Stone Portable Toilets

Plain-English summary

An administrative law judge dismissed Stone Portable Toilets' notice of contest because the company had not filed an answer to the complaint or responded to an order to show cause. Owner Gary Stone told the Commission that he had filed the required answer, although the Commission's file contained none. The Commission gave the company 15 days to submit a copy of the answer and a sworn affidavit explaining when and how it was filed. It conditionally affirmed the dismissal and $1,200 in penalties unless the company supplied both documents within that period and served them on the Secretary's counsel. The order does not identify the cited standards or state whether the company later met the condition.

Decision snapshot

• Cited standard(s): None identified in the order.
• Outcome: Dismissal and $1,200 in penalties conditionally affirmed unless the employer timely supplied proof that it filed an answer.
• Key point: A party claiming that a missing pleading was filed may be required to provide both the pleading and sworn details of its filing.

Full text (OSHRC public release)

Docket No. 91-2732

SECRETARY OF LABOR,

Complainant.

v.

STONE PORTABLE TOILETS,

Respondent.

OSHRC Docket No. 91-2732

ORDER

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

By Order dated April 14, 1992, Commission Judge Irving Sommer
dismissed Respondent's notice of contest to the citation in this case. His grounds were
Respondent's failure to file an answer to the complaint, and its failure to reply to the
judge's Order to Show Cause why the notice of contest should not be dismissed as a result.

Respondent appears pro se, represented by its owner, Gary
Stone. Mr. Stone has written the Commission, stating "I did file an answer to the
complain as required by the Commission Rules of Procedure. Please check your
records." However, as the judge indicated in his Order to Show Cause, there is no
answer to the complaint in the Commission's file on this case.

The case was directed for review on the issue of whether
Respondent did file an answer. In order to answer that question, we will afford Respondent
an opportunity to provide us with documents showing that It did file an answer.
Specifically, Respondent must file with the Commission's Executive Secretary, within 15
days of the date of the issuance of this Order, a copy of the answer it filed to the
complaint, and a formal affidavit, stating in detail and under oath, when and how that
answer was filed.

Accordingly, the judge's Order dismissing Respondent's notice
of contest, and assessing $1200.00 in penalties, is affirmed unless Respondent files the
two documents described above with the Commission's Executive Secretary, within 15 days of
the date of issuance of this Order. Respondent shall serve on the Secretary's counsel in
this case, by mailing, a copy of the documents that it files with the Executive Secretary.
See Commission Rules 7(a)-(d).

Edwin G. Foulke, Jr. 

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya 

Commissioner

Dated: May 14, 1992