Pennsylvania Electric Company

Plain-English summary

OSHA issued Pennsylvania Electric Company a separate coal-dust citation after earlier safety citations, but the area office failed to transmit the company's notice of contest to the Commission for almost seven months. The judge treated the coal-dust citation as an invalid amendment of the earlier case and dismissed it. The Commission held that the health citation was a new and independent citation, not an amendment. Because the Secretary's procedural error was not contumacious, dismissal required a showing that the delay prejudiced the company's ability to defend the case. The Commission set aside the dismissal and remanded for that determination and any further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1000(c) and 1910.1000(e).
• Outcome: Dismissal set aside; coal-dust case remanded to determine prejudice from the late notice-of-contest transmittal.
• Key point: A non-contumacious procedural failure warrants dismissal only when the opposing party was prejudiced in preparing or presenting its defense.

Full text (OSHRC public release)

Docket No. 80-5211

SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA ELECTRIC COMPANY,

Respondent,

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 30,

Authorized

Employee

Representative.

OSHRC Docket No. 80-5211

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

This case is before the Commission for review under 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").  Administrative Law Judge Benjamin Usher granted Respondent's
motion to dismiss the Secretary's complaint.  We reverse and remand for further
proceedings.

I

On November 6 and 7, 1979, an OSHA compliance officer conducted an inspection of a
Pennsylvania Electric Company ("PEC") workplace in Erie, Pennsylvania.  As
a result of this inspection, PEC received two citations on December 10, 1979.  The
citations involved safety problems such as wet floors, nonregulation ladders and exposure
to corrosive liquids.  On December 28, PEC filed its notice of contest to these
safety citations and on January 14, 1980 the case was docketed under OSHRC Docket number
80-0126.  The Secretary filed his complaint incorporating the citation by reference
on January 21, 1980 and PEC filed its answer to the January 21 complaint on January 31.

On January 30, one day before PEC filed its answer to the alleged safety
violations, the Secretary issued a citation alleging that PEC employees were exposed to
coal dust in excess of the limits prescribed in 29 C.F.R. � 1910.1000. On February 13,
PEC filed its notice of contest to the January 30 citation. This notice of contest was
received by the OSHA area office. However, the area office neglected to transmit the
notice of contest to the Commission.[[l/]]

Later, the Secretary requested discovery relating to the section 1910.1000
citation when he moved for discovery in the 80-0126 case. On April 23, PEC objected to the
Secretary's discovery motion and pointed out the procedural defect that docket 80-0126 did
not include the alleged section 1910.1000 violation. The Secretary then moved to amend his
original complaint to include the section 1910.1000 allegation. In this motion, the
Secretary characterized the January 30, 1980 citation as an amendment of the original
December 10, 1979 citation.

Judge Usher denied the Secretary's motion noting that under Ed Jackman
Pontiac-Olds, 80 OSAHRC 26/D14, 8 BNA OSHC 1211, 1980 CCH OSHD � 24,349 (No. 76-20, 1980)
the area director did not have the authority to amend the citation after the Respondent
had filed its notice of contest and also concluded that it would be "patently
prejudicial" to allow the amendment.

The Secretary did not appeal this decision. Instead, the Secretary filed a
new and separate complaint alleging PEC's violation of section 1910.1000. Since the
Commission had never received PEC's notice of contest to the January 30 citation, the
Executive Secretary requested the OSHA area director to transmit the notice of contest
before the case was given a docket number. The Secretary did so and, on September 8, the
case was docketed 80-5211.

PEC moved to dismiss this second complaint, and Judge Usher granted the
motion. [[2/]] Judge Usher reasoned,

Jurisdiction of this action vested in the Review Commission on December 28,
1979, when Respondent filed its Notice of Contest, and the OSHA Area Director had no
authority to amend the Citation or otherwise alter the pleadings without leave of this
Commission. His action purporting to amend the Citation on January 30, 1980, was 'void.'

Complainant's Complaint, filed in this action on August 4, 1980 (dated July
28, 1980), is a nullity because of the invalidity of the Citation upon which it was based.

