OSHRC Docket No. 78-1361

Occupational Safety and Health Review Commission

March 24, 1982


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


Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

W. Scott Railton, for the employer

George Prenatt, Staff Rep., Safety & Health Dept. - USWA, for the employees




This case is before the Commission for review under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Secretary of Labor ("the Secretary") issued citations to the Respondent, Pittsburgh Forgings Company ("Pittsburgh"), alleging violations of the Act. Administrative Law Judge William E. Brennan vacated several items of the citations because the Secretary failed to comply with the judge's order to produce documents. The issue on review is whether the judge abused his discretion in resorting to the sanction of vacation under the circumstances here.


On May 5, 1978, Pittsburgh filed a motion for a more definite statement under Federal Rule of Civil Procedure 12(e) and Commission Rule 33(a)(2), 29 C.F.R. 2200.33(a)(2); it also filed a broad request for the production of documents under Federal Rule of Civil Procedure 34. n1 The judge [*2] granted the motion for a more definite statement. n2 After more than three weeks elapsed without the filing of a more definite statement by the Secretary, Pittsburgh moved to strike items 1 and 2 of citation 1 under Federal Rule of Civil Procedure 12(e). The Secretary responded that his failure to file a more definite statement was "inadvertent and due to an inordinarily heavy workload." The response was accompanied by the Secretary's more definite statement. The judge denied Pittsburgh's motion to strike. The judge accepted the Secretary's reasons for his late filing but admonished the Secretary that "future failures to comply with Review Commission orders will not be tolerated."

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n1 Commission Rule 2(b), 29 C.F.R. 2200.2(b), states that "[i]n the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Proceudre." See also section 12(g) of the Act, 29 U.S.C. 661(f).

n2 The judge did not mention how long the Secretary had to respond to the motion, but under Fed. R. Civ. P. 12(e) the Secretary must respond within 10 days unless the judge states otherwise.


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As to the request for the production of documents, the Secretary had 30 days in which to respond under Federal Rule 34. When there was no response within 30 days, Pittsburgh's counsel contacted the Secretary's counsel to ascertain when the Secretary would respond. Pittsburgh's counsel represented to Judge Brennan that the Secretary's counsel said that he would reply to the request during the following week. The Secretary's counsel stated that he told Pittsburgh's counsel that he would respond to the request; it is unclear whether the Secretary's counsel indicated a date by which he would respond. When the Secretary's response was three weeks overdue, Pittsburgh filed a motion to compel production. The judge concluded that Pittsburgh had shown good cause and ordered the Secretary to mail the requested documents to Pittsburgh no later than July 19, 1978.

On July 17, 1978, the Secretary responded to the judge's order by providing to Pittsburgh OSHA Form 1, OSHA Form 1A, OSHA Form 1(B) (inspection forms and worksheets), several pages of the National Safety Council, Accident Prevention Manual for [*4] Industrial Operations, and three photographs taken by the compliance officer during the inspection.

On July 21, 1978, Pittsburgh filed a motion for sanctions against the Secretary on the ground that the Secretary's submissions were incomplete; the motion was made under Commission Rule of Procedure 54, 29 C.F.R. 2200.54, and Federal Rule 37(b). n3 In particular, Pittsburgh noted that the Secretary, without explanation, did not submit the following requested documents:

[T]he compliance officer's filed notes, contemporaneous drawings, relevant memoranda, statements of third parties, documents, photographs and memoranda connected with the 1975 citation which gave rise to the alleged repeat citation, and other documents which might be within any of the seven numbered paragraphs of [Pittsburgh's] Request but which are unknown to [Pittsburgh] due to [the Secretary's] failure to tender a proper formal response.

Pittsburgh proposed that the judge vacate all citations or, in the alternative, vacate those items that Pittsburgh had abated.

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n3 Commission Rule 54 provides:

Rule 54 Failure to comply with orders for discovery.

If any party or intervenor fails to comply with an order of the Commission or the Judge to permit discovery in accordance with the provisions of these rules, the Commission or the Judge may issue appropriate orders.

