UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–6850, 79–6912, 80–1028
ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY
Respondent.
UNITED STEELWORKERS OF AMERICA, LOCAL 1742, Authorized Employee Representative

September 30, 1980

DECISION

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

BY THE COMMISSION:

These consolidated cases arise under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’).[1] They are before the Commission pursuant to Commission Rule 75(c) as the result of previously issued Commission orders granting the petitions for interlocutory appeal filed in each case by the respective Respondent.[2] At issue is the propriety of orders entered in the three cases by Administrative Law Judge Irving Sommer and containing the following common elements:

(a) A waiver of the requirement of Commission Rule 33(a)(1), 29 C.F.R. § 2200.33(a)(1), that the Secretary of Labor (‘the Secretary’) file a complaint in a proceeding initiated by an employer notice of contest;[3]

(b) A ruling that the citation or citations ‘shall stand’ as the Secretary’s complaint in the proceeding; and

For the reasons stated below, we conclude that the judge erred in entering the challenged orders. Accordingly, we vacate the orders and remand these cases for further proceedings consistent with this opinion.

The procedural history of each of the cases under review is very similar. Furthermore, in each case, the respective positions of the judge, the Secretary, and the employer are essentially the same. Accordingly, we set forth the background of OSHRC Docket No. 79–6850 as illustrative of the history of each of the cases on review. Although differences among the cases are noted where they exist, none of these differences are material to our disposition of these cases.

As a result of an inspection of a facility in El Paso, Texas, from October 10–18, 1979, the Secretary issued a citation for serious violation of the Act to Respondent ASARCO, Inc., El Paso Division (‘ASARCO’), on November 8, 1979. ASARCO filed a timely notice of contest to the citation and the proposed penalty on December 6, 1979, the notice of contest was received by the Secretary on December 10, and the case was docketed by the Commission as OSHRC Docket No. 79–6850.[5]

Under Commission Rule 33(a)(1), note 3 supra, a complaint was due to be filed by the Secretary on or before December 31, 1979 (the first working day following the expiration of the twenty-day period, see Commission Rule 4(a), 29 C.F.R § 2200.4(a)). Nevertheless, the Secretary did not file either a complaint or a motion for extension of time to file a complaint within this period.[6] On February 27, 1980, Judge Sommer entered the following order in No. 79–6850 (‘show cause order’):

Since no timely Complaint has been filed, pursuant to Commission Rule 38 the Secretary of Labor is hereby ordered within ten (10) days from notice of this Order to show cause why the contested action should not stand as a Complaint, or alternatively to file forthwith a Complaint. Cf. IMC Chemical Group, Inc., No. 76–4761 (November 17, 1978).

Neither party responded to this order, despite the fact that a certified receipt was returned indicating service was accomplished on the Secretary’s representative. Accordingly, on March 28, 1980, Judge Sommer issued a second order (‘order to answer’):

There being no response to my February 27, 1980 Order, the contested action of the Secretary shall stand as the Complaint in this matter. Cf. IMC Chemical Group, Inc., No. 76–4761 (Nov. 17, 1978).

Respondent is allowed fifteen (15) days to Answer or otherwise plead.[7]

In response to the judge’s order to answer, ASARCO filed, on April 15, 1980, a ‘Motion to Vacate Citation.’ ASARCO argued that the use of the word ‘shall’ in Commission Rule 33(a)(1) creates a ‘mandatory’ requirement that a complaint be filed and that the Secretary had not offered any explanation or justification for his failure to comply with this requirement. It further argued that the citation cannot under the Commission’s Rules of Procedure stand as a complaint, particularly because a citation does not meet the requirements of Rule 33(a)(2). See note 3 supra. Accordingly, in its view, vacating of the citation for the Secretary’s failure to comply with Rule 33(a)(1) was warranted.

In addition, ASARCO contended that the judge had exceeded his authority by waiving this ‘fundamental concept of administrative due process.’ Specifically, it asserted, the judge’s orders were not justified under either of the authorities he cited, that is, Rule 38 of the Commission’s Rules of Procedure[8] and the Commission’s decision in IMC Chemical Group, Inc., 78 OSAHRC 95/C 14, 6 BNA OSHC 2075, 1978 CCH OSHD ¶23,149 (No. 76–4761, 1978), appeals filed, Nos. 79–3018 and 79–3041 (6th Cir. January 11 and 16, 1979) (‘IMC’). Thus, ASARCO continued, Commission Rule 38 authorizes a judge to accept or reject late-filed pleadings, but ‘presupposes’ that the pleading is eventually filed. The rule does not, in its view, grant to a judge ‘the right or power to modify or completely abrogate mandatory rules of procedure.’ In addition, ASARCO argued that the judge’s action was not supported by the decision in IMC. It noted that IMC ‘involved a procedural point not covered by the Review Commission’s Rules of Procedure’ whereas here ‘there is a specific [Commission] rule governing the procedural issue’, a rule that is binding, under the specific terms of Commission Rule 2(a), 29 C.F.R. § 2200.2(a), in ‘all proceedings before the Commission and its judges.’

