Economy Sod, Inc. (Commission decision, June 18, 1992)

Plain-English summary

A judge dismissed Economy Sod's notice of contest after concluding that the company had not answered an order to show cause. Economy Sod petitioned for review and maintained that it had responded on time. The Commission's record confirmed that a timely response had been received but overlooked because of clerical error. The Commission vacated the dismissal and remanded the case for further proceedings. The order does not identify the cited OSHA standard or any penalty amount.

Decision snapshot

• Cited standard(s): None identified in the order.
• Outcome: Dismissal vacated and case remanded for further proceedings.
• Key point: The Commission vacated this dismissal because its record showed that Economy Sod had responded on time and the response was overlooked through clerical error.

Full text (OSHRC public release)

Docket No. 91-3393, Economy Sod, Inc.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1825 K St., N.W.

4 th FLOOR

WASHINGTON, D.C. 20006-1246

FAX 8/(202) 634-4008

______
SECRETARY OF LABOR, :
:
Complainant, : OSHRC Docket No. 91-3393
:
ECONOMY SOD, INC., :
:
Respondent. :
______:

DIRECTION FOR REVIEW AND ORDER

On May 28, 1992, Administrative Law Judge James D. Burroughs issued an Order Granting the Secretary's Motion to Dismiss Notice of Contest in the referenced case. Issuance of that Order was based on the Respondent having failed to answer an earlier Order to Show Cause why the notice of contest should not be dismissed. Judge Burroughs' Order was docketed with the Commission on June 4, 1992.

On June 8, 1992, the Respondent filed a Petition for Discretionary Review with the Commission. The Respondent's petition was predicated on a belief that it had, in fact, properly responded to the Order to Show Cause in a timely fashion. Pursuant to 29 U.S.C. 651(j) and Commission Rule 92(a), 29 C.F.R. 2200.92(a), the aforementioned Final Order of the Administrative Law Judge is directed for review.

-2-

Based on a review of the official record, there is ample evidence to support a finding that the Respondent did timely respond to the Order to Show Cause and that such timely response was overlooked by the Commission due to clerical error. Accordingly, we hereby vacate the judge's Order Granting Secretary's Motion to Dismiss Notice of Contest and remand this case for further, appropriate proceedings.

/s/

Edwin G. Foulke, Jr.

Chairman

/s/

Donald G. Wiseman

Commissioner

/s/

Velma Montoya

Commissioner

Dated: June 18, 1992

NOTICE OF DIRECTION FOR REVIEW AND ORDER

The attached Direction for Review and Order by the Occupational Safety and Health Review Commission was issued and served on the following on June 18, 1992:

Daniel J Mick, Esq.

Counsel for Regional Trial Litigation

Office of the Solicitor, USDOL

200 Constitution Ave., N.W. Room S4004

Washington, D.C. 20210
Don McCoy, Esq.

Associate Regional Solicitor

Office of the Solicitor, USDOL

Room 407B, Federal Building

299 East Broward Boulevard

Ft. Lauderdale, FL 33301

Julio Izquierdo, President

Economy Sod, Inc.

18200 West Okeechobee Road

Miami, FL 33015

James D. Burroughs

Administrative Law Judge

Occupational Safety and Heaith

Review Commission

Room 240

1365 Peachtree Street, N.E.

Atlanta, GA 30309-3119

FOR THE COMMISSION

/s/

Ray H. Darling, Jr.

Executive Secretary

Quality Sod & Landscaping, Inc.

(Graphic Images Unavailable) 18200 W. Okeechobee Rd.

Miami, FL. 33015

Tel. (305) 829-2800

Fax.. (305) 829-0904

June 8, 1992

Mr. Ray H. Darling, Jr.

Executive Secretary

Occupational Safety and Health

Review Commission

1825 K Street NW Room 401

Vashington, D. C . 20006-1246

Re: OSHRC DOCKET No. 91 -3393

Dear Mr. Darling:

We hereby like to petition for discretionary review of Judge Burroughs decision on above referenced case.

The decision for dismissing the hearing on this case was based on an erroneous quote: one that states - "we didn't answer Judge Irving Sommer's order showing cause as to why notice of contest should not he dismissed".

As you can see - by the enclosed proof - we did answer both of the judges' letters. (Sommers & Burroughs)

I believe the dismissal has no valid grounds if only an answer explaining the reason for contesting the citation is alll they reguired from us; therefore, since we complied with the order like we were to do I think we are entitled to a hearing on the matter.

I thank for your cooperation and understanding. - Hopefully this time everything will be cleared.

Sincerely,

/s/

Omar Izquierdo

for Economy Sod

OI/fh.

cc: Daniel J Mick, Esq.

Counsel for Regional Trial Litigation

Office of the Solicitor, USDOL

200 Constitution Ave., N.W. Room S4004

Washington, D.C. 20210