Federal Rule 37(b) permits a judge to impose sanctions, including dismissal of all or part of an action, when a party does not obey a discovery order.


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At a hearing on the motion for sanctions, Pittsburgh presented testimony that some items had been abated. The compliance officer testified that he destroyed his field notes after he copied them verbatim onto OSHA worksheets, and that only three of five photographs taken during the inspection came out. The Secretary's counsel also presented to Pittsburgh the original employee complaint and an inspection report relating to a prior citation.

In the judge's decision, he stated that the Secretary had been warned in the judge's order compelling the production of documents that "future failures to comply with Review Commission orders will not be tolerated." Yet, when the Secretary filed its documentary submissions, the Secretary did not "explain why certain of the requested items had not been provided." The judge noted that because the Secretary did not comply with Pittsburgh's requests, Pittsburgh was harmed because it had to bear the expenses of filing motions to compel discovery. The judge stated that the Secretary's "[failure] to properly deny possession of documents" prejudiced Pittsburgh because it [*6] substantially hindered Pittsburgh's trial preparation. The judge concluded that a partial sanction vacating abated items was proper because it furthered orderly administrative proceedings and protected a party's rights to full discovery.

On review, the Secretary argues that the judge's sanction is inappropriate. He maintains that the judge erred in finding that the late submission of documents prejudiced Pittsburgh's preparation of its case. The Secretary cites Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1976-77 CCH OSHD P21,311 (No. 12528, 1977), for the proposition that an employer must have been prejudiced for a judge to impose the extreme sanction of vacation.

Pittsburgh argues first that it was prejudiced because the Secretary's derelictions "severely hampered" its trial preparation. It claims that resources it would have devoted to trial preparation were instead diverted to obtaining withheld documents. It also points to the expense it bore in attempting to enforce its discovery rights.

Pittsburgh argues that even if it had not been prejudiced, the judge properly exercised his discretionary power "to protect the integrity of Commission orders." [*7] Pittsburgh notes that despite the judge's admonition that he would not tolerate further failures to comply with his orders, the Secretary without explanation took eleven weeks to respond to the request for production of documents, failed to include documents associated with the 1975 citation, failed to produce the complaint that gave rise to the inspection, and failed to supply the compliance officer's original field notes.

Pittsburgh argues that the judge properly used the sanction of dismissal to deter future flouting of court orders. Pittsburgh also maintains that the Secretary's argument that the judge imposed the most severe sanction is overstated because Judge Brennan vacated only those items that had been abated.


The issue here is not whther we agree with the judge's action, but whether the judge abused his discretion in vacating the items under the circumstances in this case. See Duquesne Light Co., 81 OSAHRC 71/E7, 8 BNA OSHC 1218, 1221, 1980 CCH OSHD P24,384, p. 29,718 (Nos. 78-5034, 78-5112 & 78-5303, 1980) (enforcement of pre-hearing order). In Duquesne, the Commission held that because vacation of a citation is an extreme sanction that frustrates [*8] the remedial purpose of the Act, it should generally not be imposed unless prejudice or contumacious conduct is found. Duquesne is not controlling here, however. There was no showing in Duquesne that the allegedly violative conditions had been abated; indeed, the Commission and the judge assumed that the cited conditions continued to exist. See 8 BNA OSHC at 1219, 1220, 1980 CCH OSHD at pp. 29,716, 29,717. It was largely for that reason that the Commission was of the view in Duquesne that vacation "would frustrate the remedial purposes of the Act." 8 BNA OSHC at 1222, 1980 CCH OSHD at p. 29,719. Here, however, Pittsburgh has shown that some cited conditions have been abated and the judge vacated only the corresponding items of the citations. This is a less severe sanction than that considered in Duquesne.

We are unconvinced that Judge Brennan abused his discretion. The Secretary's conduct disrupted the discovery process. After the Secretary made a late response to a motion for a more definite statement, the judge excused his behavior, but also placed the Secretary on notice that the judge would not tolerate further failures to comply with his orders. Yet, [*9] the Secretary did not comply with a subsequent request for the production of documents, thereby making it necessary for the judge to issue an order compelling their production. Even then, the Secretary without explanation failed to provide all requested documents in a timely manner.

