Virgil Alan Hickman & Sherry K. Lowe, d/b/a Al Kim Painting

Plain-English summary

The Secretary issued two citations alleging 26 serious and four willful violations against Virgil Alan Hickman and Sherry K. Lowe, doing business as Al Kim Painting, with proposed penalties totaling $57,000. The ALJ entered a default after they failed to answer the complaint or respond to a show-cause order. The Commission set aside that dismissal because the pro se respondents did not receive the show-cause order and the record did not suggest deliberate refusal of service. It also considered the seriousness of the charges, the size of the penalty, the respondents' claim that they were employees rather than the responsible employer, their alleged small size, and the Secretary's support for review. The Commission remanded the case and gave the respondents 30 days after receipt of the order to answer, while authorizing reinstatement of the default if they failed to comply. The decision does not identify the OSHA standards underlying the citation items.

Decision snapshot

• Cited standard(s): None identified in the decision
• Outcome: Default dismissal and $57,000 assessment set aside; case remanded for a final opportunity to answer.
• Key point: The most severe default sanction may be set aside when pro se parties did not receive the warning order and significant disputed issues remain.

Full text (OSHRC public release)

Docket No. 90-1169

SECRETARY OF LABOR,

Complainant,

v.

VIRGIL ALAN HICKMAN & SHERRY K. LOWE, d/b/a

AL KIM PAINTING,

Respondent.

OSHRC Docket No. 90-1169

DIRECTION FOR REVIEW AND REMAN ORDER

Respondents, Virgil Alan Hickman & Sherry K. Lowe, d/b/a Al Kim Painting, filed a
Petition for Discretionary Review in this case on February 28, 1991.  In their
Petition, the Respondents allege that they have been aggrieved by the Decision and Order
of Administrative Law Judge Paul L. Brady, which was docketed with the Commission's
Executive Secretary on February 22, 1991. Complainant, the Secretary of Labor, filed a
responsive letter on March 8, 1991, in which she stated that "[t]he Secretary
supports respondent's request for review."  Pursuant to 29 U.S.C. � 661(j) and
29 C.F.R. � 2200.92(a), the decision of the Administrative Law Judge is directed for
review.  For the reasons that follow, that decision is set aside and the case is
remanded to the Judge for further proceedings.

The proceeding before us was initiated when the
Respondents contested two citations issued by the Secretary to Al Kim Painting, alleging
26 serious and four willful violations of the Occupational Safety and Health Act of 1970,
29 U.S.C. �� 651-678, and proposing penalties totaling $57,000.  The handwritten
notice of contest, signed by Sherry K. Lowe and Alan Hickman, included the following
denial of responsibility for the alleged violations:

We were assumed to be the owners but were in fact employees of Moritz, Inc.  We are
contesting all citations and notices of penalties, and are not responsible for any alleged
violations.

Lowe and Hickman have continued to appear on a pro se basis throughout this
proceeding.

Following the filing of the Secretary's
complaint, the Respondents received two extensions of time from Judge Brady for the filing
of their answer.  Nevertheless, they failed to file an answer on or before the
revised deadline of November 1, 1990.  Accordingly, on December 19, 1990, pursuant to
Commission Rule 41(a), 29 C.F.R. � 2200.41(a), Judge Brady issued a show cause order to
the Respondents, requiring them to show cause "within ten days of receipt of this
order" why they should not be "declared in default for failure to plead".
  When the Respondents failed to reply to this show cause order, the Judge issued a
second order on January 29, 1991, declaring the Respondents in default, dismissing their
notice on contest, affirming the two contested citations and assessing the proposed
penalties totaling $57,000.  It is this second order that is now before us on review.

Given the fact that Lowe and Hickman are
appearing before us pro se , we will construe their Petition for
Discretionary Review as a motion to set aside sanctions under Commission Rule 41(b), 29
C.F.R. � 2200.41(b).  That rule grants us the authority to set aside sanctions
imposed under Rule 41(a), such as the Judge's dismissal order in this case, for any
reasons that we deem to be "sufficient".  Having reviewed the record in
this case, we now find that there is "sufficient" reason to set aside the
Judge's order and to grant the Respondents one final opportunity to file an answer to the
Secretary's complaint.

