“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?6850, 79?6912, 80?1028 \u00a0 ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED STEELWORKERS OF AMERICA, LOCAL 1742, ??????????????? Authorized Employee Representative \u00a0 \u00a0 \u00a0 \u00a0September 30, 1980DECISIONBEFORE: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Theseconsolidated cases arise under the Occupational Safety and Health Act of 1970,29 U.S.C. ?? 651?678 (?the Act?).[1] They are before theCommission pursuant to Commission Rule 75(c) as the result of previously issuedCommission orders granting the petitions for interlocutory appeal filed in eachcase by the respective Respondent.[2] At issue is the proprietyof orders entered in the three cases by Administrative Law Judge Irving Sommerand containing the following common elements:??????????? (a) Awaiver of the requirement of Commission Rule 33(a)(1), 29 C.F.R. ?2200.33(a)(1), that the Secretary of Labor (?the Secretary?) file a complaintin a proceeding initiated by an employer notice of contest;[3] ??????????? (b) Aruling that the citation or citations ?shall stand? as the Secretary?scomplaint in the proceeding; and??????????? ?(c) An order to the Respondent to file ananswer as required under Commission Rule 33(b), 29 C.F.R. ? 2200.33(b).[4]?For the reasons stated below, we conclude that thejudge erred in entering the challenged orders. Accordingly, we vacate theorders and remand these cases for further proceedings consistent with thisopinion.I??????????? Theprocedural history of each of the cases under review is very similar.Furthermore, in each case, the respective positions of the judge, theSecretary, and the employer are essentially the same. Accordingly, we set forththe background of OSHRC Docket No. 79?6850 as illustrative of the history ofeach of the cases on review. Although differences among the cases are notedwhere they exist, none of these differences are material to our disposition ofthese cases.??????????? As aresult of an inspection of a facility in El Paso, Texas, from October 10?18,1979, the Secretary issued a citation for serious violation of the Act toRespondent ASARCO, Inc., El Paso Division (?ASARCO?), on November 8, 1979.ASARCO filed a timely notice of contest to the citation and the proposedpenalty on December 6, 1979, the notice of contest was received by theSecretary on December 10, and the case was docketed by the Commission as OSHRCDocket No. 79?6850.[5]??????????? UnderCommission Rule 33(a)(1), note 3 supra, a complaint was due to be filed by theSecretary on or before December 31, 1979 (the first working day following theexpiration of the twenty-day period, see Commission Rule 4(a), 29 C.F.R ?2200.4(a)). Nevertheless, the Secretary did not file either a complaint or amotion for extension of time to file a complaint within this period.[6] On February 27, 1980,Judge Sommer entered the following order in No. 79?6850 (?show cause order?):??????????? Sinceno timely Complaint has been filed, pursuant to Commission Rule 38 theSecretary of Labor is hereby ordered within ten (10) days from notice of thisOrder to show cause why the contested action should not stand as a Complaint,or alternatively to file forthwith a Complaint. Cf. IMC Chemical Group,Inc., No. 76?4761 (November 17, 1978).??????????? Neitherparty responded to this order, despite the fact that a certified receipt wasreturned indicating service was accomplished on the Secretary?s representative.Accordingly, on March 28, 1980, Judge Sommer issued a second order (?order toanswer?):??????????? Therebeing no response to my February 27, 1980 Order, the contested action of theSecretary shall stand as the Complaint in this matter. Cf. IMC ChemicalGroup, Inc., No. 76?4761 (Nov. 17, 1978).??????????? Respondentis allowed fifteen (15) days to Answer or otherwise plead.[7]??????????? Inresponse to the judge?s order to answer, ASARCO filed, on April 15, 1980, a?Motion to Vacate Citation.? ASARCO argued that the use of the word ?shall? inCommission Rule 33(a)(1) creates a ?mandatory? requirement that a complaint befiled and that the Secretary had not offered any explanation or justificationfor his failure to comply with this requirement. It further argued that thecitation cannot under the Commission?s Rules of Procedure stand as a complaint,particularly because a citation does not meet the requirements of Rule33(a)(2). See note 3 supra. Accordingly, in its view, vacating of the citationfor the Secretary?s failure to comply with Rule 33(a)(1) was warranted.??????????? Inaddition, ASARCO contended that the judge had exceeded his authority by waivingthis ?fundamental concept of administrative due process.? Specifically, itasserted, the judge?s orders were not justified under either of the authoritieshe cited, that is, Rule 38 of the Commission?s Rules of Procedure[8] and the Commission?sdecision in IMC Chemical Group, Inc., 78 OSAHRC 95\/C 14, 6 BNA OSHC2075, 1978 CCH OSHD ?23,149 (No. 76?4761, 1978), appeals filed, Nos.79?3018 and 79?3041 (6th Cir. January 11 and 16, 1979) (?IMC?). Thus, ASARCOcontinued, Commission Rule 38 authorizes a judge to accept or reject late-filedpleadings, but ?presupposes? that the pleading is eventually filed. The ruledoes not, in its view, grant to a judge ?the right or power to modify orcompletely abrogate mandatory rules of procedure.? In addition, ASARCO arguedthat the judge?s action was not supported by the decision in IMC. Itnoted that IMC ?involved a procedural point not covered by the ReviewCommission?s Rules of Procedure? whereas here ?there is a specific [Commission]rule governing the procedural issue?, a rule that is binding, under thespecific terms of Commission Rule 2(a), 29 C.F.R. ? 