The Boardman Company (Commission decision, December 16, 1980)

Plain-English summary

A procedural order. The safety merits were never reached.

The Secretary was served with the notice of contest on December 28, 1979, so
Commission Rule 33(a)(1) required a complaint by January 17, 1980. None was
filed, and no extension was requested. Judge Irving Sommer issued a show cause order on his own motion in April, asking the Secretary either to explain why the citation should not stand as the complaint or to file a complaint in ten days. The Secretary did neither. Judge Sommer then let the citation stand as the complaint. When the case moved to Judge James A. Cronin, Jr. in July, he vacated that order as contrary to the Commission's rules and gave the Secretary a chance to move for leave to file late. The Secretary did so, with a complaint attached. Judge Cronin denied the motion, treated the failure as a waiver of further participation under Rule 38, and vacated the citation.

The Commission agreed with one half of that and reversed the other.

Judge Cronin was right about the sua sponte orders. The Commission had just
rejected the practice of letting a citation stand as a complaint in ASARCO,
Inc., El Paso Division, and the Commission says he correctly anticipated that holding.

He was wrong to refuse leave to file late. The governing rule, quoted from
ASARCO, is that a citation or notice of contest ordinarily should not be
dismissed for failure to comply with the Commission's procedural rules. The
policy favoring decision on the merits prevails unless the noncompliance is
the party's own contumacious conduct or it prejudices the other side.

Neither was present. The Secretary had disobeyed no Commission order: Judge
Sommer's show cause order gave the option of not responding if the Secretary
was content to have the citation serve as the complaint, and once Judge Cronin issued his July 30 order the Secretary moved on time. The Secretary's underlying excuse was his reading of IMC Chemical Group, which the Commission had already rejected in ASARCO, but a rejected interpretation is still an explanation, and the Commission held it enough to preclude a finding of contumacious conduct. Boardman had shown no prejudice.

So the motion to dismiss is denied, leave to file out of time is granted, the
complaint is accepted, Boardman has 15 days to answer, and the case goes back
to the judge.

The full text below also carries Judge Cronin's decision of September 15,
1980, which reached the opposite result on the same affidavit and is worth
reading because the Commission rejected the judge's conclusion that the Secretary's conduct was contumacious.

The judge found that the Dallas Regional Solicitor had not merely missed a
deadline but had adopted and followed for years a deliberate policy of not
complying with Rule 33(a)(1). He took the stated reasons apart one at a time.
A heavy caseload does not excuse essential pleadings. IMC Chemical Group did not hold that a citation is a complaint in all situations; it held only that, for purposes of applying Federal Rule 41(a)(1) to Commission adjudication, the citation and notice of contest are analogous to a complaint and answer. The sua sponte orders the Solicitor pointed to had never been reviewed by the Commission, so they carry no precedential weight, and the Solicitor was not misled by them but took a calculated risk while knowing that other judges had vacated such orders, as in Structural Metals Inc. The simplified proceedings rules dispense with a complaint only where a case is eligible, a party asks, and no one objects; none of that happened here, and this case was not even eligible because the citation alleged a violation of 29 C.F.R. § 1910.95(b)(3). The last reason offered, that skipping complaints reduces paperwork and conserves attorney time, the judge called sheer effrontery.

The judge acknowledged that Boardman had shown no prejudice and held that Rule 38 discretion may be exercised anyway where the failure to plead is unjustified and, as here, intentional. That is the holding the Commission reversed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(3), noted only as the reason
  the case was ineligible for simplified proceedings; the merits were not
  reached
• Outcome: Remanded. The vacatur is reversed, the motion to dismiss is
  denied, leave to file the complaint out of time is granted, and the employer has 15 days to answer.
• Key point: Procedural noncompliance does not cost a party its case
  unless the conduct was contumacious or the other side was prejudiced. A
  legal interpretation the Commission has rejected can still be an explanation sufficient to rule out contumacy.

Full text (OSHRC public release)


THE BOARDMAN COMPANY, OSHRC DOCKET NO. 80-75

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
80-75

THE BOARDMAN COMPANY,

Respondent.

December 16, 1980

ORDER OF REMAND

A decision of Administrative Law Judge James A. Cronin, Jr., is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. In that decision, Judge Cronin vacated a citation issued to The Boardman Company for the Secretary’s failure to file a timely complaint. For the reasons that follow, we reverse the Judge’s decision and remand the matter for further proceedings.

