“Docket No. 90-1169 \u00a0SECRETARY OF LABOR, Complainant, v. VIRGIL ALAN HICKMAN & SHERRY K. LOWE, d\/b\/a AL KIM PAINTING, Respondent.OSHRC Docket No. 90-1169DIRECTION FOR REVIEW AND REMAN ORDERRespondents, Virgil Alan Hickman & Sherry K. Lowe, d\/b\/a Al Kim Painting, filed aPetition for Discretionary Review in this case on February 28, 1991.\u00a0 In theirPetition, the Respondents allege that they have been aggrieved by the Decision and Orderof Administrative Law Judge Paul L. Brady, which was docketed with the Commission’sExecutive Secretary on February 22, 1991. Complainant, the Secretary of Labor, filed aresponsive letter on March 8, 1991, in which she stated that \”[t]he Secretarysupports respondent’s request for review.\”\u00a0 Pursuant to 29 U.S.C. ? 661(j) and29 C.F.R. ? 2200.92(a), the decision of the Administrative Law Judge is directed forreview.\u00a0 For the reasons that follow, that decision is set aside and the case isremanded to the Judge for further proceedings.The proceeding before us was initiated when theRespondents contested two citations issued by the Secretary to Al Kim Painting, alleging26 serious and four willful violations of the Occupational Safety and Health Act of 1970,29 U.S.C. ?? 651-678, and proposing penalties totaling $57,000.\u00a0 The handwrittennotice of contest, signed by Sherry K. Lowe and Alan Hickman, included the followingdenial of responsibility for the alleged violations:We were assumed to be the owners but were in fact employees of Moritz, Inc.\u00a0 We arecontesting all citations and notices of penalties, and are not responsible for any allegedviolations.Lowe and Hickman have continued to appear on a pro se basis throughout thisproceeding.Following the filing of the Secretary’scomplaint, the Respondents received two extensions of time from Judge Brady for the filingof their answer.\u00a0 Nevertheless, they failed to file an answer on or before therevised deadline of November 1, 1990.\u00a0 Accordingly, on December 19, 1990, pursuant toCommission Rule 41(a), 29 C.F.R. ? 2200.41(a), Judge Brady issued a show cause order tothe Respondents, requiring them to show cause \”within ten days of receipt of thisorder\” why they should not be \”declared in default for failure to plead\”.\u00a0 When the Respondents failed to reply to this show cause order, the Judge issued asecond order on January 29, 1991, declaring the Respondents in default, dismissing theirnotice on contest, affirming the two contested citations and assessing the proposedpenalties totaling $57,000.\u00a0 It is this second order that is now before us on review.Given the fact that Lowe and Hickman areappearing before us pro se, we will construe their Petition forDiscretionary Review as a motion to set aside sanctions under Commission Rule 41(b), 29C.F.R. ? 2200.41(b).\u00a0 That rule grants us the authority to set aside sanctionsimposed under Rule 41(a), such as the Judge’s dismissal order in this case, for anyreasons that we deem to be \”sufficient\”.\u00a0 Having reviewed the record inthis case, we now find that there is \”sufficient\” reason to set aside theJudge’s order and to grant the Respondents one final opportunity to file an answer to theSecretary’s complaint.The most significant factor in our determinationis the fact that the Respondents did not receive the Judge’s show cause order. Receipt ofthis order would have placed the Respondents on notice that they were at risk of havingthe most severe possible sanction, dismissal of their notice of contest without a hearing,imposed.\u00a0 However, the record establishes that Respondents’ copy of the show causeorder was not claimed at their post office box and was instead ultimately returned to theJudge.\u00a0 While the record does not conclusively establish the reason for thisnondelivery, it does suggest that the reason was not a deliberate refusal of service bythe Respondents.\u00a0 In their Petition for Discretionary Review, the Respondents statethat \”[w]e have been out of town and were not aware we were to respond. . . .\”Presumably, therefore, the failure to accomplish delivery of the show cause order was theresult of the Respondents being \”out of town\” and unable to accept delivery ofthe order, which had been sent by certified mail to their post office box.Several other factors have contributed to ourdetermination.\u00a0 Among those are:\u00a0 the seriousness of the charges and the size ofthe penalty; the Respondents’ claim that they were employees of another company, ratherthan being the employer responsible for the alleged violations; the Respondents’ smallsize, if in fact they were employers[[1\/]]; and the Secretary’s support for their Petitionfor Discretionary Review.Under the unusual circumstances presented bythis case, and to avoid any further delay, we conclude that the most expeditious course ofaction is to set aside the Judge’s order, remand the case to the Judge, and provide theRespondents with another opportunity to file their answer with the Judge.\u00a0 Accordingly, we set aside the dismissal order under Rule 41(b) and remand this caseto the Judge.\u00a0 The Respondents are ordered to file their answer to the Secretary’scomplaint with Judge Brady within 30 days of their receipt of this Commission order.\u00a0 An additional copy of the Commission’s Rules of Procedure, which explain therequirements for filing an answer, is forwarded to the Respondents along with this order.\u00a0 See Rule 36, 29 C.F.R. ? 2200.36.\u00a0 If the Respondents fail to comply withthis order by not filing their answer in a timely manner, the Judge is authorized toreinstate his dismissal order, affirming the contested citations and assessing theproposed penalties.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: March 22, 1991FEBRUARY 28, 1991DEAR SIRS,IN REGARDS TO DOCKET NO. 90-1169, WE WOULD LIKE TO FILE A PETITION FOR DISCRETIONARYREVIEW.WE HAVE BEEN OUT OF TOWN AND WERE NOT AWARE WE WERE TO RESPOND TO THE PREVIOUS LETTERSMAILED.THANK YOU FOR YOUR TIME IN THIS MATTER.SINCERELY,ALAN HICKMAN SHERRY LOWEALKIM PAINTINGMarch 8, 1991Ray H. Darling, Jr.Executive SecretaryOccupational Safety and HealthReview CommissionRe: Secretary of Labor v. Alkim PaintingOSHRC Docket No. 90-1169Dear Mr. Darling:On February 28, 1991, respondent filed a petition for review of the judge’s order in theabove case.\u00a0 The Secretary supports respondent’s request for review.Sincerely,Daniel J. MickCounsel for Regional Trial Litigationcc:\u00a0 Alan Hickman, Sherry LoweAlkim PaintingWilliam Kloepfer Regional SolicitorSECRETARY OF LABOR, Complainant, v. VIRGIL ALAN HICKMAN & SHERRY K. LOWE, d\/b\/a AL KIM PAINTING, Respondent.OSHRC Docket No. 90-1169ORDER DISMISSING NOTICE OF CONTESTRespondent, having failed to respond to an orderto show cause and pursuant 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 to comply withCommission Rule 36, 2200.36, requiring the filing of an answer to the complaint in thiscause.Therefore, it is ORDERED;1.\u00a0 The notice of contest is dismissed.2.\u00a0 Citation No. 1 is hereby affirmed and a penalty in the sum of $22,000 isassessed.3.\u00a0 Citation No. 2 is hereby affirmed and a penalty in the sum of $35,000 isassessed. Dated this 29th day of January, 1991. PAUL L. BRADYJudgeFOOTNOTES: [[1\/]] The Secretary’s complaint alleges that Respondents Hickman and Lowe were doingbusiness as Al Kim Painting, that they had four employees, that they were a soleproprietorship, and that they had a place of business in Mansfield, Ohio, where they wereengaged in the cleaning and painting of horse trailers.\u00a0 As indicated, Hickman andLowe claimed in their notice of contest that they were employees of Moritz, Inc.”