Ozark Wood Gallery (Commission decision, June 6, 1995)

Plain-English summary

The chief judge dismissed Ozark Wood Gallery's notice of contest because the business did not file an answer or respond to a show-cause order. On review, Ozark asserted that it had never had any employees, while the Secretary's complaint alleged approximately six employees at the time of inspection. The Commission held that Ozark's procedural failures waived its right to contest the merits. However, whether Ozark was an employer under the Act was a jurisdictional question that could be raised at any time, and the existing record could not resolve it. The Commission remanded for evidence and findings on employee status. If jurisdiction existed, the citation items would be affirmed based on the default.

Decision snapshot

• Cited standard(s): None enumerated; the order concerns default and employer-status jurisdiction.
• Outcome: Remanded. The merits default remained, but the case returned to the judge to decide whether Ozark had employees and was subject to Commission jurisdiction.
• Key point: Procedural default waives merits defenses, but it does not prevent a party from raising a genuine jurisdictional claim that it was never an employer under the Act.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

.
.
SECRETARY OF LABOR,
..

Complainant,

v. OSHRC Docket No. 94-3292
.
.
.
OZARK WOOD GALLERY,
l

.

Respondent.

ORDER
On March 2, 1995, the Chief Administrative Law Judge issued an order dismissing the notice of contest filed by respondent Ozark Wood Gallery (C’Ozark”)for its failure to file an answer or respond to an order to show cause. In its petition for discretionary review, Ozark alleges that it “has no employees and never has had any employees.” However, the Secretary alleges in his complaint that Ozark had approximately six employees at the time of the inspection.
We do not condone Ozark’s failure to file an answer or its failure to respond to the judge’s order to show cause and find that, in so doing, Ozark has waived its right to contest the merits of the citation. However, in alleging that it “has no employees and never has had any employees,” Ozark raises a question of jurisdiction, which can be raised at any time during Commission proceedings. Willamette Iron & Steel Co., 9 BNA OSHC 1900, 1904, 1981 CCH OSHD 7 25,427; p.31,699 (No. 76-1201, 1981); Fed. R. Civ. P. 12(h)(3). The record

is insufficient to resolve this issue. We therefore remand this case to the judge to take

1995 OSHRC No. 37
2

additional evidence and to make the necessary findings of fact and conclusions of law on the jurisdictional issue. See, e.g. Loomis Cabinet Co., 15 BNA OSHC 1635, 199 1-93 CCH OSHD 7 29,689 (No. 88-2012, 1992), afd, 20 F.3d 938 (9th Cir. 1994). In the event the

judge finds that jurisdiction exists, then the citation items shall be af!firmedbased on Ozark’s failure to file an answer and its failure to respond to the judge’s order to show cause.

JisbmJd
&
Stuart E. Weisberg
Chairman

Velma Montoya
Commissioner

Dated: June 9, 1995
NOTICE OF REMAND ORDER

The attached Remand Order by the Occupational Safety and Health Review Commission was issued and served on the following on June 9, 1995.

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

Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105

Elton Botard
Ozark Wood Gallery
Highway 63 South
Brandsville, MO 65688

Irving Somrner
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419

FOR THE COMMISSION

Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003-l 9

SECRETARY OF LABOR
Complainank
v. OSHRC DOCKET
NO. 94-3292
OZARK WOOD GALLERY
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the abve referenced case was docketed with the Commission on Marcr 3, 1995. The decision of the Judge will become a final order of the Commission on April 3, 1995 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received b the Executive Secretary on or before March 23., 1995 in order to rmit sd cient time for its review. See Commission Rule 91,29 C.r .R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review rrghts may contact the Commission’s Executive Secretary or call (202) 606-5400.

Date: March 3, 1995
DOCKET NO. 94-3292
NOTICE IS GIVEN TO THE FOUWING:

Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the Sof l citor, U.S. DOe
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Tedrick Housh, Esq.
Re lonal Solicitor
O&e of the Solicitor U.S. DOL
1210 City Center Sqube
1100 Main Street
Kansas City, MO 64105
c

Elton Botard
Ozarks Wood Gallery
Highway 63 South
Brandsville, MO 65688

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Heal B
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00110467891:07
UNITED STATES OF AMERICA
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

..

SECRETARY OF LABOR, 0.

Complainant,

v. Docket No. 94-3292
OZARK WOOD GALLERY

Respondent,
..
..

ORDER

    On 12/20/94 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 AFFIWED in all respects.

IRVING SOlbIMER
Chief Judge, OSHRC

DATE: MAR 0 2 f!#!ji
Washington, D.C.