On December 13, 1979, the Secretary issued a citation to respondent. Respondent’s notice of contest was dated December 26, and was received by the Secretary on December 28. Under Commission Rule 33(a)(1) 1, 29 C.F.R. § 2200.33(a)(1), the Secretary was required to file his complaint by January 17, 1980. Neither a complaint nor a motion for extension of time to file a complaint was filed by the Secretary. On April 2, 1980, Assistant Chief Administrative Law Judge Irving Sommer issued a sua sponte order to the Secretary to show cause why the citation should not stand as a complaint or, in the alternative, to file a complaint within ten days from the notice of order. The Secretary failed to respond to either part of the order.

On May 7, 1980, Judge Sommer issued an order allowing the citation to stand as the complaint, and allowing respondent 15 days to answer or otherwise plead. On May 23, respondent filed its answer and also a motion to dismiss for the Secretary’s failure to file a complaint. On June 23, Judge Sommer denied respondent’s motion and reaffirmed the May 7 order.

On July 28, 1980, the case was assigned to Judge Cronin. On July 30, Judge Cronin vacated Judge Sommer’s order of May 7 and granted the Secretary an opportunity to file a motion requesting leave to file a complaint out of time. The Secretary filed the motion on August 8, accompanied by a complaint. Respondent, in turn, filed a memorandum in opposition to the Secretary’s motion and renewed its May 23 motion to dismiss the proceedings.

In his decision, Judge Cronin concluded that the Secretary’s failure to file either a timely complaint or adequate justification for the failure constituted a waiver of his right to further participation under Commission Rule 38, 29 C.F.R. § 2200.382. In rejecting the Secretary’s arguments justifying his failure to file a timely complaint, Judge Cronin correctly anticipated the Commission’s decision in ASARCO, Inc., El Paso Div., et al., 80 OSAHRC ——, 8 BNA OSHC 2156, 1980 CCH OSHD ¶ 24,838 (Nos. 79–6850, etc., 1980). In that decision, the Commission rejected the Judges’ practice of sua sponte orders permitting citations to stand as complaints.

Nevertheless, we find that the Judge erred by not granting the Secretary’s motion to file a late complaint. As we stated in ASARCO:

It is well established under Commission precedent that a citation or notice of contest ordinarily should not be dismissed for failure of a party to comply with the Commission’s Rules of Procedure or with other procedural requirements. See, e. g., Circle T. Drilling Co., 80 OSAHRC ——, 8 BNA OSHC 1681, 1980 CCH OSHD ¶24,583 (No. 79–2667, 1980); Duquesne Light Co., 80 OSAHRC ——, 8 BNA OSHC 1218, 1980 CCH OSHD ¶24,384 (Nos. 78–5034 et al., 1980); Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977–78 CCH OSHD ¶21,551 (No. 12528, 1977). Thus, the policy in the law in favor of deciding cases on their merits generally prevails unless the party’s noncompliance results from its own contumacious conduct or results in prejudice to the opposing party. Duquesne Light Co., supra. 8 BNA OSHC at 2163, 1980 CCH OSHD at pp. 30,619–30,620.

We conclude that the failure to timely file a complaint in this matter does not constitute contumacious conduct. The record reveals that the Secretary has not failed to comply with any order of the Commission. First, Judge Sommer’s show cause order gave the Secretary the option of not filing a response if he was willing to have the citation stand as the complaint. Second, after Judge Cronin issued his order of July 30, the Secretary timely filed a motion to file a complaint out of time. Finally, the Secretary argues that its failure to file a timely complaint in the first instance resulted from its interpretation of the Commission decision in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ¶23,149 (No. 76–4761, 1978), rev’d, Nos. 79–3018 and 79–3041 (6th Cir., December 5, 1980).33 Although we rejected the Secretary’s interpretation of IMC in ASARCO, Inc., supra, we find that the Secretary’s explanation for its failure to file a timely complaint is sufficient to preclude a finding of contumacious conduct. ASARCO, Inc., supra. Moreover, at this time respondent has not established any prejudice resulting from the Secretary’s failure to file a timely complaint.

Accordingly, we reverse Judge Cronin’s granting of respondent’s motion to dismiss and deny said motion. We grant the Secretary’s motion to file pleading out of time and accept the complaint filed with the motion. Respondent is granted 15 days to answer the complaint and the case is remanded to the Judge for further proceedings, consistent with this opinion.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: DEC 16, 1980

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
80-75

THE BOARDMAN COMPANY,

Respondent.

