DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.  

OSHRC Docket Nos. 78-5034; 78-5112; 78-5303

Occupational Safety and Health Review Commission

April 16, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

W. Scott Railton, for the employer

Dante E. Castrodale, Vice President, Safety and Equipment, Vecellio & Grogan, Inc., for the employer

Lawrence E. Rossa, Business Mgr., IBEW, Local Union 144, for the employees

OPINION:

DECISION

BY THE COMMISSION:

Three decisions of Administrative Law Judge George O. Taylor, dated March 27, June 7, and June 14, 1979, are before the Commission pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In each decision, the judge vacated the respective citations on the ground that the Secretary failed to timely comply with an order to file a report of a prehearing conference between the Secretary and the Respondent.   The issue on review is whether the judge abused his discretion in resorting to the sanction of dismissal under the circumstances of each case.   Because the same issue is presented in each of these cases, they are hereby consolidated pursuant to Commission Rule 9 for purposes of review only. n2 We reverse and remand.

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n1 29 U.S.C. §   661(i).

n2 Commission Rule 9, 29 C.F.R. §   2200.9, states in relevant part:

Cases may be consolidated . . . on the Commission's own motion, where there exist common parties, common guestions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

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I.   The Facts

After the Respondents filed answers to the complaints in each of these cases, n3 the judge issued instructions pursuant to Commission Rule 51, n4 ordering the parties to confer with regard to settlement, stipulations, admissions, discovery, and the narrowing of issues.   Paragraph 2 of the judge's instructions ("Paragraph 2") reads as follows:

CONFERENCE REPORT. Within 20 days from the date of this order, the complainant shall file with the undersigned Judge a report of the result of the prehearing conference, including a stipulation of settlement and/or formulation of unresolved issues.   Unresolved issues should be formulated specifically in terms of each contested item in the citation(s).   Failure [*3]   to timely file the conference report or to obtain, upon a showing of good cause, an extension of time for filing the conference report before the expiration of the 20-day period shall normally result in dismissal of the contested charges.   In addition, the respondent may file an individual report if it desires to do so. n5

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n3 Vecellio & Grogan, Inc. (Vecellio) was issued a serious citation for an alleged violation of the standard at 29 C.F.R. §   1926.602(a)(9)(ii), involving the failure to have a reverse signal alarm on a vehicle in use.   Duquesne Light Co., in Docket No. 78-5034 (Duquesne I), was issued a notification of failure to abate a nonserious violation of 29 C.F.R. §   1918.96(a) for failure to furnish a first aid kit on a vessel.   Duquesne also was issued a nonserious citation for another alleged violation of the same standard.   In Docket No. 78-5112 (Duquesne II), Duquesne was issued a citation for violation of section 5(a)(1), 29 U.S.C. §   654(a)(1), of the Act for alleged failure to lock and tag machinery and its power sources during the performance of maintenance work.

n4 Rule 51 of the Commission Rules of Procedure, 29 C.F.R. §   2200.51, reads as follows:

Rule 51 Pre-hearing conference.

(a) At any time before a hearing, the Commission or the Judge, on their own motion or on motion of a party, may direct the parties or their representatives to exchange information or to participate in a prehearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceedings.

(b) The Commission or the Judge may issue a prehearing order which includes the agreements reached by the parties.   Such order shall be served on all parties and shall be a part of the record.

n5 The judge indicated in all three decisions that he added the third sentence of Paragraph 2 because of the Secretary's "failure to timely comply with the first sentence on numerous prior occasions." The judge also noted in each Duquesne decision that the Secretary often had failed to timely comply even after the addition of the third sentence, citing Vecellio and the other Duquesne case.

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The facts material to the issue on review are essentially the same in each case.   Pursuant to Paragraph 2, the parties held a prehearing conference by telephone.   The conference in Duquesne II was held within the 20 days set by the judge, but the conference in Vecellio was not held until the 28th day.   The record does not reveal when the parties conferred with respect to Duquesne I. The Secretary failed, however, to timely file conference reports, and the judge issued orders to the Secretary in each case. n6 In Vecellio, the judge issued an order to show cause as to why the citation should not be vacated because of the Secretary's failure to comply with Paragraph 2.   In Duquesne I and Duquesne II, the judge issued an "Oppportunity for Hearing to Show Cause," stating that the citations would be vacated unless the Secretary requested a hearig to present more specific evidence through sworn testimony and documentation to justify his failure to comply with Paragraph 2.