Judge Brennan acted to preserve the integrity of Commission orders as well as to deter future misconduct by the Secretary. The judge's concerns were proper. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642-643 (1976). There are public interests in adjudicating cases on their merits, in issuing binding abatement orders and in assessing penalties to deter future violations of the Act. However, there is also a substantial public interest in orderly procedure. See Consolidated Freightways, 81 OSAHRC 46/E9, 9 BNA OSHC 1822, 1827, 1981 CCH OSHD P25,369, p. 31,573 (No. 79-3136, 1981). We cannot say that the balance Judge Brennan struck between those interests fell outside the range of his discretion.

Accordingly, the judge's decision is affirmed.



COTTINE, Commissioner, dissenting:

This case demonstrates once again that poor practice invites precipitous [*10] judgment. See TRG Drilling Corp., 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981) (Cottine, Commissioner, dissenting). I do not condone the poor practice by the Secretary's counsel in this case. However, Commission precedent is clear: "We have held that dismissal is too harsh a sanction for failure to comply with a discovery order unless the record shows contumacious conduct by the noncomplying party or prejudice to the party seeking discovery." Noranda Aluminum, Inc., 80 OSAHRC 128/B2, 9 BNA OSHC 1187, 1189, 1981 CCH OSHD P25,085, p. 30,988 (No. 79-1059, 1980), appeal dismissed, 650 F.2d 934 (8th Cir. 1981), citing Dequesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980). Also Newport News Shipbuilding and Drydock Co., 80 OSAHRC 119/A2, 9 BNA OSHC 1085, 1980 CCH OSHD P25,003 (No. 76-171, 1980); TRG Drilling Corp., supra. Yet, in this case the majority upholds dismissal without even mentioning contumacious conduct or prejudice.


Without explanation the majority has restruck the balance forged in the Duquesne line of cases between the Commission's interest in orderly proceedings and [*11] the public's interest in a final decision on the hazardousness of the cited working conditions. Moreover, in affirming a judge's ad hoc exception to Commission precedent, the majority broadly authorizes the ad hoc balancing of interests whenever dismissal is urged as a sanction for one party's failure to comply with procedural rules or discovery orders. As a consequence, unqualified discretion has been delegated because no rule of law guides its exercise.

The silent abandonment of precedent in this case is unfortunate because the Duquesne line of cases weighed the competing interests in the manner most consistent with the remedial purposes of the Act. See Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974). A decision on the merits of a citation, including a determination of the proper abatement requirements and appropriate penalties, directly serves the basic purposes of the Act in achieving the [*12] abatement and prevention of hazardous working conditions. See 29 U.S.C. 651(b), 659(c). Certainly, orderly procedure is important to the efficient administration of the Act. However, the Act's remedial purposes necessarily require the balance to favor a decision on the merits of a citation in fairness to employers and employees alike.

The Respondent's representation that the items involved have been abated provides an insubstantial basis to distinguish this case from our precedent. The Act's central objective is to prevent workplace hazards, not simply to obtain abatement of existing hazards. See Farmers Export Co., 80 OSAHRC 66/A2, 8 BNA OSHC 1655, 1980 CCH OSHD P24,569 (No. 78-1708, 1980) (Cottine, Commissioner, dissenting). The prevention of hazards and the promotion of future compliance is served by an order disposing of alleged violations on their merits, including appropriate penalties and the statutory characterization of the violations, e.g., willful, repeated, serious, or nonserious. Denying the Secretary the opportunity to pursue these basic aspects of enforcement merely because the conditions have been abated is inconsistent with the statute [*13] and Commission case law. See, e.g., P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), aff'd, No. 79-1398 (10th Cir. Dec. 2, 1980).