In the alternative, ASARCO contended that, even if the judge had the authority to waive the requirement of Rule 33(a)(1), waiver in this case constituted an abuse of discretion. It argued that the judge had improperly given to the Secretary the authority to determine whether to comply with the rule, that the judge had provided no explanation or justification for the waiver, and that the Secretary had provided no justification for his failure to comply with the rule. In addition, ASARCO asserted that the waiver resulted in substantial prejudice to it because it was unable to comply with Commission Rule 33(b)(2), note 4 supra, unless the Secretary first made the allegations it was required to admit or deny.[9]

On April 24, 1980, the Secretary filed a memorandum in opposition to ASARCO’s motion to dismiss. This document was the first filed by the Secretary in No. 79–6850.[10] In his memorandum, the Secretary contended that dismissal was unwarranted because the Secretary had complied with the orders issued by Judge Sommer. In his view, the judge’s show cause order ‘did not call for a response unless Complainant desired to file a complaint.’ The Secretary also disagreed with ASARCO’s claim that he had disregarded the Commission’s Rules of Procedure by failing to file a complaint. Thus, the Secretary asserted the following:

‘. . . [I]t should be noted that the Commission, having promulgated its Rules, can certainly interpret them, as it did in Secretary of Labor v. IMC Chemical Group, Inc., . . .. Respondent’s assertion of prejudice is clearly inadequate in view of the Commission’s codification in imc of the legal affect to be given a citation issued under the Act, i.e. that it ‘. . . serves the primary function of a complaint . . .’ . . .. [citations omitted]

On May 7, 1980, the judge issued a third order in the case, denying ASARCO’s motion to dismiss. In essence, he reasoned that pleadings are relatively unimportant in administrative proceedings, that the Secretary’s citation and proposed penalties placed the Respondent on notice of the Secretary’s allegations and that ASARCO had not shown that it was prejudiced by his orders.[11] Accordingly, he reaffirmed his order to answer. In response, ASARCO requested special permission from the judge to appeal from the denial of its motion to dismiss. This request was denied by the judge on the ground that ‘[n]o substantial question of law exists in light of the opinions’ in IMC and in National Realty. ASARCO thereafter sought and obtained an interlocutory appeal from the Commission.[12]

ASARCO’s petition for interlocutory appeal was opposed by the Secretary, who stated his agreement with the judge’s conclusion that no substantial question of law exists in the case in light of IMC and National Realty. Specifically, the Secretary asserted:

The Commission’s current position, as stated in IMC Chemical Group, Inc., supra, is that a citation sets forth a claim for relief, thus serving the primary function of a complaint, that jurisdiction inheres in the Commission when issue is joined by the filing of a respondent’s notice of contest, and that a citation and a notice of contest should be respectively treated like a complaint and answer in federal court litigation . . .. [t]he decision is dispositive of the Commission’s interpretation of the legal effect to be given a citation and/or notice of contest under its own regulations . . .. Indeed, . . . [the decision] merely codified . . . precedent of treating the citation and notice of contest, respectively, as the counterpart of the complaint and answer in federal litigation. This basic premise is the very heart of the Commission’s simplified proceedings as set forth in 29 C.F.R. § 2200.200 thru 2200.211.[13]

The Secretary also cited IMC as support for his contention that the relief sought by ASARCO, that is, dismissal of the citation, would not be appropriate. In effect he asserted that he had relied on IMC, ‘as reinforced by Order’s issued by administrative law judges in favor of the Secretary citing said case in support’, as justification for his failure to file a complaint in this proceeding.

