SAMSONITE CORP.

OSHRC Docket No. 79-5649

Occupational Safety and Health Review Commission

April 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

Gerald C. Peterson, for the employer

JoAnne Spann, President, United Rubber, Cork Linoleum & Plastic Workers of America, Local Union # 724, for the employees

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

An order of Administrative Law Judge R. M. Child is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In the order, the judge denied a motion by the Secretary of Labor ("the Secretary") to withdraw certain admissions deemed to have been made by the Secretary as a result of the Secretary's untimely response to Samsonite's request for admissions. The judge also dismissed the case and vacated the two citations issued by the Secretary after concluding that trying the case "under the cloud of existing admissions or on less than all claims would be less than satisfactory to the parties or to justice." The judge's action denying the Secretary's motion to withdraw admissions and his order vacating the citations and [*2] dismissing the case are reversed. We remand for a hearing on the merits of the citations.

I

The Secretary inspected Samsonite's Denver, Colorado worksite between March 21 and August 31, 1979, and on September 19, 1979 issued two citations. Serious citation 1, item 1 alleged noncompliance with the standard at 29 C.F.R. 1910.95(b)(1) in that employees at over 38 specified locations were subjected to excessive levels of noise and feasible administrative or engineering controls were not utilized to reduce those noise levels. Item 2 of the citation alleged noncompliance with 29 C.F.R. 1910.132(a) in that employees working with epoxy were not using gloves, forearm protection, or protective creams to protect their skin from epoxy. Penalties totaling $1700 were proposed.

Willful citation 2, item 1 alleged Samsonite violated section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), in that

Production employees who were engaged in repetitive motion tasks were subjected to excessive ergonomic stress to the arms, wrists, and hands, and a continuing effective program to minimize this stress was not administered.

Item 2a of citation 2 alleged noncompliance with 29 C.F.R. 1910.95(a) in that [*3] employees at 18 specified locations were exposed to excessive levels of sound and were not utilizing hearing protection. Item 2b of citation 2 alleged noncompliance with 29 C.F.R. 1910.95(b)(3) in that Samsonite's hearing conservation program was deficient in several respects. Total penalties of $16,000 were proposed. Samsonite timely contested both the citations and penalties.

The Secretary filed his complaint and Samsonite filed its answer. Local 724 of the United Rubber, Cork, Linoleum and Plastic Workers of America ("the Union") elected party status as the authorized representative of affected employees. n1 A status and scheduling conference was held between the parties and the judge. By order of March 18, 1980, the parties were directed to complete all discovery by September 10, 1980 and proceed to trial on October 6, 1980.

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n1 Commission Rule 20(a), 29 C.F.R. 2200.20(a).

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On May 21, 1980, Samsonite served a request for admissions on the Secretary n2 and also served interrogatories and a request for the [*4] production of documents. The Secretary did not object to the discovery requests. By order dated June 18, 1980, the judge permitted the interrogatories and gave the Secretary thirty days to answer them. The Secretary did not timely respond to the request for admissions, the interrogatories, or the request for production of documents.

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n2 Samsonite's request for admissions asked the Secretary to admit the truth of the following facts:

1. The employees identified in item 1 of citation 1 were provided with personal protective equipment.

2. Samsonite provided protective equipment for the employees in its putty and file department.

3. Ergonomic stress is not a hazard recognized by the luggage industry as one likely to cause death or serious physical harm to employees.

4. Samsonite's alleged violation of section 5(a)(1) was not willful.

5. Samsonite's alleged violation of section 5(a)(1) was not serious.

6. Samsonite provided protection to its employees against the effects of noise exposure.

7. Samsonite's alleged violations of section 1910.95(a) and (b)(3) were not willful.

8. Samsonite's alleged violations of section 1910.95(a) and (b)(3) were not serious.

9. Section 1910.132(a) was improperly promulgated.

10. The proposed penalties are arbitrary and/or capricious.

11. The proposed penalties are based, in part, on the recommendations of the Secretary's compliance officers.

[*5]

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On July 28, 1980, Samsonite filed a motion for partial summary judgment asking dismissal of item 1 in citation 1 and items 1 and 2a in citation 2 because the Secretary, by failing to respond to the request for admissions, had admitted that Samsonite did not violate section 5(a)(1), section 1910.132(a), and section 1910.95(a).