The Secretary petitioned for review and Commissioner Cottine directed review
on the following question:

Whether the judge erred in vacating the Secretary's citation, which alleged
serious violations of permissible exposure levels to coal dust under 29 C.F.R. ��
1910.1000(c) and (e), on the ground that it constituted an invalid attempt to amend a
previous citation.

II

The judge properly relied on Ed Jackman Pontiac-Olds to hold that the Secretary
could not amend the citation in No. 80-0126, without leave of the Commission, after PEC
had filed its notice of contest in that case.  However, the Secretary's issuance of
the section 1910.1000 citation was not merely an attempt to amend the citation at issue in
No. 80-0126.  Rather, it was a new citation unrelated to the issues in that case and
subject to a new notice of contest.  29 U.S.C. � 659(c).  The Secretary should
have treated PEC's notice of contest to the section 1910.1000 citation as initiating a new
proceeding before the Commission and transmitted the notice of contest to the Commission
within seven days, as required by Rule 32, note 1 supra.  Instead, the Secretary did
not transmit the notice of contest to the Commission until almost seven months had
elapsed.[[3/]]

In the absence of contumacious conduct, dismissal of a party's case for
failure to comply with a procedural rule is only appropriate if there is prejudice to the
opposing party.  Asarco, Inc., El Paso Division, 80 OSAHRC 99/A3, 8 BNA OSHC 2156,
1980 CCH OSHD � 24,838 (No. 79-6850, 1980).  See Chicago Bridge & Iron Co. v.
OSHRC, 535 F.2d 371 (7th Cir. 1976); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d
230 (5th Cir. 1973). Despite the procedural missteps, the Secretary's conduct in this case
was clearly not contumacious.  Although the Secretary did not transmit the notice of
contest in a timely manner, he did attempt to bring the section 1910.1000 citation within
the Commission's jurisdiction through his motion to amend in No. 80-0126.

Since the Secretary's conduct was not contumacious, the judge's order of
dismissal cannot stand without a finding that PEC was prejudiced by the delay in
transmittal of the notice of contest.  We cannot determine on the present record
whether PEC has in fact been prejudiced.  Accordingly, the judge's order is set
aside, and the case is remanded to the chief judge.[[4/]]  PEC shall be permitted the
opportunity to show that it was prejudiced by the Secretary's delay in transmitting the
notice of contest and further proceedings shall be conducted as necessary.[[5/]]

SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  FEB 28 1983

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FOOTNOTES:

[[1/]] Commission Rule 32, 29 C.F.R. � 2200.32, provides:

Rule 32 Notices of contest

The Secretary shall, within 7 days of receipt of notice of contest, transmit
the original to the Commission, together with copies of all relevant documents.

[[2/]] By this time, the Secretary and PEC had settled the three citations
under Docket No. 80-0126.

[[3/]] PEC claims that Judge Usher's previous decision bars the Secretary
from bringing this action under the doctrines of res judicata and collateral estoppel.
However, there is not the necessary identity of issues to invoke either of the doctrines
in this case. See Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955); Steffen v.
House-Wright, 665 F.2d 245 (8th Cir. 1981). In No. 80-0126, the judge ruled that the
Secretary's attempt to amend the earlier citation to add the coal dust allegations was
improper. The judge's denial of the amendment did not invalidate the second citation,
which alleged different violations and initiated a new cause of action.

[[4/]] Judge Usher is no longer with the Commission.

[[5/]] Prejudice should only be found if PEC can demonstrate that the procedural
irregularities and delay in this case denied it the opportunity to prepare and present its
defenses to the alleged health violation. Stripe-A-Zone, Inc., 82 OSAHRC 111/D2, 10 BNA
OSHC 1694, 1982 CCH OSHD � 26,069 (No. 79-2380, 1982); National Industrial Constructors,
Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD � 25,743 (No. 76-4507, 1981);
Brown and Root Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD
� 24,275 (No. 76-3942, 1980).