Docket No. 79-2212

GENERAL MOTORS CORPORATION, FISHER BODY DIVISION

OSHRC Docket No. 79-2212

Occupational Safety and Health Review Commission

August 31, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Otis M. Smith, General Motors Corporation, for the employer

Russell J. Thomas, Jr., for the employer

Mr. Andrew Di Matteo, Local 731, United Automobile Workers, for the employees

Mr. Charles Ketterer, Pres., Local 731, United Automobile Workers, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Richard DeBenedetto is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge DeBenedetto granted the motion filed by Respondent, General Motors Corporation, Fisher Body Division ("G.M."), to dismiss the case under Rule 41(b) of the Federal Rules of Civil Procedure. n1 Accordingly, he vacated the one citation item at issue, which alleged an other than serious violation of the Act based on noncompliance with the occupational noise standard at 29 C.F.R. § 1910.95(b)(1), and he further vacated the proposed penalty of $100. Review was directed on the issues raised in the petition for review [*2] filed by the Secretary of Labor ("the Secretary"): (1) whether Judge DeBenedetto erred in denying the Secretary's motion to postpone the hearing and his request for production and inspection of documents, and (2) whether the judge abused his discretion in granting Respondent's motion to dismiss under Rule 41(b). We conclude that the judge did not err in denying the Secretary's motions to postpone the hearing and to conduct further discovery; nor did he abuse his discretion in granting the motion to dismiss.

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n1 In the absence of a specific Commission rule, the Federal Rules of Civil Procedure are applicable to Commission proceedings. Section 12(g) of the Act, 29 U.S.C. § 661(f); 29 C.F.R. § 2200.2(b). Rule 41(b) provides, in pertinent part:

(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 and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

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Given Judge DeBenedetto's detailed presentation of the procedural history of the case in his decision, we only briefly state it here. On October 31, 1979, only one day before the scheduled hearing in this case, the Secretary filed with the judge a motion to postpone the hearing for at least one month. The Secretary gave the following reasons for his motion to postpone: (1) Norman Dotti, the Secretary's acoustical engineering expert, was unable to meet with the Secretary's counsel prior to the hearing due to Dotti's previously-scheduled commitments from October 25 to November 1, 1979; (2) because he had never received certain information that he had requested during his discovery inspection conducted on October 17, 1979, Dotti was unable to complete his report on the technological and economic feasibility of engineering controls to reduce noise levels in the cited areas of G.M's facility; and (3) the Secretary's preparation period had been "diminished significantly" as a result of a three-week delay in Dotti's discovery inspection due to complications arising from G.M.'s request that Dotti execute [*4] a trade-secrecy oath before conducting the discovery inspection. At the same time he filed the motion to postpone, i.e., one day before the hearing, the Secretary filed an extensive and generally-worded request for production and inspection of documents.

Rule 61 of the Commission's Rules of Procedure, 29 C.F.R. § 2200.61, provides:

Postponement of hearing.

(a) Postponement of a hearing ordinarily will not be allowed.

(b) Except in the case of an extreme emergency or in unusual circumstances, no such request will be considered unless received in writing at deast 3 days in advance of the time set for the hearing.

At the scheduled hearing, Judge DeBenedetto permitted the parties to present extensive arguments on the Secretary's motions. After considering these arguments, the judge denied the Secretary's motions to postpone the hearing and to permit further discovery. We conclude that the judge did not err in denying the Secretary's motions.