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n6 After the judge issued his order in Vecellio, Respondent filed a motion to dismiss, citing the Secretary's failure to comply with Paragraph 2.   In each Duquesne case, Respondent filed a motion to dismiss prior to the judge's order on grounds that the Secretary did not file a conference report within 20 days or obtain an extension of time for good cause shown.

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The Secretary subsequently responded to the show cause orders and Respondents' motions, stating that delay resulted from his counsels' heavy work schedules.   In the Duquesne case, the Secretary also stated that the failure to comply was inadvertent.   He argued that Respondent was not prejudiced and that dismissal is too severe a sanction because it is inconsistent with the purposes of the Act.

In Vecellio, Judge Taylor vacated the citation, acknowledging counsel's heavy workload but stating that it did not justify the failure to timely request an extension of time to comply with Paragraph 2.   In the Duquesne cases, the judge "disqualified" the Secretary from conducting the prosecution of the cases at the hearing, and vacated the citations and the notification of failure to abate.   The judge stated that he would consider allowing the Authorized Employee Representative ("Union") n7 to assume the prosecutorial role if the Union made a request to do so by the time the decision was filed with the Commission.   The Union did not respond to the judge's offer.   Addressing the arguments raised by   [*6]   the parties, and considering other factors as well, the judge gave several reasons for his decision.

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n7 The Unions representing the affected employees at Respondents' worksites elected party status in the three cases.   The judge sent his decision in each Duquesne case to the parties, including the Union, 20 days before the decision was filed with the Commission to start the 30-day review period.   See Commission Rules 20, 90, and 91, 29 C.F.R. § §   2200.20, .90, .91.

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First, Judge Taylor acknowledged the heavy workload of the Secretary's counsel but reasoned that it did not justify counsel's failure to request, by telephone if necessary, an extension of time to comply with Paragraph 2.   The judge indicated his "astonishment" that the Secretary would attempt to rely on a particular reason for his noncompliance but refuse to participate in an adversary proceeding at which the specifics of the attorney's workload and other contributing factors could be developed.

Second, the judge stated that although dismissal may [*7]   frustrate the ultimate purpose of the Act - insuring safe workplaces - the Secretary's dilatoriness in complying with time requirements also delays abatement, and strict enforcement of the time requirements of litigation is essential to achieve the earliest possible abatement of hazardous conditions.

Third, the judge noted that the Secretary was on notice that dismissal would be considered as a sanction for noncompliance with Paragraph 2.

Fourth, he recognized the undesirability of an attorney appearing as both a witness and counsel in the same case but suggested that the Secretary designate another of his attorneys as counsel in the case.

Finally, the judge stated that he had considered other sanctions n8 and indicated that, although the complaint had been dismissed, the Secretary could reinspect and cite the employer again if the alleged violative conditions continued to exist.

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n8 The judge discussed only two other sanctions he considered: (1) providing the opportunity for a hearing on the failure to comply and, (2) offering the Union an opportunity to prosecute. The judge also noted that exhaustion of all sanctions short of dismissal for failure to comply with a court order before dismissing a case is not required, citing Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir. 1971), cert. denied, 404 U.S. 1039 (1972). Finally, the judge observed that there are fewer sanctions available to an administrative law judge than to a federal district court judge.   Although the judge did not elaborate, we note that Commission judges have no contempt power, see Owens-Illinois, Inc., 78 OSAHRC 105/C8, D7 n.11, 6 BNA OSHC 2162, 2167 n.11, 1978 CCH OSHD P23,218, p. 28,074 n.11 (No. 77-648, 1978), and cannot award costs and attorney's fees against a dilatory party.   John W. McGowan, 77 OSAHRC 189/E10, 5 BNA OSHC 2028, 1977-78 CCH OSHD P22,268 (No. 76-1308, 1977), aff'd, 604 F.2d 885 (5th Cir. 1979).