2200.2(a), in ?allproceedings before the Commission and its judges.???????????? Inthe alternative, ASARCO contended that, even if the judge had the authority towaive the requirement of Rule 33(a)(1), waiver in this case constituted anabuse of discretion. It argued that the judge had improperly given to theSecretary the authority to determine whether to comply with the rule, that thejudge had provided no explanation or justification for the waiver, and that theSecretary had provided no justification for his failure to comply with therule. In addition, ASARCO asserted that the waiver resulted in substantialprejudice to it because it was unable to comply with Commission Rule 33(b)(2),note 4 supra, unless the Secretary first made the allegations it was requiredto admit or deny.[9]??????????? OnApril 24, 1980, the Secretary filed a memorandum in opposition to ASARCO?smotion to dismiss. This document was the first filed by the Secretary in No.79?6850.[10]In his memorandum, the Secretary contended that dismissal was unwarrantedbecause the Secretary had complied with the orders issued by Judge Sommer. Inhis view, the judge?s show cause order ?did not call for a response unlessComplainant desired to file a complaint.? The Secretary also disagreed withASARCO?s claim that he had disregarded the Commission?s Rules of Procedure byfailing to file a complaint. Thus, the Secretary asserted the following:?. . . [I]t should be noted that theCommission, having promulgated its Rules, can certainly interpret them, as itdid in Secretary of Labor v. IMC Chemical Group, Inc., . . .. Respondent?sassertion of prejudice is clearly inadequate in view of the Commission?scodification in imc of the legal affect to be given a citation issued under theAct, i.e. that it ?. . . serves the primary function of a complaint . . .? . … [citations omitted]???????????? OnMay 7, 1980, the judge issued a third order in the case, denying ASARCO?smotion to dismiss. In essence, he reasoned that pleadings are relativelyunimportant in administrative proceedings, that the Secretary?s citation andproposed penalties placed the Respondent on notice of the Secretary?sallegations and that ASARCO had not shown that it was prejudiced by his orders.[11] Accordingly, hereaffirmed his order to answer. In response, ASARCO requested specialpermission from the judge to appeal from the denial of its motion to dismiss.This request was denied by the judge on the ground that ?[n]o substantialquestion of law exists in light of the opinions? in IMC and in National Realty.ASARCO thereafter sought and obtained an interlocutory appeal from theCommission.[12]??????????? ASARCO?spetition for interlocutory appeal was opposed by the Secretary, who stated hisagreement with the judge?s conclusion that no substantial question of lawexists in the case in light of IMC and National Realty. Specifically, theSecretary asserted:The Commission?s current position, asstated in IMC Chemical Group, Inc., supra, is that a citation sets fortha claim for relief, thus serving the primary function of a complaint, thatjurisdiction inheres in the Commission when issue is joined by the filing of arespondent?s notice of contest, and that a citation and a notice of contestshould be respectively treated like a complaint and answer in federal courtlitigation . . .. [t]he decision is dispositive of the Commission?sinterpretation of the legal effect to be given a citation and\/or notice of contestunder its own regulations . . .. Indeed, . . . [the decision] merely codified .. . precedent of treating the citation and notice of contest, respectively, asthe counterpart of the complaint and answer in federal litigation. This basicpremise is the very heart of the Commission?s simplified proceedings as setforth in 29 C.F.R. ? 2200.200 thru 2200.211.[13]???????????? TheSecretary also cited IMC as support for his contention that the reliefsought by ASARCO, that is, dismissal of the citation, would not be appropriate.In effect he asserted that he had relied on IMC, ?as reinforced by Order?sissued by administrative law judges in favor of the Secretary citing said casein support?, as justification for his failure to file a complaint in thisproceeding.??????????? OnAugust 1, 1980, shortly after the Commission granted ASARCO?s petition, theSecretary filed with the Commission a motion for leave to file pleading out oftime. Attached to the motion was a complaint to be filed in No. 79?6850. In hismotion, the Secretary stated that he had ?refrained from filing the document inreliance on Judge Sommer?s March 28, 1980 order and previous orders of a sameor similar nature? but that, ?without waiving his right to rely on the orders?,he now desired to ?expedite a hearing on the merits? by filing the complaint.ASARCO thereafter filed an opposition to the Secretary?s motion, arguing thatthe Secretary had failed to establish good cause for his delay in filing thecomplaint.[14]II??????????? Inproceedings under the Act, a citation is not a complaint. A citation is acreature of statute. See section 9 of the Act, 29 U.S.C. ? 