SECRETARY OF LABOR,
Complainant,
v.
CHARTWELL CORPORATION,
Respondent.

OSHRC Docket No. 91-2097

*DECISION *

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

The Secretary of Labor issued a citation alleging that Chartwell
Corporation ("Chartwell") committed various violations of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, ("the
Act") by failing to comply with standards issued pursuant to that Act.
The Secretary also issued a notice of failure to abate violations
previously cited and proposed penalties totaling $12,600. After
Chartwell contested the citation, the notice of failure to abate, and
the proposed penalties, the case was assigned to an administrative law
judge of this Commission.

Pursuant to Rule 34(a) of the Commission's Rules of Procedure, 29 C.F.R.
§ 2200.34(a), the Secretary was required to file a complaint alleging
the facts constituting a violation by September 22, 1991. A few days
before that date, the Secretary requested an extension of time, and the
judge granted her an additional thirty days, until October 22, 1991, to
file her complaint. On October 16, the judge received a letter from the
Secretary stating that: the parties had agreed to settle the case: a
written agreement was being circulated and the agreement would be
forwarded to the judge when it was fully executed by the parties. The
judge then entered an order directing the Secretary to file either a
complaint of an executed settlement agreement by November 15, 1991.

Neither document was filed by the date specified in the judge's order.
Accordingly, on December 2, 1991, seventeen days after the date
specified in the judge's order, the judge entered another order vacating
the citation and notice of proposed penalty.

Two days later, on December 4, the Secretary filed a motion asking the
judge to reconsider his order and accept the signed settlement
agreement, which was Included with the motion. The Secretary's motion
recited that the agreement had been sent to Chartwell, and that
Chartwell's president had informed the Secretary that he agreed to the
terms but that he was sending the document to his attorney to be
reviewed. The Secretary stated that she had not received the executed
document back from Chartwell until November 25, 1991, and that she had
forwarded it to the judge on December 2, the same day he had dismissed
the citation. The motion recited that. at all times, the parties were in
agreement as to the terms of the settlement, and that the Secretary
regretted her failure to comply with the October 16 order. The Secretary
asserted that justice would be served by accepting the agreed-upon
settlement.

On December 9, 1991, the judge entered an order denying the Secretary's
motion to reconsider. The Secretary petitioned for review of that order.
Pursuant to section 12(j) of the Act, 29 U.S.C. § 661(j). the judge's
order was directed for review on the issue of whether the judge abused
his discretion by vacating the citations and proposed penalties for
failure to comply with his order.

I. Arguments.

In her petition for review, the Secretary argues that the judge erred in
vacating the citation. The Secretary asserts that the judge should not
have imposed a sanction without having first entered an order giving the
Secretary an opportunity to show cause why the sanction should not he
imposed. The Secretary also argues that, in any event, dismissal was too
severe a sanction and, therefore, it constituted an abuse of the judge's
discretion.

II. Analysis.

A. Should the Judge Have Issued A Show Cause Order
The Secretary's first argument is based on Rule 41(a) of the
Commission's Rules of Procedure 29 C.F.R. § 2200.41(a), which provides:

§ 2200.41 Failure to obey rules.


(a) Sanctions. When any party has failed to plead or otherwise proceed
as provided by these rules or as required by the Commission or Judge, he
may be declared to be in default either:
(1) on the initiative of the Commission or Judge, after having been
afforded an opportunity to show cause why he should not be declared to
be in default;
or
(2) in the motion of a party.
Thereafter, the Commission or Judge, in their discretion, may enter a
decision against the defaulting party or strike any pleading or document
not filed in accordance with these rules.

The Secretary's argument is that alternative (1) of Rule 41(a) requires
that the judge issue a show cause order before declaring a party in
default on his own motion. The Secretary asserts that, because the judge
failed to comply with the Commission's Rules of Procedure, his order
must be reversed.

The Secretary is partly correct. Under Rule 41(a), the judge should not
have entered his order of dismissal on December 2 without affording the
Secretary an opportunity to show cause why she should not be held in
default. The rule does not, however, require specifically that the judge
issue an order to show cause, as the Secretary argues; it requires only
that the party be afforded an opportunity to show cause why the sanction
should not be imposed. Therefore, the Secretary is correct that the
judge did err when he entered the order of dismissal on December 2. If
that were the last action taken in this case by the judge, the proper
course for the Commission to follow would be to remand the case for the
judge to afford the Secretary the opportunity to show why she should not
be sanctioned for her failure to comply.

