard itselfon its notice of contest. Specifically, the Secretary’s certificate ofservice filed with her complaint, see Commission Rule 7(a), (c) and (d),states that it was mailed to \”1551 Industry Road.\” Right-Gard did notfile an answer to the complaint; therefore, the judge issued an order toshow cause for the failure to answer. See Commission Rule 41 (a), 29C.F.R. ? 2200.41(a). To this order was attached a statement of noticewhich shows that the judge addressed his order to \”1551 Industry Road.\”In fact, the judge’s statement of notice was folded into a windowenvelope with the order and, on July 16, 1991, was sent by certifiedmail to the stated address. See Commission Rule 41(d), 29 C.F.R. ?2200.41(d). On August 2, 1991, however, the certified mailing, includingthe blank return receipt, came back to the judge with the followingofficial notations by the United States Postal Service, which we quoteand explain below:(1) \”Unclaimed\” –which, we note, indicates that the certified mailingremained unclaimed at the post office until the post office returned itto the sender; and(2) \”1st Notice 7\/18,\” \”2nd Notice 7\/23,\” \”Return 8\/2,\”–which, we note,together indicate that postal employees left at Right-Gard’s streetaddress not just one but two notices that a certified mailing was beingheld at and should be retrieved from the post office, and that for morethan ten days the certified mailing was so held, waiting for theaddressee to retrieve it.On August 6, 1991, the judge, having received the unclaimed certifiedmailing and the blank return receipt, and having received no response tohis order to show cause, dismissed Right-Gard’s notice of contest. Thisaction was proper, inasmuch as the judge had followed the Commission’srules for assuring due notice to a party and had in fact receivedsufficient information from the Postal Service to indicate thatRight-Gard had adequate opportunity to receive notice. Cf., ActionGroup, Inc., 14 BNA OSHC 1934, 1935 n.3, 1987-90 CCH OSHD ? 29,166, p.39,018 n.3 (No. 88-2058, 1990) (\”in order to eliminate uncertaintyregarding when orders to show cause are received, the Commission nowrequires that such orders be sent by certified mail, return receiptrequested\”); 29 C.F.R. ? 2200.7(c)(\”[s]ervice is deemed effected at thetime of mailing\”). In the circumstances, therefore, there is no basisfor reinstating Right-Gard’s notice of contest unless Right-Gard candemonstrate \”sufficient\” reason within the meaning of Commission Rule41(b), 29 C.F.R. ? 2200.41(b).Ordinarily we would expect a party seeking such relief to make a formalmotion supported by sworn affidavits or other evidence of good reasonfor setting aside the dismissal. Because Right-Guard’s statements areunsworn, they cannot be considered evidence. Moreover, further evidenceappears necessary to determine whether Right-Gard’s failure to file apleading was excusable neglect. Because Right-Gard is not represented bycounsel and seems unaware of the proper procedure, we will treatRight-Gard’s pro se request for review as a formal motion under Rule41(b) to set aside the sanctions and will overlook for now its failureto present evidence in support of its request to set aside the judge’sorder.Accordingly, we remand the case for further proceedings, including anopportunity for Right-Gard to demonstrate that the company did notreceive either the complaint or the certified mail notice of the showcause order, or to demonstrate any other reason that might he deemedsufficient to justify excusing the failures to respond. See ActionGroup, 14 BNA OSHC at 1935-36, 1987-90 CCH OSHD at p. 39,018; ChoiceElec. Corp., 14 BNA OSHC 1899, 1900-01, 1987-90 CCH OSHD ? 29,141, p.38,942 (No. 88-1393, 1990); Bywater Sales & Service, 13 BNA OSHC 1268,1269,1986-87 CCH OSHD 27,896, p. 36,597 (No. 86-1214, 1987). CompareVern’s Mfg., Inc. 14 BNA OSHC 1846, 1847, 1987-90 CCH OSHD ? 