Marchman Construction Corp.

Plain-English summary

The chief administrative law judge dismissed Marchman Construction's notice of contest after the company did not answer the Secretary's complaint or respond to an order to show cause. The company petitioned for review and said it had not received the show-cause order. The Commission file showed that the complaint and order had been sent to an incorrect street address, while a later docketing notice sent to the correct business and post-office-box address reached the company. The Commission remanded the case for the judge to determine whether the missed filings should be excused.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citations.
• Outcome: Dismissal of the notice of contest remanded for further proceedings on whether the filing failures should be excused.
• Key point: A dismissal required further review when the record indicated that critical filings had been mailed to the wrong address.

Full text (OSHRC public release)

Marchman Construction Corp., Docket No. 02-1097

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-1097

MARCHMAN CONSTRUCTION CORP.,

Respondent.

ORDER

Before: RAILTON, Chairman; and ROGERS, Commissioner.

BY THE COMMISSION:

On October 12, 2002, Chief Administrative Law Judge Irving Sommer issued an order
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 order dismissing the notice of contest was docketed with the Commission
on October 22, 2002. On November 4, 2002, Respondent petitioned for discretionary review.
Respondent’s president claimed that it failed to respond to the judge’s Order to Show Cause
because it had not received the order. The case was directed for review on November 8,
2002.

The case file shows that the Commission sent its Notice of Docketing Of
Administrative Law Judge’s Decision to Respondent’s correct business address at P.O. Box
469, 5555 Highway 43, Satsuma, AL 36572, thus triggering Respondent’s petition. However,
the Secretary served her complaint on Respondent at 555 Highway 43, Satsuma, AL 36572,
and did not identify a post office box. Thereafter, the Commission sent the judge’s show
cause order to the same incorrect address used by the Secretary. The envelope containing the
show cause order, which was sent on September 9, 2002 by certified mail with return receipt,
was returned to the Commission unopened, with the return receipt still attached.

The
envelope is stamped “Returned to Sender UNCLAIMED” and has stamped on it a first notice
date of September 13, a written but crossed-out second notice date of September 18, and a
written return date of September 28.

It appears that Respondent may not have received either the Secretary’s complaint or
the judge’s show cause order because of an addressing error. We therefore remand 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
Commission Rule of Procedure 41(b), which permits the Commission to set aside sanctions
for “reasons deemed sufficient.” 29 C.F.R. § 2200.41(b); see Lavelle Construction , 19 BNA
OSHC 1149, 1150, 2000 CCH OSHD ¶ 32,200, pp. 48,758-9 (No. 99-2191, 2000) and cases
cited therein.

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: November 20, 2002

Secretary of Labor,

Complainant,

V.

OSHRC DOCKET NO. 02-1097

MARCHMAN CONSTRUCTION,CORP.

Respondent.

ORDER

On 9/09/02 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: October 12, 2002

Washington, D.C.