All parties in cases before the Commission are expected to comply with the Commission's Rules of Procedure and the orders of its judges. See, [*5] e.g., TRG Drilling Corp. (Mid-Continent Division), 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981). Commission Rule 61(b) clearly states that a motion to postpone a hearing must be received at least three days before the hearing unless the moving party shows that there is "an extreme emergency" or there are "unusual circumstances." We conclude that the three reasons given by the Secretary for his motion, as set forth above, do not establish the existence of "an extreme emergency" or "unusual circumstances" so as to excuse his failure to timely file his motion. With regard to the Secretary's first reason, we note that no explanation was provided as to why the Secretary's counsel could not have met with Dotti at some time between October 17, the day of his discovery inspection, and October 24, the day before his previously-scheduled commitments began. Concerning the Secretary's second reason, it was established at the hearing that it was the Secretary's own failure to timely request in writing the information deemed necessary by Dotti that resulted in Dotti's failure to complete his report before the scheduled hearing date. n2 Moreover, the [*6] Secretary concedes that he was aware of the need for this information on October 22, and yet he filed no motion for postponement until nine days later. Regarding the Secretary's third reason, it was further established at the hearing that the three-week delay in the discovery inspection was caused primarily by problems Dotti encountered in mailing the signed trade-secrecy oath back to the Secretary, rather than by G.M.'s request that an oath be signed. In any event, the Secretary was aware of the delay in Dotti's discovery inspection well in advance of the hearing and yet failed to request a postponement at that time. As Judge DeBenedetto noted in his decision, no request for a postponement was made when, on October 9, the Secretary's counsel telephoned the judge for suggestions about what could be done to arrange a new discovery inspection date necessitated by the delay encountered in mailing the oath. Indeed, in a settlement conference between the Secretary and G.M. on October 23, counsel for the Secretary informed counsel for G.M. that the Secretary was prepared to try the case on November 1 and 2. n3

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n2 Dotti was informed at the time of his discovery inspection on October 17 that G.M. would not consider his request for additional information until it was submitted in writing. Nevertheless, the Secretary never submitted a written request to G.M. and he waited until October 31, the day before the hearing, to file a request for production and inspection of documents.

n3 In support of its conclusion that dismissal is not warranted in this case, the dissent claims that G.M. incorrectly represented to the Secretary's counsel at the settlement conference that the information counsel requested had already been provided in G.M.'s answers to the Secretary's interrogatories. The dissent misreads the record. According to the Secretary's counsel, in response to the Secretary's request G.M.'s counsel stated, "We won't respond in writing. I can tell you now that what we would answer is what we've already answered in the answers to your interrogatories." While it appears from further statements by the Secretary's counsel that counsel misunderstood G.M.'s response, it is clear that G.M.'s counsel did not represent that the information requested by the Secretary had already been provided.

[*8]

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Following the judge's denial at the hearing of the Secretary's motions to postpone and to permit additional discovery, Judge DeBenedetto advised the Secretary's counsel: "[Y]ou better proceed with your case in chief." After the lunch break, the Secretary's counsel stated that he was unable to proceed with the Secretary's case. G.M.'s counsel then made a motion to dismiss the case "with prejudice" under Rule 41(b) of the Federal Rules of Civil Procedure. The judge granted the motion of G.M.'s counsel and closed the hearing.

In his decision, Judge DeBenedetto concluded that the Secretary's motion to postpone the hearing "comes at a time and under circumstances which convince me that it is not made in good faith." He then went on to rule that, because the Secretary did not present his case on the scheduled hearing date, the citation item and proposed penalty should be dismissed.

While a judge's dismissal of a case under Rule 41(b) should be hpheld unless the judge abused his or her discretion, the scope of the judge's discretion is narrowly circumscribed by the following criterion: "[o]nly where [*9] there is a 'clear record of delay or contumacious conduct' should an action be dismissed for failure to prosecute." Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1911, 1981 CCH OSHD P25,425, at p. 31,692 (Nos. 79-2255 & 79-3647, 1981). The Secretary argues on review that there was no "clear record of delay or contumacious conduct" in the instant case. We disagree. As we noted previously, the judge did not abuse his discretion by refusing to grant the Secretary's motion to postpone the hearing. Accordingly, the Secretary was obliged to proceed with his case. We conclude that the Secretary's conduct throughout this proceeding, culminating in his refusal to go forward when so instructed by the judge, constituted a pattern of conduct rising to the level of contumacy.

We recognize the competing concerns that confronted Judge DeBenedetto: (1) the public policy favoring disposition on the merits, and (2) the preservation of the integrity of Commission rules and orders and the deterrence of future misconduct by the Secretary. We conclude that under the facts of this case the balance the judge struck between these competing interests was within the range of his discretion. [*10] See Pittsburgh Forging Co., 82 OSAHRC 14/D13, 10 BNA OSHC 1512, 1982 CCH OSHD P25,974 (No. 78-1361, 1982) (judge's decision to vacate citation items as a sanction for the Secretary's failure to comply with discovery order did not constitute abuse of discretion).

