UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1434
A. STUART BOLLING COMPANY, INC.,
Respondent.

February 7, 1973

ORDER OF REMAND

Before MORAN, Chairman; VAN, NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On November 20, 1972, Judge Herbert E. Bates issued an order granting Complainant’s motion to deny Respondent’s right to participate as a party and to affirm the citation and penalty proposed therefor. The motion was predicated on the ground that Respondent failed to file an answer to the Secretary’s complaint as required by the Commission’s Rules of Procedure.

Pursuant to the authority vested in the members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590) on December 19, 1972, I directed review of Judge’s order. For reasons given below we reverse and remand.

We have reviewed the record and note that Respondent replied to Complainant’s motion by and through a letter dated November 20, 1972 and received by the Commission November 27, 1972. Consequently, this reply was not part of the record when Judge Bates issued his dispositive order.

Respondent’s letter set forth its attempts to comply with the Commission’s rules as well as a brief statement of its position with regard to the allegations of the complaint. In particular Respondent stated:

We posted all the pleadings as prescribed by law and thought the posting was the requirement, not the answer. We felt the important thing was the appeal, not the technical aspects of the law . . ..

Please let me have a day in court, because I think the facts will show that the charge is not a serious violation or one that could lead to serious injury or death.

Treating this letter as both an answer to the complaint and a motion for reinstatement of the case, the Commission is of the opinion that the Respondent complied with all the pertinent procedural requirements in this matter, as soon as it fully understood them, without resultant prejudice to the Complainant. We therefore conclude that Respondent’s late filing of its answer, in the circumstances of this case, is not a sufficient basis for denial of its right to participate.

Accordingly, it is ORDERED that: (1) the Judge’s order be and the same is hereby set aside, (2) the Complainant’s motion to dismiss is denied, and (3) the case is remanded for further proceedings.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1434
A. STUART BOLLING COMPANY, INC.,
Respondent.

November 20, 1972

BATES, JUDGE, OSAHRC:

Ruling on the Secretary’s motion to deny Respondent’s right to participate as a party and to affirm citation and proposed penalty: Granted.