658. Complaints owetheir existence to the Commission?s Rules of Procedure, specifically Rule33(a). See note 3 supra. These rules clearly recognize that citations and complaintsare separate documents. Thus, Rule 33(a)(1) establishes a filing deadline for acomplaint of twenty days after the Secretary has received a notice contestinghis citation. Rule 33(a)(2) lists specific allegations that must be included ina complaint. Some of these allegations are neither customarily found in norrequired to be included in citations. Compare Cement Asbestos Products Co.,80 OSAHRC ??, 8 BNA OSHC 1151, 1155, 1980 CCH OSHD ? 24,343 at p. 29,667 (No.78?1054, 1980) [complaints] with Gold Kist, Inc., 79 OSAHRC ??, 7 BNAOSHC 1855, 1861?1862, 1980 CCH OSHD ?24,205 at pp. 29,444?445 (No. 76?2049,1979) [citations]. In addition, Rule 33(a)(3), 29 C.F.R. ? 2200.33(a)(3),establishes a means whereby the citation can be amended in the complaint.??????????? Wefurther conclude that the filing of a complaint by the Secretary in aproceeding initiated by an employer notice of contest is a mandatoryrequirement under the Commission rules. We base this conclusion on the use ofthe word ?shall? in Rule 33(a)(1), giving that term its ordinary and customarymeaning. As noted by the parties, see note 13 supra and accompanying text, theCommission has recently created an exception to this requirement for casestried under its Simplified Proceedings experiment, the rules of which are setforth at Subpart M of 29 C.F.R. Part 2200. However we agree with Hughes Toolthat the creation of this limited exception merely serves to underscore themandatory nature of the general rule.[15]??????????? Boththe judge and the Secretary have relied heavily on the Commission decision in IMCas the basis of their view that a citation can ?stand? as a complaint in aCommission proceeding. In IMC, the Commission held that the Secretarydoes not have absolute discretion to unilaterally withdraw a citation once anotice of contest to that citation has been filed. Instead the Secretary canonly withdraw a citation with the approval of the Commission, which has theauthority to impose conditions on the withdrawal for the protection of otherparties, including affected employees.??????????? TheCommission?s decision was based on an interpretation of Fed. R. Civ. P. 41(a)as applied to Commission proceedings. The Commission rejected the Secretary?scontention that his motion was governed by Rule 41(a)(1), which provides, inpertinent part, that ?an action may be dismissed by the plaintiff without orderof the court . . . at any time before service by an adverse party of an answer. . ..? It concluded that the motion was governed instead by Rule 41(a)(2),which applies to all situations not covered by Rule 41(a)(1) and whichprovides, in pertinent part, that ?an action shall not be dismissed at theplaintiff?s instance save upon order of the court and upon such terms andconditions as the court deems proper.???????????? Inreaching this conclusion, the Commission reasoned as follows:We agree [with the Secretary and theRespondent] that Rule 41 is applicable to Commission proceedings. We believe,however, that, for the purposes of Rule 41(a)(1), a notice of contest isanalogous to an answer in ordinary civil litigation. Thus, respondent?s filingof a notice makes Federal Rule 41(a)(2) [footnote omitted] applicable to thisproceeding.?The Federal Rules of Civil Procedure arenot applicable without qualification to. Commission proceedings. Theadministrative procedures created for enforcing the Occupational Safety andHealth Act differ significantly from the procedures created under [almost] allother federal laws . . .. Under the Federal Rules, an action is commenced byfiling a complaint. Fed. R. Civ. P. 2. While it does not commence an action, acitation issued under the Act serves the primary function of a complaint, i.e., it sets forth a claim for relief . . .. Parties to a civil suit join issueand place a controversy before the courts upon the filing of an answer. Fed. R.Civ. P. 8. Under the Act, issue is joined and the merits of a controversy areplaced before the Commission upon the filing of a notice of contest . . .. Forthe purposes of applying Federal Rule 41(a)(1) to adjudications under the Act,a citation and notice of contest should be treated like a complaint and answer,respectively. Thus, by filing its notice of contest, respondent deprived theSecretary of the right to dismissal under Federal Rule 41(a)(1) . . .. 6 BNA OSHC at 2076, 1978 CCH OSHD at p.27,989.\u00a0??????????? Paraphrasingthis reasoning and quoting to selected portions of this language, the Secretaryand the judge have in effect interpreted IMC as meaning that a citation may betreated as a complaint for the purpose of applying Commission Rule 33(a). Forexample, the Secretary argued, in opposing ASARCO?s petition for interlocutoryappeal, that ?[t]he Commission?s current position, as stated in [IMC is]. . . that a citation and a notice of contest should be respectively treatedlike a complaint and answer in federal court litigation . . ..? We do not agreewith this interpretation of IMC.[16] Initially we note that,while the Commission?s language in IMC was carefully circumscribed andqualified by phrases such as ?