On August 1, 1980, shortly after the Commission granted ASARCO’s petition, the Secretary filed with the Commission a motion for leave to file pleading out of time. Attached to the motion was a complaint to be filed in No. 79–6850. In his motion, the Secretary stated that he had ‘refrained from filing the document in reliance on Judge Sommer’s March 28, 1980 order and previous orders of a same or similar nature’ but that, ‘without waiving his right to rely on the orders’, he now desired to ‘expedite a hearing on the merits’ by filing the complaint. ASARCO thereafter filed an opposition to the Secretary’s motion, arguing that the Secretary had failed to establish good cause for his delay in filing the complaint.[14]

In proceedings under the Act, a citation is not a complaint. A citation is a creature of statute. See section 9 of the Act, 29 U.S.C. § 658. Complaints owe their existence to the Commission’s Rules of Procedure, specifically Rule 33(a). See note 3 supra. These rules clearly recognize that citations and complaints are separate documents. Thus, Rule 33(a)(1) establishes a filing deadline for a complaint of twenty days after the Secretary has received a notice contesting his citation. Rule 33(a)(2) lists specific allegations that must be included in a complaint. Some of these allegations are neither customarily found in nor required to be included in citations. Compare Cement Asbestos Products Co., 80 OSAHRC ——, 8 BNA OSHC 1151, 1155, 1980 CCH OSHD ¶ 24,343 at p. 29,667 (No. 78–1054, 1980) [complaints] with Gold Kist, Inc., 79 OSAHRC ——, 7 BNA OSHC 1855, 1861–1862, 1980 CCH OSHD ¶24,205 at pp. 29,444–445 (No. 76–2049, 1979) [citations]. In addition, Rule 33(a)(3), 29 C.F.R. § 2200.33(a)(3), establishes a means whereby the citation can be amended in the complaint.

We further conclude that the filing of a complaint by the Secretary in a proceeding initiated by an employer notice of contest is a mandatory requirement under the Commission rules. We base this conclusion on the use of the word ‘shall’ in Rule 33(a)(1), giving that term its ordinary and customary meaning. As noted by the parties, see note 13 supra and accompanying text, the Commission has recently created an exception to this requirement for cases tried under its Simplified Proceedings experiment, the rules of which are set forth at Subpart M of 29 C.F.R. Part 2200. However we agree with Hughes Tool that the creation of this limited exception merely serves to underscore the mandatory nature of the general rule.[15]

Both the judge and the Secretary have relied heavily on the Commission decision in IMC as the basis of their view that a citation can ‘stand’ as a complaint in a Commission proceeding. In IMC, the Commission held that the Secretary does not have absolute discretion to unilaterally withdraw a citation once a notice of contest to that citation has been filed. Instead the Secretary can only withdraw a citation with the approval of the Commission, which has the authority to impose conditions on the withdrawal for the protection of other parties, including affected employees.

The Commission’s decision was based on an interpretation of Fed. R. Civ. P. 41(a) as applied to Commission proceedings. The Commission rejected the Secretary’s contention that his motion was governed by Rule 41(a)(1), which provides, in pertinent part, that ‘an action may be dismissed by the plaintiff without order of the court . . . at any time before service by an adverse party of an answer . . ..’ It concluded that the motion was governed instead by Rule 41(a)(2), which applies to all situations not covered by Rule 41(a)(1) and which provides, in pertinent part, that ‘an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.’

In reaching this conclusion, the Commission reasoned as follows:

We agree [with the Secretary and the Respondent] that Rule 41 is applicable to Commission proceedings. We believe, however, that, for the purposes of Rule 41(a)(1), a notice of contest is analogous to an answer in ordinary civil litigation. Thus, respondent’s filing of a notice makes Federal Rule 41(a)(2) [footnote omitted] applicable to this proceeding.

The Federal Rules of Civil Procedure are not applicable without qualification to. Commission proceedings. The administrative procedures created for enforcing the Occupational Safety and Health Act differ significantly from the procedures created under [almost] all other federal laws . . .. Under the Federal Rules, an action is commenced by filing a complaint. Fed. R. Civ. P. 2. While it does not commence an action, a citation issued under the Act serves the primary function of a complaint, i. e., it sets forth a claim for relief . . .. Parties to a civil suit join issue and place a controversy before the courts upon the filing of an answer. Fed. R. Civ. P. 8. Under the Act, issue is joined and the merits of a controversy are placed before the Commission upon the filing of a notice of contest . . .. For the purposes of applying Federal Rule 41(a)(1) to adjudications under the Act, a citation and notice of contest should be treated like a complaint and answer, respectively. Thus, by filing its notice of contest, respondent deprived the Secretary of the right to dismissal under Federal Rule 41(a)(1) . . ..