That opportunity has already been afforded the Secretary, however. The
Secretary filed a motion for reconsideration. The judge entertained that
motion and, based on the arguments made in support of the motion, found
the Secretary's grounds inadequate. Under these circumstances, the
judge's failure to follow the rule when he entered his December 2 order
does not require that his order be reversed, because Rule 41(a)'s
requirement that the Secretary be given a chance to explain her
noncompliance was accomplished when the judge entertained the
Secretary's motion for reconsideration. In her motion, the Secretary
offered an explanation as to why she had failed to comply with the
October 16 order, and the judge found that her explanation was
unsatisfactory. Consequently. we do not agree with the Secretary that
Rule 41(a) requires that the judge's final order in this case, the
December 9 order, be vacated.

We find that the judge cured his original error when he considered the
reasons set out in the motion for reconsideration and thereby afforded
the Secretary an opportunity to show cause why she should not be
sanctioned. We therefore conclude that the judge's order entered on
December 9 fully complied with the requirements of Rule 41(a).

B. Did the Judge Abuse His Discretion by Dismissing the Citation for
Failure to Comply

Because default is specifically mentioned in Rule 41(a) as a possible
sanction for failure to file a pleading required by the Rules, it is
clearly one of the courses of action permitted under the rule. The
Secretary asserts. nevertheless, that dismissal is too harsh a sanction
for the Secretary's failure to comply and argues that the judge's order
should be vacated because the judge abused his discretion by imposing a
sanction too severe for the offense.

In determining whether a sanction imposed by a judge is excessive, the
test is whether the judge abused his or her discretion. A judge has very
broad discretion in imposing sanctions for noncompliance with his or her
orders, and will not be reversed if he or she stays within that
discretion. Sealtite Corp., 15 BNA OSHC 1130, 1134, 1991 CCH OSHD ¶
29,398, pp. 39,582-83 (No. 88-1431, 1991) (citing National Hockey League
v. Metropolitan Hockey Club, 427 U.S. 639.642 (1976), and Heat & Control
Inc. v. Hester Indus., 785 F.2d 1017,. 1022 (Fed. Cir. 1986)).

We have recently addressed the question of a judge's discretion to
impose the sanction of dismissal for failure to comply with discovery
orders in Sealtite Corp., where we said:

Abuse of discretion does not imply improper conduct by the judge. It
merely indicates that the judge erred as a matter of law in exercising
his discretion.

Duquesne Light Co., 8 BNA OSHC 1218, 1221 n.17. 1980 CCH OSHD ¶ 24,384.
p. 29,718 n.17 (No. 78-5034, 1980). Abuse of discretion is a term used
by the courts to describe more than a mere error or difference of
judicial opinion. It occurs when a judge's decision is clearly
unreasonable, arbitrary, or fanciful, when the decision is based on
erroneous conclusions of law, when the judge's findings of fact are
clearly erroneous, or when the record contains no evidence on which the
judge rationally could have based his decision. Heat & Control, Inc. v.
Hester Indus., 785 F.2d 1017, 1022 (Fed. Cir. 1986). Abuse of discretion
occurs when a relevant factor that should have been given weight is not
considered, when an irrelevant or improper factor is considered and
given significant weight, or when all proper factors are considered, no
improper factors are considered, but the judge commits a clear error of
judgment in weighing these factors. U.S. v. Kramer, 827 F.2d 1174, 1179
(8th Cir. 1987).

15 BNA OSHC at 1134 n.7, 1991 CCH OSHD at p. 39,582-83 n.7.

One factor to be considered in examining whether a judge has abused his
or her discretion by imposing too harsh a sanction is the availability
of other sanctions. Unfortunately, the sanctions available to the
Commission's administrative law judges are limited. For example, if a
party or attorney does not obey the order of a judge in the federal
courts, the judge has the power to hold him or her in contempt of court.
An administrative law judge does not have such power. Some of the other
sanctions available to the judge, such as the striking of a pleading,
are tantamount to finding the party in default. The Secretary has
suggested no intermediate sanction that would be effective in assuring
compliance, and we do not see any. Under these circumstances, we are
unwilling to set down a blanket rule holding that, when a judge attempts
to promote expeditious adjudication (or settlement) of cases before the
Commission and insure economical and efficient handling of the cases on
his or her docket by imposing sanctions on a party who is more than two
weeks delinquent. it constitutes an abuse of the judge's discretion to
hold that party in default if the party offers no reasonable explanation
for its delinquency.