[f]or the purposes of applying Federal Rule41(a)(1) to adjudications under the Act?, the judge and the Secretary haveeliminated these qualifications in their discussions of IMC. In sodoing, they have overlooked a fact that is critical to a proper understandingof IMC. In that case, we were not, as the Secretary contends, stating?the Commission?s interpretation of the legal effect [sic] to be given acitation and\/or notice of contest under its own regulations?. Instead, we wereinterpreting a rule set forth in the Federal Rules of Civil Procedure anddetermining how that rule should be applied in the practical context of aCommission proceeding.??????????? As westated in IMC, that interpretation was necessary because proceedingsunder the Act differ significantly from the ordinary civil proceedings that theFederal Rules were designed to govern. Here, in contrast, we are dealing withCommission Rule 33(a), a rule specifically developed by the Commission togovern proceedings under the Act. While Commission rules are of course subjectto interpretation, the question presented is fundamentally different than anissue involving the application of the Federal Rules to Commission proceedings.We therefore agree with the Respondents in the cases now before us that IMCis inapposite to the issue on appeal.??????????? Moreover,aside from the question of the effect of IMC on the cases before us, wenote our disagreement with the interpretation adopted by the judge and theSecretary of our statement in IMC, supra, that a citation ?serves the primaryfunction of a complaint, i. e., it sets forth a claim for relief.? Read incontext, our statement was that a citation serves the primary function of acomplaint under the Federal Rules of Civil Procedure. We adhere to thatstatement. However, we further conclude that a citation does not serve theprimary function of a complaint under the Commission?s Rules of Procedure. In aproceeding under the Act, an employer is given notice of the charge and therelief requested by a citation, while issue is joined and jurisdiction vestedin the Commission by the filing of a notice of contest. The complaint andanswer in our proceedings are designed to formulate the issues to be resolved.This purpose is accomplished by requiring the Secretary to set forth certainspecified allegations in his complaint, such as the basis for jurisdiction, andby further requiring the employer to respond to each of these allegations inits answer. See note 4 supra. Indeed, it is precisely because a citation andnotice of contest normally do not clearly define and delimit the issues to bedetermined by the Commission that the pleading rules have been adopted. Thus,the complaint serves important purposes independent of the citation and is anintegral pleading in our proceedings.??????????? Wefurther conclude that the position adopted by the judge and the Secretary isnot supported by National Realty and the other authorities cited by thejudge in his denial of ASARCO?s motion to dismiss. See note 11 supra. Theseauthorities merely reflect the longstanding policy, underlying the adoption ofthe Federal Rules of Civil Procedure, of withdrawing from older, more rigidpleading requirements. The Commission has frequently endorsed this policy,including the statement in National Realty that administrative pleadings shouldbe liberally construed and easily amended. Nevertheless, we do not equate aliberal policy of construction and amendment of pleadings with a practice ofdispensing with pleadings altogether. It is the propriety of the latterpractice that is the issue before us in these cases.??????????? Accordingly,for the reasons stated above, we conclude that the Secretary did not complywith Rule 33(a)(1) by issuing citations to the employers in the cases nowbefore us. In view of this conclusion, the issue to be resolved is whether thejudge erred in waiving this mandatory requirement.III??????????? TheRespondents contend that the judge exceeded his authority by waiving therequirement that the Secretary file complaints in these cases. We agree. The judgebased his orders solely on Commission Rule 38. See note 8 supra. However, thatrule does not grant to Commission judges the authority to waive therequirements of the Commission?s Rules of Procedure. Under the terms of therule, the authority granted is the power to terminate a party?s right to appearin the proceeding for failure to file a pleading when due, not the power towaive a requirement of the Rules of Procedure.??????????? Ourconclusion is reinforced by the fact that the Rules contain a specific provisiongoverning waiver of their requirements. Rule 108 of the Commission?s Rules ofProcedure, 29 C.F.R. ? 2200.108. That Rule provides as follows:? 