UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REMAND

December 29, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On December 11, 1972, Judge Herbert E. Bates issued an order granting Complainant’s motion for default judgment and vacation of Respondent’s notice of contest filed in this matter. 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.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as the ‘Act’), I am herewith directing that the Judge’s Order be reviewed by the Commission. For the reasons given hereinafter we reverse and remand.

We have reviewed the record and note that Complainant’s motion was served by mail upon the Respondent on November 8, 1972. Respondent replied to the motion by and through a letter dated November 10, 1972. 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 Secretary’s citation.

Respondent thereafter submitted a letter dated November 16, 1972 in which it specifically detailed its position with regard to those items listed in paragraph III of the Secretary’s Complaint which items constitute the subject matter of this proceeding. This letter contained the following introductory statement:

Because we did not completely understand the rules of procedure of the Occupational Safety and Health Act, we are at this time using this letter to contest the above Complaint issued by the Department of Labor.

Thereafter, both the Complainant and the Respondent complied with the Commission’s prehearing requirements on November 17, and November 27, 1972 respectively.

Nevertheless, as noted above, Judge Bates granted Complainant’s motion to dismiss in this case. Authority for such action is prescribed by Rule 38 of the Commission’s Rules. Rule 38 provides that a party may waive its right to further participation in a proceeding if it fails to timely file a required pleading. The application of this sanction however is discretionary with the Commission and its Judges.

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 to the Complaint, in the circumstances of this case, is not a sufficient basis to invoke the extreme and final discretionary sanction contained in Rule 38.

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

December 11, 1972

BATES, JUDGE, OSAHRC:

Ruling on Secretary’s motion for default judgment and vacation of Respondent’s notice of contest: Granted.