The majority has not attempted to justify its affirmance of the judge's decision on any grounds of contumacious conduct by the Secretary's counsel or prejudice suffered by the Respondent. n1 Although the judge found prejudice, that finding was not properly supported. The noncompliance with discovery requirements by the Secretary's counsel certainly was unjustified and regrettable. n2 However, the record fails to sustain the judge's finding that the Secretary's noncompliance "substantially hindered Respondent in the preparation of its case." n3

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n1 The Respondent has not expressly argued that the conduct of the Secretary's counsel was contumacious and the record does not support such a finding. In particular, the Respondent has not substantiated its claim that the representations of the Secretary's counsel as to the field notes were intentionally misleading.

n2 There are lesser sanctions than dismissal available and these have not been shown to be inadequate here. For example, the judge could have prohibited the introduction of evidence based on certain documents. See Fed.R.Civ.P. 37(b)(2). A stay of the proceedings or a continuance would cure any surprise from late disclosure. See Id.

n3 To the extent that the judge may have relied on "the expense and inconvenience of filing motions to compel disclosure" as a ground for dismissal, these considerations alone do not constitute legal prejudice in this context. Legal prejudice resulting from an opponent's noncompliance with rules or orders arises when a party is denied a fair hearing on the merits. Accu-Namics, Inc., 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1974-74 CCH OSHD P17,936 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975).

The Respondent's reliance on Hoerner Waldorf Corp., 76 OSAHRC 135/D12, 4 BNA OSHC 1836, 1976-77 CCH OSHD P21,215 (No. 12713, 1976), is misplaced. Assuming that the Commission majority's one-sentence affirmance of the judge's decision in that case can be read to adopt his rationale, the judge based his dismissal on a finding of prejudice from surprise testimony, not merely expense or inconvenience to the Respondent. Furthermore, Fed.R.Civ.P. 37 does not establish that the expense and inconvenience of filing motions to compel discovery constitutes legal prejudice. Cf. 8 Wright & Miller, Federal Practice and Procedure 2293 (1970).


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In support of its argument that it was prejudiced, the Respondent points to four categories of documents that the Secretary's counsel failed to either disclose or explain his nondisclosure prior to the hearing on the sanctions motion. These were: (1) the original employee complaint on which the inspection was based; (2) the file on a previous citation that was the basis of the repeat citation; (3) two photographs that the compliance officer testified did not develop; and (4) the compliance officer's original field notes. As to the first three categories, the Respondent did not satisfy its burden of proof regarding actual prejudice.

First, the transcribed version of the original employee complaint had been disclosed to the Respondent during the inspection though the employee's name had been deleted as permitted under 29 U.S.C. 657(f)(1). The Secretary's counsel represented that the employee had not waived confidentiality until the morning of the sanctions hearing. The Respondent has made no showing that earlier disclosure of the employee's name should have been required. See Massman-Johnson [*15] (Luling), 80 OSAHRC 44/B8, 8 BNA OSHC 1369, 1980 CCH OSHD P24,436 (No. 76-1484, 1980).

Second, the repeat citation was vacated on the merits. Therefore, no prejudice results from late disclosure of the file on the earlier violation.

Third, there is no dispute that the two photographs in question did not develop. No prejudice results from their nondisclosure.

As to the final documents, the compliance officer testified that he transcribed his original field notes onto standard worksheets (OSHA Form No. 1B) that had been disclosed to the Respondent. In addition, the compliance officer testified that his notes were in a "dirty, greasy" condition and that they were destroyed when they were transcribed onto the worksheets. He further testified that the transcribed version was essentially the same as the field notes with the exception of punctuation and editorial changes to make the notes more readable. He stated that among the changes there was "nothing that would affect the case." The Respondent submitted no evidence questioning the credibility of the compliance officer's testimony. In addition, there is no evidence that the compliance officer negligently transferred the data [*16] or acted in bad faith. Thus, the Respondent has not affirmatively shown any prejudice to its case from the destruction of the field notes.

As in this case, the compliance officer is frequently the only witness for the Secretary and in most other cases the compliance officer is the principal witness for the Secretary. The purpose of disclosure on request at the hearing of all statements in the government's possession relating to the direct testimony of the Secretary's witnesses is to provide the Respondent with "an opportunity for full and effective cross-examination of each witness. This includes an opportunity to test the veracity and accuracy of a witness's testimony against prior statements by that witness on the same subject." Massman-Johnson, supra, 8 BNA OSHC at 1376, 1980 CCH OSHD at p. 29,808. This opportunity should extend to all notes relating to the subject matter of the direct testimony of any witness for the Secretary when the notes have been in the government's possession at any time. This includes rough or initial notes of a compliance officer who testifies.

