ROLLINS OUTDOOR ADVERTISING, INC.

OSHRC Docket No. 12528

Occupational Safety and Health Review Commission

February 22, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

William F. Kaspers, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On June 25, 1975, Administrative Law Judge Charles K. Chaplin granted respondent's motion to dismiss a complaint and vacate a citation n1 and proposed penalty on the ground that the complaint was not timely filed. Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"), on July 25, 1975, the Secretary's petition for discretionary review was granted, and submissions were requested on the following issue:

Whether, under the circumstances of this case, dismissal of the citation is the appropriate remedy?

We reverse and remand this case for an expedited hearing on the merits.

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n1 The motion was styled "Motion to Vacate Proposed Penalty and to Dismiss Complaint", and did not expressly include a prayer that the citation also be vacated. We disregard this technical oversight, and treat the motion as one to vacate the citation as well.

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On March 7, 1975, respondent's notice of contest of a citation and notification of proposed penalty was received by the Secretary of Labor. Commission Rule 33(a) therefore required that the Secretary file a complaint within twenty days (not later than March 27, 1975). The complaint was filed on April 10, 1975, fourteen days late. In his petition for discretionary review, the Secretary represents that "[d]ue to a temporary but severe understaffing of secretarial personnel" his representatives were able to file timely neither the complaint nor a statement in opposition to the respondent's motion to dismiss. n2

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n2 A party need not file a statement in opposition to a motion. see Commission Rule 37.

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In order to afford the parties hearings on the merits of controversies, the Commission has not insisted on literal compliance with its procedural rules in the absence of prejudice to the parties. As the court pointed out in Brennan [*3] v. O.S.H.R.C. & Bill Echols Trucking Co., 407 F.2d 230 (5th Cir. 1973), because vacation of a citation and notification of proposed penalty is the most extreme sanction the Commission can impose against the Secretary, a hearing should not be denied if a late submission does not prejudice the employer. Cf. Accu- Namics v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S.Ct. 1492 (1976). Commission Rule 38 accordingly does not make mandatory the imposition of sanctions. Instead it provides that a failure to file a timely pleading may, in the discretion of the Commission, n3 constitute a default.

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n3 The Rule also speaks of the discretion of the Administrative Law Judge. Although we reverse his decision, our discussion here should not be read to indicate that Judge Chaplin abused his discretion in granting respondent's motion. Because of the severe but temporary shortage of secretarial help the Secretary was unable to explain the reasons for the delay in a statement in opposition to the motion. Judge Chaplin's decision was necessarily limited by the posture of the case because at that time this shortage was unknown to him.

[*4]

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In the case before us, respondent's ability to present fairly a defense is not shown to have been prejudiced. Moreover, we are satisfied that the Secretary made a good faith effort to file in a timely manner. n4

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n4 Respondent urges that the Secretary must also be found in default because the Secretary failed to comply with Commission Rule 5 by not requesting in advance of the date on which the pleading was due, an extension of time in which to file his complaint. Our discussion above equally applies to this objection.

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Under these circumstances, the respondent's motion must be denied. Rollins Outdoor Advertising Corp., BNA 4 OSHC 1861, CCH 1976-77 OSHD para. 21,311 (No. 6954, 1976).

Accordingly, the citation, notification of proposed penalties, and complaint are reinstated, and the case is remanded for expedited proceedings not inconsistent with this opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Chaplin's disposition [*5] of this case was proper and his order should be affirmed. His discretionary dismissal under Commission Rule 38 n5 was fully justified because of complainant's failure to comply with the Commission's Rules of Procedure and to seek appropriate relief thereunder at the trial level.

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n5 That rule is codified at 29 C.F.R. 2200.38 and provides that:

"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."

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Not only did complainant exceed the time permitted in Commission Rule 33(a)(1) n6 by 14 days, but he also failed to do the following:

(1) Request an extension of time for filing the complaint as required by Commission Rule 5. n7

(2) Respond to complainant's motion to dismiss. n8

(3) Indicate in any way to the Judge why he had not complied with Commission Rules 5 and 33(a)(1) although he had 2 months to do so between the time the respondent filed its motion to dismiss and the [*6] issuance of the Judge's order.

Unfortunately, the Secretary of Labor's failure to follow Commission Rules of Procedure is not an uncommon thing. So long as my colleagues permit him to proceed as he has done in this case, he can be expected to treat our rules in the same distainful manner in future cases. See, e.g., Secretary v. Rollins Outdoor Advertising Corp., OSAHRC Docket No. 6954, November 24, 1976.

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n6 That rule is codified at 29 C.F.R. 2200.33(a)(1) and provides that:

"The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest."

n7 That rule is codified at 29 C.F.R. 2200.5 and provides that:

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

n8 Commission Rule 37, 29 C.F.R. 2200.37, provides as follows:

"Any party . . . upon whom a motion is served shall have 10 days from service of the motion to file a response." (Emphasis added.)

Although this rule is somewhat ambiguous, it certainly is not clear that it relieves an opposing party from filing a response to a motion to dismiss as my colleagues assert in footnote 2. At the very least, however, a failure to respond is indicative of "party disinterest" which my colleagues have relied upon in numerous cases to avoid reviewing cases before the Commission. See, e.g., Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976.

[*7]

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My colleagues' reliance upon Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973), and Accu-Namics v. OSAHRC, 515 F.2d 828 (5th Cir. 1975) is badly misplaced. The decision in the Echols case was premised on the peculiar facts therein which involved the Secretary's excessive delay in forwarding an ambiguous notice of contest. The Accu-Namics decision involves the question of the validity of an inspection. Thus, neither case pertains to a blatant failure by the Secretary to follow Commission rules, as in the case now before us.

The complainant argues on review that reversal of the Judge is warranted because "[t]he Commission and its judges have consistently allowed respondents to file untimely answers when the Secretary has failed to allege or show prejudice due to late filing." We have done so, however, where the record has shown that the respondents involved were unfamiliar with Commission procedures and did not fully understand our pleading requirements. For example, in Secretary v. Sanitas Cleaning Contractors, 10 OSAHRC 107 (1974), the Commission [*8] reinstated the case, over complainant's strenuous objections, when respondent's counsel indicated that he mistakenly believed that his notice of contest constituted an answer. Commissioner Cleary concurred because excusable neglect and good cause were shown under Rules 6(b)(2) and 55, respectively. of the Federal Rules of Civil Procedure.

In the instant case, there clearly was no misunderstanding of Commission procedural requirements - complainant is far too experienced in these matters. The late filing is merely explained by a shortage of secretarial staff. Even if this explaination was treated as excusable neglect, there remains no justification for the Secretary's failure to request, under Commission Rule 5, an extension of time in which to file his complaint. It is inconceivable that an agency the size of the Department of Labor with its vast resources could not muster one secretary to prepare a short letter asking for an extension of time in which to file a complaint. Obviously, there is no excuse for the failure to do so.

MOTION TO VACATE PROPOSED PENALTY AND TO DISMISS COMPLAINT

Comes now ROLLINS OUTDOOR ADVERTISING, INC., the Respondent in the above-styled case, [*9] by and through its undersigned attorneys, and respectfully moves the Commission to vacate the proposed penalty and dismiss the Complaint in the above case for the following reasons.

I.

Respondent filed its Notice of Contest on March 5, 1975. The Complainant allegedly received this Notice of Contest on March 7, 1975, and forwarded it to the Commission on the same date (Paragraph VII, Complaint, p. 4). The Notice of Contest was received by the Commission on March 10, 1975.