M&M Plastering, Inc.

Plain-English summary

An administrative law judge dismissed M&M Plastering's notice of contest after the company did not answer the Secretary's complaint or respond to an order to show cause. The Commission later found that the complaint and Commission correspondence had used the wrong ZIP code for the company's post-office-box address. The returned show-cause mailing indicated that M&M may not have received critical documents. The Commission referred the case to the judge to determine whether the default should be excused and the notice of contest reinstated.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citations.
• Outcome: Default dismissal referred to the judge for further proceedings on relief and possible reinstatement.
• Key point: A default required further inquiry when critical case documents may have been mailed using an incorrect ZIP code.

Full text (OSHRC public release)

M & M Plastering, Inc., Docket No. 01-1215

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 01-1215
:
M&M PLASTERING, INC. :
:
Respondent. :
_____:

ORDER

Before: RAILTON, Chairman; and ROGERS, Commissioner

BY THE COMMISSION:

On October 19, 2001, Administrative Law Judge Irving Sommer issued a decision
dismissing the notice of contest in this case after Respondent failed to file an answer to the
Secretary's complaint and then failed to respond to the judge's subsequent Order to Show
Cause. The judge's decision was docketed with the Commission on October 23, 2001, and
pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 ("the Act"), 29
U.S.C. � 661(j), became the final order of the Commission on November 23, 2001.

It has come to the Commission's attention that Respondent may not have received
critical documents in this case. The Secretary's initial citation noted two addresses: (1)
Respondent's business address at P.O. Box 8106, Amarillo, TX 79114, and (2) the location
of the inspection site at 1801 S. Lakeside Rd., Amarillo, TX 79118. The case file reveals that
the citation was addressed and sent by certified mail to Respondent's business address at P.O.
Box 8106, Amarillo, TX 79114. After receiving Respondent's Notice of Contest, the
Commission sent its Notice of Docketing to the business address, but used the 79118 ZIP
code instead of 79114. The Secretary subsequently also used the 79118 ZIP code when
serving her complaint on Respondent. Thereafter, the Commission continued to send its
correspondence, including the judge's show cause order, to the business address with the
79118 ZIP code. The show cause order, which was sent by certified mail with return receipt
on September 13, 2001, was returned to the Commission on October 9, 2001. The envelope
was stamped with "Return to Sender UNCLAIMED" and a chronology of handwritten dates:
"first notice 9-18; second notice 9-22; return 10-2." (1) Thus, it appears that Respondent may
not have received either the Secretary's complaint or the judge's show cause order because
these documents may have been sent to Respondent's address with an incorrect ZIP code. To permit appropriate inquiry into this matter, we refer the case to the judge to
conduct further proceedings to determine whether Respondent's failure to file an answer to
the complaint and respond to the show cause order may be excused under Rule 60(b) of the
Federal Rules of Civil Procedure, or on equitable grounds, see Atlantic Marine, Inc. v.
OSHRC , 524 F.2d 476 [3 BNA OSHC 1755, 1975-76 CCH OSHD � 20,257] (5th Cir. 1975),

and if so, whether reinstatement of the employer's notice of contest would be appropriate
relief. (2)

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: September 30, 2002

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 01-1215
:
M&M PLASTERING, INC. :
:
Respondent. :
_____:

ORDER

On 9/13/01 the undersigned issued an ORDER TO SHOW CAUSE to the Respondent as to
why his Notice of Contest should not be dismissed for failure to file an answer to the complaint as
required by the Commission Rules of Procedure. The Respondent failed to reply to the ORDER.
His actions demonstrate either that he has abandoned the case or treats the Rules of Procedure of the
Commission with disdain. This cannot be countenanced as it seriously impedes the administration
of justice.

Accordingly, the Notice of Contest filed by the Respondent is dismissed. The Secretary's
citation(s) and proposed penalties are AFFIRMED in all respects.

/s/

IRVING SOMMER

Chief Judge

DATE: 19 OCT 2001

Washington, D.C.

1. The ZIP code of 79114 was written on the cellophane part of the envelope containing the
   show cause order, with a line over the address section of the letter that was showing through
   the cellophane and a line partially crossing out the 79118 ZIP code. It is not known when
   or by whom this correction was made.
2. Rule 60(b)(1) provides that a court may relieve a party from a final judgment for "mistake,
   inadvertence, surprise, or excusable neglect." Such relief has been found appropriate where
   a default judgment has been issued based on the mistake or inadvertence of the court or
   judge. See B. A. Ward, Inc ., 18 BNA OSHC 1941, 1999 CCH OSHD � 31,934 (No. 98-1651,
   1999).