September 15, 1980

DECISION AND ORDER

Complainant’s Motion
For
Leave To File Pleading Out Of Time, dated August 8, 1980, will be denied, and complainant’s citation vacated.

On December 13, 1979, Citation No. 1 was issued, and respondent’s notice of contest, dated December 26, 1979, was received by complainant, the Secretary of Labor, on December 28, 1979. This Commission received the case from the Secretary on January 4, 1980.

Commission Rule 33(a)(1) (29 C.F.R. § 2200.33(a)(1)) provides:

The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.

As applied to this case, Rule 33(a)(1) required the Secretary to file his complaint by January 17, 1980, 20 days after December 28, 1979.

No complaint was filed by complainant in compliance with Rule 33, and no motion for an extension of time to file a complaint was filed prior to April 2, 1980. On that date, a Commission judge issued a sua sponte order to the Secretary to show cause why the contested action should not stand as a complaint, or alternatively to file a complaint within ten days from notice of the order. Complainant neither responded to this order to show cause nor filed a complaint.

On May 7, 1980, the same judge issued an order reciting that no response had been received to the April 2, 1980 order and proclaiming that the ‘contested action’ would stand as the complaint in the case. The order further granted respondent 15 days to answer or otherwise plead. On May 23, 1980, the respondent filed its Answer, and also, a Motion To Dismiss for failure of the Secretary to file a complaint and because the ‘contested action’ was not an adequate statement of the relief sought and the grounds therefore. By order dated June 23, 1980, the judge denied respondent’s motion to dismiss and reaffirmed his May 7, 1980 order.

On July 28, 1980, this case was assigned to the undersigned judge for hearing. By order, dated July 30, 1980, the prior order of May 7th treating the ‘contested action’ as a complaint was vacated as unauthorized and contrary to this Commission’s Rules of Procedure. The order further granted complainant an opportunity to file within 15 days an ‘appropriate motion’ requesting leave to file a complaint out of time. 4 On August 8, 1980, complainant filed his Motion For Leave To File Pleading Out Of Time. Respondent filed a memorandum in opposition to the Secretary’s motion on August 15, 1980 and renewed its request of May 23, 1980 that this proceeding be dismissed.

In support of his motion to file his complaint out of time, the Secretary appended the affidavit of James E. White, Regional Solicitor of the United States Department of Labor, Dallas, Texas. Neither the motion nor affidavit justifies, or establishes good cause for, the Secretary’s failure to file a timely complaint in this case. To the contrary, they simply demonstrate that the Regional Solicitor’s Office in Dallas, Texas Deliberately adopted, and has consistently followed for years, a policy of noncompliance with the complaint filing requirement of Commission Rule 33(a)(1).

In an attempt to justify his initiation of this practice, the Secretary’s Regional Solicitor points to a ‘very heavy caseload’ and to a series of court and Review Commission decisions and judges’ sua sponte orders which led him to conclude that the Commission considers the complaint ‘an unnecessary document.’

The size of an attorney’s case load is a completely unsatisfactory reason for failing to comply with a key procedural rule of the Commission. although a heavy case load is the bane of many attorneys, and apparently for the Secretary, a permanent cross to bear, it does not constitute an adequate excuse for failing to file essential pleadings in a timely fashion. To conclude otherwise would undoubtedly result in a widespread disregard of the Commission’s Rules of Procedure by parties and seriously impede the Commission’s ability to provide for the orderly presentation and resolution of the issues brought before the Commission.

The Secretary’s reliance upon
IMC Chemical Group Inc., 78 OSAHRC 95/C14, (No. 76–4761, 1978) to justify his noncompliance with Rule 33(a)(1) is badly misplaced. That case involved a motion by the Secretary to voluntarily withdraw a citation after a notice of contest had been filed but before a complaint or answer had been filed. Contrary to the Secretary’s contention that this case stands for the proposition that a citation is to be treated as a complaint in all situations, the Commission there held only that for the purpose of applying Rule 41(a)(1) of the Federal Rules of Civil Procedure to Commission adjudications the citation and notice of contest would be treated as ‘analogous’ to a complaint and answer in ordinary civil litigation.