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II.   Arguments of the Parties

Duquesne contends that the judge did not abuse his discretion in dismissing the complaints.   Duquesne argues that the judge had no other effective deterrent to stop the Secretary's long practice of delays in these and other cases and that the Secretary refused to adequately justify his untimeliness.   Duquesne also argues that neither the Secretary nor the employees were prejudiced by the dismissal, citing three reasons: (1) both the Secretary and the Union had an opportunity to avoid vacation and declined; (2) employee interests are best protected by the Secretary's diligence rather than dilatoriness; and (3) the dismissal was without prejudice. n9 Noting that Rule 41(b) of the Federal Rules of Civil Procedure, applicable to Commission proceedings through Commission Rule 2, n10 provides for involuntary dismissal "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court . . . ." Duquesne argues that the dismissal is fully supported by decisions of the federal courts.   Vecellio also argues that dismissal is a proper sanction.

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n9 In view of his reference to the Secretary's option to reinspect and initiate "a new cause of action," it appears, to the contrary, that the judge dismissed with prejudice.

n10 Commission Rule 2(b), 29 C.F.R. §   2200.2(b), states:

In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.

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The Secretary contends that dismissal is too harsh a sanction for a failure to follow Commission Rules or orders absent a showing of prejudice or "clearly dilatory or contumacious conduct." The Secretary argues that dismissal on purely procedural grounds in the absence of prejudice to respondent frustrates the purposes of the Act.   He also points out that the judge's actions are more extreme than those of the courts, which have refused to vacate citations where there is no prejudice to respondent even in the face of a failure to follow procedural provisions in the Act.

The Union in the Duquesne cases argues against dismissal on the ground that it would deny the employees [*10]   their right under the Act to a workplace free of recognized hazards.   The Union also argues that, since it has no control over the actions of the Secretary, a dismissal effectively denies its right to due process.

III.   Discussion and Conclusion

The judge issued his prehearing order in these cases under the authority of Commission Rule 51 n11 which does not indicate specific sanctions for the failure of a party to comply.   Accordingly, we look to the Federal Rules of Civil Procedure n12 for guidance as to the source of the judge's authority to compel obedience to a prehearing order and to the propriety of the sanction employed under the circumstances of these cases.

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n11 See note 4 supra.

n12 See note 10 supra.

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Rule 16 of the Federal Rules of Civil Procedure n13 gives judges in the federal courts the authority to hold prehearing conferences.   The purpose of Rule 16 appears to be identical with that of Commission Rule 51. n14 Rule 16, like Commission Rule 51, however, indicates no specific sanctions for [*11]   failure to comply with a prehearing order.   Hence, the power of a federal judge to compel obedience to his orders relating to a pretrial conference under Rule 16 is founded either upon Rule 41(b) of the Federal Rules of Civil Procedure n15 or upon the inherent power of courts to manage their calendars in order to effect an orderly and expeditious disposition of their cases. n16 Link v. Wabash Railroad Co., 370 U.S. 626, 630 (1962); Flaska v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir.), cert. denied, 392 U.S. 928 (1968). Whatever the origin of the power to compel obedience, and impose sanctions for failure to comply, the exercise of this power by federal judges is discretionary and may be exercised sua sponte where plaintiff's activities amount to a failure to prosecute with reasonable diligence.   Flaska v. Little River Marine Construction Co., supra. This can include, for example, failure to appear at a pretrial conference, failure to file a pretrial statement, failure to prepare for the pretrial conference, or failure to comply with the pretrial order.   J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp.,   [*12]   542 F.2d 1318, 1323 (7th Cir. 1976).

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n13 Fed. R. Civ. P. 16 provides in relevant part:

Rule 16.   Pre-Trial Procedure; Formulating Issues. In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

(6) Such other matters as may aid in the disposition of the action.

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

n14 See note 4 supra. See also section 7(b) of the Administrative Procedure Act, 5 U.S.C. §   556(c), which authorizes administrative law judges, subject to published rules of the agency and within its powers, to "hold conferences for the settlement or simplification of the issues by consent of the parties . . . ."

n15 Fed. R. Civ. P. 41(b) provides in relevant part:

Rule 41.   Dismissal of Actions.