2200.108 Special circumstances; waiverof rules.?In special circumstances not contemplatedby the provisions of these rules, or for good cause shown, the Commission may,upon application by any party or intervenor, or on its own motion, after 3 days?notice to all parties and intervenors, waive any rule or make such orders asjustice or the administration of the Act requires.???????????? Underthe Rule, the authority to grant waivers is reserved to the Commission.Furthermore, a waiver is to be granted only in special circumstances or upon ashowing of good cause. Here of course there are no special circumstances eithershown or even asserted that would justify a waiver under Rule 108. TheSecretary is not seeking a waiver of Commission Rule 33(a)(1). In these caseshe is seeking a revocation of that Rule.??????????? Wetherefore hold that the judge erred in entering the show cause orders andorders to answer in Docket Nos. 79?6850, 79?6912 and 80?1028. We hereby vacatethose orders.IV??????????? Thereremains before us the question of the order to be entered in these cases.During the pendency of these interlocutory appeals, the Secretary has filedbefore us in all three cases motions to accept the late filing of hiscomplaints. He also has forwarded copies of these complaints for filing. Inopposition to these motions, the Respondents have argued that the only properremedy at this stage in the proceedings is to vacate the Secretary?s citationsand dismiss the cases.??????????? It iswell established under Commission precedent that a citation or notice ofcontest ordinarily should not be dismissed for failure of a party to complywith the Commission?s Rules of Procedure or with other procedural requirements.See, e. g., Gircle T. Drilling Co., 80 OSAHRC ??, 8 BNA OSHC 1681, 1980CCH OSHD ? 24,583 (No. 79?2667, 1980); Duquesne Light Co., 80 OSAHRC ??,8 BNA OSHC 1218, 1980 CCH OSHD ? 24,384 (Nos. 78?5034 et al., 1980); RollinsOutdoor Advertising, Inc., 77 OSAHRC 24\/Cl, 5 BNA OSHC 1041, 1977?78 CCHOSHD ? 21,551 (No 12528, 1977). Thus, the policy in the law in favor ofdeciding cases on their merits generally prevails unless the party?snoncompliance results from its own contumacious conduct or results in prejudiceto the opposing party. Duquesne Light Co., supra.??????????? Here,while we do not condone the Secretary?s conduct in the cases before us, we donot characterize that conduct as contumacious. In opposing dismissal of theseactions, the Secretary argues that he had not failed to comply with any orderof the Commission and indeed has complied with the orders of the judge in thesense that those orders did not call for any response from the Secretary. Thisargument has merit. With respect to each of the captioned cases, we concludethat the Secretary?s failure to file a complaint was authorized from the timethe judge issued his initial order in the case.[17]??????????? Asfor the periods of time prior to the entry of the judge?s initial order in eachcase, the Secretary asserts that he did not file a complaint in reliance uponthe Commission?s decision in IMC and also in reliance upon earlier judges?decisions adopting the Secretary?s interpretation of IMC. We conclude that theSecretary has provided sufficient justification for his noncompliance with Rule33(a)(1) to preclude classifying his action as contumacious conduct.??????????? Wereject ASARCO?s generalized assertions of prejudice as an inadequate basis fordismissing the charges against it. Hughes Tool?s assertions, see note 14 supra,are more substantial. Nevertheless, we note that Safety Engineer Newsom?s deathoccurred on June 25, 1980, over two months after the judge had in effect waivedRule 33(a)(1) in Nos. 79?6912 and 80?1028. Therefore, while Hughes Tool mayhave been harmed by the loss of Newsom?s testimony, we do not consider thisprejudice attributable to the Secretary?s noncompliance with the Commission?sRules. As for the other potential witnesses who no longer work for Hughes Tool,we note initially that there is no indication these persons terminated theiractive employment prior to the time the Commission?s filing requirement waswaived and secondarily that there is no indication that the testimony of thesepersons cannot be obtained notwithstanding the fact that they are no longeractively employed by Hughes Tool.In sum, because we do not find the Secretary?s conductto be contumacious and because we conclude that the Respondents have notestablished that they were prejudiced by the Secretary?s failure to file timelycomplaints, we reject the Respondents? contentions that the citations in thesecases should be vacated. For these same reasons, we grant the Secretary?smotions for leave to file pleadings out of time.Accordingly, the judge?s orders to show cause andorders to answer are set aside, the Secretary?s motions for leave to filepleadings out of time are granted, and the Respondents are ordered to fileanswers to the Secretary?s complaints in due course. These cases are remandedto the chief judge for the purpose of assigning them to an administrative lawjudge or judges for further proceedings consistent with this decision.[18] SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: Sep 30, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?6850, 79?6912, 80?1028 \u00a0 ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED STEELWORKERS OF AMERICA, LOCAL 1742, ??????????????? Authorized Employee Representative \u00a0 \u00a0 \u00a0 \u00a0ORDER??????????? Respondentmoves for certification to the Commission pursuant to Rule 75 of theCommission?s Rules of Procedure of the order dated June 10, 1980, which??????????? 1.Denied the Respondent?s motion for reconsideration of an order dated May 8,1980, holding the contested action of the Secretary as the Complaint herein,??????????? 