“\ufeff\t\tWES JONES & SON INC. OSHRC DOCKET NO. 86-1095\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0px; margin-bottom:0px; line-height:1.5; margin-top:0; font-size:11pt; font-family:Calibri; color:WindowText; } p { font-family:Times New Roman; font-size:12pt; margin-top:0px; margin-bottom:0px; line-height:1.5; font-size:11pt; font-family:Calibri; } p.style_Normal { margin-top:0px; margin-bottom:0px; line-height:1.5; font-size:11pt; font-family:Calibri; } .style_Normal span { font-family:Calibri; } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } .style_TableGrid span { font-family:Calibri; } p.style_FootnoteText { margin-top:0px; margin-bottom:0px; line-height:1.5; line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; font-family:Calibri; } .style_FootnoteTextChar span { font-family:Calibri; } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { margin-top:0px; margin-bottom:0px; line-height:1.5; line-height:1; } span.style_HeaderChar { font-size:11pt; font-family:Calibri; } .style_HeaderChar span { font-family:Calibri; } p.style_Footer { margin-top:0px; margin-bottom:0px; line-height:1.5; line-height:1; } span.style_FooterChar { font-size:11pt; font-family:Calibri; } .style_FooterChar span { font-family:Calibri; } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO. 86-1095\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWES JONES & SON INC.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tApril 21, 1987\t\t\t\t\t\t\t\t\t\tORDER OF REMAND\t\t\t\t\t\t\t\t\t\tBefore BUCKLEY, Chairman; WALL, Commissioner.\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tThis case is before the Occupational Safety and Health Review Commission under 29 U.S.C. \u00a7 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. \u00a7\u00a7\u00a0651-678 (\u201cthe Act\u201d). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration (\u201cOSHA\u201d). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. \u00a7\u00a0659(c).\t\t\t\t\t\t\t\t\t\tOn July 25, 1986, a compliance officer from OSHA inspected a construction site in New Brunswick, New Jersey, where Wes Jones & Son, Inc., was a subcontractor. As a result of that inspection, OSHA issued Wes Jones & Son a citation alleging two serious violations of the construction safety standards in 29 C.F.R. Part 1926.\t\t\t\t\t\t\t\t\t\tAfter Wes Jones & Son received the citation, Daniel J. Hoar, the president of the company, apparently held a telephone conversation with the OSHA area director who had issued the citation. Mr. Hoar then sent a letter to the area director saying, in part, \u201cwe take emphatic exception to these violations.\u201d This letter was interpreted by OSHA as a notice of contest under section 10(a) of the Act, 29 U.S.C. \u00a7 659(a). OSHA then forwarded a copy of the notice of contest to the Review Commission, as it is required to do by our rules. 29 C.F.R. \u00a7 2200.33.\t\t\t\t\t\t\t\t\t\tThe Executive Secretary of the Review Commission sent Wes Jones & Son a letter explaining its obligations under law as a party to a proceeding before the Review Commission. Enclosed with the letter was a copy of the Review Commission\u2019s Rules of Procedure. Two of the requirements stated in the letter were that Wes Jones & Son post a copy of the notice of contest for its affected employees to see, and that it certify to the Review Commission that it had done so. Wes Jones & Son failed to certify that it had posted a copy of the notice of contest.\t\t\t\t\t\t\t\t\t\tAs was required by the Commission\u2019s rules, the Secretary of Labor then filed a formal complaint with the Review Commission and served a copy on Wes Jones & Son, along with a notice that Wes Jones & Son was required by law to file an answer to the complaint within fifteen days. Wes Jones & Son failed to file an answer. Instead, it appears that the company communicated with the attorney who had filed the complaint on behalf of the Secretary. However, the Commission was not a party to these communications. The Commission\u2019s judge therefore had no way of knowing that these communications were taking place.\t\t\t\t\t\t\t\t\t\tAfter the time for filing an answer to the Secretary\u2019s complaint had expired, the judge afforded Wes Jones & Son one more opportunity to respond. On November 20, 1986, the judge entered an order directing Wes Jones & Son to provide proof of employee notification and to answer the Secretary\u2019s complaint by December 12, 1986. The order stated that Wes Jones & Son\u2019s failure to comply by that date would be considered a withdrawal of the employer\u2019s notice of contest. When December 12 passed with no response from Wes Jones & Son, the judge held Wes Jones & Son in default and entered an order dismissing the notice of contest. A copy of that order was sent to Wes Jones & Son, together with instructions about seeking discretionary review of the order. Wes Jones & Son, however, continued to communicate with the attorney for OSHA instead of with the Review Commission. Only when the attorney for OSHA forwarded copies of the correspondence from Wes Jones & Son to the Review Commission did the Commission become aware of the situation. At that point, the judge\u2019s order of dismissal was directed to be reviewed by the Commission.