LaRosa & Lamar Janitorial Services

Plain-English summary

An OSHRC judge dismissed LaRosa & Lamar Janitorial Services' notice of contest after the company did not answer the Secretary's complaint or respond to a show-cause order. The Commission set the dismissal aside because the judge sent the show-cause order by certified mail without requesting a return receipt, contrary to the Commission rule then governing service. It remanded the case so the company could show that it did not receive the order or otherwise justify its late answer. The official release also includes the later remand proceedings, where the judge found that the company more likely than not received the order and offered no excuse for failing to respond. The judge then reinstated the dismissal, which affirmed one citation and assessed $6,450 in penalties.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Default dismissal set aside and case remanded for findings on receipt of the show-cause order and any justification for the late answer.
• Key point: A show-cause order had to be served by certified mail with a return receipt requested before default could rest on a failure to answer it.

Full text (OSHRC public release)

Docket No. 91-1407

SECRETARY OF LABOR,

Complainant.

v.

LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407

DECISION AND ORDER

In this case Administrative Law Judge Michael H. Schoenfeld dismissed a notice of contest
filed by Respondent, LaRosa & Lamar Janitorial Services ("LaRosa"), because
LaRosa did not respond to a show cause order warning that it would be found in default if
it failed to file an answer to the Secretary's complaint. However, while the judge sent
his show cause order by certified mail, he did not send it return receipt requested, as
required by Commission Rule 41(d), 29 C.F.R. � 2200.41(d).[[1]]

The purpose of the return receipt requirement is to make certain that the affected party
receives a show cause order in a manner sufficient to ensure a timely response. 55 Fed.
Reg. 22,780 (1990). We therefore remand this matter to afford LaRosa an opportunity to
demonstrate that it did not receive the judge's order, or to show any other grounds to
justify its failure to file an answer in a timely fashion. See Bywater Sales & Serv.
Byco-MCS Div., 13 BNA OSHC 1268,1986-87 CCH OSHD � 27,896 (No. 86-1214,1987). Should the
judge determine that LaRosa is entitled to reinstatement of its notice of contest, he may
in his discretion accept LaRosa's letter of November 5, 1991, as a sufficient response to
the allegations of the complaint, or he may afford LaRosa a further opportunity to file an
answer conforming to section 2200.36 before addressing the merits of the case.

Accordingly, the judge's order of dismissal is set aside, and this case is remanded for
further proceedings consistent with this opinion.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: March 26, 1992

SECRETARY OF LABOR,

Complainant.

v.

LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407

ORDER

DISMISSING NOTICE OF CONTEST

Respondent has failed to file any response to the complaint filed by the Secretary despite
specific notices that a responsive pleading is required under the Commission Rules of
Procedure.[[1]]

An Order dated September 4, 1991, informed Respondent that its failure to answer the
complaint or file a statement that it wished to continue its contest, could result in the
dismissal of its notice of contest and a decision being entered against it without a
hearing. Despite these specific notifications that the citations and proposed penalties
would be affirmed without a hearing, Respondent has not replied.

Respondent's flagrant failure to plead or otherwise proceed is provided by the
Commission's Rules of Procedure warrants it being declared in default under Rule 11(a).

Accordingly, Respondent's notice of contest is dismissed and Citation No.1 is hereby
affirmed. The proposed penalties totaling $6450 are hereby assessed.

MICHAEL H. SCHOENFELD

Judge, OSHRC

NOV 5 1991

Washington, D.C.

SECRETARY OF LABOR,

Complainant.

v.

LAROSA & LAMAR JANITORIAL SERVICES,

Respondent.

OSHRC Docket No. 91-1407

Appearances: Anita Eve Wright, Esq. Office of the
Solicitor

United States Department of Labor For Complainant

LaRosa Boyce Pro Se

For Respondent

DECISION AND ORDER

In its Decision and Order of March 26,1992, the Commission set aside the Order of
Dismissal of November 5,1991, and remanded this case "to afford LaRosa an opportunity
to demonstrate that it did not receive the judge's order,[[1]] or to show any other
grounds to justify its failure to file an answer in a timely fashion." (Citation
omitted.)