2.Denied the Respondent?s motion to dismiss for lack of jurisdiction and??????????? 3.Denied the Respondent?s motion for a more definite statement.??????????? Therequest of Respondent is denied. No substantial questions of law exist in lightof IMC Chemical Group, Inc., 6 BNA 2077 (Rev. Com. No. 76?4761, 1978)and National Realty and Construction Co. v. OSAHRC, 489 F2d (D.C. Cir.1975).??????????? Theattention of the Respondent is called to the Commission?s Rules of Procedure,Rule 75(c), 29 CFR Section 2200.75(c) relating to interlocutory appealfollowing denial of certification.IRVING SOMMERJudge, OSHRCDated: JUN 25, 1980 Washington, D.C.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?6850, 79?6912, 80?1028 \u00a0 ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED STEELWORKERS OF AMERICA, LOCAL 1742, ??????????????? Authorized Employee Representative \u00a0 \u00a0 \u00a0 \u00a0ORDER??????????? Motionby the Respondent for reconsideration of the order dated May 8, 1980 holdingthe contested action of the Secretary as the Complaint herein is denied. TheMay 8, 1980 order is re-affirmed. See IMC Chemical Group, Inc., No.76?4671 (Nov. 17, 1978) and National Realty and Construction Co., Inc. v.OSHRC 489 F.2d 1257 (D.C. Cir. 1973) concerning the notice function of acitation and relative unimportance of formal administrative pleadings.??????????? Motionto dismiss for lack of jurisdiction is denied. The filing of the notice ofcontest brings into play the Commission?s jurisdiction. See IMC ChemicalGroup, Inc., supra.??????????? Motionfor a more definite statement is denied. The contested action provides theRespondent with fair notice of the nature of the violations, standards notcomplied with, general location of the alleged violations and abatement periodand penalties sought. In short, the contested action is sufficiently specificso that Respondent can answer.??????????? TheRespondent is allowed fifteen (15) days from service of this order to answer.IRVING SOMMERJudge, OSHRCDated: June 10, 1980Washington, D.C.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?6850, 79?6912, 80?1028 \u00a0 ASARCO, INC., EL PASO DIVISION, HUGHES TOOL COMPANY \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED STEELWORKERS OF AMERICA, LOCAL 1742, ??????????????? Authorized Employee Representative \u00a0 \u00a0 \u00a0 \u00a0ORDER??????????? Therebeing no response to the April 7, 1980 Order, the contested action of theSecretary shall stand as the Complaint in this matter. Cf. IMC ChemicalGroup, Inc., No. 76?4716 (Nov. 17, 1978).??????????? Respondentis allowed fifteen (15) days to Answer or otherwise plead.?IRVING SOMMERJudge, OSHRCDated: May 8, 1980?Washington, D.C.[1] OSHRC Docket Nos.79?6850 and 80?1028 were consolidated by a Commission order entered on July 23,1980. We hereby consolidate OSHRC Docket No. 79?6912 with these two cases.Thecases are consolidated under Rule 9 of the Commission?s Rules of Procedure, 29C.F.R. ?\u00a02200.9, which provides as follows:Cases may be consolidated on the motion ofany party, on the judge?s own motion, or on the Commission?s own motion, wherethere exist common parties, common questions of law or fact, or both, or insuch other circumstances as justice and the administration of the Act require.Weconsolidate these cases on our own motion because they raise the same legalissue, there are no material differences in the facts relating to this issue,and, in OSHRC Docket Nos. 79?6912 and 80?1028, the parties are the same.[2] Commission Rule 75recently has been amended, see 44 Fed. Reg. 70,106 at 70,111 (1979), to becodified at 29 C.F.R. ? 2200.75. Under the revised rule, which is applicable tothe cases now before us, a party desiring to appeal from an interlocutoryruling is required initially to file with the judge a written request forcertification of the appeal. Rule 75(b). Only where, as here, the judge issuesan order denying the certification is the party allowed to petition theCommission for an interlocutory appeal. Rule 75(c).[3] Commission Rule33, 29 C.F.R. ? 2200.33, provides, in pertinent part, as follows:? 2200.33 Employer contest.(a) Complaint. (1) The secretary shallfile a complaint with the Commission no later than 20 days after his receipt ofthe notice of contest.(2) The complaint shall set forth allalleged violations and proposed penalties which are contested, stating withparticularity:(i) The basis for jurisdiction;(ii) The time, location, place, andcircumstances of each such alleged violation; and(iii) The considerations upon which theperiod for abatement and the proposed penalty on each such alleged violation isbased.[4] 29 C.F.R. ?2200.33(b) provides:(b) Answer. (1) Within 15 days afterservice of the complaint, the party against whom the complaint was issued shallfile an answer with the Commission.(2) The answer shall contain a short andplain statement denying those allegations in the complaint which the partyintends to contest. Any allegation not denied shall be deemed admitted.[5] OSHRC Docket Nos.79?6912 and 80?1028 arose from separate inspections of the same facility inHouston, Texas. The citations involved in No. 79?6912 were issued on December3, 1979, and contested by the Respondent Hughes Tool Company (?Hughes Tool?) onDecember 6, 1979. The notice of contest was received by the Secretary onDecember 7, 1979. In No. 80?1028, two citations were issued on January 24,1980. Hughes Tool filed its notice of contest, limited to citation 1 and therelated proposed penalties, on February 13, 1980. The Secretary received thisnotice of contest on February 15, 1980.