“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 ChartwellCorporation (\”Chartwell\”) committed various violations of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678, (\”theAct\”) by failing to comply with standards issued pursuant to that Act.The Secretary also issued a notice of failure to abate violationspreviously cited and proposed penalties totaling $12,600. AfterChartwell contested the citation, the notice of failure to abate, andthe proposed penalties, the case was assigned to an administrative lawjudge 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 allegingthe facts constituting a violation by September 22, 1991. A few daysbefore that date, the Secretary requested an extension of time, and thejudge granted her an additional thirty days, until October 22, 1991, tofile her complaint. On October 16, the judge received a letter from theSecretary stating that: the parties had agreed to settle the case: awritten agreement was being circulated and the agreement would beforwarded to the judge when it was fully executed by the parties. Thejudge then entered an order directing the Secretary to file either acomplaint 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 datespecified in the judge’s order, the judge entered another order vacatingthe citation and notice of proposed penalty.Two days later, on December 4, the Secretary filed a motion asking thejudge to reconsider his order and accept the signed settlementagreement, which was Included with the motion. The Secretary’s motionrecited that the agreement had been sent to Chartwell, and thatChartwell’s president had informed the Secretary that he agreed to theterms but that he was sending the document to his attorney to bereviewed. The Secretary stated that she had not received the executeddocument back from Chartwell until November 25, 1991, and that she hadforwarded it to the judge on December 2, the same day he had dismissedthe citation. The motion recited that. at all times, the parties were inagreement as to the terms of the settlement, and that the Secretaryregretted her failure to comply with the October 16 order. The Secretaryasserted that justice would be served by accepting the agreed-uponsettlement.On December 9, 1991, the judge entered an order denying the Secretary’smotion 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’sorder was directed for review on the issue of whether the judge abusedhis discretion by vacating the citations and proposed penalties forfailure to comply with his order.I. Arguments.In her petition for review, the Secretary argues that the judge erred invacating the citation. The Secretary asserts that the judge should nothave imposed a sanction without having first entered an order giving theSecretary an opportunity to show cause why the sanction should not heimposed. The Secretary also argues that, in any event, dismissal was toosevere a sanction and, therefore, it constituted an abuse of the judge’sdiscretion.II. Analysis.A. Should the Judge Have Issued A Show Cause OrderThe Secretary’s first argument is based on Rule 41(a) of theCommission’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 proceedas provided by these rules or as required by the Commission or Judge, hemay be declared to be in default either:(1) on the initiative of the Commission or Judge, after having beenafforded an opportunity to show cause why he should not be declared tobe in default;or(2) in the motion of a party.Thereafter, the Commission or Judge, in their discretion, may enter adecision against the defaulting party or strike any pleading or documentnot filed in accordance with these rules.The Secretary’s argument is that alternative (1) of Rule 41(a) requiresthat the judge issue a show cause order before declaring a party indefault on his own motion. The Secretary asserts that, because the judgefailed to comply with the Commission’s Rules of Procedure, his ordermust be reversed.The Secretary is partly correct. Under Rule 41(a), the judge should nothave entered his order of dismissal on December 2 without affording theSecretary an opportunity to show cause why she should not be held indefault. The rule does not, however, require specifically that the judgeissue an order to show cause, as the Secretary argues; it requires onlythat the party be afforded an opportunity to show cause why the sanctionshould not be imposed. Therefore, the Secretary is correct that thejudge did err when he entered the order of dismissal on December 2. Ifthat were the last action taken in this case by the judge, the propercourse for the Commission to follow would be to remand the case for thejudge to afford the Secretary the opportunity to show why she should notbe sanctioned for her failure to comply.That opportunity has already been afforded the Secretary, however. TheSecretary filed a motion for reconsideration. The judge entertained thatmotion and, based on the arguments made in support of the motion, foundthe Secretary’s grounds inadequate. Under these circumstances, thejudge’s failure to follow the rule when he entered his December 2 orderdoes not require that his order be reversed, because Rule 41(a)’srequirement that the Secretary be given a chance to explain hernoncompliance was accomplished when the judge entertained theSecretary’s motion for reconsideration. In her motion, the Secretaryoffered