UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 80–1031

 

FWA DRILLING COMPANY, INC.,

 

 

                                              Respondent.

 

 

December 30, 1980

ORDER OF REMAND

            A decision of Administrative Law Judge Quentin P. McColgin[1] is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. In that decision, Judge McColgin denied the Secretary’s motion to file pleading out of time and vacated a citation issued to respondent for the Secretary’s failure to file a timely complaint. For the reasons that follow, we reverse the Judge’s decision and remand the matter for further proceedings.

The Commission has recently held that the failure of the Secretary to file a timely complaint does not justify vacating a citation absent a finding that the failure either was the result of the Secretary’s contumacious conduct or resulted in prejudice to the employer. Boardman Co., OSHRC Docket No. 80–75 (December 16, 1980); ASARCO, Inc., El Paso Div., 80 OSAHRC ——, 8 BNA OSHC 2156, 1980 CCH OSHD ¶24,838 (No. 79–6850, 1980).

            The Secretary’s explanation for not filing a timely complaint in this matter is substantially similar to that in Boardman Co., supra. As we found in Boardman, the Secretary’s explanation is sufficient to preclude a finding of contumacious conduct. Moreover, at this time respondent has not established any prejudice resulting from the Secretary’s failure to file a timely complaint.

            Accordingly, we reverse Judge McColgin’s decision vacating the citation. We grant the Secretary’s motion to file pleading out of time and accept the complaint filed with the motion. Respondent is granted 15 days to answer the complaint, and the case is remanded to the Judge for further proceedings consistent with this opinion.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: DEC 30, 1980

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 79–7196

OSHRC DOCKET NO. 80–0168

OSHRC DOCKET NO. 80–0607

OSHRC DOCKET NO. 80–0610

OSHRC DOCKET NO. 80–1031 (Consolidated)

GENERAL MOTORS CORPORATION, GENERAL MOTORS ASSEMBLY DIVISION, ALLIED PLANT MAINTENANCE COMPANY OF OKLAHOMA, INC., CLEMENT FOOD COMPANY, MILLCON CORPORATION, FWA DRILLING COMPANY, INC.,

 

                                              Respondents.

 

November 3, 1980

DECISION AND ORDER

            By the undersigned’s order of July 21, 1980, these cases were consolidated in order to resolve the issues common to them, namely, complainant’s failure to file complaints in each of these cases. In this previous order, certain orders issued prior to their assignment to the undersigned were vacated. These vacated orders were issued by a Commission Judge who directed that the contested citations be treated as complaints notwithstanding the failure of complainant to file complaints in accordance with Commission Rule 33(a)(1).[2] Additionally, the July 21, 1980 order directed that complaints not be filed in these cases unless they were accompanied by appropriated motions filed within a prescribed time period for leave to file complaints out of time.

            It was contemplated that any motion filed pursuant to the July 21, 1980 order would contain complainant’s reasons for failing to timely file complaints in these cases. Since it was thought that the reasons offered might vary from case to case, the undersigned, at the conclusion of his July 21 order severed these cases.

            In response to that order, complainant has filed in each case a motion entitled ‘Motion for Leave to File Complaint Out of Time.’ The respondent in each case, has filed a response to the motion opposing the relief requested and further requesting that the case be dismissed. Each motion filed by complainant has attached to it an identical affidavit by the Regional Solicitor of the United States Department of Labor, Dallas, Texas (Dallas Regional Solicitor). This affidavit constitutes the sole basis offered by complainant in support of the pending motions except for the assertion contained in three of the motions that ‘respondent has suffered no prejudice as a result of the delay in filing said complaint.’[3] Thus, the offering by the Dallas Regional Solicitor of identical reasons to justify his failure to timely file complaints in these cases again presents common questions of both fact and law which warrants the consolidation of these cases. Accordingly, pursuant to Commission Rule 9, the above-entitled cases are hereby consolidated.

            After considering the reasons advanced in support of and in opposition to the motions, it is determined that complainant has not shown the existence of circumstances which would justify permitting the filing of complaints in these cases. Therefore, complainant’s motions are denied.

            The position advanced by the Dallas Regional Solicitor in his affidavit is that on the basis of certain actions by the Commission and its Judges, he concluded that the Commission considered the filing of complaints ‘unnecessary.’ Further, in order to reduce ‘unnecessary paperwork’ and conserve ‘valuable attorney time,’ the Dallas Regional Solicitor by reason of his action or inaction caused complaints not to be filed in these cases.

            Commission Rule 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.

 

After examining this rule in conjunction with the matters claimed by the Dallas Regional Solicitor to have led him to his conclusion, it is found that there is no reasonable basis for concluding that complaints in these proceedings are unnecessary or not required.