[6] In no. 79?6912,the Secretary?s complaint was due by December 27, 1979. On December 21 theSecretary filed a motion for extension of time to file the complaint, seekingan extension until January 28, 1980. The Secretary did not file a complaint ora motion for further extension of time by January 28.InNo. 80?1028, the Secretary?s complaint was due on or before March 6, 1980.Neither a complaint nor a motion was filed by the Secretary within this period.[7] In No. 79?6912,Judge Sommer entered a show cause order on April 7, 1980, and an order toanswer on May 8, 1980. In the show cause order, Judge Sommer also granted partystatus to Local 1742 of the United Steelworkers of America. However, with thisexception, the orders in No. 79?6912 are essentially the same as the orders setforth above. As in No. 79?6850, the parties did not respond to the show causeorder even though the record establishes that a copy was received by theSecretary.InNo. 80?1028, Judge Sommer did not issue a show cause order. Instead, on April24, 1980, he entered the following order to answer:1.The Secretary of Labor has filed no complaint in accordance with therequirements of Commission Rule 33(a)(1) nor has there been a motion for anextension of time. Accordingly, the Secretary of Labor is considered to havewaived his right to file this pleading, and the contested action shall stand asnotice of his allegations in this case.2.The employer is allowed fifteen (15) days from service of this order to answerthe Secretary?s allegations.[8] Rule 38, 29 C.F.R.? 2200.38, provides as follows:? 2200.38 Failure to file.Failure to file any pleading pursuant tothese rules when due, may, in the discretion of the Commission or the judge,constitute a waiver of the right to further participation in the proceedings.[9] In Nos. 79?6912and 80?1028, Hughes Tool responded to Judge Sommer?s orders to answer, note 7supra, by filing essentially identical motions and supporting memoranda in bothproceedings on May 22, 1980, and no May 9, 1980, respectively. Hughes Toolfiled the following alternative motions:(a) a motion for reconsideration of thejudge?s order to answer;(b) a motion under Fed. R. Civ. P. 12(b)to dismiss for lack of jurisdiction (on the ground that the citation did notset forth ?the basis for jurisdiction? as required under Commission Rule33(a)(2)(i), note 3 supra); and(c) a motion under Fed. R. Civ. P. 12(e)for a more definite statement of the Secretary?s allegations.AlthoughHughes Tool filed different motions than did ASARCO in No. 79?6850, thearguments it made in support of its motions were very similar to the argumentsmade by ASARCO and set forth above. Hughes Tool also argued that Judge Sommerexceeded his authority in that his orders constituted ?prosecutional? ratherthan ?adjudicative? actions.[10] In Nos. 79?6912and 80?1028, the Secretary did not respond to the motions filed by Hughes Tool.See note 9 supra. In No. 79?6912, the Secretary took no action from the time hefiled his motion for extension of time to file a complaint, see note 6 supra,until after the Commission granted the Respondent?s petition for interlocutoryappeal. In No. 80?1028, the Secretary?s initial filing in the case occurredafter the petition for interlocutory appeal was granted. See note 14 infra. Wenote, however, that Judge Sommer had already ruled on ASARCO?s motion by thetime Hughes Tool filed its motions in Nos. 79?6912 and 80?1028.[11] The judge citedthe following as authority for the conclusions he stated:(a) National Realty & Constr. Co.v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) [?,National Realty?][rejects contention that citation and complaint did not provide adequate noticeof the charge, citing ?the familiar rule that administrative pleadings are veryliberally construed and very easily amended?, 489 F.2d at 1264];(b) Marshall v. B.W. Harrison Lumber Co.,569 F.2d 1303 (5th Cir. 1978) [sets forth liberal interpretation of therequirement of section 9(a) of the Act, 29 U.S.C. ? 658(a), that a citation?describe with particularity the nature of the violation?];(c) Usery v. Marquette Cement Mfg, Co.,568 F.2d 902 (2nd Cir. 1977) [adopts liberal policy of permitting amendments topleadings under the act]; and(d) I Davis, Administrative LawTreatise ? 8.04 (1958) [discusses relative unimportance of pleadings inadministrative proceedings].[12] The proceduralhistory at this stage in the proceedings is the same in Nos. 79?6912 and80?1028, that is, the judge denied Hughes Tool?s motions, see note 9 supra,Hughes Tool requested special permission to appeal from the orders denying itsmotions, the judge denied these requests for the same reason stated above inreference to No. 79?6850, and Hughes Tool sought and obtained interlocutoryappeals from the Commission.Indenying the motions made by Hughes Tool, Judge Sommer followed reasoningsimilar to that set forth in his denial of ASARCO?s motion. However, heexpanded on that reasoning. Thus, in No. 79?6912 he concluded that the citationprovided Hughes Tool ?with fair notice of the nature of the violations,standards not complied with, general location of the alleged violations andabatement periods and penalties sought? and that it was ?sufficiently specific sothat Respondent can answer.?InNo. 80?1028, Judge Sommer reiterated his conclusions in No. 79?6912 and addedan analysis paraphrasing many of the Commission?s statements in IMC. Forexample, he stated, without qualification, that ?