UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

______________________________________ 

Secretary of Labor, ) 

 ) 

 Complainant, ) 

 ) 

 v. ) OSHRC Docket No. 12-2052 
) 

Yenkin-Majestic Paint Corporation, dba OPC ) 

Polymers, ) 

 ) 

Respondent. ) 

 ) 

______________________________________ ) 

 

ORDER DENYING RESPONDENT’S MOTION TO DISMISS BUT AWARDING 
LESSER SANCTIONS AGAINST COMPLAINANT 

 

I. FACTS 

 

On September 14, 2012, the U.S. Occupational Safety and Health Administration 
(OSHA) issued a 20 item serious citation, one item other-than-serious citation, and Notification 
of Penalty to Respondent.1 The serious citations generally concern alleged violations of 
standards relating to process safety management of highly hazardous chemicals; e.g. Citation 1, 
Item 1, alleges a serious violation of 29 C.F.R. § 1910.119(d)(2)(i)(C).2 The purpose provision 
of 29 C.F.R. § 1910.119, Process safety management of highly hazardous chemicals, states: 

1 The citations identify the inspection dates as “3/22/2012 – 07/19/2012.” 

2 Citation 1, Item 1 alleges that Respondent’s process safety information did not include the maximum intended 
inventory for the K3 kettle unit system located at 1920 Leonard Avenue, Columbus, Ohio. 

3 Due to the amount at issue exceeding $100,000, this case is considered a significant case where the mandatory 

Purpose. This section contains requirements for preventing or minimizing the 
consequences of catastrophic releases of toxic, reactive, flammable or explosive 
chemicals. These releases may result in toxic, fire or explosive hazards. 

 

The citations proposed penalties amounting to $138,600.3 Thereafter, Respondent 
submitted its notice of contest. On October 31, 2012, the Secretary moved for an extension of 


settlement procedures set forth in 29 C.F.R. § 2200.120 (b) are applicable. 

4 The order stated: 

 The fact that settlement discussions or negotiations are ongoing does not relieve the parties of the obligation 
to file timely pleadings as otherwise required by the Rules of Procedure of the Occupational Safety and 
Health Review Commission, 29 C.F.R. §§ 2200.1-.211 (2005). Wes Jones & Sons, Inc., 13 BNA OSHC 
1277 (No. 86-1095, 1987). 

5 The Reassignment Order stated that all pleadings were to be filed with the undersigned. 

time to file the Complaint in order to “review the investigation and to prepare a complaint 
conforming to the requirements of 29 C.F.R. § 2200.34.” On November 8, 2012, the matter was 
designated for Mandatory Settlement Proceedings before another judge. On November 14, 2012, 
that judge issued an order granting the Secretary’s motion for an extension of time, and set the 
new deadline for filing the Complaint on or before December 17, 2012.4 On November 27, 
2012, the Secretary provided Respondent with the OSHA investigation file, with privileged 
material redacted. Having not settled, on September 6, 2013, the matter was reassigned to the 
undersigned for disposition by trial.5 By Notice of Pre-Hearing Scheduling Conference and 
Order dated September 11, 2013, the Court stated that “[i]f not yet filed, the Secretary shall file 
his complaint within 20 days of receipt of this Order ….” 

A pre-hearing scheduling conference was conducted on November 1, 2013 by telephone. 
During the conference call, the Court noted that no complaint had yet been filed and the 
Secretary stated his intention to file his complaint by November 4, 2013. 

On November 4, 2013, the Secretary filed his complaint 

On November 22, 2013, Respondent filed its Motion to Dismiss, along with an Answer in 
the alternative. Respondent seeks the dismissal of the Secretary’s Complaint and all 
accompanying penalties on the basis that the Secretary filed his complaint nearly 11 months late. 
Respondent asserts that it has been substantially prejudiced by the delay because its: 1) ability to 
adequately defend itself has been harmed through employees’ faded memories and recollections; 


e.g. Mr. John Malaby, Respondent’s Safety Manager, ended his employment on April 29, 2013 
and Mr. Bernardo Jurado-Blanco, Operations Manager – OPC Polymers, ended his employment 
on July 12, 2013,6 2) ability to have a timely resolution of abatement issues has been seriously 
inhibited, and 3) costs have substantially increased.7 Respondent further asserts that the 
Secretary’s delay constitutes contumacious conduct. 