On August 11, 1980, the Secretary filed an unsworn response to Samsonite's request for admissions along with a motion to accept the late filing of the response. On the same day, the Secretary filed his brief in opposition to Samsonite'se motion for partial summary judgment. The judge denied the Secretary's motion to accept late filing of response to admissions. He also ruled that each of the requests made in Samsonite's request for admissions was deemed admitted under Commission Rule 52, 29 C.F.R. 2200.52. n3 The judge denied the partial summary judgment motion which Samsonite had made based on the matters deemed admitted, but without prejudice to Samsonite's right to renew the motion later.

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n3 Commission Rule 52 provides, in pertinent part:

Rule 52 Requests for admissions.

(a) At any time after the filing of responsive pleadings, any party may request of any other party admissions of facts to be made under oath. Each admission requested shall be set forth separately. The matter shall be deemed admitted unless, within 15 days after service of the request, or within such shorter or longer time as the Commission or the Judge may prescribe, the party to whom the request is directed serves upon the party requesting the admission a specific written response.

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On September 4, 1980, Samsonite filed a motion asking dismissal of the case or, alternatively, preclusion of certain claims and evidence as a result of the Secretary's deemed admissions. Samsonite contended that due to the complexity of the case and the Secretary's failure to comply with the time limits for discovery Samsonite found it impossible to prepare its defense in time for the October 6, 1980 trial.

On September 12, 1980, the Secretary moved to continue the hearing, contending that his failure to complete discovery [*7] was the result of an "extraordinarily heavy case load," and that a continuance would eliminate any prejudice to Samsonite. On the same day, the Secretary moved to withdraw his deemed admissions, alleging he had not intended to make them and that Samsonite could not reasonably have assumed the admissions were intentionally made.

On September 15, 1980, the Union moved for a continuance in order to eliminate any prejudice to Samsonite resulting from the Secretary's dilatoriness. The Union noted that dismissal on procedural grounds would result in harm to affected employees who comprise the class of persons intended to be protected by the Act but who were not responsible for the Secretary's conduct.

On September 22, 1980, the Secretary submitted his answers to Samsonite's interrogatories, his response to Samsonite's requst for production of documents, and his list of witnesses and exhibits. On September 24, 1980, Samsonite filed a renewed motion for partial summary judgment and a memorandum in opposition to the outstanding continuance motions.

II

When Judge Child issued his order of October 20, 1980, dismissing the Secretary's case, he had before him four separate matters: (1) [*8] Samsonite's motion for dismissal or, in the alternative, the preclusion of certain claims and evidence; (2) the Secretary's and the Union's continuance motions; (3) Samsonite's motion for partial summary judgment; and, (4) the Secretary's motion to withdraw admissions. All four matters were based on the Secretary's dilatoriness. n4

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n4 The judge's order recites the following undisputed instances of the Secretary's failures to comply with time limitations:

(1) Failure to forward Samsonite's notice of contest within the time provided by Commission rule 32;

(2) Failure to file a complaint within the time specified by Commission rule 33(a)(1);

(3) Failure to respond to Samsonite's May 21, 1980 request for admissions until August 13, 1980;

(4) Failure to file a response to Samsonite's motion for summary judgment within the time provided by Commission rule 37;

(5) Failure to answer until September 22, 1980, interrogatories which Samsonite had filed on May 21, 1980 and which the judge had ordered answered within theirty days of June 18, 1980.

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The judge pointed out that the parties had agreed on March 14, 1980 to begin trial on October 6, 1980. If he were to grant the continuance motions before him, the earliest a rescheduled hearing could begin was February 1981. He stated that a new inspection could be conducted and a hearing held on fresh evidence almost as quickly as the rescheduled hearing could begin.

The judge then denied the Secretary's motion for withdrawal of admissions, concluding that the Secretary had failed to satisfy the requirements for relief from admissions under Rule 36(b) of the Federal Rules of Civil Procedure. n5 Because he concluded that trying the case under "the cloud of existing admissions or on less than all claims would be less than satisfactory to the parties or to justice" and because he found that the Secretary had failed to comply with Commission discovery rules and his discovery orders, the judge dismissed the case and vacated citations 1 and 2.

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n5 Rule 36(b) provides, in pertinent part:

Rule 36. Requests for Admission.

* * *

(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

[*10]

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The Secretary petitioned for review, taking exception to the dismissal of the citations and to the judge's failure to grant his motions to withdraw admissions and to continue the case. Commissioner Cottine directed review on the issues raised in the Secretary's petition and on whether the judge erred in vacating the citations in a case where an authorized employee representative has elected party status.