6 BNA OSHC at 2076, 1978 CCH OSHD at p. 27,989.

Paraphrasing this reasoning and quoting to selected portions of this language, the Secretary and the judge have in effect interpreted IMC as meaning that a citation may be treated as a complaint for the purpose of applying Commission Rule 33(a). For example, the Secretary argued, in opposing ASARCO’s petition for interlocutory appeal, that ‘[t]he Commission’s current position, as stated in [IMC is] . . . that a citation and a notice of contest should be respectively treated like a complaint and answer in federal court litigation . . ..’ We do not agree with this interpretation of IMC.[16] Initially we note that, while the Commission’s language in IMC was carefully circumscribed and qualified by phrases such as ‘[f]or the purposes of applying Federal Rule 41(a)(1) to adjudications under the Act’, the judge and the Secretary have eliminated these qualifications in their discussions of IMC. In so doing, they have overlooked a fact that is critical to a proper understanding of IMC. In that case, we were not, as the Secretary contends, stating ‘the Commission’s interpretation of the legal effect [sic] to be given a citation and/or notice of contest under its own regulations’. Instead, we were interpreting a rule set forth in the Federal Rules of Civil Procedure and determining how that rule should be applied in the practical context of a Commission proceeding.

As we stated in IMC, that interpretation was necessary because proceedings under the Act differ significantly from the ordinary civil proceedings that the Federal Rules were designed to govern. Here, in contrast, we are dealing with Commission Rule 33(a), a rule specifically developed by the Commission to govern proceedings under the Act. While Commission rules are of course subject to interpretation, the question presented is fundamentally different than an issue involving the application of the Federal Rules to Commission proceedings. We therefore agree with the Respondents in the cases now before us that IMC is inapposite to the issue on appeal.

Moreover, aside from the question of the effect of IMC on the cases before us, we note our disagreement with the interpretation adopted by the judge and the Secretary of our statement in IMC, supra, that a citation ‘serves the primary function of a complaint, i. e., it sets forth a claim for relief.’ Read in context, our statement was that a citation serves the primary function of a complaint under the Federal Rules of Civil Procedure. We adhere to that statement. However, we further conclude that a citation does not serve the primary function of a complaint under the Commission’s Rules of Procedure. In a proceeding under the Act, an employer is given notice of the charge and the relief requested by a citation, while issue is joined and jurisdiction vested in the Commission by the filing of a notice of contest. The complaint and answer in our proceedings are designed to formulate the issues to be resolved. This purpose is accomplished by requiring the Secretary to set forth certain specified allegations in his complaint, such as the basis for jurisdiction, and by further requiring the employer to respond to each of these allegations in its answer. See note 4 supra. Indeed, it is precisely because a citation and notice of contest normally do not clearly define and delimit the issues to be determined by the Commission that the pleading rules have been adopted. Thus, the complaint serves important purposes independent of the citation and is an integral pleading in our proceedings.

We further conclude that the position adopted by the judge and the Secretary is not supported by National Realty and the other authorities cited by the judge in his denial of ASARCO’s motion to dismiss. See note 11 supra. These authorities merely reflect the longstanding policy, underlying the adoption of the Federal Rules of Civil Procedure, of withdrawing from older, more rigid pleading requirements. The Commission has frequently endorsed this policy, including the statement in National Realty that administrative pleadings should be liberally construed and easily amended. Nevertheless, we do not equate a liberal policy of construction and amendment of pleadings with a practice of dispensing with pleadings altogether. It is the propriety of the latter practice that is the issue before us in these cases.

Accordingly, for the reasons stated above, we conclude that the Secretary did not comply with Rule 33(a)(1) by issuing citations to the employers in the cases now before us. In view of this conclusion, the issue to be resolved is whether the judge erred in waiving this mandatory requirement.

III

The Respondents contend that the judge exceeded his authority by waiving the requirement that the Secretary file complaints in these cases. We agree. The judge based his orders solely on Commission Rule 38. See note 8 supra. However, that rule does not grant to Commission judges the authority to waive the requirements of the Commission’s Rules of Procedure. Under the terms of the rule, the authority granted is the power to terminate a party’s right to appear in the proceeding for failure to file a pleading when due, not the power to waive a requirement of the Rules of Procedure.

Our conclusion is reinforced by the fact that the Rules contain a specific provision governing waiver of their requirements. Rule 108 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.108. That Rule provides as follows:

§ 2200.108 Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the Commission may, upon application by any party or intervenor, or on its own motion, after 3 days’ notice to all parties and intervenors, waive any rule or make such orders as justice or the administration of the Act requires.