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(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . .   Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.

n16 If Fed. R. Civ. P. 16 provided specific sanctions of its own, those sanctions would have to be used, and resort to other sanctions would be error.   See Independent Production Corp. v. Loew's, Inc., 283 F.2d 730 (2d Cir. 1960) (inasmuch as Rule 37 provides for specific sanctions, the judge's reliance on other sanctions based upon his inherent power was error); C. Wright & A. Miller, Federal Practice and Procedure: Civil §   2369 at 193 (1969).

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Prehearing procedures that aid in the early formulation of issues benefit all parties during trial preparation and result in the more efficient use of Commission resources at both the hearing and review stages.   The imposition of appropriate sanctions is important, therefore, to ensure compliance with prehearing procedures and to adjudicate cases fairly and efficiently.   Wright and Miller describe a characteristic application of pretrial procedures and the use of sanctions to enforce pretrial orders.

Even though it is not specifically mentioned in Rule 16, most courts require the attorney for each side to file a pretrial memorandum or statement prior to the conference, which, if adopted by the court, may be binding at trial. . . .   Several courts . . . impose sanctions for any noncompliance with the obligation to file a memorandum. In applying sanctions the court typically takes account of the general purpose of Rule 16 and does not do anything that will result in denying a party relief solely because of a procedural error.   For example, if a party delays in filing his memorandum, the court may impose [*14]   the costs incurred by his opponent because of the late filing, such as counsel fees, but should not strike the statement in its entirety.   However, a complete failure to file a memorandum has been viewed as being equivalent to a nonappearance and a dismissal entered (footnotes omitted).

C. Wright & A. Miller, Federal Practice and Procedure: Civil §   1524 at 581-82 (1969).

Whether to require a prehearing conference as well as whether to sanction a party for failure to comply with an order regarding such a conference are matters property left to the discretion of the hearing judge.   That being so, our standard of review is whether the judge abused his discretion n17 in vacating the citations under the circumstances in these cases.   Cf. Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD P21,071 (No. 4533, 1976) (the decision whether to modify a witness list settled upon during the prehearing stage is a matter left to the discretion of the judge, and in reviewing his decision to exclude certain witnesses, the issue is whether the judge abused his discretion).

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n17 "Abuse of discretion" does not imply improper conduct on the part of the administrative law judge.   It merely indicates that the judge erred as a matter of law in the exercise of discretion in these cases.

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Federal courts consider several factors in reviewing the propriety of a dismissal sanction imposed by a trial court.   These factors include (1) the amount of time used by the trial court, (2) whether plaintiff's claim necessarily lacks substance, (3) whether defendant is prejudiced, (4) whether there is a clear record of delay, (5) whether plaintiff's attorney exhibited contumacious conduct, (6) whether there is a showing of willful default on the part of the plaintiff, (7) the rights of the defendants to be free from costly and harassing litigation, and (8) the time and energies of the court and the right of would-be litigants awaiting their turn to have other matters resolved.   Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047 (9th Cir. 1971), cert. denied, 404 U.S. 1039 (1972); Richman v. General Motors, 437 F.2d 196 (1st Cir. 1971); Durham v. Florida East Coast Railway, 385 F.2d 366 (5th Cir. 1967); Gill v. Stolon, 240 F.2d 669 (2d Cir. 1957). Reviewing courts universally recognize the harshness of dismissal with prejudice and generally require that   [*16]   lesser sanctions first be considered.   See, e.g., Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir. 1970) (the trial court did not show that it had sufficiently explored suitable alternatives to dismissal before dismissing with prejudice where counsel for the plaintiff had responded to the court's order but his response did not conform exactly to what the court had ordered).

There is a policy in the law in favor of deciding cases on their merits.   Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965); C. Wright and A. Miller, Federal Practice and Procedure, Civil §   2370 at 216 (1969).   In deference to that policy, the Commission and the courts of appeals that review our decisions have required a showing of actual prejudice before vacating citations for failure to follow Commission rules or orders n18 or for failure to follow procedural provisions of the Act itself. n19 Respondents, however, have neither claimed nor proved that they were prejudiced by the delays in these cases.