The most significant factor in our determination
is the fact that the Respondents did not receive the Judge's show cause order. Receipt of
this order would have placed the Respondents on notice that they were at risk of having
the most severe possible sanction, dismissal of their notice of contest without a hearing,
imposed.  However, the record establishes that Respondents' copy of the show cause
order was not claimed at their post office box and was instead ultimately returned to the
Judge.  While the record does not conclusively establish the reason for this
nondelivery, it does suggest that the reason was not a deliberate refusal of service by
the Respondents.  In their Petition for Discretionary Review, the Respondents state
that "[w]e have been out of town and were not aware we were to respond. . . ."
Presumably, therefore, the failure to accomplish delivery of the show cause order was the
result of the Respondents being "out of town" and unable to accept delivery of
the order, which had been sent by certified mail to their post office box.

Several other factors have contributed to our
determination.  Among those are:  the seriousness of the charges and the size of
the penalty; the Respondents' claim that they were employees of another company, rather
than being the employer responsible for the alleged violations; the Respondents' small
size, if in fact they were employers[[1/]]; and the Secretary's support for their Petition
for Discretionary Review.

Under the unusual circumstances presented by
this case, and to avoid any further delay, we conclude that the most expeditious course of
action is to set aside the Judge's order, remand the case to the Judge, and provide the
Respondents with another opportunity to file their answer with the Judge.
  Accordingly, we set aside the dismissal order under Rule 41(b) and remand this case
to the Judge.  The Respondents are ordered to file their answer to the Secretary's
complaint with Judge Brady within 30 days of their receipt of this Commission order.
  An additional copy of the Commission's Rules of Procedure, which explain the
requirements for filing an answer, is forwarded to the Respondents along with this order.
  See Rule 36, 29 C.F.R. � 2200.36.  If the Respondents fail to comply with
this order by not filing their answer in a timely manner, the Judge is authorized to
reinstate his dismissal order, affirming the contested citations and assessing the
proposed penalties.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: March 22, 1991

FEBRUARY 28, 1991

DEAR SIRS,

IN REGARDS TO DOCKET NO. 90-1169, WE WOULD LIKE TO FILE A PETITION FOR DISCRETIONARY
REVIEW.

WE HAVE BEEN OUT OF TOWN AND WERE NOT AWARE WE WERE TO RESPOND TO THE PREVIOUS LETTERS
MAILED.

THANK YOU FOR YOUR TIME IN THIS MATTER.

SINCERELY,

ALAN HICKMAN

SHERRY LOWE

ALKIM PAINTING

March 8, 1991

Ray H. Darling, Jr.

Executive Secretary

Occupational Safety and Health

Review Commission

Re: Secretary of Labor v. Alkim Painting

OSHRC Docket No. 90-1169

Dear Mr. Darling:

On February 28, 1991, respondent filed a petition for review of the judge's order in the
above case.  The Secretary supports respondent's request for review.

Sincerely,

Daniel J. Mick

Counsel for Regional

Trial Litigation

cc:  Alan Hickman, Sherry Lowe

Alkim Painting

William Kloepfer

Regional Solicitor

SECRETARY OF LABOR,

Complainant,

v.

VIRGIL ALAN HICKMAN &

SHERRY K. LOWE, d/b/a

AL KIM PAINTING,

Respondent.

OSHRC Docket No. 90-1169

ORDER DISMISSING NOTICE OF CONTEST

Respondent, having failed to respond to an order
to show cause and pursuant to Rule 41(a) of the Commission's Rules of Procedure [29 C.F.R.
Section 2200.4(a)], is hereby declared in default for its failure to comply with
Commission Rule 36, 2200.36, requiring the filing of an answer to the complaint in this
cause.

Therefore, it is ORDERED;

1.  The notice of contest is dismissed.

2.  Citation No. 1 is hereby affirmed and a penalty in the sum of $22,000 is
assessed.

3.  Citation No. 2 is hereby affirmed and a penalty in the sum of $35,000 is
assessed.

Dated this 29th day of January, 1991.

PAUL L. BRADY

Judge

FOOTNOTES:

[[1/]] The Secretary's complaint alleges that Respondents Hickman and Lowe were doing
business as Al Kim Painting, that they had four employees, that they were a sole
proprietorship, and that they had a place of business in Mansfield, Ohio, where they were
engaged in the cleaning and painting of horse trailers.  As indicated, Hickman and
Lowe claimed in their notice of contest that they were employees of Moritz, Inc.