            The principal Commission action relied upon by the Dallas Regional Solicitor to support his conclusion is the Commission’s decision in IMC Chemical Corp., Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ¶ 23,149 (No. 76–4761, 1978). That case cannot be cited for the proposition that complaints in Commission cases are unnecessary or are not required. In that case, the Secretary attempted to withdraw a contested citation before an answer was filed which withdrawal was objected to by the affected employees. The issue presented was whether the Secretary, as plaintiff, can unilaterally dismiss the action pursuant to FED.R.CIV.P. 41(a)(1) before the filing of an answer. The Commission held that the Secretary could not, reasoning that the issues were joined and the rights of third parties attached upon the filing of a notice of contest. However, the holding in that case was expressly limited to the narrow issues presented there.[4]

            The Dallas Regional Solicitor also cites the Commission’s action of adopting simplified proceedings which ‘generally do not permit or require pleadings’ as ‘indicative of the importance it ascribes to complaints and answers in routine cases.’ To the extent that the Dallas Regional Solicitor relies upon this action to support the conclusion that complaints are unnecessary or are not required, such reliance is badly misplaced.

            It is true that under the recently adopted rules governing simplified proceedings, pleadings are generally not permitted or required. However, simplified proceedings are available only in those cases which are eligible and then only if timely requested by a party and not objected to by any of the other parties. Thus, to the extent that the Commission’s action in adopting these simplified proceedings indicates the importance it attaches to pleadings, it can be said that the Commission does not consider them important if the parties themselves do not consider them important. Corollarily, it can be said that the Commission considers pleadings important in every case, if any of the parties consider them important. In these cases, it has been demonstrated by the action of respondents in objecting to complainant’s failure to file complaints that each respondent considers pleadings important. Thus, it follows that the Commission itself would consider pleadings in these cases important, and the Dallas Regional Solicitor’s conclusion to the contrary exceeds the bounds of reason.

            This argument also falls by its own weight with respect to two of the five cases involved here. The Dallas Regional Solicitor would characterize those cases that are eligible for simplified proceedings as ‘routine cases.’ However, two of these cases (Docket Nos. 79–7196 & 80–1031) concern violations which are ineligible for simplified proceedings.[5] Since it seems clear that the Dallas Regional Solicitor recognized these cases as non-routine, his argument that pleadings are not considered necessary (important) in ‘routine’ cases does not support his position. Indeed, his own argument shows that his failure to file complaints in Docket Nos. 79–7196 & 80–1031 is unexcusable.

            The final series of actions upon which the Dallas Regional Solicitor relies are not the actions of the Commission itself but rather the actions of ‘judges of the Commission’ who, it is claimed ‘since early 1979’ have entered orders similar to those entered in these cases which ‘give the Secretary’s citation the legal effect of a complaint where none has been filed . . .’ Without question some, but not all, Commission judges have issued such orders. Nevertheless, it is found that the Dallas Regional Solicitor could not reasonably rely upon them. Such rulings were not reviewed by the Commission itself and therefore do not constitute precedent. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶ 20,387 (No. 4090, 1979). Furthermore, reliance upon such rulings is unjustified since an intelligent reading of the Commission’s rules (specifically Rules 33(a), 38 and 108) would make it clear to anyone that such rulings were erroneous.

            A review of the Dallas Regional Solicitor’s action in an earlier case also shows that this same solicitor was on notice that he could not ignore the filing requirements of Commission Rule 33(a)(1) with impunity. In Structural Metals Inc., 79 OSAHRC 43/E4, 7 BNA OSHC 1452, 1979 CCH OSHD ¶ 23,635 (No. 78–3352, 1979), a case decided June 15, 1979, Judge Martin vacated the citation under circumstances substantially the same as presented here. Thereupon, the Dallas Regional Solicitor filed a motion for reconsideration with the Judge who forwarded such motion to the Commission. The Commission, in turn, treated the motion as a petition for reconsideration which was granted. However, rather than pursue the appeal, the Dallas Regional Solicitor took affirmative steps which resulted in the affirmance of the order as an unreviewed Commission case.[6]

            Thus, it is found that none of the actions cited by the Dallas Solicitor, considered separately or in combination, support the conclusion that complaints are unnecessary or not required in Commission proceedings. It is further found that the cited actions did not mislead the Dallas Regional Solicitor into the erroneous belief that complaints were unnecessary or not required. Instead, he willfully and systematically disregarded the filing requirements of Commission Rule 33(a) well knowing that in some cases such conduct would not be permitted while in others it would. For these reasons, it is found that the relief requested on behalf of complainant is unjustified and should not be granted.