6 Respondent alleges that these two former employees were directly involved with the matters at issue. 

7 Respondent does not identify these costs and to what extent they have increased. 

8 The Court sustains Respondent’s objection to the Court considering exhibits C and D to the Secretary’s Opposition 
and these two exhibits will not be considered by the Court. See 29 C.F.R. § 2200.120(d)(3), Fed. R. Evid. 408. 

9 Complaints are not required in cases designated as simplified proceedings pursuant to 29 C.F.R. § 2200.200(b)(1). 
The Court also takes judicial notice that the pleading requirements are sometimes suspended at the parties’ request 
during mandatory settlement proceedings to allow the parties to focus on settlement discussions. 

10 The current requirement to file the complaint in 20 days has not always been so before the Commission. In 1986, 
the Commission allowed a complaint that was a hybrid of fact and notice pleading to be filed in 30 days. See 
Occupational Safety and Health Review Commission, 51 Fed. Reg. 32,006 (September 8, 1986) (codified at 29 
C.F.R. Part 2200) (“the Commission does not believe that in the usual contested case it should take long to draft a 
complaint. The elements of violations are generally set out clearly in the standards themselves and the Secretary’s 

On November 22, 2013, Complainant filed his Brief in Opposition to Respondent’s 
Motion to Dismiss (Opposition). Complainant asserts that the Motion to Dismiss should be 
denied because there was no prejudice to Respondent and his late filing of the complaint was not 
the result of contumacious conduct.8 

The matter is scheduled for trial commencing June 17, 2014. 

II. DISCUSSION 

29 C.F.R. § 2200.34(a) states that in employer contests “[t]he Secretary shall file a 
complaint with the Commission no later than 20 days after receipt of the notice of contest.”9 
The 20-day time requirement is not a statute of limitations, but only a procedural rule of 
pleading.10 See Pukall Lumber Co., 2 BNA OSHC 1675, 1677 (No. 10136, 1975). An employer 
must show real prejudice to warrant a dismissal of a proposed penalty for the Secretary’s 
violation of a procedural rule. Id. The Commission has not insisted on literal compliance with 


attorneys will be expected to draw upon the OSHA investigative file to supply any needed factual bases.”). 

11 But see MDLG, Inc. dba Phenix Lumber Co., No. 09-0514, 2009 WL 3030766 (O.S.H.R.C.A.L.J. July 27, 2009) 
(ALJ finds Secretary’s wait of more than 2 ½ month beyond deadline to file complaint prejudiced the company 
because it had no reasonable expectation that the Secretary intended to pursue the citations). MDLG, Inc. is 
distinguishable from the instant case because here the parties engaged in mandatory settlement proceedings from 
November, 2012 through September, 2013 and Respondent had no reason to believe that the Secretary had ever 
abandoned this case. 

its procedural rules in the absence of prejudice to the parties. See Rollins Outdoor Advertising, 
Inc., 5 BNA OSHC 1041, 1042 (No. 12528, 1977) (Secretary’s filing of complaint 14 days late 
excused due to a severe but temporary shortage of secretarial help at the Department of Labor 
and employer’s case was not prejudiced).11 Prejudice in the context of the late filing of a 
complaint is procedural and would stem “from such factors as loss of evidence and unavailability 
of witnesses that would diminish a respondent’s defense on the merits.” Pukall Lumber Co., 2 
BNA OSHC at 1678. 

