TRG DRILLING CORPORATION, (MID-CONTINENT DIVISION)

OSHRC Docket No. 80-6008

Occupational Safety and Health Review Commission

December 31, 1981

  [*1]  

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

James C. Karger, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor has petitioned for review of the decision of Administrative Law Judge James A. Cronin, Jr.   The judge vacated the Secretary's citation and dismissed his complaint.   The Secretary's petition for review was granted.   We find that the judge did not abuse his discretion and we therefore affirm.

Inasmuch as Judge Cronin's decision sets out the facts in detail, we only summarize them here.   The Secretary received TRG Drilling Corporation's notice of contest on September 26, 1980.   Under Commission Rule 33(a)(1), 29 C.F.R. §   2200.33(a)(1), the Secretary was required to file his complaint no more than 20 days later.   Four days after the notice of contest was received, the Commission made clear in ASARCO, Inc., 80 OSAHRC 99/A3, 8 BNA OSHC 2156, 2160, 1980 CCH OSHD P24,838, p. 30,617 (No. 79-6850, 1980), that the filling of a complaint is a mandatory requirement.   The Secretary nevertheless filed his complaint 39 days late.   He filed no request for an extension of time nor [*2]   did he explain why the complaint was untimely filed.   When TRG Drilling Corporation filed a motion to dismiss on the ground that the complaint was untimely filed, the Secretary did not respond to the motion.

In his decision, Judge Cronin noted that under Commission precedent a citation should not be vacated for a failure to comply with the Commission's rules of procedures unless the noncompliance results from contumacious conduct or causes prejudice to the opposing party.   The judge found that TRG Drilling had not demonstrated that it was prejudiced.   He also noted TRG Drilling's argument that the Secretary's conduct was contumacious, he described the Secretary's derelictions here, and he found the Secretary "inexplicably failed to respond to [TRG Drilling's] motion to dismiss or attempt to justify his noncompliance with Rule 33(a)(1)."

The Secretary argues that the judge's decision should be reversed because the Secretary's conduct was not contumacious, and that a citation should not be vacated even if his conduct is contumacious. The Secretary offers no explanation in his petition for his noncompliance with the Commission's rules.

The issue here is whether the judge abused his [*3]   discretion in vacating the citation for the Secretary's unexplained failure to comply with our procedural rules.   Judge Cronin implicitly found that the Secretary's conduct was contumacious. The judge's view is supported by the record and his imposition of the sanction of vacation of the citation cannot be said to have been an abuse of discretion. The Secretary's argument that contumaciousness is not an adequate ground for vacating a citation requires no discussion.

Accordingly, the judge's decision is affirmed.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

As this case sadly demonstrates, poor practice invites precipitous judgment.   Though I do not condone the Secretary's poor practice in this case, it is the judge's precipitous judgment that must be the focus of Commission review.   Notably absent from the judge's ruling below is any finding, express or implied, that the Secretary's conduct was contumacious. Instead, Judge Cronin relied on findings that the Commission repeatedly has held do not warrant dismissal of a case. E.g., Refractory Construction, Inc., 80 OSAHRC 128/D7, 9 BNA OSHC 1192, 1981 CCH OSHD P25,088 (No. 80-1416, 1980); Henry C. Beck Co., 80 OSAHRC [*4]   128/E1, 9 BNA OSHC 1191, 1981 CCH OSHD P25,087 (No. 80-1612, 1980).   Thus, the judge's action constituted an abuse of discretion and should be reversed.   Compounding the judge's error is the majority's failure to cite any facts in the record justifying its conclusion that the Secretary's conduct was contumacious.

I

The Commission precedent is clear: the Secretary's failure to file a timely complaint does not justify vacating a citation absent a finding of contumacious conduct by the Secretary or prejudice to the employer.   Refractory Construction, Inc., supra. Henry C. Beck Co., supra. Clearly, the same rule is appropriate for failures to comply with other Commission pleading rules, such as the requirement of a timely motion for an extension of time to file pleadings under Commission Rule 5, 29 C.F.R. §   2200.5.   See Rollins Outdoor Advertizing, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1042 n.4, 1977-78 CCH OSHD P21,551 at p. 25,866 n.4 (No. 12528, 1977).

My colleagues cite no specific finding in the judge's decision to support their conclusion that he found the Secretary's actions contumacious, and indeed there is none.   Judge Cronin had different reasons [*5]   for vacating the citation and they are plainly stated in his decision.   Citing Rollins Outdoor Advertizing, supra, he declared:

Without Commission approval, the untimely filing of a complaint has no force or effect.   And Commission approval only can be granted if [the Secretary] shows that he made a good faith effort to timely file his complaint or that his failure to file a timely complaint is the result of exclusable neglect.

Slip op. at 4.   The judge had previously noted that the Secretary never attempted "to demonstrate a good faith effort to file" a motion for permission to file an untimely complaint.   Accordingly, he reasoned that the Secretary "filed an untimely complaint without Commission approval.   Therefore, Respondent's motion to dismiss is granted . . . ." Id. (emphasis added.)

The judge's holding is inconsistent with Commission precedent including the cases discussed by the judge.   The judge's reliance on Rollins to support dismissal is clearly unwarranted in the absence of prejudice to the employer.   In Rollins, the Commission stated, "because vacation of a citation and notification of proposed penalty is the most extreme sanction the Commission [*6]   can impose against the Secretary, a hearing [on the merits of the citation] should not be denied if a late submission does not prejudice the employer." 5 BNA OSHC at 1042, 1977-78 CCH OSHD at p. 25,865. There the Commission excused the same procedural errors it condemns here -- the Secretary's failure to file a timely complaint, a timely motion for extension of time to file, and a response to the Respondent's motion to dismiss. The judge in relying on Rollins to reach a result contrary to Refractory and Back disregarded the holdings of all three cases.   The majority simply ignores the legal standards governing the judge's conduct.

II

The judge's decision was unsupported not only legally but factually, and my colleagues cite no additional facts to support a finding of contumacious conduct. The Secretary filed his complaint 39 days late without a motion for extension of time to file.   This is poor practice, but not contumacious conduct in itself.   The Secretary also did not respond to the Respondent's motion to dismiss. However, the Secretary is not required to respond to motions.   Smith's Transfer Corp., 3 BNA OSHC 1088, 1974-75 CCH OSHD P19,544 (No. 5786, 1975).   [*7]   The Secretary's failure to respond, which has been sanctioned by the Commission, may not be used as the basis for an implication of contumaciousness. No other facts were asserted to support dismissal.   Thus, the motion to dismiss clearly was insufficient under Commission precedent and did not require a response from the Secretary. *

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* To the extent that the majority relics on the absence of a motion for extension of time to file the complaint in reaching their disposition, that motion would be a mere formality here.   There is no question as to the relief the Secretary sought in filing the complaint out of time and TRG was not misled in any way.   To vacate the citation based on the absence of a merely formal motion is to elevate form over substance.

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The majority's failure to state specific and adequate grounds for its decision has another serious consequence.   A finding of contumacious conduct reflects negatively on the professional competence of an attorney and may adversely affect his or her continued practice   [*8]   of law.   Thus, the issue of contumaciousness must be expressly addressed and resolved in fairness to the parties and their representatives.

III

Because the judge's dismissal of the Secretary's case was contrary to Commission precedent and factually unsupported, it constituted an abuse of discretion and should be reversed.   Accordingly, I dissent.