December 31, 1980


A decision of Administrative Law Judge James A. Cronin, Jr. is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. In that decision, Judge Cronin denied the Secretary’s motion to file pleading out of time and vacated a citation issued to Respondent for the Secretary’s failure to file a timely complaint. For the reasons that follow, we reverse the judge’s decision and remand the matter for further proceedings.

            The Commission has recently held that the failure of the Secretary to file a timely complaint does not justify vacating a citation absent a finding that the failure either was the result of the Secretary’s contumacious conduct or resulted in prejudice to the employer. Boardman Co., OSHRC Docket No. 80–75 (Dec. 16, 1980); ASARCO, Inc., El Paso Division, 80 OSAHRC ___, 8 BNA OSHC 2156, 1980 CCH OSHD ¶24,838 (No. 79–6850, 1980).

            The Secretary’s explanation for not filing a timely complaint in this matter is substantially similar to that in Boardman Co., supra. As we found in Boardman, the Secretary’s explanation is sufficient to preclude a finding of contumacious conduct. Moreover, at this time Respondent has not established any prejudice resulting from the Secretary’s failure to file a timely complaint.

            Accordingly, we reverse Judge Cronin’s decision vacating the citation. We grant the Secretary’s motion to file pleading out of time and accept the complaint filed with the motion. Respondent is granted 15 days to answer the complaint, and the case is remanded to the judge for further proceedings consistent with this opinion.






DATED: DEC 31, 1980

















October 20, 1980


            Complainant’s Motion To File Complaint Out of Time, dated August 7, 1980, will be denied, and complaint’s citation vacated.

            On February 27, 1980, Citation No. 1 was issued to respondent. A notice of contest, dated March 11, 1980, was received by the complainant, the Secretary of Labor, on March 13, 1980. This Commission received the case from the Secretary on March 21, 1980.

            Commission Rule 33(a)(1) (29 C.F.R. § 2200.33(a)(1)) provides:

The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.


As applied to this case, Rule 33(a)(1) required the Secretary to file his complainant by April 2, 1980, 20 days after March 13, 1980.

            No complaint was filed by complainant in compliance with Rule 33, and no motion for an extension of time to file a complaint was filed prior to June 17, 1980. On that date, a Commission judge issued a sua sponte order that the contested action shall stand as notice of the Secretary of Labor’s allegations.

            On July 3, 1980, respondent filed its answer and moved to dismiss for failure of the Secretary of Labor to file a complaint.

            On July 28, 1980, this case was assigned to the undersigned judge for hearing. By order dated July 30, 1980, the prior order of June 17th was vacated as unauthorized and contrary to this Commission’s Rules of Procedure. The order further granted complainant an opportunity to file within 15 days an ‘appropriate motion’ requesting leave to file a complaint out of time.[1] On August 7, 1980, complainant filed his Motion For Leave To File Pleading Out Of Time. Respondent filed no response to the Secretary’s motion.

            In support of his motion to file his complaint out of time, the Secretary appended the affidavit of James E. White, Regional Solicitor of the United States Department of Labor, Dallas, Texas. Neither the motion nor affidavit establishes good cause for the Secretary’s failure to file a timely complaint in this case. To the contrary, the affidavit clearly demonstrates that the Regional Solicitor’s Office in Dallas, Texas deliberately adopted, and consistently followed for years, a policy of noncompliance with the complaint filing requirement of Commission Rule 33(a)(1).

            In an attempt to justify his initiation of this practice, the Secretary’s Regional Solicitor points to a ‘very heavy caseload’ and to a series of court and Review Commission decisions and judges’ sua sponte orders which led him to conclude that the Commission considers the complaint ‘an unnccesary document.’

            The size of an attorney’s case load is a completely unsatisfactory reason for failing to comply with a key procedural rule of the Commission. Although a heavy case load is the bane of many attorneys, and apparently for the Secretary, a permanent cross to bear, it does not constitute an adequate excuse for failing to file essential pleadings in a timely fashion. To conclude otherwise would undoubtedly result in a widespread disregard of the Commission’s Rules of Procedure by parties and seriously impede the Commission’s ability to provide for the orderly presentation and resolution of the issues brought before the Commission.