29,113, p.38,905 (No. 89-3082, 1990) (remand for evidence relating to the pro seemployer’s unsworn claims). Only if the judge makes a determination thatRight-Gard’s failure to respond to his order should be excused need heset aside the order and schedule a hearing on the merits of the citations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: February 20, 1992————————————————————————SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004_ORDER_On July 16, 1991, an ORDER was issued directing Respondent to show causewhy the citations and penalties should not be affirmed due to itsfailure to file an answer to the Secretary’s Complaint. Despite thisspecific notification, Respondent has not replied.Respondent’s flagrant failure to plead or otherwise proceed as providedby the Commission’s Rules of Procedure warrants it being declared indefault as provided by Rule 41(a).Accordingly, Respondent’s Notice of Contest is dismissed, and Citations1, 2, and 3, are hereby affirmed. The proposed penalties totaling$13,470.00 are hereby assessed.IRVING SOMMERJudge, OSHRC SECRETARY OF LABOR,Complainant.v.RIGHT-GARD CORPORATION,Respondent.OSHRC Docket No. 91-1004Appearances:Michael Rosenthal, Esquire [[1]] Richard and Jane McGrath, pro seOffice of the Solicitor Right Gard CorporationUnited States Department of LaborFor Complainant For RespondentBEFORE: Administrative Law Judge John H Frye, III_**__DECISION AND ORDER**_In this case, Respondent Right-Gard Corporation seeks to set aside anOrder entered August 26, 1991, which dismissed its Notice of Contest andaffirmed the Secretary’s citations, involving penalties totaling$13,470, entered against it. The August 26 Order was entered afterRespondent failed to answer both the Secretary’s complaint and a July 16Order to Show Cause why the citations should not be affirmed in light ofthis failure.On learning of the August 26 Order, Respondent’s President, RichardMcGrath, dispatched a lengthy letter on September 12 to the Commission’sExecutive Secretary. This letter was treated as a Petition forDiscretionary Review of the August 26 Order and was granted on September25, On February 20, 1992, the Commission entered its Decision and Orderof Remand in this proceeding.In its decision, the Commission noted that Respondent claims that it hadnot received any of the documents filed in the case and thus was unableto properly respond. The Commission further noted that the proceduresfollowed to ensure that Respondent received notice were proper. However,it remanded the case to provide Respondent an opportunity to demonstratethat, notwithstanding those procedures, it \”…did not receive duenotice prior to the dismissal and therefore was unaware that it wasrequired to respond ….\”[[2]] The Commission also stated that itremanded the case to afford Respondent an opportunity to demonstratethat it \”…did not receive either the complaint or the certified noticeof the show cause order, or to demonstrate any other reason that mightbe deemed sufficient to justify excusing the failure to respond.[[3]]Respondent was afforded that opportunity at a hearing held on Wednesday,March 11, 1992, in Philadelphia, Pennsylvania.[[4]]The Commission decision affords Respondent an opportunity to demonstratethat it did not receive \”due notice\” and thus was unaware of therequirement to respond to the complaint. The Commission decision alsoaffords Respondent an opportunity to demonstrate that it did not receive\”either the complaint or the certified notice of the show cause order,\”which advised Respondent of the requirement to respond. It appears thatthe Commission’s overriding concern in remanding this case was to ensurethat Respondent, proceeding pro se, not be held in default for failureto answer the complaint if it was justifiably unaware of thisrequirement. The Commission carefully reviewed the procedures followedand concluded that those procedures were proper. Further, the Commissionstated that \”[i]n the circumstances … there is no basis forreinstating Right-Gard’s notice of contest unless Right-Gard candemonstrate ‘sufficient’ reason within the meaning of Commission rule41(b), 29 CFR ? 2200.41(b).\” Therefore, I conclude that if Respondent isto prevail, it must show that, for reasons beyond its control, it wasunaware of the need to answer the Secretary’s formal complaint.At the hearing, Respondent was represented by its owners, Richard andJane McGrath,[[5]] both of whom testified. From Mr. McGrath’s testimony,it appears that the following sequence of events took place with regardto this case. OSHA’s Allentown office issued the citations in questionon March 20, 1991. Following their receipt, Respondent’s representative,Jim Sullivan, went to the Allentown office to discuss them on March 26.According to Mr. McGrath, Sullivan resigned within 24 hours of thatmeeting, apparently without informing Mr. McGrath of the results of themeeting. On April 9, Mr. McGrath wrote to Mr. George J. Tomchick,Director of OSHA’s Allentown office, \”…submitting my appeal to theinformal settlement agreement issued on 3\/20\/91.