III

A

The Secretary argues that the overriding issue on review is whether Judge Child erred in failing to grant the Secretary's motion to withdraw admissions. The Secretary states that due to a clerical error Samsonite's request for admissions was placed in the case file without ever having been seen by the Secretary's attorneys. Never having seen the requests, the Secretary's attorneys were unable to respond to them in a timely fashion. The Secretary also argues that the failure to respond to the admissions was due to excusable neglect on the part of his overburdened attorneys.

While conceding that his tardiness was "unacceptable as a practice," the Secretary contends that, absent prejudice, [*11] dismissal is inappropriate. The Secretary argues that Samsonite did not even make colorable claims of actual prejudice and that any inconvenience or prejudice which might have been suffered could have been cured by granting Samsonite more time to prepare for trial. Further, the Secretary argues that a showing of contumacious conduct is required before a case may be dismissed for failure to prosecute. He asserts that the delays in this case "were clearly not contumacious and were occasioned by circumstances over which the Secretary had little control."

B

Samsonite argues that the judge acted properly in denying the Secretary's motion for withdrawal of admissions. It contends that during a conference call on September 9, 1980, the judge made it clear to the Secretary that he would not entertain a "shotgun" motion for withdrawal of admissions but wanted the Secretary to specify the particular admissions he wanted withdrawn, the specific reasons why withdrawal should be allowed, and the reasons why withdrawal would not prejudice Samsonite at that late date. Nevertheless, Samsonite argues, just three days later, the Secretary filed a "shotgun" withdrawal motion.

Samsonite argues [*12] that the judge's order dismissing the complaint and vacating the citations was not an abuse of discretion. Samsonite cites National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1975), for the proposition that dismissal of a case is proper when the failure to comply with a discovery order is due to willfulness, bad faith, or any other fault of the noncomplying party. Thus, Samsonite argues that a showing of prejudice before dismissal is not required. In addition, Samsonite argues that this case is similar to National Hockey League because the plaintiff failed to comply with discovery time limits and then provided inadequate responses in his late-filed pleadings.

Furthermore, Samsonite contends that dismissal is proper when either prejudice is shown or the conduct is contumacious. The Secretary's conduct was contumacious in this case, Samsonite contends, because: (1) the Secretary filed the very "shotgun" motion asking for a withdrawal of admissions that the judge had forbidden him to file; (2) the Secretary filed unsworn, incomplete, and evasive answers to Samsonite's interrogatories; and, (3) the Secretary maintained a pattern and practice of dilatory conduct. [*13] The Secretary's "callous disregard" of his responsibilities in this case was so great, Samsonite argues, that he never even bothered to seek an extension of time to comply with the discovery requests.

IV

The record in this case presents a series of dilatory actions by the Secretary. Further, the Secretary's late-filed answers to interrogatories and responses to Samsonite's request for admissions were not sworn as required. Clearly, the conduct of the Secretary's counsel is extremely poor practice. However, the Secretary's actions do not warrant the drastic sanction of dismissal. The stated purpose of the Act is "to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. 651. Dismissal of a case because of procedural violations by the Secretary that do not prejudice an employer is contrary to the Act's purposes because it permits the continued existence of allegedly serious workplace hazards without a determination on the merits of the allegations. See Jensen Construction Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979); Pittsburgh Forgings Co., 82 OSAHRC    /   , 10 [*14] BNA OSHC    , 1982 CCH OSHD P    (No. 78-1361, 1982) (Cottine, Commissioner, dissenting). In this respect, the dismissal sanction adversely affects the employees protected by the Act, even though they are not responsible for the Secretary's conduct. See Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968).

In defeence to the policy favoring the decision of cases on their merits, Commission precedents provide that the Secretary may not suffer dismissal as a result of his failure to comply with the time limits established in Commission rules or orders unless the employer has been prejudiced as a result or unless the Secretary's conduct has been contumacious in character. Duquesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980); Boardman Co., 80 OSAHRC 122/C11, 9 BNA OSHC 1163, 1980 CCH OSHD P24,900 (No. 80-75, 1980). See Pittsburgh Forgings Co., supra (Cottine, Commissioner, dissenting); TRG Drilling Corp., 82 OSAHRC    /   , 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981) (Cottine, Commissioner, dissenting).