While we conclude that the judge did not abuse his discretion in granting G.M.'s motion to dismiss under Federal Rule 41(b), we do not agree that the dismissal should be "with prejudice" and thus constitute a decision on the merits. To dismiss this case "with prejudice" would prevent the Secretary from later trying a case on the merits against G.M. for the same noise violation that is alleged here. Assuming G.M. did fail to comply with the noise standard and that it continues to do so, to dismiss "with prejudice" would therefore frustrate the remedial purpose of the Act and, in the long term, punish only the employees for the conduct of the Secretary.

Accordingly, we modify the judge's order to be a dismissal under Rule 41(b) "without prejudice." n4 As modified, we affirm the judge's order granting the motion to dismiss and vacating the citation item and proposed penalty.

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n4 Chairman Rowland does not agree that the "remedial purposes" of the Act require that dismissal in this case be without prejudice. In Chairman Rowland's view, the judge did not abuse his discretion in ordering dismissal with prejudice in the circumstances presented here. See Lopez v. Arkansas County Indep. School Dist., 570 F.2d 541 (5th Cir. 1978); Schwarz v. United States, 384 F.2d 833 (2d Cir. 1967); Hooper v. Chrysler Motors Corp., 325 F.2d 321 (5th Cir. 1963), cert. denied, 377 U.S. 967 (1964). Chairman Rowland also notes that in Pittsburgh Forgings Co., 82 OSAHRC 14/D13, 10 BNA OSHC 1512, 1982 CCH OSHD P25,974 (No. 78-1361, 1982), and TRG Drilling Corp., 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981), the Commission affirmed its judges' rulings vacating citation items with prejudice. Accordingly, Chairman Rowland joins in ordering dismissal without prejudice solely to form a majority disposition in this case.

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IT IS SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

This case does not involve [*12] contumacious conduct on the part of the Secretary's counsel. Nor does the Secretary's late filing of the motion to postpone the hearing justify dismissal. Accordingly, dismissal of the Secretary's citation is judicial overreaction to the circumstances of this case.

The legal standards governing dismissal for failure to prosecute were recently stated by this Commission:

Only where there is a "clear record of delay or contumacious conduct" should an action be dismissed for failure to prosecute. Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974), citing and quoting Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1957). Dismissal is justified where there is a "drawn-out history of the litigation" which demonstrates that the prosecuting party has been "deliberately proceeding in a dilatory fashion." Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962).

Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1911, 1981 CCH OSHD P25,425 at p. 31,692 (Nos. 79-2255 & 79-3647, 1981) (footnote omitted). Under Federated Metals, only deliberate misconduct justifies dismissal for failure to prosecute. Unintentional delay is not enough. [*13] See also Ralston Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD P23,897 (No. 78-145, 1979).

The Secretary's counsel failed to gather the information necessary to try the alleged noise violation in time for the hearing. Realizing that fact at the last moment, counsel filed a motion to postpone the hearing and a motion for production of the necessary documents by GM. There is no indication that the delays or motions were the result of a contumacious attitude and the majority points to no such evidence.

There is no evidence of intentional misconduct based on the mere series of mishaps that delayed the Secretary's discovery inspection until October 17. Nor does the fact that the Secretary's counsel did not learn about the need for additional information until 5 days after that inspection indicate contumacy. The necessary information was requested from GM's counsel during a settlement meeting the next day (October 23) and counsel was informed that it had been included in GM's answers to interrogatories. This incorrect representation contributed to the delay in seeking a postponement of the hearing (the expert was unavailable for consultation after October 24). [*14] Thus, the further eight-day delay by the Secretary's counsel in seeking a postponement and requesting the needed information is understandable and does not indicate contumacious behavior.