Moreover, sanctions for nondisclosure based on loss of evidence should be imposed in the future [*17] unless the government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all documentary material related to the Secretary's witnesses. See United States v. Harrison, 524 F.2d 421, 422 n. 1 (D.C. Cir. 1975), quoting United States v. Bryant, 439 F.2d 642, 652 (D.C. Cir. 1971). n4 However, the Secretary and the compliance officer were not on notice that sanctions were in order for failure to retain rough field notes of an OSHA inspection after they were faithfully transcribed onto OSHA worksheets. n5

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n4 In criminal prosecutions, the courts are divided on whether sanctions are appropriate when government agents destroy rough notes from which witness statements or reports are prepared. Compare, e.g., United States v. Hurst, 510 F.2d 1035, 1036 (6th Cir. 1975), and U.S. v. Lieberman, 608 F.2d 889, 895-96 & n. 13 (1st Cir. 1979), with United States v. Carrasco, 537 F.2d 372, 376-79 (9th Cir. 1976), and United States v. Harrison, supra. In Killian v. United States, 368 U.S. 231, 242 (1961), the Supreme Court held that no sanctions were appropriate where an FBI agent destroyed rough notes of certain oral reports of expenses by a paid informant after transferring the information onto receipts that subsequently were signed by the informant. The case was distinguished in Harrison: "We cannot accept the notion that in focusing on such an unimportant category of evidence as this, the Supreme Court was announcing doctrine meant to cover even notes of substantive statements given by important witnesses." United States v. Harrison 524 F.2d at 432, n. 33. The Harrison court also stated that in Killian the important fact relevant to the informant's credibility was already established by the existing evidence -- that he was a well-paid government informant.

n5 The Respondent asserts that the compliance officer was on notice that failure to retain the field notes could result in sanctions. However, the Commission has not ruled specifically on the extent of the Secretary's duty to retain preliminary field notes of its compliance officers. In our earlier cases we have ruled only that where the compliance officer testifies at the hearing on the merits, the Secretary generally is required to disclose on request the compliance officer's notes and memoranda that are in the government's possession. E.g., Massman-Johnson, supra; Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973-74 CCH OSHD P16,409 (No. 1343, 1974). Thus, the Secretary and his representative have not previously been on notice that there is an affirmative duty to preserve preliminary OSHA field notes for possible civil litigation after they were faithfully transcribed onto worksheets. Accordingly, there is no burden on the Secretary in this case to show that no prejudice resulted from destruction of the field notes.


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In the absence of an affirmative duty in the investigation and preparation of this case to preserve the original field notes, the balancing test of United States v. Harrison is properly applied to determine whether sanctions are appropriate. The Commission" should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of [violations] adduced at trial in order to come to a determination that will serve the ends of justice." 524 F.2d at 434, quoting United States v. Bryant, 439 F.2d at 653. Certainly, the compliance officer's testimony is crucial to this case. However, there is no evidence of any negligence or bad faith. Moreover, there is the unrebutted testimony of the compliance officer that there were no differences between the field notes and the OSHA worksheets disclosed to the Respondent "that would affect the case." The compliance officer has not been found to lack credibility in any respect. Furthermore, there is no evidence regarding the alleged violations to consider in determining the appropriateness of sanctions because [*19] no hearing was held. On balance, no sanctions are appropriate and the judge abused his discretion in granting the motion to dismiss. n6 As a consequence, I would reverse his decision and remand the case for a determination of the merits.

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n6 In choosing among sanctions, the judge is to select a lesser sanction than dismissal if it will remedy the noncompliance. See Duquesne Light Co., supra; Massman-Johnson, supra, 8 BNA OSHC at 1380 & n. 14, 1980 CCH OSHD at p. 29,809-10 & n. 14. See generally Commission Rule 54, 29 C.F.R. 2200.54.

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