1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.

OSHRC Docket No. 79-2667

Occupational Safety and Health Review Commission

June 30, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Associate Reg. Sol., USDOL

David A. Marion, Transcontinental Oil Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Erwin L. Stuller, vacating the citations and notice of proposed penalty, and dismissing this case, is before the Commission on review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Chairman Cleary granted the Secretary's petition for discretionary review on the following issue:

Whether the administrative law judge erred in vacating the citations and notice of proposed penalty because the Secretary failed to respond to respondent's interrogatories in accordance with a discovery order.

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n1 29 U.S.C. 661(i).

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On September 4, 1979, in response to a motion by Respondent, the judge issued a pretrial order setting out a discovery schedule in this case. According to the [*2] terms of the order, the Secretary was to file answers and/or objections to Respondent's interrogatories by September 27, 1979. Upon a motion by the Secretary, an extension of time to October 3, 1979, was granted. Beginning approximately September 30, 1979, the attorney assigned to the case for the Secretary went on emergency leave because of illness in his family. His leave was prolonged following two deaths in his family. As of October 15, 1979, no answers to the interrogatories had been filed. The supervisory attorney for the Secretary's regional office informed the judge that completed answers would be mailed the following week. Additionally, the supervisory attorney notified Respondent that he had assumed responsibility in the case.

On October 22, 1979, the Secretary filed a proposed pretrial order with the judge setting forth a schedule for completing discovery. The order would require the Secretary to respond to the interrogatories by October 26, 1979, and would postpone the hearing from November 14, 1979, to January 15, 1980. The Secretary requested that Respondent sign the proposed order and forward it to the judge for consideration. Respondent notified the judge [*3] on October 30, 1979, that it could not accept the proposed order inasmuch as the interrogatories remained unanswered. The proposed order was never issued. In response to a subsequent order from the judge to show cause why the case should not be dismissed, the Secretary argued that he was unable to complete discovery because of unanticipated deaths in the family of his counsel, the extensive nature of the interrogatories, and an inability to reassign the case. The Secretary also contended that under Rule 37 of the Federal Rules of Civil Procedure, sanctions for failure to allow discovery would be inappropriate because they are generally not imposed unless a party fails to comply with an order that grants a motion to compel discovery.

In his order dismissing the case, Judge Stuller noted that the Secretary had neither objected to the interrogatories nor requested a second extension of time to answer them, and that two months had passed since the date the answers were due. Judge Stuller concluded that the Secretary had disobeyed the discovery order and that he was authorized under both Commission Rule 54, n2 29 C.F.R. 2200.54, and Rule 37 of the Federal Rules of Civil Procedure [*4] to enforce his orders "when they are disobeyed."

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n2 Commission Rule 54 provides:

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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In his petition for review, the Secretary attributes his inability to respond to the interrogatories to the emergency absence of his counsel and an inability to assign the case to another attorney. The Secretary contends that as a result of a telephone conversation with the judge, he had assumed that the judge would vacate the order establishing dates for discovery and issue a now order setting forth new dates which would take into account the emergency absence of the Secretary's counsel. The Secretary also contends "that vacation of a citation for failure to follow Commission rules or orders, absent a showing of prejudice, is not an appropriate sanction."

In determining whether the citations in the present case were properly [*5] vacated, our standard of review is whether the judge abused his discretion in doing so under the circumstances of this case. See Duquesne Light Co., 80 OSAHRC    , 8 BNA OSHC 1218, 1221, 1980 CCH OSHD P24,384, p. 29,718 (Nos. 78-5034, 78-5112, & 78-5303, 1980). In this case there is no indication of contumacious conduct on the part of the Secretary, nor is there a claim or proof by Respondent that it was prejudiced by the delays in this case. Absent a showing that the Secretary's behavior was contumacious or that Respondent was prejudiced, dismissal under the circumstances of this case is too harsh a sanction. See Duquesne Light Co., supra. n3

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n3 Commissioner Barnako dissented in Duquesne Light Co. He concluded that the judge's dismissal of the citations in three cases for the Secretary's failure to file a report stating the results of the parties' prehearing conference was not an abuse of discretion. In upholding the judge's action, Commissioner Barnako noted that the Secretary had engaged in a continuing pattern of ignoring the judge's orders and was on notice that such conduct was likely to result in dismissal.

In Commissioner Barnako's view this case is distinguishable from Duquesne Light Co. Not only did the Secretary seek extensions of time in which to answer the interrogatories but after the Secretary's initial counsel took emergency leave, another attorney became responsible for the case. The second attorney then filed a proposed pretrial order in response to the judge's request. Furthermore, the Secretary subsequently responded to the judge's show cause order why the case should not be dismissed. The Secretary's response demonstrates that he intended to answer the interrogatories and indeed had compiled some documents for this task. In the response the Secretary also set forth sufficient reasons justifying his failure to answer the interrogatories. In these circumstances, Commissioner Barnako agrees with his colleagues that dismissal is too harsh a sanction.

[*6]

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Accordingly, the judge's order dismissing the citation and notification of proposed penalty is reversed. This case is remanded for further proceedings consistent with this decision.

SO ORDERED.