Mayaguez Shoe Corp.

Plain-English summary

Mayaguez Shoe received one serious and one other than serious citation with proposed penalties totaling $780. The company filed a timely contest without counsel and later wrote to the Secretary about posting, procedural assistance, prompt abatement, and good faith. The judge dismissed the contest for failure to file a formal answer. The Commission construed the company's contest and correspondence together as a general denial and statement of its defenses. It set aside the default, reinstated the case, and remanded for further proceedings. The official release also includes a later order reclassifying the serious allegations as nonserious, reducing total penalties to $260, and approving the employer's withdrawal of its contest.

Decision snapshot

• Cited standard(s): Not identified in the release
• Outcome: The default dismissal was set aside and the contest reinstated on remand; the appended later order affirmed amended citations with $260 in penalties.
• Key point: A pro se employer's timely contest and follow-up correspondence could be read together as an answer rather than discarded for failure to meet formal pleading requirements.

Full text (OSHRC public release)

MAYAGUEZ SHOE CORP., Docket No.943

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 943

MAYAGUEZ SHOE CORP.,

Respondent.

ORDER OF REINSTATEMENT AND REMAND

September 8, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On July 20, 1972, Judge Solomon Goldman issued his recommended order in this case
dismissing respondent’s notice of contest and affirming the Secretary’s citation and notification
of proposed penalty.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j)
of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am
herewith directing that the Judge’s order be reviewed by the Commission.

Review of the record discloses that on May 11, 1972, respondent was issued a citation for
one alleged serious violation and one alleged other than serious violation, together with a
notification of proposed penalty in the total amount of $780. A timely notice of contest was filed
by respondent, pro se, which includes the contested citations and penalties and a statement
explaining that the bases for contesting the citations are prompt abatement and good faith.

On June 12, 1972, within ten days of receipt of the Secretary’s complaint, respondent
replied to the Solicitor, certifying the posting of pleadings and notices in the case and requesting
assistance with respect to respondent’s procedural obligations in the matter.

Thereupon, without any communication of record with respondent, the Secretary moved
to dismiss the notice of contest for failing to meet the answer requirements of Commission rule
2200.7(e).

It is clear that respondent’s reply to the Solicitor fails to meet the requirements of that
rule by not giving a statement of the facts which constitute the basis of its reply and by failing to
reply to the assertions in the complaint. However, respondent’s notice of contest together with its
letter of June 12, 1972, may be construed as a general denial of the complainant’s assertions and
as a statement of respondent’s prompt abatement and good faith. Respondent’s petition for
discretionary review, filed August 4, 1972, establishes that it was respondent’s intention to
answer the complaint by means of its June 12 correspondence.

Accordingly, the Judge’s order is set aside and the case is reinstated and remanded for
further proceedings in accordance with this order.

[The Judge’s decision referred to herein follows]

GOLDMAN, JUDGE, OSAHRC:

This case is properly before this Hearing Examiner upon assignment for hearing by the
Occupational Safety and Health Review Commission.

Motion having been made by complainant, Secretary of Labor, to impose sanctions
against the respondent for failure to file timely answer to the complaint, and to dismiss
respondent’s notice of contest and affirm the citations and penalties issued by the Secretary of
Labor, the record before me for consideration discloses the following:

1. The Secretary of Labor issued one citation for other than serious violation and
   one citation for serious violation to respondent Mayaguez Shoe Corporation,
   on May 11, 1972.

2. The Secretary of Labor issued a notification of proposed penalty to
   respondent in the total amount of $780.00 in relation to the above-referred
   citations on May 11, 1972.

3. The Secretary of Labor filed a complaint with the Occupational Safety and
   Health Review Commission on June 6, 1972. Two copies of said complaint
   were sent to respondent on the same date by certified mail. According to
   certified mail return receipt number 599141, said copies of the complaint
   were received by respondent on June 7, 1972.

4. On July 7, 1972, the Secretary of Labor filed a motion with the undersigned
   Judge asking for the dismissal of respondent’s notice of contest and for the
   affirmance of the citations and proposed penalties issued against respondent,
   such motion being based on respondent’s alleged failure to answer petitioner’s
   complaint. Two copies of said motion were sent to respondent on the same
   date by certified mail as evidenced by receipt number 597887 and certificate
   of service.