            As a separate and independent basis for denying the pending motions, it is also found that there is no justification for permitting complainant to belatedly file for extensions of time in which to file complaints in these cases. To do so would be contrary to Commission Rule 5 which provides:

Requests for extensions of time for the filing of any pleading or document must be received in advance of the date in which the pleadings or document is due to be filed.

 

            This rule is clearly applicable to the pending motions.[7] If there is a distinction between a motion for leave to file a pleading out of time and a motion for an extension of time in which to file out of time, it is a distinction without a difference.

            While the literal language of the rule would seem to preclude consideration of an untimely filed motion for a time extension, the Commission has indicated in Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977 CCH OSHD ¶21,551 (No. 12528, 1977), that under certain circumstances, an untimely filed motion for an extension of time can be favorably considered. However, the circumstances that justified such consideration in that case were the absence of prejudice and a showing of ‘good faith effort to file in a timely manner.’ In this case, there has been no showing of prejudice. However, there has also been no showing of a good faith effort to file in a timely manner. To the contrary, the reasons asserted by the Dallas Regional Solicitor affirmatively show that no effort was made, in good faith or otherwise, to timely file complaints in these cases. Indeed, it is clear that the Dallas Regional Solicitor had no intention of filing complaints in these cases until the undersigned’s July 21, 1980 order caused him to reconsider. Thus, the special circumstances which the Commission found to justify the granting of an untimely filed motion for an extension of time in Rollins Outdoor Advertising, Inc., supra, are not present here.

            In view of this action, it is now appropriate to consider the imposition of sanctions pursuant to Commission Rule 38. This rule provides:

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. (Emphasis added.)

 

            This rule specifies a sanction which can be discretionarily imposed when a complaint is not filed when due. Since in these cases, the belatedly submitted complaints have not been permitted to be filed, it would appear appropriate to impose such a sanction.

            Nevertheless, complainant argues that such a sanction can only be imposed upon a showing of prejudice. In support of this position, complainant relies upon Rollins Outdoor Advertising, Inc., supra. Complainant’s reliance upon this case is again misplaced. In that case, which also emanated from the Dallas Regional Office, the Commission reversed the Judge’s order dismissing the complaint and vacating the citation which order was predicated upon complainant’s failure to timely file a complaint. However, the basis of reinstating the citation there was the absence of a showing of prejudice by respondent, coupled with a showing of a good faith effort by complainant to comply with the rules. For the reasons previously stated, no effort was made to comply with the Commission’s rules in these cases. Indeed, the conduct of the Dallas Regional Solicitor, as shown by the matters set forth in this order, constitutes a willful and contemptuous disregard to the Commission’s Rules of Procedure, conduct which cannot be condoned or tolerated. Thus, the Commission’s decision in Rollins Outdoor Advertising, Inc., supra, is not controlling and it is found that the circumstances of this case warrants the imposition of the specified sanction even though prejudice has not been shown.

            For these reasons, it is hereby ORDERED, that:

            1. The motions filed in each of these cases entitled ‘Motion for Leave to File Complaint Out of Time’ are hereby DENIED.

            2. By virtue of complainant’s failure to timely file complaints in these cases in accordance with Commission Rule 33(a)(1), complainant shall be deemed to have waived his right to further participation in these proceedings.

            3. The contested citations issued in these cases are VACATED.

 

Quentin P. McColgin

Judge, OSHRC

Dated: November 3, 1980


[1] Judge McColgin consolidated docket Nos. 79–7196, 80–168, 80–607, 80–610, and 80–1031 for purposes of his decision. The cases are hereby severed for purposes of our review and further proceedings consistent with our decision.

[2] Complaints were overdue in these cases for periods ranging from 112 days to 51 days as of the dates of the orders which were subsequently vacated. The critical dates in each of these cases are set out in the undersigned’s July 21, 1980 order.

[3] See ‘Motion for Leave to File Complaint Out of Time,‘ Docket Nos. 80–0168, 80–0607 and 80–1031.

[4] ‘For the purpose of applying Federal Rule 41(a)(1) to adjudications under the [Occupational Safety and Health] Act, a citation and notice of contest should be treated like a complaint and answer, respectively.’ IMC Chemical Corp., Inc., supra, 6 BNA OSHC at 2076.

[5] Docket Nos. 79–7196 & 80–1031 allege violations of 29 U.S.C. § 654(a)(1) and 29 C.F.R. § 1910.1000, respectively. Both of these alleged violations are included in those which are ineligible for simplified proceedings. See Commission Rule 202.

[6] Curiously, the Dallas Regional Solicitor omits all reference to the Structural Metals case in his affidavit.

[7] Despite the specific direction contained in the July 21, 1980 order to ‘address the possible application’ of Commission Rule 5, complainant failed to do so.