One of the key purposes of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 
651, et seq. (Act), is to assure safe and healthful working conditions. The dismissal of a 
significant case based solely upon the Secretary’s failure to comply with a procedural rule 
pertaining to the timing of the filing of the complaint would undermine the Act’s purpose. Accu-
Namics, Inc. v. OSHRC, 515 F.2d 828, 833 (5th Cir. 1975). “From its earliest cases, the 
Commission has emphasized that contested matters should be adjudicated on their merits rather 
than on pleading technicalities.” Pukall Lumber Co., 2 BNA OSHC at 1677. There are also 
public interests that call for cases brought under the Act to be decided on their merits to deter 
future violations of the Act. Pittsburgh Forgings Co., 10 BNA OSHC 1512, 1514 (No. 78-1361, 
1982). These public interests are also balanced with “a substantial public interest in orderly 
procedure.” Id. See also Duquesne Light Co., 8 BNA OSHC 1218, (No. 78-5303, 1980) 
(Commission held that because vacation of a citation is an extreme sanction that frustrates the 


remedial purpose of the Act, it should generally not be imposed unless prejudice or contumacious 
conduct is found.) The sanction of a citation dismissal must be tied to a showing of prejudice, 
particularly where the hazards, as alleged here, are of considerable magnitude and employee 
exposure would not be not limited to minor injuries. See Jensen Constr. Co. of Ok., Inc. v. 
OSAHRC and Marshall, 7 BNA OSHC 1283, 1284 (No. 77-1459, 1979). 

The Court finds that Respondent has not made a specific showing that it suffered real 
prejudice due to the Secretary’s delay in filing his complaint. Although Respondent asserts that 
two employees, Messrs. Malaby and Jurado-Blanco, left the company between April 29, 2013 
and July 12, 2013, it has not asserted or demonstrated that either of these two former employees 
are no longer available to provide testimony or evidence relating to its defense of this action. 

§ 9(a) of the Act states in relevant part that “[e]ach citation shall be in writing and shall 
describe with particularity the nature of the violation, including a reference to the provision of the 
Act, standard, rule, regulation, or order alleged to have been violated.” The Commission has 
held that the “purpose of the particularity requirement is to put the cited employer on notice as to 
the nature of the violation.” Pukall Lumber Co., 2 BNA OSHC at 1677, fn 9; Gannett Corp., 4 
BNA OSHC 1383, 1384 (No. 6352, 1976). Whether fair notice has been provided does not 
depend only on the citation’s language but may also be determined from other factors, such as the 
circumstances surrounding the inspection or the employer’s familiarity with his own business. 
Id; Accord, Meadows Indus., Inc., 7 BNA OSHC 1710, 1711 (No. 76-1463, 1709). The 
Commission has also held that § 9(a) does not require a citation to state the elements of a cause 
of action; and, even a citation that facially lacks sufficient particularity need not be declared void 
as a matter of law if the purposes of the particularity requirement may be met during the 


pleading, discovery, hearing and decisional phases of the litigation.12 Del Monte Corp., 4 BNA 
OSHC 2035, 2037 (No. 11-865, 1977). Here, Respondent had access to OSHA investigative file 
early-on in the mandatory settlement process. The Court finds that the Secretary’s citations, 
along with OSHA’s investigative file, have put Respondent on timely notice by no later than 
November 27, 2012 as to the nature of the violations as required by § 9(a) of the Act. 

12 See Rules and Regulations, Occupational Safety and Health Review Commission, 57 Fed. Reg. 41,676 (September 
11, 1992) (“Commission has eliminated fact pleading and instituted notice pleading at the complaint and answer 
stage.”). The Commission had previously stated that notice pleadings filed before 1986 were of “limited value” and 
“typically add nothing to the citation and the notice of contest. In the usual case, the Secretary files a standardized 
complaint that merely incorporates the citation by reference and adds an allegation of commerce coverage.”) See 
Rules and Regulations, Occupational Safety and Health Review Commission, 51 Fed. Reg. 23,186 (June 25, 1986). 