[[1]] The order of dismissal was based upon the lack of a response to a September 4, 1991,
order directing Respondent to file "an answer to the Secretary's Complaint or a
statement that it wishes to continue its contest." (All capitals in original.)

Pursuant to the order of the Commission a hearing was convened on May 6, 1992. Mr. LaRosa
Boyce appeared and testified.

Mr. Boyce acknowledged that he understood the proceedings and declined an offer of a
continuance to engage an attorney. (TR 3 - 5.) In lieu of an opening statement, Mr. Boyce
initially took the position that he did not respond to the order to file an answer or face
default because he did not believe he had received it. (TR 7, lines 11-13). Given that
position, Mr. Boyce was sworn in as a witness. Mr. Boyce, once under oath, testified as
follows regarding the Order for Respondent to File Answer or Face Default dated September
4, 1991, a copy of which he was handed;

Q. Have you seen that before, sir?

A. Yes.

Q. Do you recall when you received that?

A. I remember reading about rules and regulations, where you have the time to respond.

Q. Do you recall receiving that Order at your offices, at 6201 Pine Street

A. Yes.

Q. Do you recall getting that in the mail?

A. I think I might have. I'm not exactly sure. I might have, yes.

The Commission's order of remand cites the decision in Bywater Sala & Service Byco-
MCS Div., 13 BNA OSHC 1269 (No. 86-1214, 1987) ("Bywater"), which states that
where a Respondent fails to file an answer, Rule 41(b), 29 C.F.R. � 2200.41(b) (1990),
"permits a party to seek relief from the judge's dismissal." Here, as in
Bywater, the Commission directs that procedures be conducted to determine whether there is
good reason to set aside the dismissal. The Commission specifically emphasized in Bywater
that "the burden of producing evidence that there was good cause for its failure to
respond" is on the Respondent from whom no response was received. The Commission went
on to instruct the administrative law judge that "[o]nly if the judge makes the
determination that [Respondent's] failure to respond to his order should be excused need
he set aside the order...."

Applying the principles of Bywater to this case, I find as fact that Respondent has not
shown that the order was not received, nor has it produced any evidence which would
warrant setting aside the order of dismissal. Regardless of whose burden of proof it was
to present such evidence, I find that a preponderance of all of the evidence of record
leads to the sole reasonable inference that it is more likely than not that the order of
September 4, 1991, directing Respondent to file an answer or face default was received by
Respondent.

Mr. Boyce's testimony that his business mail address has been consistent, that he has
routinely received business mail at that address, that has received all other pleadings
and orders at that address, and that he "might have" or did receive the order,
compels the factual conclusion that the order was received by Respondent. I so find.
Further, Mr. Boyce presented no reason, excusable or otherwise, for Respondent's failure
to respond to the order. That Respondent's business may be small or the proposed penalties
thought by the business owner to be excessive, even if true, are not reasons which would
excuse a failure to file on answer or respond to the September 4, 1991, order. I thus
conclude that Respondent is not entitled to reinstatement of its notice of contest.

Accordingly, IT IS ORDERED that the Order of Dismissal of November 5, 1991, dismissing
Respondent's notice of contest is reinstated.

MICHAEL H. SCHOENFELD

Judge, OSHRC

Dated: June 29, 1992

Washington, D.C.

FOOTNOTES:

[[1]]Rule 41 of the Commission's Rules of Procedure provides in pertinent part as follows:
� 2200.41 Failure to obey rules.

(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by
these rules or as required by the Commission or Judge, he may be declared to be in default
either: (1) On the initiative of the Commission or Judge, after having been afforded an
opportunity to show cause why he should not be declared to be in default; or

(2) On the motion of a party.Thereafter, the Commission or Judge, in their discretion, may
enter a decision against the defaulting party or strike any pleading or document not filed
in accordance with these rules.

(d) Show cause orders. All show cause orders issued by the Commission or Judge under
paragraph (a) of this section shall be served upon the affected party by certified mail,
return receipt requested.

[[1]] Rules of Procedure of the Occupational Safety
and Health Review Commission, 29 C.F.R.. �� 2200.1-212, amended( 55 Fed. Reg. 22780 - 4
(June 4, 1990).

[[2]] The record shows that Respondent's business has consistently used the same mailing
address for approximately the three years it has been in business. (TR 13-14.)