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n18 See National Indus. Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978); Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977-78 CCH OSHD P21,551 (No. 12528, 1977).

n19 See Marshall v. C.F. & I. Steel Corp., 576 F.2d 809 (10th Cir. 1978); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). Cf. Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977) (failure to comply with section 8(e) does not warrant suppression of evidence absent showing of prejudice).

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Assuming, as we do here, an absence of contumacious conduct on the part of the delaying party, we consider lack of prejudice to respondents as the controlling factor in determining that dismissal is too harsh a sanction under the circumstances.   We also have considered other factors, however.   We have taken into account the Secretary's resources, as well as those of the other parties, in balancing whether an inconvenience to Respondent, short of prejudice, warrants dismissal.   Further, we are of the opinion that in these cases dismissal would frustrate the remedial purposes of the Act.   Considering all of these factors, we conclude that dismissal is too harsh a sanction in these cases. n20

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n20 The cases relied upon by Duquesne in support of dismissal are distinguishable from those before us.   In the cases cited by Duquesne, either the actions of complainants upon which the dismissals were based were much more egregious than the failure here to file a timely conference report or there were other circumstances warranting dismissal.   In Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir. 1976), the Equal Employment Opportunity Commission (EEOC) was dismissed as a party because it failed to comply with a court order to produce someone with the authority to bind the agency in connection with a consent decree.   The action itself was not dismissed.   The court gave as reasons, inter alia, in support of its dismissal of EEOC as plaintiff the facts that there were other plaintiffs who could carry on the litigation, that EEOC had intervened ad represented that its presence would not delay adjudication, and that EEOC gave no reasons for its inaction and had not requested more time.   In Von Poppenheim, supra, the plaintiff failed to comply over a period of 11 months with a court order to set forth with specificity the acts that allegedly formed the basis of its complaint and to list witnesses and testimony.   The complaint in Koury v. International Brotherhood of Teamsters, 69 F.R.D. 474 (E.D. Pa. 1975), was dismissed because of the plaintiff's failure to attend a pretrial conference and otherwise prosecute after the case had been listed for trial eight times.   In EEOC v. American Automobile Ass'n, 21 F.R. Serv. 2d 999 (S.D. Fla. 1975), plaintiff's counsel had refused to meet with defense counsel, had not responded to his motion to dismiss, and had failed to file a pretrial stipulation.   The plaintiff's attorney in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976), had failed to answer written interrogatories for 17 months, exhibiting, according to the Supreme Court, bad faith and a callous disregard of his responsibilities to the court and to his opponent.

The two cases cited by the judge in support of his dismissals in the Duquesne cases also involved behavior more egregious than that of the Secretary in these three cases.   The 11-month delay in Von Poppenheim has been described, supra. In Kung v. FOM Investment Corp., 563 F.2d 1316 (9th Cir. 1977), the plaintiff, after several continuances over a period of 14 months and a 60-day warning that he would be granted no additional time, was still unprepared for a prehearing conference, and the complaint was dismissed.

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We recognize, however, the continuing problem all Commission judges have in receiving prompt responses from one or both parties in many of their cases, and we share the judge's concern for expeditious settlement or adjudication of cases.   Although we reverse the judge here, we do not fault his efforts n21 to ensure the economical and efficient handling of the cases on his docket.

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n21 As we indicated in note 8 supra, many sanctions available to federal district court judges may not be used by Commission judges.   Some options short of dismissal are available, however.   Given the references in both Commission Rule 51 and Fed. R. Civ. P. 16 to "parties" and their "representatives" or "attorneys," we think it is more appropriate for all parties to file a pretrial memorandum following a prehearing conference, if one is ordered by the judge.   Such memoranda, then, if adopted by the court, should be binding at trial absent their amendment by the judge for good cause.   If he deems it necessary, the judge can request that the parties include in their pretrial memoranda such items as a stipulation of any settled issues; any stipulated facts; a formulation of unresolved issues; name and address of each witness and a brief summary of that witness' testimony; a list of the documents and other exhibits to be offered in evidence together with a copy of each such document, where practicable; and an estimate of the time required to conduct the hearing.   If either party fails to comply adequately with the judge's order, he may decide to require that party to appear before him for a pretrial conference, bringing the memorandum. The other party, of course, must be given notice of this conference and an opportunity to attend and participate.