Under the Rule, the authority to grant waivers is reserved to the Commission. Furthermore, a waiver is to be granted only in special circumstances or upon a showing of good cause. Here of course there are no special circumstances either shown or even asserted that would justify a waiver under Rule 108. The Secretary is not seeking a waiver of Commission Rule 33(a)(1). In these cases he is seeking a revocation of that Rule.

We therefore hold that the judge erred in entering the show cause orders and orders to answer in Docket Nos. 79–6850, 79–6912 and 80–1028. We hereby vacate those orders.

There remains before us the question of the order to be entered in these cases. During the pendency of these interlocutory appeals, the Secretary has filed before us in all three cases motions to accept the late filing of his complaints. He also has forwarded copies of these complaints for filing. In opposition to these motions, the Respondents have argued that the only proper remedy at this stage in the proceedings is to vacate the Secretary’s citations and dismiss the cases.

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., Gircle 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/Cl, 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.

Here, while we do not condone the Secretary’s conduct in the cases before us, we do not characterize that conduct as contumacious. In opposing dismissal of these actions, the Secretary argues that he had not failed to comply with any order of the Commission and indeed has complied with the orders of the judge in the sense that those orders did not call for any response from the Secretary. This argument has merit. With respect to each of the captioned cases, we conclude that the Secretary’s failure to file a complaint was authorized from the time the judge issued his initial order in the case.[17]

As for the periods of time prior to the entry of the judge’s initial order in each case, the Secretary asserts that he did not file a complaint in reliance upon the Commission’s decision in IMC and also in reliance upon earlier judges’ decisions adopting the Secretary’s interpretation of IMC. We conclude that the Secretary has provided sufficient justification for his noncompliance with Rule 33(a)(1) to preclude classifying his action as contumacious conduct.

We reject ASARCO’s generalized assertions of prejudice as an inadequate basis for dismissing the charges against it. Hughes Tool’s assertions, see note 14 supra, are more substantial. Nevertheless, we note that Safety Engineer Newsom’s death occurred on June 25, 1980, over two months after the judge had in effect waived Rule 33(a)(1) in Nos. 79–6912 and 80–1028. Therefore, while Hughes Tool may have been harmed by the loss of Newsom’s testimony, we do not consider this prejudice attributable to the Secretary’s noncompliance with the Commission’s Rules. As for the other potential witnesses who no longer work for Hughes Tool, we note initially that there is no indication these persons terminated their active employment prior to the time the Commission’s filing requirement was waived and secondarily that there is no indication that the testimony of these persons cannot be obtained notwithstanding the fact that they are no longer actively employed by Hughes Tool.

In sum, because we do not find the Secretary’s conduct to be contumacious and because we conclude that the Respondents have not established that they were prejudiced by the Secretary’s failure to file timely complaints, we reject the Respondents’ contentions that the citations in these cases should be vacated. For these same reasons, we grant the Secretary’s motions for leave to file pleadings out of time.

Accordingly, the judge’s orders to show cause and orders to answer are set aside, the Secretary’s motions for leave to file pleadings out of time are granted, and the Respondents are ordered to file answers to the Secretary’s complaints in due course. These cases are remanded to the chief judge for the purpose of assigning them to an administrative law judge or judges for further proceedings consistent with this decision.[18] SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: Sep 30, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–6850, 79–6912, 80–1028
ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY
Respondent.
UNITED STEELWORKERS OF AMERICA, LOCAL 1742, Authorized Employee Representative

ORDER

Respondent moves for certification to the Commission pursuant to Rule 75 of the Commission’s Rules of Procedure of the order dated June 10, 1980, which

1. Denied the Respondent’s motion for reconsideration of an order dated May 8, 1980, holding the contested action of the Secretary as the Complaint herein,

2. Denied the Respondent’s motion to dismiss for lack of jurisdiction and

3. Denied the Respondent’s motion for a more definite statement.

The request of Respondent is denied. No substantial questions of law exist in light of IMC Chemical Group, Inc., 6 BNA 2077 (Rev. Com. No. 76–4761, 1978) and National Realty and Construction Co. v. OSAHRC, 489 F2d (D.C. Cir. 1975).

The attention of the Respondent is called to the Commission’s Rules of Procedure, Rule 75(c), 29 CFR Section 2200.75(c) relating to interlocutory appeal following denial of certification.