5. To the date of this order, respondent has not filed any answer with the Occupational
   Safety and Health Review Commission, or on the petitioner.

ORDER

It appearing that respondent, Mayaguez Shoe Corporation, a corporation, is in default for
failure of said respondent to answer, or otherwise defend, as required by law and by the Rules of
Procedure adopted by the Occupational Safety and Health Review Commission pursuant to
section 12(g) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604 et seq ; 29 U.S.C.
651, et seq.),

WHEREFORE, cause having been shown, the complainant’s motion is granted and it is

ORDERED, That:

1. The notice of contest filed by the respondent be, and is hereby, dismissed;

2. The Citation for Other Than Serious Violation issued by the Secretary of Labor be, and is
   hereby, affirmed;

3. The Citation for Serious Violation issued by the Secretary of Labor be, and is hereby,
   affirmed;

4. The proposed penalty assessed against respondent in the total amount of $780.00 be, and is
   hereby, affirmed; and

5. Respondent shall, within thirty (30) days from the date hereof, pay to the Secretary of Labor,
   by means of either a certified or bank cashier’s check, the assessed penalty of $780.00.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 943

MAYAGUEZ SHOE CORP.,

Respondent.

February 15, 1973

GOLDMAN, JUDGE, OSAHRC:

This case is before me upon assignment for hearing by the Occupational Safety and
Health Review Commission.

At the prehearing conference held on October 20, 1972, motions were made,
respectively, by the Secretary of Labor, hereinafter referred to as complainant, to amend his
Complaint, and by Mayaguez Shoe Corporation, hereinafter referred to as respondent, to
withdraw its Notice of Contest.

In explanation of his Motion to Amend, complainant stated that an evaluation of the
evidence available as of October 20, 1972, had led him to conclude that the violations specified
in paragraphs V(a), (b) and (c) of the Complaint should not be classified as serious violations
within the meaning of section 17(k) of the Act. Complainant accordingly moved:

(1) To amend the Complaint to allege that the violations specified in paragraphs
V(a), (b) and (c), had a direct and immediate relationship to safety and health but
were not of a serious nature within the meaning of section 17(k) of the Act;

(2) To amend the Complaint further by reducing the penalty claimed therein for
the violations charged in paragraphs V(a), (b) and (c), from $700.00 to $180.00,
reducing the total claimed penalty from $780.00 to $260.00; and

(3) That the Citation for Serious Violations herein be deemed amended
accordingly.

Respondent’s Motion for withdrawal of its Notice of Contest set forth that the only issue
in dispute in this proceeding was the amount of penalty proposed, and that it had tendered the
sum of $260.00 to complainant in full payment of penalty. Respondent also certified that the
violations specified in the Complaint were abated shortly after the citations were received and
that it is complying, and will comply in the future, with the provisions of the Occupational
Safety and Health Act of 1970, and with the standards and regulations promulgated thereunder.

Respondent, thereafter, by letter dated October 25, 1972, notified the undersigned that
posting of complainant’s Motion to Amend the Complainant and respondent’s Motion to
Withdraw its Notice of Contest had been accomplished.

Complainant and Respondent have separately informed the undersigned that each has no
objection to the Motion of the other. A reasonable time has elapsed since posting of the Motions
on October 20, 1972, and no objections have been received from affected employees or their
representatives.

In view of the foregoing, and upon the representations of the parties and the evidence of
the witnesses at the pre-trial conference, it is hereby determined that the complainant should be
permitted to amend his Complaint to reclassify the violations charged in paragraphs V(a), (b)
and (c) to non-serious violations, and to reduce the penalties claimed therefor to $180.00, and
that the respondent should be permitted to withdraw its Notice of Contest.

It is accordingly ordered:

(1) That the complainant’s Motion to amend his Complaint in the respects stated above
be, and it hereby is, granted, and that the Citation and the Proposed Penalties herein be deemed
amended accordingly;

(2) That the respondent’s Motion to withdraw its Notice of Contest be, and it hereby is
granted; and

(3) That the Citation and the Proposed Penalties, as amended be, and they hereby are,
affirmed.

There being no further contest in this case, it is respectfully recommended that this order
be made the order of the Commission.