A. Stuart Bolling Company, Inc.

Plain-English summary

The judge denied A. Stuart Bolling Company the right to participate and affirmed the citation and proposed penalty because the company had not filed an answer. The company sent a letter explaining that it had posted the pleadings and misunderstood the answer requirement, while briefly disputing the alleged serious classification and asking for a hearing. That letter arrived after the judge issued his dispositive order and therefore was not in the record he considered. The Commission treated the letter as both an answer and a motion to reinstate. Because the company complied once it understood the procedural requirements and the Secretary was not prejudiced, the late filing did not justify denial of participation. The Commission set aside the order, denied dismissal, and remanded for further proceedings.

Decision snapshot

• Cited standard(s): Not identified in the release
• Outcome: The default order was set aside, dismissal was denied, and the case was remanded for further proceedings.
• Key point: A late answer caused by a procedural misunderstanding was accepted where the employer promptly complied and the Secretary suffered no prejudice.

Full text (OSHRC public release)

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EN-US
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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.