IRVING SOMMER

Judge, OSHRC

Dated: JUN 25, 1980

Washington, D.C.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–6850, 79–6912, 80–1028
ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY
Respondent.
UNITED STEELWORKERS OF AMERICA, LOCAL 1742, Authorized Employee Representative

ORDER

Motion by the Respondent for reconsideration of the order dated May 8, 1980 holding the contested action of the Secretary as the Complaint herein is denied. The May 8, 1980 order is re-affirmed. See IMC Chemical Group, Inc., No. 76–4671 (Nov. 17, 1978) and National Realty and Construction Co., Inc. v. OSHRC 489 F.2d 1257 (D.C. Cir. 1973) concerning the notice function of a citation and relative unimportance of formal administrative pleadings.

Motion to dismiss for lack of jurisdiction is denied. The filing of the notice of contest brings into play the Commission’s jurisdiction. See IMC Chemical Group, Inc., supra.

Motion for a more definite statement is denied. The contested action provides the Respondent with fair notice of the nature of the violations, standards not complied with, general location of the alleged violations and abatement period and penalties sought. In short, the contested action is sufficiently specific so that Respondent can answer.

The Respondent is allowed fifteen (15) days from service of this order to answer.

IRVING SOMMER

Judge, OSHRC

Dated: June 10, 1980

Washington, D.C.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–6850, 79–6912, 80–1028
ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY
Respondent.
UNITED STEELWORKERS OF AMERICA, LOCAL 1742, Authorized Employee Representative

ORDER

There being no response to the April 7, 1980 Order, the contested action of the Secretary shall stand as the Complaint in this matter. Cf. IMC Chemical Group, Inc., No. 76–4716 (Nov. 17, 1978).

Respondent is allowed fifteen (15) days to Answer or otherwise plead.

IRVING SOMMER

Judge, OSHRC

Dated: May 8, 1980

Washington, D.C.

[1] OSHRC Docket Nos. 79–6850 and 80–1028 were consolidated by a Commission order entered on July 23, 1980. We hereby consolidate OSHRC Docket No. 79–6912 with these two cases.

The cases are consolidated under Rule 9 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.9, which provides as follows:

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

We consolidate these cases on our own motion because they raise the same legal issue, there are no material differences in the facts relating to this issue, and, in OSHRC Docket Nos. 79–6912 and 80–1028, the parties are the same.

[2] Commission Rule 75 recently has been amended, see 44 Fed. Reg. 70,106 at 70,111 (1979), to be codified at 29 C.F.R. § 2200.75. Under the revised rule, which is applicable to the cases now before us, a party desiring to appeal from an interlocutory ruling is required initially to file with the judge a written request for certification of the appeal. Rule 75(b). Only where, as here, the judge issues an order denying the certification is the party allowed to petition the Commission for an interlocutory appeal. Rule 75(c).

[3] Commission Rule 33, 29 C.F.R. § 2200.33, provides, in pertinent part, as follows:

§ 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) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

(i) The basis for jurisdiction;

(ii) The time, location, place, and circumstances of each such alleged violation; and

(iii) The considerations upon which the period for abatement and the proposed penalty on each such alleged violation is based.

[4] 29 C.F.R. § 2200.33(b) provides:

(b) Answer. (1) Within 15 days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission.

(2) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied shall be deemed admitted.

[5] OSHRC Docket Nos. 79–6912 and 80–1028 arose from separate inspections of the same facility in Houston, Texas. The citations involved in No. 79–6912 were issued on December 3, 1979, and contested by the Respondent Hughes Tool Company (‘Hughes Tool’) on December 6, 1979. The notice of contest was received by the Secretary on December 7, 1979. In No. 80–1028, two citations were issued on January 24, 1980. Hughes Tool filed its notice of contest, limited to citation 1 and the related proposed penalties, on February 13, 1980. The Secretary received this notice of contest on February 15, 1980.

[6] In no. 79–6912, the Secretary’s complaint was due by December 27, 1979. On December 21 the Secretary filed a motion for extension of time to file the complaint, seeking an extension until January 28, 1980. The Secretary did not file a complaint or a motion for further extension of time by January 28.

In No. 80–1028, the Secretary’s complaint was due on or before March 6, 1980. Neither a complaint nor a motion was filed by the Secretary within this period.

