E.C.H. Construction
Dismissal set aside over possible service failure
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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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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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