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Accordingly, it is ORDERED that the judge's orders dismissing the complaints and vacating the citations and the notification of failure to correct alleged violation are reversed.   It is further ORDERED that the consolidation of these cases is dissolved and the cases are remanded for further proceedings consistent with this decision.  

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, dissenting:

In each of these cases the judge ordered the Secretary to file a report stating the results of the parties' prehearing conference.   The orders specified that failure to timely file the report or to obtain an extension of time for its filing would likely result in dismissal of the contested charges.   In all three cases the Secretary neither timely filed a conference report nor attempted to secure an extension of the due date.   The Secretary subsequently tried to justify these failures by asserting that his attorneys in these cases were extremely busy with heavy caseloads.   The judge rejected this reason as sufficient to justify the attorneys' failure to at least seek an extension of time, and he dismissed the citations in each case.   [*20]   In so doing, he noted that the Secretary had repeatedly failed to comply with orders to submit prehearing conference reports in prior cases and that no adequate sanction other than dismissal was available to an administrative law judge to deal with the Secretary's noncompliance. The Commission majority reverses the judge and vacates the dismissals.   By taking this action, the majority in effect countenances the Secretary's practice of ignoring orders of the Commission's administrative law judges.   I cannot condone the Secretary's practice and, therefore, dissent.

As the majority acknowledges, the means available to a Commission judge to impose sanctions against a party which violates the judge's order are more limited than those available to a federal district court judge.   In particular, a Commission judge has no authority to hold a party in contempt of court. n1 Although certain effective sanctions are available under Fed. R. Civ. P. 37(b)(2)(A)-(C) against a party which fails to comply with discovery orders, n2 under a number of circumstances, such as the one presented by the instant cases, there exists no possible sanction other than dismissing the complaint or the notice of [*21]   contest of the offending party.   In such circumstances, lacking contempt powers, the judge is faced with the choice of entering a dismissal or acceding to the party's defiance of his order.   Here, where the Secretary repeatedly had ignored similar orders in the past and was on notice that such conduct was likely to result in dismissal of the citations in the present cases, it was not an abuse of discretion for the judge to sanction the Secretary's noncompliance by dismissing the citations.   The alternative would be to condone the Secretary's continuing pattern of ignoring the judge's orders. n3

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n1 Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 2167 n.11, 1978 CCH OSHD P23,218 (No. 77-648, 1978).

n2 Fed. R. Civ. P. 37(b)(2)(A)-(C) is as follows:

Rule 37.   Failure to Make Discovery: Sanctions.

(b) Failure To Comply With Order.

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, oir prohibiting him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

n3 The majority opinion, in footnote 21, suggests that if a party fails to comply with a judge's order to submit a pretrial memorandum, the judge "may decide to require that party to appear before him for a pretrial conference, bringing the memorandum." It is unclear how such an action by a judge would serve as an effective sanction against a party's noncompliance with the judge's order or would deter future noncompliance.

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The Secretary contends that dismissal on procedural grounds absent prejudice to respondent would frustrate the purpose of the Act n4 "to assure so far as possible every working man and woman in the nation safe and healthful working conditions." n5 The judge's decision aptly refuted this argument.   It stated:

[S]trict enforcement of time requirements set by the Commission's administrative law judges is essential to insure that the overall enforcement effort under the Act will achieve the earliest possible abatement of hazardous conditions.   In the long run, the condonation of the disregard of these requirements will only foster a dilatory pattern and ultimately result in unwarranted delay in the abatement of hazardous conditions. n6

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n4 Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.

n5 29 U.S.C. §   651(b).

n6 Duquesne Light Co., No. 78-5034, slip op. at 7 (ALJ, June 14, 1979); Duquesne Light Co., No. 78-5112, slip op. at 6 (ALJ, June 7, 1979).

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Thus, the judge's orders dismissing the complaints in these cases serve both to further the Act's objective of expeditious abatement of hazardous workplace conditions and to give force and authority to the orders of the judge.   For these reasons, the orders should be affirmed.