[t]he citation serves theprimary function of a Complaint, and the Notice of Contest is analogous to anAnswer.?Inurging first the judge and then the Commission to grant interlocutory appealsin these cases, both ASARCO and Hughes Tool basically restated the positionsthey had taken in support of their original motions before the judge.[13] On December 5,1979, the Commission promulgated a new subpart to its Rules of Procedure,Subpart M?Simplified Proceedings. 44 Fed. Reg. 70,106 at 70,112?113 (1979). Asnoted at the beginning of the subpart, these rules were ?instituted on anexperimental basis for a period of 1 year from its effective date.? TheCommission expressly reserved a ruling on the ?final status? of Subpart M untilthe expiration of this experimental period. In pertinent part, the new subpartprovides:? 2200.204 Filing of pleadings.(a) Complaint and answer. There shall beno complaint or answer in simplified proceedings . . ..Inits petitions for interlocutory appeal, Hughes Tool also referred to the newrules in Subpart M. However, it interpreted their effect differently, arguingthat ?the Commission?s express exclusion of the complaint in this contextmerely serves to reinforce the conclusion that in regular Commission proceedings,a complaint is compulsory.[14] In Nos. 79?6912and 80?1028, the Secretary did not file oppositions to Hughes Tool?s petitionsfor interlocutory appeal. However, shortly after these petitions were granted,the Secretary did file motions in both cases to accept late filing ofcomplaints that were attached to the motions. The motions in all three of thecases before us are virtually identical. Moreover, like ASARCO, Hughes Toolfiled oppositions to the motions. It argued that it would be ?manifestly unjustand highly prejudicial? to allow the Secretary to file the complaints after adelay of several months. In support of its claim of prejudice, it attachedaffidavits to its oppositions in both cases. In No. 80?1028, the affidavitstated that Thomas L. Newsom, Hughes Tool?s Safety Engineer, had died on June25, 1980; that Newsom would have been one of its ?primary witnesses?; that histestimony was now unavailable due to his death; and that Hughes Toolaccordingly ?would be substantially prejudiced if it were called upon topresent its case before the Administrative Law Judge.? In No. 79?6912, theaffidavit cited not only Newsom?s death but also the unavailability of threeother ?Key witnesses? who, for varying reasons, were no longer working forHughes Tool.[15] There arelimitations both on the applicability of Subpart M and on the eligibility ofcases for simplified proceedings. Commission Rules 201 and 202, 44 Fed. Reg.70,106 at 79,112 (1979), to be codified in 29 C.F.R. ?? 2200.201 and 2200.202.Nevertheless, within the constraints of these limitations, Subpart M providesthe Secretary a means whereby he can act under the express authority of theCommission?s Rules of Procedure and yet proceed without filing a complaint.However, there is no indication in the records of the cases now before us thatthe Secretary requested simplified proceedings in any of these cases.[16] CommissionerBarnako dissented from the Commission?s decision in IMC, agreeing with theparties that Fed. R. Civ. P. 41(a)(1) was applicable to the Secretary?s motion.In particular, Commissioner Barnako rejected the analogy drawn by the majority,arguing that ?the dissimilarities between a complaint\/answer andcitation\/notice of contest are greater than the similarities.? 6 BNA OSHC at2080, 1978 CCH OSHD at p. 27,993.Accordingly,in the cases now under review, Commissioner Barnako does not join in hiscolleagues? discussion of their majority opinion in IMC. He adheres tothe views expressed in his dissenting opinion in that case. Thus, he concludesthat a citation is not a complaint and is neither analogous to nor equivalentto a complaint. This holds true regardless of whether Commission Rule 33(a) orFed. R. Civ. P. 41(a) is being interpreted.[17] As indicated, thejudge issued a show cause order in No. 79?6850 on February 27, 1980, and in No.79?6912 on April 7, 1980. These orders gave the Secretary the option of notfiling a complaint. The initial order in No. 80?1028 was issued by the judge onApril 24, 1980. It expressly instructed the Secretary not to file a complaintin the case.[18] Rule 10 of theCommission?s Rules of Procedure, 29 C.F.R. ? 2200.10, provides as follows:? 2200.10 Severance.Upon its own motion, or upon motion of anyparty or intervenor, the Commission or the judge may, for good cause, order anyproceeding severed with respect to some or all issues or parties.We hereby find good cause for severing No.79?6850 from Nos. 79?6912 and 80?1028 and accordingly we sever that case fromthis consolidated proceeding under Rule 10. OSHRC Docket No. 79?6850 involves adifferent Respondent than the Respondent in the other two cases. Moreover,based on our review of the records, we conclude that there apparently are noremaining issues of fact or law that are common to No. 79?6850 and either ofthe other cases. Because Nos. 79?6912 and 80?1028 involve the same parties andbecause they both arose from inspections of the same workplace, the decision asto whether these two cases should be severed from each other is left to theparties and the judge on remand.”