13 Although not dismissing the complaint, the Court does not in any way condone the Secretary filing his complaint 
nearly eleven months late. See Pittsburgh Forging Co., 10 BNA OSHC at 1513 (Secretary admonished for late 
filing of a more definite statement by about 11 days due to inadvertence and a heavy workload). The Court 
admonishes the Secretary that future failures to comply with Commission rules or judge’s orders will not be 
tolerated. Some form of sanction, less than dismissal, is appropriate to deter the Secretary from ignoring a 
Commission pleading rule for so long, and to ameliorate any possible prejudice sustained by Respondent through the 
departure of Messrs. Malaby and Jurado-Blanco from Respondent’s employment in 2013. See Rollins Outdoor 
Advertising, Inc., 5 BNA OSHC at 1043 (Commissioner Moran, dissenting - Permitting the Secretary to file his 
complaint 14 days late may lead to expectation that the Secretary may treat Commission rules with distain.). See 
also 29 C.F.R. § 2200.101(a), Failure to obey rules, Sanctions. 

When any party fails to plead, the Court may declare the offending party in default on the 
motion of a party. Thereafter, the Court, in its discretion, may enter a decision against the 
defaulting party or strike any pleading not filed in accordance with the Commission rules. See 29 
C.F.R. § 2200.101(a). The Court has “broad discretion” concerning the consequences to be 
suffered in the event of a failure to timely file a complaint. Jensen Constr. Co. of Ok., Inc. v. 
OSAHRC and Marshall, 7 BNA OSHC at 1284. 

Under these circumstances, the Court finds that Respondent has not demonstrated that its 
ability to adequately defend itself has been harmed through employees’ faded memories and 
recollections to the extent that the citations must be dismissed.13 Additionally, the Court finds 
that Respondent has not demonstrated that its ability to have a timely resolution of abatement 


issues has been seriously inhibited. Lastly, the Court finds that Respondent has not demonstrated 
that its costs have substantially increased due to the Secretary’s failure to file his complaint until 
November 4, 2013.14 

14 Respondent does not identify these costs and to what extent they have increased. 

15 The Secretary’s counsel also previously failed to insure that it had complied with the Court’s September 11, 2013 
order that directed the Secretary to file its complaint within 20 days of receipt of the order. 

16 Cf Chao v. Roy’s Const., Inc., 517 F.3d 180 (3d Cir. 2008) (Citation vacated where OSHA refused to file the 
complaint because the notice of contest was untimely.). 

17 At its discretion, Respondent shall also be able to introduce these two depositions into the evidentiary record at 
trial for all purposes. 

The Court further finds that the Secretary’s actions here do not amount to contumacious 
conduct. In its Opposition, the Secretary’s counsel stated that he had mistakenly believed as of 
November 1, 2013 that the Complaint had been filed. The Secretary’s counsel stated that he 
realized that the Complaint in the case file was unsigned and undated after reviewing the case file 
after that call.15 He then filed the Complaint on November 4, 2013. Counsel’s pleading-related 
oversight, under these circumstances, does not indicate intentional disrespect towards the Court 
and is not an indication of bad faith to the extent that dismissal of the citations is warranted. See 
Newport News Shipbuilding & Drydock Co., 9 BNA OSHC 1085, 1090 (No. 76-171, 1980).16 

III. ORDER 

WHEREFORE IT IS ORDERED that Respondent’s Motion to Dismiss is DENIED, and 

IT IS FURTHER ORDERED that, as a sanction for filing his complaint nearly 11 months 
late, the Secretary shall bear the costs and expenses associated with the taking of any deposition, 
videotaped or otherwise at Respondent’s discretion, by Respondent [or the Secretary] of Messrs. 
Malaby and Jurado-Blanco; including the cost of any Deposition reporter and videographer, 
preparation of deposition transcripts, and deponents’ witness fees and travel expenses; but 
excluding Respondent’s related attorneys’ fees and expenses.17 


 SO ORDERED. 

 

 

 

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

 

Date: December 17, 2013 

 Washington, D.C.