Davidson Texas, Inc.

Plain-English summary

The judge vacated citations after the Secretary failed to file a complaint and did not answer a show-cause order. Unknown to the judge, the parties had already filed a signed settlement agreement with the Commission's national office. Because the Secretary's conduct was not contumacious and the employer showed no prejudice, the Commission set aside the dismissal and remanded for the judge to approve or disapprove the settlement.

Decision snapshot

• Cited standard(s): Not identified in the Commission order.
• Outcome: Dismissal set aside; case remanded for settlement review.
• Key point: Procedural noncompliance generally does not justify dismissal absent contumacious conduct or prejudice, particularly when a good-faith settlement has already been filed.

Full text (OSHRC public release)

Docket No. 80-2234

DAVIDSON TEXAS, INC.
�

OSHRC Docket No. 80-2234

Occupational Safety and Health Review Commission

January 28, 1981

COUNSEL:

�
[*1]
�

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Ms. Claire Edwards, Assistant General Manager, DAVIDSON TEXAS, INC., for the employer

OPINION:

ORDER OF REMAND

A decision of Administrative Law Judge E. Carter Botkin is before the Commission for review pursuant to section 12(j), 29 U.S.C. �
�
661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
�
651-678 ("the Act").
�
Judge Botkin vacated citations alleging that the respondent, Davidson Texas, Inc., violated the Act on the grounds what the Secretary failed to respond to a November 5, 1980, order to show cause why the case should not be dismissed for failure of the Secretary to file a complaint.
�
Chairman Cleary granted the Secretary's petition for discretionary review of the judge's decision.

On April 9, 1980, the Secretary of Labor issued citations to respondent which were timely contested.
�
The notice of contest was received on April 16, 1980, but the Secretary failed to file a complaint.
�
On August 4, 1980, Chief Administrative Law Judge Paul Tenney issued an order stating that the citations would stand as the complaint and granting respondent fifteen days to file an answer.
�
Assistant [*2]
�
Chief Administrative Law Judge Irving Sommer issued an order on September 9, 1980, allowing the notice of contest to stand as an answer.
�
On November 5, 1980, a settlement agreement signed by both parties was forwarded to the Commission's national office in Washington, D.C.

The case was assigned to Judge Botkin of the Commission's Dallas, Texas office on November 5, 1980, and on that date he issued an order vacating Judge Tenney's August 4, 1980, order.
�
Judge Botkin granted the parties fifteen days to submit reasons for or against dismissal on the ground that the Secretary had not filed a complaint.
�
When the Secretary failed to respond to his order, Judge Botkin vacated the citations on November 26, 1980.
�
At the time of this order Judge Botkin had not received the settlement agreement which had been filed previously with the Commission at its national office.

In ASARCO, Inc., El Paso Div., 80 OSAHRC    , 8 BNA OSHC 2156, 1980 CCH OSHD P24,838 (No. 79-6850, 1980), we stated 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 unless the party's [*3]
�
noncompliance results from its own contumacious conduct or results in prejudice to the opposing party.
�
We find that the Secretary's failure to either file a complaint or respond to the judge's show cause order was not contumacious conduct. Until the issuance of Judge Botkin's show cause order, the Secretary had not failed to comply with any order issued by an administrative law judge.
�
�
Moreover the Secretary believed in good faith that the submission of the settlement agreement on the day the judge issued his show cause order vitiated the need to file a response because the settlement agreement ostensibly disposed of the case.
�
For reasons not explained in the record but apparently not at the fault of any party, the judge did not receive the settlement agreement by the date of his order of dismissal.

Finally, on the current record, there is no indication that the respondent was prejudiced either by the Secretary's failure to file a timely complaint, or by the failure to respond to the show cause order.

Accordingly, the judge's decision is set aside and the case is remanded to the judge for approval [*4]
�
or disapproval of the settlement.
