OSHRC Docket No. 82-0955


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


Following an inspection of Texas Masonry's worksite on June 24, 1982, the Secretary of Labor issued a citation alleging that Texas Masonry violated several OSHA scaffolding standards.  Texas Masonry contested the citation, thereby invoking the Commission's jurisdiction under section 10(c), 29 U.S.C. 659(c), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. The issue before us is whether the citation should be dismissed due to the Secretary's failure to transmit Texas Masonry's notice of contest and file a complaint within the time limits permitted by the Commission's rules of procedure.  Administrative Law Judge Dee Blythe denied Texas Masonry's motion to dismiss, concluding that the Secretary's conduct was not contumacious and that Texas Masonry was not prejudiced by the Secretary's procedural derelictions.   The judge's ruling is before the Commission on interlocutory appeal.  We affirm the ruling and remand for further proceedings.

Texas Masonry received the citation on July 23, 1982, and mailed its notice of contest on July 31.  The OSHA area office in Dallas received the notice of contest on August 3.   The area director instructed Paul J. Hansen, Jr., a safety supervisor in the Dallas OSHA office, to attempt to settle the case.  On August 4, Hansen telephoned Texas Masonry's attorney, James B. Martin, to discuss the possibility of settlement.   Martin told Hansen that Texas Masonry would not settle for anything short of complete withdrawal of the citation.  After discussing the matter with the compliance officer who had inspected Texas Masonry's worksite and with the area director, Hansen again contacted Martin on August 9,[[1]] informed Martin that OSHA would not withdraw the entire citation, and proposed a compromise.  Martin told Hansen he would discuss the proposal with his client and call him back.  When Hansen did not hear from Martin, he again attempted to telephone Martin on September 9.  After finally reaching Martin on September 14, Hansen was again informed that Texas Masonry would only settle for complete withdrawal of the citation.  The Secretary thereupon sent the notice of contest to the Commission, where it was received on September 22.

The Commission's rules of procedure require that the Secretary transmit a notice of contest within 7 days of its receipt,[[2]] and that he file a complaint no later than 20 days after receiving the notice of contest.[[3]]  In this case, the Secretary did not transmit the notice of contest until approximately 45 days after he received it, and the complaint was commensurately late. [[4]]  Because the Secretary failed to comply with the time limits in our rules, Texas Masonry moved to dismiss the citation.   Judge Blythe convened a hearing on the motion.

At the hearing, Texas Masonry's president, Elbert Chadwick, and its foreman, Larry McDonald, testified that they believed the delay in the proceedings had adversely affected Texas Masonry's ability to defend the charges.  They noted that the alleged violations concerned a rented scaffold that was no longer in place, as the job had been completed.  They further stated that Texas Masonry's workforce experienced considerable turnover, and that only 3 of the 12 employees who worked on or near the scaffold were still with the company.  Moreover, workers who left Texas Masonry often could not subsequently be located.  Texas Masonry had not, however, attempted to either locate the employees with knowledge of the scaffold who had left its employment or to take statements from the employees who remained with the company.  Chadwick and McDonald further stated that the language of the citation was unclear and they did not entirely understand the charges, further adding to the difficulty Texas Masonry faced in presenting its defense.

In denying Texas Masonry's motion to dismiss, Judge Blythe noted that, under Commission precedent, dismissal of a party's case for failure to comply with a procedural rule or order is only appropriate if the party's conduct is contumacious or if the opposing party is prejudiced in the preparation or presentation of its defense.  The judge found that neither condition was satisfied.  The judge rejected Texas Masonry's prejudice claim as being too "generalized," noting that Texas Masonry had made no attempt to contact the employees who had left the company or to otherwise preserve evidence, such as by obtaining statements of potential employee witnesses who were still with the company.

The judge correctly held that dismissal of a party's case for failure to comply with a procedural rule is inappropriate in the absence of either contumacious conduct by that party or prejudice to the opposing party.  Pennsylvania Electric Co., 83 OSAHRC 11/E12, 11 BNA OSHC 1235, 1983 CCH OSHD 26,449 (No. 80-5211, 1983).  We further agree with the judge that the Secretary's conduct is not properly characterized as contumacious.  The delay in transmitting the notice of contest resulted from Hansen's attempt to settle the case as his supervisor had instructed, not from any desire to deliberately delay the proceedings.  Hansen was not as diligent as he should have been in conducting the settlement inquiry, but a mere lack of diligence is not contumacious. Nevertheless, we also note that it would have been a simple matter for the Secretary to have complied with our rules of procedure while attempting to settle this case.  We further note that there is a public interest in prompt and orderly adjudication under the Act, and the Commission's rules of procedure are designed to achieve this goal.  We therefore expect all parties to comply with our procedural rules.

The judge was also correct in concluding that Texas Masonry's argument that its defense would be impaired by the Secretary's delay in transmitting the notice of contest was insufficiently specific to establish prejudice.  Jensen Construction Co. of Oklahoma v. OSHRC, 597 F.2d 246 (10th Cir. 1979).  However, Texas Masonry may be able to make a more particularized showing of prejudice following a hearing on the merits of the alleged violations.  See Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD 20,915 (No. 6352, 1976).  Accordingly, if Texas Masonry can show, after a hearing, that the Secretary's failure to timely transmit the notice of contest prejudiced its defense on the merits, it may renew its motion to dismiss.  See Pennsylvania Electric Co., supra.

Accordingly, the judge's ruling denying Texas Masonry's motion to dismiss is affirmed,[[5]] and the case is remanded for further proceedings consistent with this opinion.



Dated:  FEB 24 1984

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[[1]] Hansen had tried unsuccessfully to call Martin on August 5 and 6.

[[2]] Rule 32, 29 C.F.R. 2200.32, provides:

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

[[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]] After transmitting the notice of contest, the Secretary requested that the proceedings be conducted under the Commission's rules for simplified proceedings, 29 C.F.R. 2200.200-12.  Until such a request is acted upon, the requirement that pleadings be filed is stayed.  29 C.F.R. 2200.203(d).  Ultimately Texas Masonry objected to the request, and it was denied by Judge Blythe.  29 C.F.R. 2200.203(b)(4).  When the Secretary thereupon filed his complaint, he contended it was timely because the time for filing it had been suspended pending the judge's action on the request for simplified proceedings.

Whether or not the complaint was timely filed does not alter the thrust of Texas Masonry's motion to dismiss, which was based on the delay caused by the late transmittal of the notice of contest.  Accordingly, even if the filing of the complaint was in technical compliance with our rules, the essential basis of Texas Masonry's motion is not altered.

[[5]] Chairman Rowland would grant Texas Masonry's motion to dismiss the citation.   In his view, dismissal is appropriate if the Secretary's late transmittal of the notice of contest was patently unreasonable, unnecessary, and unjustified.  Pennsylvania Elec. Co., 11 BNA OSHC at 1238, 1983 CCH OSHD at p. 33,593 (Rowland, Chairman, dissenting).  In this case, nothing prevented the Secretary from transmitting the notice of contest while simultaneously attempting to settle the case.  The Secretary's agents, however, simply decided that the pursuit of settlement should take priority over compliance with the Commission's rules of procedure.  Thus, instead of transmitting the notice of contest within 7 days, as Commission Rule 32 requires, the Secretary did not transmit it for approximately 45 days.  In Chairman Rowland's view, such a delay without any necessity or justification mandates dismissal of the citation.