” SECRETARY OF LABOR,Complainant,v.VIRGIL ALAN HICKMAN & SHERRY K. LOWE, d\/b\/aAL KIM PAINTING,Respondent.OSHRC Docket No. 90-1169_DIRECTION FOR REVIEW AND REMAN ORDER_Respondents, Virgil Alan Hickman & Sherry K. Lowe, d\/b\/a Al KimPainting, filed a Petition for Discretionary Review in this case onFebruary 28, 1991. In their Petition, the Respondents allege that theyhave been aggrieved by the Decision and Order of Administrative LawJudge Paul L. Brady, which was docketed with the Commission’s ExecutiveSecretary on February 22, 1991. Complainant, the Secretary of Labor,filed a responsive letter on March 8, 1991, in which she stated that\”[t]he Secretary supports respondent’s request for review.\” Pursuant to29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), the decision of theAdministrative Law Judge is directed for review. For the reasons thatfollow, that decision is set aside and the case is remanded to the Judgefor further proceedings.The proceeding before us was initiated when the Respondents contestedtwo citations issued by the Secretary to Al Kim Painting, alleging 26serious and four willful violations of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678, and proposing penaltiestotaling $57,000. The handwritten notice of contest, signed by SherryK. Lowe and Alan Hickman, included the following denial ofresponsibility for the alleged violations:We were assumed to be the owners but were in fact employees of Moritz,Inc. We are contesting all citations and notices of penalties, and arenot responsible for any alleged violations.Lowe and Hickman have continued to appear on a _pro_ _se_ basisthroughout this proceeding.Following the filing of the Secretary’s complaint, the Respondentsreceived two extensions of time from Judge Brady for the filing of theiranswer. Nevertheless, they failed to file an answer on or before therevised deadline of November 1, 1990. Accordingly, on December 19,1990, pursuant to Commission Rule 41(a), 29 C.F.R. ? 2200.41(a), JudgeBrady issued a show cause order to the Respondents, requiring them toshow cause \”within ten days of receipt of this order\” why they shouldnot be \”declared in default for failure to plead\”. When theRespondents failed to reply to this show cause order, the Judge issued asecond order on January 29, 1991, declaring the Respondents in default,dismissing their notice on contest, affirming the two contestedcitations and assessing the proposed penalties totaling $57,000. It isthis second order that is now before us on review.Given the fact that Lowe and Hickman are appearing before us _pro_ _se_,we will construe their Petition for Discretionary Review as a motion toset aside sanctions under Commission Rule 41(b), 29 C.F.R. ?2200.41(b). That rule grants us the authority to set aside sanctionsimposed under Rule 41(a), such as the Judge’s dismissal order in thiscase, for any reasons that we deem to be \”sufficient\”. Having reviewedthe record in this case, we now find that there is \”sufficient\” reasonto set aside the Judge’s order and to grant the Respondents one finalopportunity to file an answer to the Secretary’s complaint.The most significant factor in our determination is the fact that theRespondents did not receive the Judge’s show cause order. Receipt ofthis order would have placed the Respondents on notice that they were atrisk of having the most severe possible sanction, dismissal of theirnotice of contest without a hearing, imposed. However, the recordestablishes that Respondents’ copy of the show cause order was notclaimed at their post office box and was instead ultimately returned tothe Judge. While the record does not conclusively establish the reasonfor this nondelivery, it does suggest that the reason was not adeliberate refusal of service by the Respondents. In their Petition forDiscretionary Review, the Respondents state that \”[w]e have been out oftown and were not aware we were to respond. . . .\” Presumably,therefore, the failure to accomplish delivery of the show cause orderwas the result of the Respondents being \”out of town\” and unable toaccept delivery of the order, which had been sent by certified mail totheir post office box.Several other factors have contributed to our determination. Amongthose are: the seriousness of the charges and the size of the penalty;the Respondents’ claim that they were employees of another company,rather than being the employer responsible for the alleged violations;the Respondents’ small size, if in fact they were employers[[1\/]]; andthe Secretary’s support for their Petition for Discretionary Review.Under the unusual circumstances presented by this case, and to avoid anyfurther delay, we conclude that the most expeditious course of action isto set aside the Judge’s order, remand the case to the Judge, andprovide the Respondents with another opportunity to file their answerwith the Judge. Accordingly, we set aside the dismissal order underRule 41(b) and remand this case to the Judge. The Respondents areordered to file their answer to the Secretary’s complaint with JudgeBrady within 30 days of their receipt of this Commission order. Anadditional copy of the Commission’s Rules of Procedure, which explainthe requirements for filing an answer, is forwarded to the Respondentsalong with this order. See Rule 36, 29 C.F.R. ? 2200.36. If theRespondents fail to comply with this order by not filing their answer ina timely manner, the Judge is authorized to reinstate his dismissalorder, affirming the contested citations and assessing the proposedpenalties.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: March 22, 1991————————————————————————FEBRUARY 28, 1991DEAR SIRS,IN REGARDS TO DOCKET NO. 90-1169, WE WOULD LIKE TO FILE A PETITION FORDISCRETIONARY REVIEW.WE HAVE BEEN OUT OF TOWN AND WERE NOT AWARE WE WERE TO RESPOND TO THEPREVIOUS LETTERS MAILED.THANK YOU FOR YOUR TIME IN THIS MATTER.SINCERELY,ALAN HICKMANSHERRY LOWEALKIM PAINTINGMarch 8, 1991Ray H. Darling, Jr.Executive SecretaryOccupational Safety and HealthReview CommissionRe: _Secretary of Labor v. Alkim Painting_OSHRC Docket No. 90-1169Dear Mr. Darling:On February 28, 1991, respondent filed a petition for review of thejudge’s order in the above case. The Secretary supports respondent’srequest for review.Sincerely,Daniel J. MickCounsel for RegionalTrial Litigationcc: Alan Hickman, Sherry LoweAlkim PaintingWilliam KloepferRegional SolicitorSECRETARY OF LABOR,Complainant,v.VIRGIL ALAN HICKMAN &SHERRY K. LOWE, d\/b\/aAL KIM PAINTING,Respondent.OSHRC Docket No. 90-1169_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.Section 2200.4(a)], is hereby declared in default for its failure tocomply 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. Citation No. 1 is hereby affirmed and a penalty in the sum of$22,000 is assessed.3. Citation No. 2 is hereby affirmed and a penalty in the sum of$35,000 is assessed.Dated this 29th day of January, 1991.PAUL L. BRADYJudgeFOOTNOTES:[[1\/]] The Secretary’s complaint alleges that Respondents Hickman andLowe were doing business as Al Kim Painting, that they had fouremployees, that they were a sole proprietorship, and that they had aplace of business in Mansfield, Ohio, where they were engaged in thecleaning and painting of horse trailers. As indicated, Hickman and Loweclaimed in their notice of contest that they were employees of Moritz, Inc.”