OSHRC Docket No. 80-5211


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

This case is before the Commission for review under 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").  Administrative Law Judge Benjamin Usher granted Respondent's motion to dismiss the Secretary's complaint.  We reverse and remand for further proceedings.

On November 6 and 7, 1979, an OSHA compliance officer conducted an inspection of a Pennsylvania Electric Company ("PEC") workplace in Erie, Pennsylvania.  As a result of this inspection, PEC received two citations on December 10, 1979.  The citations involved safety problems such as wet floors, nonregulation ladders and exposure to corrosive liquids.  On December 28, PEC filed its notice of contest to these safety citations and on January 14, 1980 the case was docketed under OSHRC Docket number 80-0126.  The Secretary filed his complaint incorporating the citation by reference on January 21, 1980 and PEC filed its answer to the January 21 complaint on January 31.

On January 30, one day before PEC filed its answer to the alleged safety violations, the Secretary issued a citation alleging that PEC employees were exposed to coal dust in excess of the limits prescribed in 29 C.F.R. 1910.1000. On February 13, PEC filed its notice of contest to the January 30 citation. This notice of contest was received by the OSHA area office. However, the area office neglected to transmit the notice of contest to the Commission.[[l/]]

Later, the Secretary requested discovery relating to the section 1910.1000 citation when he moved for discovery in the 80-0126 case. On April 23, PEC objected to the Secretary's discovery motion and pointed out the procedural defect that docket 80-0126 did not include the alleged section 1910.1000 violation. The Secretary then moved to amend his original complaint to include the section 1910.1000 allegation. In this motion, the Secretary characterized the January 30, 1980 citation as an amendment of the original December 10, 1979 citation.

Judge Usher denied the Secretary's motion noting that under Ed Jackman Pontiac-Olds, 80 OSAHRC 26/D14, 8 BNA OSHC 1211, 1980 CCH OSHD 24,349 (No. 76-20, 1980) the area director did not have the authority to amend the citation after the Respondent had filed its notice of contest and also concluded that it would be "patently prejudicial" to allow the amendment.

The Secretary did not appeal this decision. Instead, the Secretary filed a new and separate complaint alleging PEC's violation of section 1910.1000. Since the Commission had never received PEC's notice of contest to the January 30 citation, the Executive Secretary requested the OSHA area director to transmit the notice of contest before the case was given a docket number. The Secretary did so and, on September 8, the case was docketed 80-5211.

PEC moved to dismiss this second complaint, and Judge Usher granted the motion. [[2/]] Judge Usher reasoned,

Jurisdiction of this action vested in the Review Commission on December 28, 1979, when Respondent filed its Notice of Contest, and the OSHA Area Director had no authority to amend the Citation or otherwise alter the pleadings without leave of this Commission. His action purporting to amend the Citation on January 30, 1980, was 'void.'

Complainant's Complaint, filed in this action on August 4, 1980 (dated July 28, 1980), is a nullity because of the invalidity of the Citation upon which it was based.

The Secretary petitioned for review and Commissioner Cottine directed review on the following question:

Whether the judge erred in vacating the Secretary's citation, which alleged serious violations of permissible exposure levels to coal dust under 29 C.F.R. 1910.1000(c) and (e), on the ground that it constituted an invalid attempt to amend a previous citation.

The judge properly relied on Ed Jackman Pontiac-Olds to hold that the Secretary could not amend the citation in No. 80-0126, without leave of the Commission, after PEC had filed its notice of contest in that case.  However, the Secretary's issuance of the section 1910.1000 citation was not merely an attempt to amend the citation at issue in No. 80-0126.  Rather, it was a new citation unrelated to the issues in that case and subject to a new notice of contest.  29 U.S.C. 659(c).  The Secretary should have treated PEC's notice of contest to the section 1910.1000 citation as initiating a new proceeding before the Commission and transmitted the notice of contest to the Commission within seven days, as required by Rule 32, note 1 supra.  Instead, the Secretary did not transmit the notice of contest to the Commission until almost seven months had elapsed.[[3/]]

In the absence of contumacious conduct, dismissal of a party's case for failure to comply with a procedural rule is only appropriate if there is prejudice to the opposing party.  Asarco, Inc., El Paso Division, 80 OSAHRC 99/A3, 8 BNA OSHC 2156, 1980 CCH OSHD 24,838 (No. 79-6850, 1980).  See Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371 (7th Cir. 1976); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). Despite the procedural missteps, the Secretary's conduct in this case was clearly not contumacious.  Although the Secretary did not transmit the notice of contest in a timely manner, he did attempt to bring the section 1910.1000 citation within the Commission's jurisdiction through his motion to amend in No. 80-0126.

Since the Secretary's conduct was not contumacious, the judge's order of dismissal cannot stand without a finding that PEC was prejudiced by the delay in transmittal of the notice of contest.  We cannot determine on the present record whether PEC has in fact been prejudiced.  Accordingly, the judge's order is set aside, and the case is remanded to the chief judge.[[4/]]  PEC shall be permitted the opportunity to show that it was prejudiced by the Secretary's delay in transmitting the notice of contest and further proceedings shall be conducted as necessary.[[5/]]




DATED:  FEB 28 1983

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[[1/]] Commission Rule 32, 29 C.F.R. 2200.32, provides:

Rule 32 Notices of contest

The Secretary shall, within 7 days of receipt of notice of contest, transmit the original to the Commission, together with copies of all relevant documents.

[[2/]] By this time, the Secretary and PEC had settled the three citations under Docket No. 80-0126.

[[3/]] PEC claims that Judge Usher's previous decision bars the Secretary from bringing this action under the doctrines of res judicata and collateral estoppel. However, there is not the necessary identity of issues to invoke either of the doctrines in this case. See Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955); Steffen v. House-Wright, 665 F.2d 245 (8th Cir. 1981). In No. 80-0126, the judge ruled that the Secretary's attempt to amend the earlier citation to add the coal dust allegations was improper. The judge's denial of the amendment did not invalidate the second citation, which alleged different violations and initiated a new cause of action.

[[4/]] Judge Usher is no longer with the Commission.

[[5/]] Prejudice should only be found if PEC can demonstrate that the procedural irregularities and delay in this case denied it the opportunity to prepare and present its defenses to the alleged health violation. Stripe-A-Zone, Inc., 82 OSAHRC 111/D2, 10 BNA OSHC 1694, 1982 CCH OSHD 26,069 (No. 79-2380, 1982); National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD 25,743 (No. 76-4507, 1981); Brown and Root Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD 24,275 (No. 76-3942, 1980).