Weatherproofing Systems

Plain-English summary

A chief administrative law judge dismissed Weatherproofing Systems' notice of contest after the company failed to answer the Secretary's complaint or respond to a show-cause order. The case file contained both New Hampshire and Massachusetts addresses, and critical Commission mail sent to the Massachusetts address was returned as unclaimed or undeliverable. The Commission found that the company may not have received the documents because of the address used. It returned the case to the judge to determine whether the default could be excused and the notice of contest reinstated under Federal Rule of Civil Procedure 60(b).

Decision snapshot

• Cited standard(s): The order does not identify the standards in the underlying citation.
• Outcome: Case returned to the judge for proceedings on whether the default should be excused and the notice of contest reinstated.
• Key point: A default dismissal may warrant relief when the record suggests that critical orders were sent to an uncertain or incorrect address.

Full text (OSHRC public release)

                         United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                    1120 20th Street, N.W., Ninth Floor
                       Washington, DC 20036-3457

                                      :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 01-0098
:
WEATHERPROOFING SYSTEMS, :
:
Respondent. :
:

                                     ORDER

Before: ROGERS, Chairman; and EISENBREY, Commissioner.
BY THE COMMISSION:
On May 4, 2001, Chief Administrative Law Judge Irving Sommer issued a decision
dismissing the notice of contest in this case because Weatherproofing Systems
(“Weatherproofing”) failed to file an answer to the Secretary’s complaint and then failed to
respond to the judge’s subsequent Order to Show Cause. Pursuant to section 12(j) of the
Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 661(j), the judge’s
decision became the final order of the Commission on June 4, 2001.
On June 13, 2001, the envelope containing Weatherproofing’s copy of the Notice of
Docketing of Administrative Law Judge’s Decision, which was sent to Weatherproofing by
first-class mail on May 4, 2001, was returned to the Commission and marked “unable to
forward as addressed” by the Postal Service. Examination of the case file revealed that the

                                                                  2001 OSHRC No. 25

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judge’s Order to Show Cause, which had been sent by certified mail with return receipt on
March 29, 2001, had also been returned to the Commission, but on that envelope were the
following notations from the Postal Service: the word “unclaimed” partially obscured and
rubber-stamped twice; and this chronology with the dates hand-written-- “1st Notice 4-5;
2nd Notice 4-10; Return 4-20.”
Further examination of the file revealed that the Commission may have sent its
correspondence to an incorrect address. The Secretary’s original citation had been sent to
an address in New Hampshire, but the company letterhead on which Weatherproofing later
submitted its notice of contest showed a Massachusetts address. Weatherproofing never
formally notified the Commission of a change of address, but the Commission nevertheless
sent all its correspondence, including the Order to Show Cause, to the Massachusetts address
on the letterhead. The documents in the file also show that, although the Secretary sent the
original citation to the New Hampshire address, she later sent her complaint to the
Massachusetts address printed on the notice of contest letterhead. We note, however, that
the complaint, the Commission’s Notice of Docketing and Instructions to Employer, the
Commission’s Posting and Service Order, another order from the judge, and the judge’s
decision were sent to the Massachusetts address by first class mail with no indication in the
file that they were returned as undeliverable.
Based on this record, it appears that Weatherproofing may not have received critical
documents in this case because the Commission sent its correspondence to the Massachusetts
address. To permit appropriate inquiry into this matter, we refer the case to the judge to
conduct further proceedings to determine whether Weatherproofing’s failure to file an
answer to the complaint and respond to the show cause order may be excused under Rule
 3

60(b) of the Federal Rules of Civil Procedure, and if so, whether reinstatement of the
employer’s notice of contest would be appropriate relief.1

                                                   /s/
                                       Thomasina V. Rogers
                                       Chairman



                                                  /s/
                                       Ross Eisenbrey
                                       Commissioner

Dated: September 11, 2001

   1
    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 on a court’s own motion, see, e.g., Kingvision Pay-Per-View Ltd. v. Lake Alice
Bar, 168 F.3d 347, 350 (9th Cir. 1999), and where a default judgment has been issued based
on the mistake or inadvertence of the court or judge, see, e.g., id.; B. A. Ward, Inc., 18 BNA
OSHC 1941, 1999 CCH OSHD ¶ 31,934 (No. 98-1651, 1999).