UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 80–3347
CARHAR CONTRACTING COMPANY, INC.,
Respondent.

January 23, 1981

ORDER

Before CLEARY, Chairman ; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

The Secretary of Labor (‘Secretary’) has moved for acceptance of his late-filed complaint. The motion was made after the date on which the complaint was due to be filed.[1] Subsequent to the filing of the Secretary’s motion, the case was assigned to Administrative Law Judge Richard DeBenedetto. The judge observed that the motion was not timely under Commission Rule 5, 29 C.F.R. § 2200.5, which provides: ‘Requests for extensions of time for the filing of any pleading or document must be received in advance of the date on which the pleading or document is due to be filed.’[2] Judge DeBenedetto interpreted the motion as a request for a waiver of Rule 5. Citing ASARCO, Inc., El Paso Division, 80 OSAHRC ___, 8 BNA OSHC 2156, 1980 CCH OSHD ¶ 24,838 (No. 79–6850, 1980) (‘ASARCO’), the judge held that only the Commission, and not one of its administrative law judges, can waive a Commission rule. Accordingly, the judge filed the case with the Commission for a ruling on the motion.

Subsequent to the judge’s filing of the case with the Commission, the Secretary filed a motion for remand, arguing that the judge mistakenly treated his motion as a request for a waiver of Rule 5. The Secretary asks that the Commission clarify its decision in ASARCO to make it clear that Commission judges have the authority to rule on motions such as the one at issue in this case.

The Secretary’s request does not seek a waiver of a Commission rule within the meaning of ASARCO. Instead, it is the type of procedural motion on which Commission judges traditionally have ruled. The authority of Commission judges to ‘[d]ispose of procedural requests or similar matters . . .’ is provided for in Commission Rule 66(h), 29 C.F.R. § 2200.66(h). Moreover, such authority has customarily been exercised by those holding positions similar to that of a Commission judge. See generally Attorney General’s Manual on the Administrative Procedure Act (1947) at 74–75. Indeed, Commission Rule 66 is patterned generally on the powers and duties section of the Administrative Procedure Act. Section 7(b) of the Administrative Procedure Act, 5 U.S.C. § 556(c). The Secretary’s motion is the type of procedural request on which Commission judges can and must rule.

Accordingly, the case is remanded to Judge DeBenedetto for a ruling on the Secretary’s motion to accept the late-filed complaint and for further proceedings. In making his ruling, the judge should note that the Commission has consistently granted motions for late filing of pleadings in the absence of either contumacious conduct by the moving party or prejudice to the nonmoving moving party. E.g., Boardman Co., ___ OSAHRC ___, 9 BNA OSHC 1163, 1981 CCH OSHD ¶ 25,017 (No. 80–75, 1980); Michael Construction Co., 80 OSAHRC ___, 9 BNA OSHC 1029, 1980 CCH OSHD ¶24,960 No. 80–1972, 1980). SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: JAN 23 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 80–3347
CARHAR CONTRACTING COMPANY, INC.,
Respondent.

October 31, 1980

ORDER

The Secretary has moved to file a late complaint. The motion is opposed by respondent, Carhar Contracting Co., Inc. (‘Carhar’).

Carhar was issued a citation on May 22, 1980. The notice of contest was received by the Secretary on June 10, 1980. Under Commission Rule 33(a)(1)[3] the Secretary had until June 30, 1980, in which to file his complaint. By letter dated July 2, 1980, and filed with the Commission on July 7, 1980, the Secretary requested an additional 30 days in which to file the complaint. The Commission granted the request. By letter dated July 28, 1980, and filed with the Commission on July 30, 1980, the Secretary requested 30 more days for filing the complaint. Carhar expressed its opposition, stating, among other things, that the Secretary’s request contravenes Commission Rule 5.[4] Commission Judge Foster Furcolo, by order of August 14, 1980, allowed the Secretary until August 29, 1980, in which to file the complaint. On September 15, 1980, Chief Judge Paul Tenney issued the following 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 (Nov. 17, 1978).

On the same day the Secretary filed his complaint together with a motion to file the late complaint. On September 22, 1980, Chief Judge Tenney issued an order calling attention to Commission precedent which permits filing a late complaint when an opposing party has not been prejudiced thereby and allowing Carhar ten (10) days from service of the order to show ‘any prejudice resulting from the late filing of a complaint in this case, if filing were allowed.’ On October 2, 1980, Carhar filed its response to Chief Judge Tenney’s order, contending, among other things, that the Secretary’s late filing of the complaint has prejudiced its case. The case was then assigned to the undersigned by Chief Judge Tenney.

In a recent decision on interlocutory appeal, Asarco, Inc., and Hughes Tool Company, Consolidated Docket Nos. 79–6850, 79–6912 and 80–1028 (September 30, 1980), the Commission declared in clear language the guiding principle controlling the disposition of the Secretary’s late filing motion. The Commission stated that under Rule 108[5] the authority to waive the requirements of the Commission’s Rules of Procedure rests exclusively with the Commission.

Because the Secretary’s late filing request was made some time after the complaint was due to be filed, and in view of the fact that the late filing may be permitted only by waiving the mandatory time requirement of Rule 5 (see note 2 supra), the Secretary’s motion to file late complaint is denied without prejudice. In pursuance of the Asarco decision and in order to effectuate economy in time and effort, this case will be filed with the Commission on this date for a determination on the Secretary’s late filing motion.[6]

RICHARD DeBENEDETTO

JUDGE, OSHRC

Dated: October 31, 1980

Boston, Massachusetts

[1] The complaint was due to be filed on August 29, 1980. The Secretary filed the complaint on September 15, 1980, together with the motion to accept the late-filed complaint.

[2] The Secretary’s motion to accept the late-filed complaint is the equivalent of a motion for an extension of time to file the complaint.

[3] 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.

[4] Rule 5, 29 C.F.R. § 2200.5, reads:

Requests for extensions of time for the filing of any pleading or document must be received in advance of the date on which the pleading or document is due to be filed. (Emphasis added.)

[5] Rule 108, 29 C.F.R. § 2200.108, reads:

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.

[6] The 30-day review period under Commission Rule 92(d), 29 C.F.R. § 2200.92(d), does not apply pending the Commission’s determination on the Secretary’s motion.