The Commission repeatedly has faced the problem of delays in noise cases due in part to the lack of expeditious, thorough discovery by the Secretary. E.g., Samsonite Corp., 10 BNA OSHC 1583, 1982 CCH OSHD P26,054 (No. 79-5649, 1982); Federated Metals, supra; Ralston Purina, supra. Extensive and complex discovery generally is involved where the feasibility of engineering controls to reduce noise exposure is in issue. See Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 1981 CCH OSHD P25,586 (No. 11865, 1981); Federated Metals, supra; Ralston Purina, supra. There is no basis for finding that the delays and errors in this case were any more deliberate than those in the noise cases cited above.

Shortly before the hearing the Secretary's counsel met with her supervisor and they determined that they could not try the case without more information. They did the only thing possible short of dropping the case -- they filed a motion to postpone the hearing [*15] and a motion for the production of documents. The judge did not clearly order the Secretary to proceed with his case. The judge's comment, "you better proceed with your case in chief" was followed by further consideration of pretrial motions. Thereafter, the judge did not order the Secretary to proceed. Thus, there was no disobedience of an order to proceed with the Secretary's case. Moreover, the Secretary has declined to go forward with his case is similar noise cases where he lacked the necessary evidence. Del Monte, supra; Federated Metals, supra; Ralston Purina, supra. The Commission did not find that action to be contumacious.

The majority has reached out again to find contumacy on the part of the Secretary's counsel without factual support. See also TRG Drilling Corp., 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981) (Cottine, Commissioner, dissenting). This finding has another serious consequence. It casts an adverse reflection on the professional competence of an attorney. Under these circumstances the issue of contumacy must be carefully addressed and resolved in fairness to the parties and their representatives. [*16] Id.

Federated Metals indicates that dismissal is inappropriate here for another reason:

A dismissal under Federal Rule 41(b) is a sanction against the prosecuting party. Therefore, it is not properly employed where, as here, the prosecuting party's failure to proceed is largely the defending party's fault. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27 (9th Cir. 1978); United States v. Inter-American Shipping Corp., 455 F.2d 938 (5th Cir. 1972); Davis v. Romney, [53 F.R.D. 247 (E.D. Pa. 1971)].

9 BNA OSHC at 1913, 1981 CCH OSHD at p. 31,694. As noted above, the incorrect representation by GM's counsel that all additional information requested by the Secretary's counsel 9 days before the hearing had already been turned over contributed to the delay in seeking a postponement of the hearing. n1 Also, neither the Secretary nor the judge received GM's witness list, the list of documents GM intended to offer in evidence, or other information covered by the pre-trial order until the day of the hearing. The judge had ordered that information turned over at least a week before the hearing. The Secretary objected to the late disclosures, [*17] claiming surprise. In fairness, GM must shere the responsibility for the need to postpone the hearing. Accordingly, the Secretary's case should not have been dismissed.

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n1 Even accepting the majority's selective interpretation of the record at note 3, supra, the Secretary's counsel reasonably understood the responses of GM's counsel during the pretrial period to have suggested that the requested information had already been supplied. TR. 20, 28-9, 31. Under these circumstances, the conduct of the Secretary's counsel cannot be considered contumacious.

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The failure by the Secretary's counsel to comply with Commission Rule 61(b) also does not justify dismissal:

[T]he 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 or for failure to follow procedural provisions of the Act itself. . . .

Assuming, as we do here, an absence of contumacious conduct on the part of the delaying party, [*18] we consider lack of prejudice to respondents as the controlling factor in determining that dismissal is too harsh a sanction under the circumstances.

Duquesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1222, 1980 CCH OSHD P24,384 at 29,719 (No. 78-5034, 1980) (footnotes omitted). The majority has not found, nor could it find, that the failure to file the motion to postpone at least 3 days before the hearing was in itself a contumacious act. Nor was there any prejudice to GM, as its ability to present its defenses was not shown to have been compromised. E.g., Rollins Outdoor Advertizing, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977-78 CCH OSHD P21,551 (No. 12528, 1977); Accu-Namics, Inc., 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1974-75 CCH OSHD P17,936 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

There are no grounds for dismissal in this case under Commission precedent. [*19] Accordingly, the judge's action in dismissing the citation should be reversed and the case remanded for further proceedings.