\”[[6]]In addition, Mr. McGrath contacted an OSHA attorney with whom he haddealt concerning earlier citations.[[7]] Mr. McGrath maintains that, inexchange for making a scheduled payment in accord with the settlement ofthe earlier citations, he was promised a meeting to discuss the instantcitations prior to any final adjudication by OSHA. However, despite hisefforts to pursue the matter, he heard nothing further from OSHA.[[8]]Mr. McGrath acknowledges that he received the complaint filed by OSHA inthis case, spent about one-half hour reading it, and was aware of thenecessity to respond in thirty days.[[9]] Although he was aware of theneed to respond in thirty days, a requirement stated in the Notice toRespondent which accompanied the complaint, Mr. McGrath apparently wasunaware of the need to direct that response to the Commission. Thisrequirement was stated in the Notice to Respondent along with thethirty-day requirement for a response. He maintains that he answered thecomplaint in a June 26 letter to Mr. Tomchick, Director of OSHA’sAllentown office.[[10]] While he did not have a copy of that letter andwas unable to testify as to its contents, he introduced a copy of Mr.Tomchick’s letter to him of August 9. The latter acknowledges Mr.McGrath’s June 26 Ietter; Mr. McGrath introduced it to show that theJune 26 letter was written.[[11]]Mr. McGrath also acknowledges that employees of Respondent and Mrs.McGrath were aware of the existence of certified mail at the Post Officecontaining the July 16 Order to Show Cause at the time the Post Officeattempted delivery,[[12]] but were unaware of the identity of thesender. He asserts that he did not learn of it until late in August.During the period in question, he was not on the Respondent’s payroll,but was travelling as a sales representative for another firm andworking out of his home office.[[13]] Mr. McGrath maintains that thePost Office would not release the letter to anyone other than himselfbecause it was addressed to him individually rather than as President ofRespondent. Mrs. McGrath testified that her attempt to pick up theletter at the Post Office was unsuccessful.[[14]]It is clear that Respondent was aware of the existence of the complaintand the need to answer it in thirty days. It is also clear thatRespondent was aware of the existence of a certified letter at the PostOffice addressed to Mr. McGrath, although Mr. McGrath insists that thesender of the letter was not known. Respondent’s case for setting asidethe Order holding it in default may be summarized as follows. First,that it answered the complaint in Mr. McGrath’s June 26 letter to Mr.Tomchick. Second, that it was attempting to settle this case and wasawaiting the scheduling of a meeting for that purpose.Respondent’s first argument fails for the following reasons. Respondentdid not address the fact that the June 26 letter was improperly filedwith the OSHA area office, rather than the Commission. I believe it tobe reasonable for a business owner, when confronted with a formalcomplaint of the Secretary of Labor which recites in its introductoryparagraph that the Occupational Safety and Health Act of 1970 (Act) hasbeen violated and charges that the business is responsible, toinvestigate carefully in order to determine what must he done to protectthe business. Mr. McGrath’s investigation went only far enough todisclose that an answer was due in thirty days, a fact stated in thefirst sentence of the one-paragraph Notice to Respondents. It isreasonable to expect an employer also to read the last sentence of thatparagraph which indicates that the answer is to be directed to theCommission.[[15]]Moreover, the June 26 letter was supplied both by Respondent and bycounsel for the Secretary pursuant to the agreement of theparties.[[16]] That letter does not concern the present controversy.Rather, it clearly responds to allegations of violations of the Actraised by an unidentified third party on May 15, 1991, and does notrefer in any way to the complaint or citations filed in this case.