[7] In No. 79–6912, Judge Sommer entered a show cause order on April 7, 1980, and an order to answer on May 8, 1980. In the show cause order, Judge Sommer also granted party status to Local 1742 of the United Steelworkers of America. However, with this exception, the orders in No. 79–6912 are essentially the same as the orders set forth above. As in No. 79–6850, the parties did not respond to the show cause order even though the record establishes that a copy was received by the Secretary.

In No. 80–1028, Judge Sommer did not issue a show cause order. Instead, on April 24, 1980, he entered the following order to answer:

1. The Secretary of Labor has filed no complaint in accordance with the requirements of Commission Rule 33(a)(1) nor has there been a motion for an extension of time. Accordingly, the Secretary of Labor is considered to have waived his right to file this pleading, and the contested action shall stand as notice of his allegations in this case.

2. The employer is allowed fifteen (15) days from service of this order to answer the Secretary’s allegations.

[8] 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.

[9] In Nos. 79–6912 and 80–1028, Hughes Tool responded to Judge Sommer’s orders to answer, note 7 supra, by filing essentially identical motions and supporting memoranda in both proceedings on May 22, 1980, and no May 9, 1980, respectively. Hughes Tool filed the following alternative motions:

(a) a motion for reconsideration of the judge’s order to answer;

(b) a motion under Fed. R. Civ. P. 12(b) to dismiss for lack of jurisdiction (on the ground that the citation did not set forth ‘the basis for jurisdiction’ as required under Commission Rule 33(a)(2)(i), note 3 supra); and

Although Hughes Tool filed different motions than did ASARCO in No. 79–6850, the arguments it made in support of its motions were very similar to the arguments made by ASARCO and set forth above. Hughes Tool also argued that Judge Sommer exceeded his authority in that his orders constituted ‘prosecutional’ rather than ‘adjudicative’ actions.

[10] In Nos. 79–6912 and 80–1028, the Secretary did not respond to the motions filed by Hughes Tool. See note 9 supra. In No. 79–6912, the Secretary took no action from the time he filed his motion for extension of time to file a complaint, see note 6 supra, until after the Commission granted the Respondent’s petition for interlocutory appeal. In No. 80–1028, the Secretary’s initial filing in the case occurred after the petition for interlocutory appeal was granted. See note 14 infra. We note, however, that Judge Sommer had already ruled on ASARCO’s motion by the time Hughes Tool filed its motions in Nos. 79–6912 and 80–1028.

[11] The judge cited the following as authority for the conclusions he stated:

(a) National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) [‘,National Realty’] [rejects contention that citation and complaint did not provide adequate notice of the charge, citing ‘the familiar rule that administrative pleadings are very liberally construed and very easily amended’, 489 F.2d at 1264];

(b) Marshall v. B.W. Harrison Lumber Co., 569 F.2d 1303 (5th Cir. 1978) [sets forth liberal interpretation of the requirement of section 9(a) of the Act, 29 U.S.C. § 658(a), that a citation ‘describe with particularity the nature of the violation’];

(c) Usery v. Marquette Cement Mfg, Co., 568 F.2d 902 (2nd Cir. 1977) [adopts liberal policy of permitting amendments to pleadings under the act]; and

(d) I Davis, Administrative Law Treatise § 8.04 (1958) [discusses relative unimportance of pleadings in administrative proceedings].

[12] The procedural history at this stage in the proceedings is the same in Nos. 79–6912 and 80–1028, that is, the judge denied Hughes Tool’s motions, see note 9 supra, Hughes Tool requested special permission to appeal from the orders denying its motions, the judge denied these requests for the same reason stated above in reference to No. 79–6850, and Hughes Tool sought and obtained interlocutory appeals from the Commission.

In denying the motions made by Hughes Tool, Judge Sommer followed reasoning similar to that set forth in his denial of ASARCO’s motion. However, he expanded on that reasoning. Thus, in No. 79–6912 he concluded that the citation provided Hughes Tool ‘with fair notice of the nature of the violations, standards not complied with, general location of the alleged violations and abatement periods and penalties sought’ and that it was ‘sufficiently specific so that Respondent can answer.’

In No. 80–1028, Judge Sommer reiterated his conclusions in No. 79–6912 and added an analysis paraphrasing many of the Commission’s statements in IMC. For example, he stated, without qualification, that ‘[t]he citation serves the primary function of a Complaint, and the Notice of Contest is analogous to an Answer.’

In urging first the judge and then the Commission to grant interlocutory appeals in these cases, both ASARCO and Hughes Tool basically restated the positions they had taken in support of their original motions before the judge.