Neither legal prejudice nor contumacious conduct has been established. [*15] The conduct alleged by Samsonite to be contumacious appears instead to represent unsuccessful efforts to keep current with a caseload beyond the capacity of the Secretary's personnel resources for the period involved. The Secretary's conduct was unjustifiably dilatory, delaying a decision on the merits of the case and producing added expense and effort for all parties. Although the Secretary's conduct was clearly dilatory, it was not contumacious and does not justify the extreme sanction of dismissal -- a sanction that would totally preclude a resolution on the merits of the issues presented by this case. As to any possible prejudice suffered by Samsonite, none is shown on this record. Samsonite does not even allege prejudice beyond its inability to prepare its case in time for the originally-scheduled hearing date. This prejudice does not constitute the legal prejudice necessary to justify vacation of these citations and it may be cured simply by a continuance of the hearing date. See Brown & Root, Inc., Power Plant Div., 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1059, 1980 CCH OSHD P24,275 at p. 29,569 (No. 76-3942, 1980). Inasmuch as the record demonstrates neither prejudice [*16] to Samsonite nor contumacious conduct on the part of the Secretary, the judge abused his discretion in dismissing the Secretary's case. Duquesne Light Co., supra; Boardman Co., supra.

The judge also erred in denying the Secretary's motion for withdrawal of admissions. Rule 36(b) of the Federal Rules of Civil Procedure permits withdrawal of admissions when: (1) te merits of the action are subserved by permitting withdrawal and, (2) the party whose request for admissions was untimely answered is unable to establish that withdrawal of the deemed admissions will prejudice that party in maintaining its defense on the merits. The merits of this action will obviously be subserved by permitting withdrawal of the Secretary's admissions and allowing the case to go to hearing. Further, Samsonite has not shown that it would be unable to gather the evidence necessary to prove the matters admitted. n6 We therefore reverse the judge's rulings and grant the Secretary's motion for withdrawal of this deemed admissions. See St. Regis Paper Co. v. Upgrade Corp., 86 F.R.D. 355 (W.D. Mich. 1980). See also W.J. Warren v. International Brotherhood of Teamsters, Chauffeurs, [*17] Warehousemen and Helpers of America, 544 F.2d 334 (8th Cir. 1976).

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n6 In granting the defendant's motion to withdraw admissions under Fed.R.Civ. P. 36(b), the court in Westmoreland v. Triumph Motorcycle Corp., 71 F.R.D. 192-193 (D. Conn. 1976), stated:

The first half of the test is clearly satisfied since the effect of upholding the admissions would be to practically eliminate any presentation of the merits.

The question then is whether the plaintiff has carried his burden of proving prejudice. See Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966).

* * *

The plaintiff has not convinced this court that he is now any less able to obtain the evidence required to prove the matters which had been admitted. . . . In addition, this court offered the plaintiff additional time to prepare his case, an offer which he declined.

The decision to allow the defendant to withdraw its admissions is essentially an equitable one. In this case the admissions were so vital to the defendant's case that they almost amounted to a complete admission of liability. It is unlikely that the plaintiff could reasonably have believed that the defendant intended to admit liability in this contested action. And if he did rely on that assumption, this court is loathe to reward what would have been an unreasonable reliance in order to glorify technical compliance with the rules of civil procedure. Had the plaintiff been able to demonstrate an actual hardship caused by the defendant's negligence, i.e., had he shown that he was now unable to obtain vital witnesses, the result would, of course, be different.

[*18]

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Accordingly, this case is remanded for further proceedings on the merits of citations 1 and 2. n7

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n7 Since we are remanding for a hearing on the merits, we need not reach the question of whether the judge also erred by vacating these citations in light of the Union's election of party status.

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CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I concur in the disposition. Although the Secretary's failure to comply with time limits for discovery is regrettable, dismissal is only warranted if his conduct was contumacious or if Samsonite was prejudiced. Duquesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980). Neither is demonstrated by the record. Any possible prejudice here could readily have been cured by granting Samsonite a continuance to prepare for trial. The Secretary's conduct did not rise to the level of contumaciousness and, indeed, the judge did not even characterize it as such. In TRG [*19] Drilling Corp. (Mid-Continent Div.), 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1981 CCH OSHD P25,837 (No. 80-6008, 1981), the Commission held the judge implicitly found the Secretary's conduct to be contumacious and therefore further found that the judge properly dismissed the Secretary's late-filed complaint. There, however, the Secretary inexplicably failed to explain why his complaint was late-filed and did not even respond to the motion to dismiss. Here, the Secretary kept the judge apprised of the reasons for his inability to comply with applicable time constraints. Thus, significant facts justifying the finding of contumaciousness in TRG are absent here.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the decision of the majority for the reasons set forth below. I would find that the judge did not abuse his discretion in vacating the citations and dismissing the case because the Secretary was consistently dilatory throughout the case. TRG Drilling Corp., 81 OSAHRC    /   , 10 BNA OSHC 1268, 1982 CCH OSHD P25,837 (No. 80-6008, 1981). See Pittsburgh Forgings Co., 82 OSAHRC    /   , 10 BNA OSHC 1512, 1982 CCH OSHD P25,974 (No. 78-1361, 1982); Duquesne [*20] Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980) (Barnako, Commissioner, dissenting).