[[17]]Respondent\”s second argument also fails. We have only Mr. McGrath’sversion of conversations with several OSHA officials in which thiseffort was allegedly discussed. The only OSHA official to testify wasMs. Myrna Butkovitz, counsel for the Secretary. Ms. Butkovitzacknowledged that Mr. McGrath brought this topic up in their oneconversation and that she advised him that those officials wereconcerned with a different case.[[18]] Moreover, the complaint was filedsubsequent to Mr. McGrath having initiated his settlement efforts andclearly advised Mr. McGrath that Respondent had been formally chargedwith violations of the Act arising out of the citations he claims tohave been attempting to settle.Respondent argues that, while aware of the existence of a certifiedletter, which contained the Order to Show Cause, it was unaware of thesender. Mrs. McGrath testified that her attempt to pick up this letterhad been unsuccessful, and Mr. McGrath testified that he was notpersonally aware of its existence until sometime in late August.However, Mr. McGrath was aware of the complaint, concerned over theongoing controversy with OSHA, and believed that OSHA was engaging inchicanery, duplicity, and bad faith.[[19]] Under these circumstances, Ibelieve it reasonable that the existence of a certified letter wouldhave generated sufficient interest to insure that steps were taken toretrieve it from the Post Office.I cannot conclude that Respondent has shown that it was justifiablyunaware of the need to file an answer to the complaint with theCommission in order to preserve its rights. Consequently, I find nobasis on which to excuse Respondent’s failure to answer the complaintand to set aside the Order of August 26, 1991.***FINDINGS OF FACT*All facts relevant and necessary to a determination of the contestedissues have been found specially and appear in the decision above. SeeRule 52(a) of the Federal Rules of Civil Procedure.***CONCLUSIONS OF LAW*The burden rest on Respondent to demonstrate that the August 26, 1991,Order entered herein dismissing its Notice of Contest and affirming theSecretary’s citations should be set aside. Choice Electric Corp., 14 BNAOSHC 1899, 1900 (No. 88-1393, 1990). Respondent has not met that burden.It is so ORDERED.JOHN H FRYE, IIIJudge, OSHRCDated: APR 27, 1992Washington, D.C. * **FOOTNOTES: ***[[1]] Myrna Butkovitz, Esq., who had previously entered an appearance onbehalf of complainant, withdrew as counsel when it became necessary forher to testify for complainant.[[2]] Commission Decision, p.1.[[3]] Id, p. 3.[[4]] At the close of that hearing, the Secretary’s counsel’s unopposedrequest to hold the record open until March 31 to permit the parties tosubmit a copy of a June 26 letter from Mr. McGrath to George J.Tomchick, Jr., Area Director of OSHA’s Allentown office was granted. Tr.pp.79-80, 88.[[5]] Tr. p.4.[[6]] Tr. pp.26. 33-34. The April 9 letter was treated as a Notice ofContest and is in the docket file.[[7]] These citations were settled immediately prior to the issuance ofthe citations here in question. Mr. McGrath believes that the finesimposed by the instant citations constitute an attempt by OSHA toreimpose fines, which were dropped as a result of the negotiations onthe earlier citations. See Mr. McGrath’s letter of September 12, 1991,to the Commission’s Executive Secretary, to which Mr. McGrath attested(Tr. 6), in the docket file and Tr. 24-25.[[8]] September 12, 1991, letter. p.3; Tr. pp. 15-16, 27-28, 62-64.[[9]] Tr. pp. 22, 25-27, 29, 38, 61.[[10]] Tr. pp. 22-29. As noted above, at the request of counsel for theSecretary, the record was held open to permit the submission of this letter.[[11]] Right-Gard Ex. 1; Tr. pp.27-28.[[12]] Tr. pp.18-19, 29-30, 42-43.[[13]] Tr. pp.41-45.[[14]] Tr. p.73.[[15]] Cf. Action Group Inc., 14 BNA OSHC 1934, 35 (No. 88-2058, 1990)(Settlement of the case would provide a reasonable basis on which toconclude that an answer need not be filed.)[[16]] See note 3, supra.[[17]] The submission by Respondent also includes the first page ofanother June 26 letter on Respondent’s letterhead addressed to Mr.Tomchick. This letter responds to the specific allegations raised by thethird party and recites the actions taken by Respondent to correct anydeficiencies.[[18]] Tr. p.63.[[19]] September 12 letter, p.3.”