[13] On December 5, 1979, the Commission promulgated a new subpart to its Rules of Procedure, Subpart M—Simplified Proceedings. 44 Fed. Reg. 70,106 at 70,112–113 (1979). As noted at the beginning of the subpart, these rules were ‘instituted on an experimental basis for a period of 1 year from its effective date.’ The Commission expressly reserved a ruling on the ‘final status’ of Subpart M until the expiration of this experimental period. In pertinent part, the new subpart provides:

§ 2200.204 Filing of pleadings.

(a) Complaint and answer. There shall be no complaint or answer in simplified proceedings . . ..

In its petitions for interlocutory appeal, Hughes Tool also referred to the new rules in Subpart M. However, it interpreted their effect differently, arguing that ‘the Commission’s express exclusion of the complaint in this context merely serves to reinforce the conclusion that in regular Commission proceedings, a complaint is compulsory.

[14] In Nos. 79–6912 and 80–1028, the Secretary did not file oppositions to Hughes Tool’s petitions for interlocutory appeal. However, shortly after these petitions were granted, the Secretary did file motions in both cases to accept late filing of complaints that were attached to the motions. The motions in all three of the cases before us are virtually identical. Moreover, like ASARCO, Hughes Tool filed oppositions to the motions. It argued that it would be ‘manifestly unjust and highly prejudicial’ to allow the Secretary to file the complaints after a delay of several months. In support of its claim of prejudice, it attached affidavits to its oppositions in both cases. In No. 80–1028, the affidavit stated that Thomas L. Newsom, Hughes Tool’s Safety Engineer, had died on June 25, 1980; that Newsom would have been one of its ‘primary witnesses’; that his testimony was now unavailable due to his death; and that Hughes Tool accordingly ‘would be substantially prejudiced if it were called upon to present its case before the Administrative Law Judge.’ In No. 79–6912, the affidavit cited not only Newsom’s death but also the unavailability of three other ‘Key witnesses’ who, for varying reasons, were no longer working for Hughes Tool.

[15] There are limitations both on the applicability of Subpart M and on the eligibility of cases for simplified proceedings. Commission Rules 201 and 202, 44 Fed. Reg. 70,106 at 79,112 (1979), to be codified in 29 C.F.R. §§ 2200.201 and 2200.202. Nevertheless, within the constraints of these limitations, Subpart M provides the Secretary a means whereby he can act under the express authority of the Commission’s Rules of Procedure and yet proceed without filing a complaint. However, there is no indication in the records of the cases now before us that the Secretary requested simplified proceedings in any of these cases.

[16] Commissioner Barnako dissented from the Commission’s decision in IMC, agreeing with the parties that Fed. R. Civ. P. 41(a)(1) was applicable to the Secretary’s motion. In particular, Commissioner Barnako rejected the analogy drawn by the majority, arguing that ‘the dissimilarities between a complaint/answer and citation/notice of contest are greater than the similarities.’ 6 BNA OSHC at 2080, 1978 CCH OSHD at p. 27,993.

Accordingly, in the cases now under review, Commissioner Barnako does not join in his colleagues’ discussion of their majority opinion in IMC. He adheres to the views expressed in his dissenting opinion in that case. Thus, he concludes that a citation is not a complaint and is neither analogous to nor equivalent to a complaint. This holds true regardless of whether Commission Rule 33(a) or Fed. R. Civ. P. 41(a) is being interpreted.

[17] As indicated, the judge issued a show cause order in No. 79–6850 on February 27, 1980, and in No. 79–6912 on April 7, 1980. These orders gave the Secretary the option of not filing a complaint. The initial order in No. 80–1028 was issued by the judge on April 24, 1980. It expressly instructed the Secretary not to file a complaint in the case.

[18] Rule 10 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.10, provides as follows:

§ 2200.10 Severance.

Upon its own motion, or upon motion of any party or intervenor, the Commission or the judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.

We hereby find good cause for severing No. 79–6850 from Nos. 79–6912 and 80–1028 and accordingly we sever that case from this consolidated proceeding under Rule 10. OSHRC Docket No. 79–6850 involves a different Respondent than the Respondent in the other two cases. Moreover, based on our review of the records, we conclude that there apparently are no remaining issues of fact or law that are common to No. 79–6850 and either of the other cases. Because Nos. 79–6912 and 80–1028 involve the same parties and because they both arose from inspections of the same workplace, the decision as to whether these two cases should be severed from each other is left to the parties and the judge on remand.