1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.  


NORANDA ALUMINUM, INC.  

OSHRC Docket No. 79-1059

Occupational Safety and Health Review Commission

December 30, 1980

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Gerald Tockman, for the employer

Mary-Win O'Brien, Asst. General Counsel, United Steelworkers of America, for employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Alan M. Wienman has been directed for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Wienman's order vacated a citation issued by the Complainant, the Secretary of Labor ("the Secretary"), to the Respondent, Noranda Aluminum, Inc. ("Noranda").   The citation alleged a willful violation of section 5(a)(1) of the Act; n2 a penalty of $6,000 was proposed.   The Secretary petitioned for review of the judge's order, and Chairman Cleary directed review on the issue of whether the judge erred in vacating the citation on the basis of the Secretary's failure to make a timely response to interrogatories propounded by Noranda.   We conclude that the judge did err and remand the case for further proceedings.

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n1 29 U.S.C. §   661(i).

n2 29 U.S.C. §   654(a)(1).

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I

The Secretary issued the citation at issue on February 16, 1979.   After Noranda timely contested the citation, the Secretary filed his complaint and Noranda filed its answer.   The judge held a pretrial meeting at which he orally granted Noranda's request under Commission Rule 53(a) n3 to pursue discovery. On May 16, 1979, Noranda propounded interrogatories to the Secretary and requested the production of documents. On June 22, 1979, Noranda moved to compel answers and the production of documents. The judge granted Noranda's motion on June 25, 1979, and ordered the Secretary to respond to the discovery requests on or before July 6, 1979.   On June 27, 1979, the Secretary filed a motion to strike Noranda's interrogatories and its request for production of documents on the grounds that (1) the interrogatories were unreasonable, oppressive, too broad, and unduly burdensome; (2) the purpose of the interrogatories was to harass the Secretary; (3) some of the interrogatories were not relevant; and (4) some of the relevant information sought was privileged.   [*3]  

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n3 Rule 53(a), 29 C.F.R. §   2200.53(a), states:

(a) Except by special order of the Commission or the Judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

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On June 29, 1979, the judge granted the Secretary's motion to strike but granted leave to Noranda to file a shorter set of interrogatories andto request "specifically designated documents." The judge's order also directed the Secretary to respond to the new interrogatories within thirty days after service.

Noranda filed a new setof interrogatories and a request for production of documents on July 12, 1979.   On August 29, 1979, the Secretary provided to Noranda copies of certain documents from the Secretary's files.   On September 6, 1979, Noranda filed a motion to compel answers, or, in the alternative, to dismiss the complaint under Rule 37(b)(2)(c) of the Federal Rules of Civil Procedure for failure to respond to the discovery as ordered.   Noranda argued that [*4]   the Secretary's response was evasive and incomplete, that any objections to the discovery requests were not made in writing under Rules 33(a) and 34(b) of the Federal Rules, and that the Secretary had requested no extension of time to respond.   Noranda renewed its alternative motions on September 12, 1979, and a hearing on the motions was held before Judge Wienman on September 24, 1979.

At that hearing on the alternative motions, the Secretary stated that he had encountered difficulties in complying with the discovery requests and objected to the length of the new interrogatories. He admitted that he had no "excuse" for failing to object or to request an extension of time, but he explained that he had expected the case to be settled.

On October 15, 1979, Judge Wienman vacated the citation under Commission Rule 54 n4 because the Secretary had failed to file a response to Noranda's interrogatories or to seek an extension of time to respond and that the Secretary had offered "no good and sufficient cause" for failing to comply with the judge's order of June 29, 1979.   The Secretary then petitioned for review of the judge's order of dismissal.

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n4 Rule 54, 29 C.F.R. §   2200.54, 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.

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II

In his petition for review, n5 the Secretary argues that he failed to respond in a timely manner to the discovery requests because much of the information requested was not within his knowledge or control but was in the possession of NIOSH.   He also claims that he failed to request an extension of time because he expected the case to have been settled.   The Secretary maintains that vacation of a citation for failure to follow Commission rules or orders is not appropriate unless there is a showing of prejudice to the opposing party or there is conduct that is clearly dilatory or contumacious. He contends that no such conduct has been shown here, and that Noranda has not shown prejudice.   The Secretary argues that the proper course for the judge was [*6]   to have granted Noranda's alternative motion to compel discovery. The United Steelworkers and its Local 7686, the authorized employee representative, have filed a brief urging reversal of the judge's order because of the lack of evidence of prejudice to Noranda.

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n5 Both parties have submitted affidavits to the Commission on review that were not previously submitted to the judge.   These affidavits have not been considered.   The affidavits are treated as motions to reopen the record on the alternative motions of Noranda.   The motions are denied.   See OSCO Industries, Inc., 80 OSAHRC    , 8 BNA OSHD 1799, 1801 n.3 (No. 76-2383, 1980).

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Noranda argues that the Secretary's counsel has failed to offer any legally justifiable excuse for failure to respond in a timely fashion to the judge's order of June 29, 1979.   Noranda also argues that dismissal is a reasonable sanction for failure to comply with a judge's order, and that the record shows that the Secretary was not acting in good faith.   Noranda maintains   [*7]   that the judge did not abuse his discretion and that reversal is therefore unwarranted.

III

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. Circle T. Drilling Co., 80 OSAHRC    , 8 BNA OSHC 1681, 1980 CCH OSHD P24,583 (No. 79-2667, 1980).   See Duquesne Light Co., 80 OSAHRC    , 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5030, 1980).   Whatever might be said of the Secretary's conduct to date, we cannot now say, nor has the judge found, that the Secretary's conduct was contumacious. Although Noranda alleges that it will be prejudiced if it must proceed to the hearing without the requested information, it is not at all clear that the requested information will not be provided sufficiently in advance of the hearing to permit Noranda to fairly defend.   Noranda's claim of prejudice is therefore speculative and premature.

Accordingly, the judge's order is vacated and this case is remanded for further proceedings.

SO ORDERED.