            The Secretary’s reliance upon IMC Chemical Group Inc., 78 OSAHRC 95/C14, (No. 76–4761, 1978) to justify his noncompliance with Rule 33(a)(1) is badly misplaced. That case involved a motion by the Secretary to voluntarily withdraw a citation after a notice of contest had been filed but before a complaint or answer had been filed. Contrary to the Secretary’s contention that this case stands for the proposition that a citation is to be treated as a complaint in all situations, the Commission there held only that for the purpose of applying Rule 41(a)(1) of the Federal Rules of Civil Procedure to Commission adjudications the citation and notice of contest would be treated as ‘analogous’ to a complaint and answer in ordinary civil litigation.

            The Secretary stresses that he relied on the extensive practice of certain Commission judges to issue sua sponte orders which consistently treated the citation as a complaint where no timely complaint had been filed by the Secretary. This excuse lacks both substance and sincerity. The Commission has never ruled on the validity of these rulings, and the orders, therefore, have no precedential value. The Dallas Regional Solicitor also was not misled or lulled into relying on these rulings. Rather, he took a calculated risk, knowing full well that other Commission judges disapproved of this practice and had vacated similar orders which had relieved the Secretary of his responsibility to file a complaint. For example, see Structural Metals Inc., 79-OSAHRC 43/E4, (No. 78–3352, 1979).

            In further support of his failure to file a complaint in this and other cases and his argument that a complaint in Commission proceedings has become unnecessary, the Secretary points to the Commission’s adoption of Simplified Proceedings (29 C.F.R. § 2200.200 et seq.) He suggests that the Commission’s use of simplified proceedings, which prohibits the filing of a complaint, is indicative of the little importance the Commission attributes to complaints in ‘routine cases.’ Perhaps, but the fact remains that Rule 33 requirements continue to govern proceedings before an Administrative Law Judge until the Commission notifies the parties that simplified proceedings are in effect. Simplified proceedings, of course, are unavailable unless a case is eligible, a party requests them, and no party files an objection to the request. In this case complainant did not request simplified proceedings, and respondent was not given an opportunity to object. Until the Commission, through its rule-making authority, formally amends Rule 33(a)(1), it must be presumed that the Commission still considers a complaint to be a necessary pleading in conventional proceedings.

            Finally, the Secretary tries to justify his noncompliance with Rule 33 on the ground that it reduces ‘unnecessary paperwork’ and conserves ‘valuable attorney time.’ This reason constitutes sheer effrontery and clearly demonstrates the utter disdain the Dallas Solicitor’s Office has for Commission Rule 33(a)(1).

            None of the Secretary’s reasons, either singly or in combination, justifies his failure to file a timely complaint in accordance with Commission Rule 33(a)(1) prior to issuance of the June 17, 1980, order. Therefore, the Secretary’s Motion For Leave To File Pleading Out Of Time will be denied.

            Further, the Secretary’s failure to file complaint in accordance with Rule 33(a)(1) is deemed a waiver of his right to further participation in these proceedings, and the citation and notification of proposed penalty will be vacated (See 29 C.F.R. § 2200.38).

            The Secretary contends that mere failure to file a complaint cannot in and of itself justify or warrant the exercise of a judge’s discretion under Commission Rule 38 to vacate a citation. This judge disagrees. The discretionary power bestowed by Rule 38 may be exercised, even when the failure to file a complaint has not impeded an employer’s ability to defend, whenever a party’s failure to file a timely pleading is unjustified. Moreover, the exercise of this power is particularly appropriate, even compelled, in a situation like here where a party has intentionally failed to file the required pleading.

            For the above reasons, it is ORDERED:

            1. Complainant’s Motion For leave To File Pleading Out Of Time is DENIED.

            2. Complainant’s failure to file a timely complaint in accordance with Commission Rule 33(a)(1) is deemed a waiver of his right to further participation in the proceeding.

            3. Citation No. 1 and the Notification of Proposed Penalty, issued February 27, 1980, is VACATED.



James A. Cronin, Jr.

Judge, OSHRC

Dated: October 20, 1980

[1] Commission Rule 5 mandates that requests for extension of time for filing a pleading must be received prior to the date the pleading is due to be filed. Previously, however, the Commission has not insisted on literal compliance with Rule 5 if a party has made a good faith effort to file his request and pleading in a timely manner and in the absence of prejudice. Rollins Outdoor Advertising, 77 OSAHRC 24/C1, (No. 12528, 1977).