Under Rule 41(b) of the Commission's Rules of Procedure,[[1]] the
Commission set aside a sanction imposed under Rule 41(a) if presented
with "sufficient" reasons to set it aside. See Choice Electric Corp., 14
BNA OSHC 1899, 1900 n.4. 1987-90 CCH OSHD ¶ 29,141, p. 38,941 n.4 (No.
88-1393, 1990). The Secretary asserts that the sanction of dismissal was
not warranted because her conduct was not contumacious and Chartwell
suffered no prejudice from the Secretary's failure to comply with the
October 16 order. Although we do not disagree with the Secretary's
characterization of her conduct and the effect of the delay on
Chartwell, these arguments do not necessarily constitute sufficient
grounds under Rule 41(b) to set aside the sanction imposed by the judge.
Prejudice and contumacy are factors to he considered in determining
whether a severe sanction is warranted, but they are not the only ones.
An important factor here is the Secretary's failure to give any
explanation of why she failed to file a complaint or to ask the judge
for more time to submit the executed settlement.

The judge's October 16 order specified two alternate means of
compliance. The Secretary has explained why she did not file the
executed agreement by the date specified: She had not received it back
from Chartwell. What the Secretary has failed to do in either her motion
for reconsideration or her petition for discretionary review, is to
offer a reasonable explanation of why she failed to perform the
alternative means specified by the judge of complying with his order by
filing a complaint. The Secretary also has failed to make any
representation that she ever communicated with Chartwell or its attorney
to attempt to hasten the review process. Finally, the Secretary has
offered no explanation why, although she had the signed agreement in
hand a week before the judge entered his first order of dismissal, she
failed to file the agreement promptly. Given the Secretary's failure to
give any explanation at all for her omissions, we find that she has not
given sufficient reason to set aside the judge's December 9 order.

As the judge's October 16 order stated, citing authority, the fact that
settlement negotiation are being conducted or that there is a tentative
agreement on the terms or settlement [[2]] does not relieve either party
from its obligation to file pleadings on time or to comply with our rules.

III. Conclusion

For the reasons stated above, we hold that the judge did not abuse his
discretion when he entered his December 9 order denying the Secretary's
motion for reconsideration and affirming his order of December 2, which
had vacated the citations and notice of proposed penalties. The judge's
order of December 9, 1991, is therefore affirmed.

Edwin G. Foulke, Jr.,
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya Commissioner
Dated: August 28, 1992

------------------------------------------------------------------------


Docket No. 91-2097

ORDER

Complainant's Motion for Reconsideration of Order Vacating the Citation
and Notification of Proposed Penalty and for Acceptance of a Fully
Executed Stipulation of Settlement has been considered.

The motion does not address why a complaint was not filed. The Order of
October 16, 1991 could have been met by filing either a fully executed
stipulated of settlement or a complaint. Complainant's motion thus sets
forth no reasonable basic for reconsideration. Accordingly, it is DENIED.
MICHAEL H. SCHOENFELD Judge, OSHRC

Dated: DEC 1991
Washington, D.C.




FOOTNOTES:

[[1]] Rule 41(b) provides:

§ 2200.41 Failure to obey rates.
(b) Motion to set aside sanctions. For reasons deemed sufficient by the
Commission or Judge and upon motion expeditiously made, the Commission
or Judge may set aside a sanction imposed under paragraph (a) of this
rule. See § 2200.90(b)(3).

[[2]] We would point out that a tentative agreement was all the parties
had on the date the judge specified for filing either a complaint or a
signed settlement agreement. The Secretary's reliance on the statement
by Chartwell's president that the written agreement looked acceptable to
him completely overlooks the fact that he also stated that he wanted it
reviewed by his attorney. The fact that Chartwell had sent the written
agreement to its attorney means that the attorney could have reviewed
the document and document and suggested changes or advise Chartwell not
to sign it at all. A case is not truly "settled" until a settlement
agreement has been accepted by all the parties