E.C.H. Construction (Commission decision, July 31, 2007)

Dismissal set aside over possible service failure

Decision type
Commission decision
Docket
07-0337
Decided
July 31, 2007
Outcome
Remanded
Precedential status
Citable Commission precedent
Checked against source
2026-07-22
Cited standards

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Currency note: this decision dates from 2007
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the agency's own release.
Read the official release (oshrc.gov)

Plain-English summary

OSHA cited E.C.H. Construction for failing to certify abatement of earlier uncontested violations and proposed a $300 penalty. After E.C.H. contested the citation, later filings were sent to a Holmes Lumber Companies address shown on the employer's handwritten notice of contest. The judge dismissed the contest after no answer or response to a show-cause order was filed. An employee of Holmes's parent company later told the Commission that E.C.H. was not a subsidiary or agent of Holmes. The Commission found the record insufficient to determine whether E.C.H. had been properly served or whether Holmes represented it. The dismissal was set aside and the case was remanded for further proceedings.

Decision snapshot

  • Cited standard(s): 29 C.F.R. § 1903.19(c)(1)
  • Outcome: The Commission set aside the dismissal order and remanded the case to determine whether E.C.H. was properly served or represented by Holmes.
  • Key point: A contest should not be dismissed for nonresponse when the record leaves unresolved whether later case documents reached the employer or its authorized representative.

Full text (OSHRC public release)

E.C.H. Construction, Docket No. 07-0337

SECRETARY OF LABOR,

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3

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MicrosoftInternetExplorer4

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 07-0337

E.C.H. CONSTRUCTION,

Respondent.

DIRECTION FOR REVIEW AND REMAND
ORDER

Before: � THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION: ���

����������� On
January 24, 2007, the Occupational Safety and Health Administration (�OSHA�) issued a citation to E.C.H. Construction (�E.C.H.�) for an �other� violation with a proposed penalty of $300. � The citation alleges that E.C.H. violated 29 C.F.R. � 1903.19(c)(1) because it failed to certify to OSHA that uncontested violations previously cited on October 31, 2006 had been abated within ten calendar days of the prior citation�s abatement dates. � Both the current and prior citations identify the following address for E.C.H.: �15730 Agler Rds., Garrettsville , OH 44231 .� �

����������� E.C.H.
filed a timely notice of contest for the current citation that was handwritten on stationary bearing the letterhead of �Holmes Lumber Companies� (Holmes), as well as the addresses of four Holmes locations, including one at � 216 East Main Street , Sugarcreek , OH 44681 .� � The Garrettsville, Ohio address listed on the citations is not mentioned in E.C.H.�s notice of contest. � After E.C.H. filed its notice of contest, all subsequent filings were served on Holmes at its Sugarcreek , Ohio address.

����������� On July 2, 2007, Chief
Administrative Law Judge Irving Sommer
entered an Order dismissing E.C.H.�s notice of contest for its failure to file an answer and for failing to respond to the judge�s order to show cause. � After the case was docketed by the Executive Secretary, the Executive Secretary�s Office received a telephone call from an employee of the parent company of Holmes who had received all of the case filings. � The caller claimed that E.C.H. is not a subsidiary or agent of Holmes, and did not know why the case filings had been mailed to Holmes.

����������� Based
on our review of the record, it appears that E.C.H. may not have been served any of the documents in this case after the original citation was issued because they were sent to the Holmes address at Sugarcreek , Ohio identified on E.C.H.�s notice of contest. � These circumstances might explain E.C.H.�s failure to file an answer or respond to the judge�s order to show cause. � However, the record is insufficient for us to determine if E.C.H. was properly served these documents or if Holmes was acting as its representative. � See Commission Rule of Procedure 22(a), 29 C.F.R. � 2200.22(a) (a party may appear through a representative).

����������� We
therefore direct this case for review sua
sponte , set aside the judge�s order, and remand the matter to the judge for further proceedings consistent with this order. �� See Commission Rules of Procedure 91(a) and 92(b), 29 C.F.R. 2200.91(a) and 92(b) (Commission review of judge�s decision discretionary; review may be directed by Commissioner on his own motion).

����������� SO
ORDERED.

����������������������������������������������������������������������� /s/____

����������������������������������������������������������������������� Horace A. Thompson III

����������������������������������������������������������������������� Chairman

����������������������������������������������������������������������� /s/____

����������������������������������������������������������������������� Thomasina V. Rogers

Dated: ����������� July 31, 2007 ��������������������������������� Commissioner

United
States of America

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION



�����������

Secretary
of Labor,

�������������������� Complainant,

����������������� V.

OSHRC
DOCKET NO. 07-0337

E.C.H.
CONSTRUCTION

��������������������� Respondent.

ORDER

On 6/4/07
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: � July 2, 2007

�������� Washington ,
D.C.

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