1This case caption, rather than the one
used by the Administrative Law Judge, is the correct one, see 51 Fed. Reg. 42,091
(1986) (to be codified at 29 C.F.R. Part 1978, especially 29 C.F.R. § 1978.108(a)), and
was used by the parties on their submissions.
2The ALJ erroneously cited to
20 C.F.R. § 18.6(d)(2).
3In his recital of the facts relevant
to this recommendation, The ALJ noted that Respondent filed for bankruptcy. R.D. and O. at 2.
4Because I grant summary
decision in favor of Complainant, I do not decide to strike Respondent's request for a formal
hearing.
5On June 12, 1987, subsequent to
issuance of the ALJ's R.D. and O. and transmittal of the record to me for review, Respondent
filed its Opposition To Motion To Accept Findings of Fact of Regional Administrator for
Occupational Safety and Opposition To Motion For Summary Decision in which Respondent
argues only against the granting of the motion for summary decision. Because this submission
was filed out of time, I have not considered the arguments made therein. Oppositions to motions
of summary judgment must be filed within 10 days after service of the motion. 29 C.F.R. §
18.40(a)(1986). While I note that the ALJ's decision was issued 3 days before the expiration of
this 10 day period, this fact does not affect the timeliness of Respondent's submission since it
was filed 12 days late.
Also, on June 22, 1987 and July 13, 1987, Respondent submitted certain affidavits. Counsel for
the Assistant Secretary has filed objections to Respondent's belated attempt to introduce this
evidence. I have not considered these affidavits since my review of this case must be based on
the evidence before the ALJ. See 29 C.F.R. § 1978.109(c).