\t\t\t\t\t\t\t\t\t\tAs stated in the first paragraph of this decision, the Review Commission is not OSHA and is not part of OSHA. It is an independent agency created by Congress to serve a function similar to that of a court. It adjudicates disputes between the Secretary of Labor, acting through OSHA, and employers such as Wes Jones & Son. Both parties were required by law to comply with the rules and orders of the Review Commission. Discussions with the attorney for OSHA\t\t\t\t\t\tdid not relieve Wes Jones & Son of these obligations. Although it is perfectly proper for parties to attempt to settle their disputes, they must still comply with the Commission\u2019s rules while these attempts are being made.1\t\t\t\t\t\t\t\t\t\tWes Jones & Son failed to meet two legal obligations. As Judge\t\t\t\t\t\tDeBenedetto\t\t\t\t\t\tstated in his order of November 20, 1986, Wes Jones & Son failed to certify that it had notified its employees that the citation had been contested and failed to file an answer to the complaint. Wes Jones & Son also failed to respond to the judge\u2019s order directing it to file an answer by December 12, 1986. The judge therefore dismissed its notice of contest.\t\t\t\t\t\t\t\t\t\tNew Rule 41 of the Commission\u2019s Rules of Procedure, codified at\t\t\t\t\t\t29 C.F.R. \u00a7 2200.41, provides:2\t\t\t\t\t\t\t\t\t\t\u00a7 2200.41 Failure to obey rules.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default either: (1) on the initiative of the Commission or Judge, after having been afforded an opportunity to show cause why he should not be declared to be in default; or (2) on the motion of a party. Thereafter, the Commission or Judge, in their discretion, may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commission or Judge and upon motion expeditiously made, the Commission or Judge may set aside a sanction imposed under paragraph (a) of this rule.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNew Rule 41(b) permits a party to seek relief from the judge\u2019s dismissal. Ordinarily we would expect a party seeking such relief to make a formal motion supported by sworn affidavits\t\t\t\t\t\tor other evidence showing good reason for setting aside the dismissal.3\t\t\t\t\t\tBecause Wes Jones & Son is not represented by counsel and seems unaware of the proper procedure, we will treat the company\u2019s letters to OSHA as a formal motion under Rule 41(b) to set aside the sanctions and will overlook for the moment its failure to present evidence in support.\t\t\t\t\t\t\t\t\t\tBecause Wes Jones & Son\u2019s letters and behavior suggest that the company might have believed that its communications with OSHA would fulfill its legal obligations, we remand this case to the judge for him to rule on Wes Jones & Son\u2019s motion to set aside the sanctions. The judge may hold a hearing, take evidence in the form of a sworn affidavit, or follow whatever other procedure he deems appropriate to determine whether there is good reason to set aside his order finding Wes Jones & Son in default. The burden of producing evidence that there was good cause for its failures to respond is on Wes Jones & Son. Only if the judge makes a determination that the company\u2019s failures to comply should be excused\t\t\t\t\t\tneed\t\t\t\t\t\the set aside his order and schedule a hearing on the merits of the citations.\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRay H. Darling, Jr.\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tApril 21, 1987\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\t\tWes Jones & Son is not represented by an attorney. Because the company did not seek legal assistance, it is possible that Wes Jones & Son failed to understand that the Review Commission\u2019s requirements cannot be waived by OSHA\u2019s attorney. It may be that, because it was in the process of negotiating with OSHA, Wes Jones & Son believed that it could ignore the letters sent to it by the Review Commission as well as OSHA\u2019s notice in the complaint stating that it was required to answer.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\t\tThe revised rules took effect December 8, 1986, and apply to all cases pending on that date unless it would be infeasible to apply them or would work an injustice. 51\t\t\t\t\t\tFed.Reg. 32002 (1986).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\t\tBecause Wes Jones & Son\u2019s letter to OSHA\u2019s attorney has not been admitted into evidence, the assertions it makes cannot yet be considered evidence. Moreover, the letter does not provide\t\t\t\t\t\tsufficient information for us to make a finding that Wes Jones & Son\u2019s failure to file a pleading was excusable.\t\t\t”