The Secretary stresses that he relied on the extensive practice of certain Commission judges to issue sua sponte orders which consistently treated the citation as a complaint where no timely complaint had been filed by the Secretary. This excuse lacks both substance and sincerity. The Commission has never ruled on the validity of these rulings, and the orders, therefore, have no precedential value. The Dallas Regional Solicitor also was not misled or lulled into relying on these rulings. Rather, he took a calculated risk, knowing full well that other Commission judges disapproved of this practice and had vacated similar orders which had relieved the Secretary of his responsibility to file a complaint. For example, see Structural Metals Inc., 79 OSAHRC 43/E4, (No. 78–3352, 1979).

In further support of his failure to file a complaint in this and other cases and his argument that a complaint in Commission proceedings has become unnecessary, the Secretary points to the Commission’s adoption of Simplified Proceedings (29 C.F.R. § 2200.200 et seq.) He suggests that the Commission’s use of simplified proceedings, which prohibits the filing of a complaint, is indicative of the little importance the Commission attributes to complaints in ‘routine cases.’ Perhaps so, but the fact remains that Rule 33 requirements continue to govern proceedings before an Administrative Law Judge until the Commission notifies the parties that simplified proceedings are in effect. Simplified proceedings, of course, are unavailable unless a case is eligible, a party requests them, and no party files an objection to the request. It should be noted in this regard that complainant did not request simplified proceedings here, and the present case is not even eligible for simplified proceedings because the citation alleges a violation of 29 C.F.R. § 1910.95(b)(3). See 29 C.F.R. § 2200.202, Table A. Until the Commission formally amends Rule 33(a)(1), it must be presumed that the Commission still considers a complaint to be a necessary pleading in conventional proceedings.

Finally, the Secretary tries to justify his noncompliance with Rule 33 on the ground that it reduces ‘unnecessary paperwork’ and conserves ‘valuable attorney time.’ This reason constitutes sheer effrontery and clearly demonstrates the utter disdain the Dallas Solicitor’s Office has for Commission Rule 33(a)(1).

None of the Secretary’s reasons, either singly or in combination, justifies his failure to file a timely complaint in accordance with Commission Rule 33(a)(1) prior to issuance of the April 2, 1980 order. Therefore, the Secretary’s Motion For Leave To File Pleading Out Of Time will be denied.

Further, the Secretary’s failure to file a complaint in accordance with Rule 33(a)(1) is deemed a waiver of his right to further participation in these proceedings, and the citation and notification of proposed penalty will be vacated (See 29 C.F.R. § 2200.38).

The Secretary claims that no prejudice has been shown by respondent and argues that a Commission judge may not exercise his discretion under Commission Rule 38 and vacate the citation in the absence of prejudice. Although agreeing with the Secretary that respondent has not shown that it has suffered prejudice sufficient to impede his ability to defend, this judge disagrees that the absence of such prejudice precludes vacation of the citation in this case. The discretionary power bestowed by Rule 38 may be exercised even in the absence of prejudice whenever a party’s failure to file a timely pleading is unjustified. Moreover, the exercise of this power is particularly appropriate, even compelled, in a situation like here where a party has intentionally failed to file the required pleading.

For the above reasons, it is ORDERED:

1. Complainant’s Motion
   For
   Leave To File Pleading Out Of Time is DENIED.

2. Complainant’s failure to file a timely complaint in accordance with Commission Rule 33(a)(1) constitutes a waiver of his right to further participation in the proceeding.

3. Citation No. 1 and the Notification of Proposed Penalty, issued December 13, 1979, is VACATED.

James A. Cronin, Jr.

Judge, OSHRC

Dated: September 15, 1980

"

1
Commission Rule 33(a)(1), 29 C.F.R. § 2200.33 provides:

§ 2200.33. Employer contest.

(a) Complaint. (1) The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.

2
Commission Rule 38, 29 C.F.R. § 2200.38, provides as follows:

§ 2200.38. Failure to file.

Failure to file any pleading pursuant to these rules when due, may, in the discretion of the Commission or the judge, constitute a waiver of the right to further participation in the proceedings.

3
In
IMC
the Commission held that in applying Fed. R. Civ. P. 41(a) (dismissal of actions) to Commission proceedings a citation and notice of contest should be treated as a complaint and answer.

4
Commission Rule 5 mandates that requests for extensions of time for filing a pleading must be received prior to the date the pleading is due to be filed. Previously, however, the Commission has not insisted on literal compliance with Rule 5 if a party has made a good faith effort to file his request and pleading in a timely manner and in the absence of prejudice. Rollins Outdoor Advertising, 77 OSAHRC 24/C1, (No. 12528, 1977).