Gary Visscher, Esq.
OSHRC Remands Case Dismissed Due to Not Registering for Electronic Filing
Updated: Dec 27, 2021
Rule 8 (c) of the OSH Review Commission’s Rules of Procedure requires the parties in a case before the Commission to file documents through the Commission’s Electronic Filing System (EFS). The rule allows an exception for pro se litigants who submit a written statement to the ALJ, requesting exemption from electronic filing “on the grounds that it would place an undue burden on them to comply with the requirement.”
In order to file documents through the EFS, each party or intervenor must register with EFS. The lengthy instructions for how to register are on the OSHRC website. Neither Rule 8 nor the instructions specify how early in the case a party must register with the EFS, though the instructions indicate that any filing after the case is assigned to an ALJ must be filed electronically.
Generational Buildings, LLC, a small business (3 employees) located in Missouri, received an OSHA citation in March 2021. The citation alleged four serious violations with a proposed penalty of $21,844.50. Generational Buildings timely contested the citation; the Secretary filed a Complaint with the Commission, and Generational Buildings timely filed a written Answer.
The case was assigned to an ALJ. The August 17 Notice of Assignment included information on Rule 8’s requirements for electronic filing. In addition, the ALJ assistant twice called to remind Generational Buildings of the requirement and to register with the EFS. Generational Buildings, which was proceeding pro se, did not immediately register. Eight days after the Notice of Assignment was sent, the ALJ issued an Order to Show Cause as to Generational Buildings’ failure to register, and threatening dismissal if Generational Buildings did not respond. When Generational Buildings did not respond to the Order to Show Cause within 14 days, the time set in the Order (the Commission noted that it took 8 of those days for the Order, sent by certified mail, to be delivered), the ALJ dismissed the notice of contest and affirmed the citation.
Generational Buildings, now represented by counsel, appealed the dismissal to the Commission. In a decision dated December 2, 2021, the Commission said that dismissal under the circumstances was too harsh. It reversed the ALJ, and remanded the case for further proceedings.
The Commission cited the short time that the ALJ gave Generational Buildings to register after the Notice of Assignment was sent. The Commission also found that Generational Buildings’ failure to immediately register or respond to the Order to Show Cause “did not support a finding of contumacy or pattern of disregard for Commission proceedings” which would justify dismissal, noting particularly that Generational Buildings had timely responded to the citation and filed its Answer to the Complaint. The Commission also noted that Generational Buildings was now represented by counsel and could no longer seek exemption available to pro se respondents.
Generational Buildings’ appeal was successful in having the dismissal of the employer’s notice of contest set aside in this case. But the ALJ’s harsh sanction in this case is a reminder to employers who represent themselves - and to retained counsel – to be timely about complying with this new step in the process of contesting a citation or penalty before the Commission.