At the status and scheduling conference of March 14, 1980, the Secretary and Samsonite discussed the case with the judge and agreed that they could be ready for trial by Labor Day, September 1, 1980. The judge stated that if a post-Labor Day trial date were set he would be "very reluctant" to further postpone the case and admonished the parties to made "a genuine bona fide effort . . . to be ready by the date we schedule it . . . ." In response to the judge's comments, the Secretary's counsel asserted:

I was thinking that June or July [1980] would be the best time for us. Give ample time for preparation

The judge then set October 6, 1980 as the trial date and ordered discovery completed by September 10, 1980.

What followed was a series of exasperating failures by the Secretary to comply with time deadlines. The Secretary was almost three months late in responding to Samsonite's request for production of documents and about two and one-half months late in responding to Samsonite's request for admissions. Although the Secretary attempts to justify [*21] his nearly two and one-half-month delay in responding to Samsonite's request for admissions by alleging a clerical error and a heavy case load, the Secretary's delay in that instance was not the first instance of dilatoriness exhibited by the Secretary in this case, nor unfortunately, was it the last. See footnote 4 of the majority opinion. Not until September 22, 1980, two weeks before the scheduled trial date, did the Secretary file his answers to Samsonite's interrogatories, which had been filed on May 21, 1980 and which the judge had ordered answered by July 18, 1980. Furthermore, the Secretary did not timely seek extensions of time to comply with the various discovery request while Samsonite, in contrast, proceeded throughout the case in a timely manner. Indeed, the Union described the Secretary's dilatory conduct as improper and inexcusable. Even the Commission majority here concedes: "Clearly, the conduct of the Secretary's counsel is extremely poor practice."

In view of the fact that the Secretary's consistently dilatory conduct prevented the trial from proceeding on the scheduled date, a date which had been set seven months ahead of time and which the judge had explicitly [*22] informed the parties he would be very reluctant to postpone, I conclude that the judge did not abuse his discretion in dismissing the case. See Marshall v. Northern Concrete Block, Inc., 636 F.2d 26 (2d Cir. 1980).

Moreover, under the majority's test, contumacious conduct is a proper basis for dismissing a case against a party that has failed to comply with time limits established in Commission rules or orders. I would hold that the judge implicitly found that the Secretary's conduct was contumacious. TRG Drilling Corp., supra. Although the judge did not use the words "contumacious conduct" in his order of October 20, 1980, the following statements indicate that the judge believed the Secretary's conduct fell into this category: (1) the judge referred to the Secretary's conduct as negligent and dilatory; (2) the judge disparaged the Secretary's use of a "shotgun" motion for withdrawal of admissions as "nothing more than a motion for leave to make late filing of response to requests for admissions [which the Secretary had made earlier and which the judge had denied] in different guise;" (3) the judge quoted with approval the Union's characterization of the Secretary's [*23] dilatory conduct. Thus, even under the test employed by the majority, the judge did not abuse his discretion in dismissing the Secretary's case. n8

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n8 Because I would uphold the judge in dismissing the case, it is not necessary for me to address whether the judge erred in denying the Secretary's motion to withdraw admissions. However, inasmuch as the majority addresses the issue, I will state my position. In my view, the majority ignores the fact that according to the cases it cites, relief from admissions under Rule 36(b) is discretionary. In light of the "shotgun" nature of the Secretary's motion to withdraw admissions, I would conclude that the judge did not abuse his discretion in denying the motion. As to whether the judge properly dismissed the case in light of the Union's election of party status, I note that the Union has not filed a review brief or other expression of interest in this caes on review; therefore, I do not reach the question. Weyerhaeuser Co., 77 OSAHRC 44/D6, 5 BNA OSHC 1275, 1977-78 CCH OSHD P21,716 (No. 11869, 1977).

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Accordingly, I would affirm the judge's decision.