an explanation as to why she had failed to comply with theOctober 16 order, and the judge found that her explanation wasunsatisfactory. Consequently. we do not agree with the Secretary thatRule 41(a) requires that the judge’s final order in this case, theDecember 9 order, be vacated.We find that the judge cured his original error when he considered thereasons set out in the motion for reconsideration and thereby affordedthe Secretary an opportunity to show cause why she should not besanctioned. We therefore conclude that the judge’s order entered onDecember 9 fully complied with the requirements of Rule 41(a).B. Did the Judge Abuse His Discretion by Dismissing the Citation forFailure to ComplyBecause default is specifically mentioned in Rule 41(a) as a possiblesanction for failure to file a pleading required by the Rules, it isclearly one of the courses of action permitted under the rule. TheSecretary asserts. nevertheless, that dismissal is too harsh a sanctionfor the Secretary’s failure to comply and argues that the judge’s ordershould be vacated because the judge abused his discretion by imposing asanction too severe for the offense.In determining whether a sanction imposed by a judge is excessive, thetest is whether the judge abused his or her discretion. A judge has verybroad discretion in imposing sanctions for noncompliance with his or herorders, and will not be reversed if he or she stays within thatdiscretion. Sealtite Corp., 15 BNA OSHC 1130, 1134, 1991 CCH OSHD ?29,398, pp. 39,582-83 (No. 88-1431, 1991) (citing National Hockey Leaguev. Metropolitan Hockey Club, 427 U.S. 639.642 (1976), and Heat & ControlInc. v. Hester Indus., 785 F.2d 1017,. 1022 (Fed. Cir. 1986)).We have recently addressed the question of a judge’s discretion toimpose the sanction of dismissal for failure to comply with discoveryorders in Sealtite Corp., where we said:Abuse of discretion does not imply improper conduct by the judge. Itmerely indicates that the judge erred as a matter of law in exercisinghis 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 usedby the courts to describe more than a mere error or difference ofjudicial opinion. It occurs when a judge’s decision is clearlyunreasonable, arbitrary, or fanciful, when the decision is based onerroneous conclusions of law, when the judge’s findings of fact areclearly erroneous, or when the record contains no evidence on which thejudge rationally could have based his decision. Heat & Control, Inc. v.Hester Indus., 785 F.2d 1017, 1022 (Fed. Cir. 1986). Abuse of discretionoccurs when a relevant factor that should have been given weight is notconsidered, when an irrelevant or improper factor is considered andgiven significant weight, or when all proper factors are considered, noimproper factors are considered, but the judge commits a clear error ofjudgment 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 hisor her discretion by imposing too harsh a sanction is the availabilityof other sanctions. Unfortunately, the sanctions available to theCommission’s administrative law judges are limited. For example, if aparty or attorney does not obey the order of a judge in the federalcourts, 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 othersanctions available to the judge, such as the striking of a pleading,are tantamount to finding the party in default. The Secretary hassuggested no intermediate sanction that would be effective in assuringcompliance, and we do not see any. Under these circumstances, we areunwilling to set down a blanket rule holding that, when a judge attemptsto promote expeditious adjudication (or settlement) of cases before theCommission and insure economical and efficient handling of the cases onhis or her docket by imposing sanctions on a party who is more than twoweeks delinquent. it constitutes an abuse of the judge’s discretion tohold that party in default if the party offers no reasonable explanationfor its delinquency.Under Rule 41(b) of the Commission’s Rules of Procedure,[[1]] theCommission set aside a sanction imposed under Rule 41(a) if presentedwith \”sufficient\” reasons to set it aside. See Choice Electric Corp., 14BNA 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 wasnot warranted because her conduct was not contumacious and Chartwellsuffered no prejudice from the Secretary’s failure to comply with theOctober 16 order. Although we do not disagree with the Secretary’scharacterization of her conduct and the effect of the delay onChartwell, these arguments do not necessarily constitute sufficientgrounds under Rule 41(b) to set aside the sanction imposed by the judge.Prejudice and contumacy are factors to he considered in determiningwhether a severe sanction is warranted, but they are not the only ones.An important factor here is the Secretary’s failure to give anyexplanation of why she failed to file a complaint or to ask the judgefor more time to submit the executed settlement.The judge’s October 16 order specified two alternate means ofcompliance. The Secretary has explained why she did not file theexecuted agreement by the date specified: She had not received it backfrom Chartwell. What the Secretary has failed to do in either her motionfor reconsideration or her petition for discretionary review, is tooffer a reasonable explanation of why she failed to perform thealternative means specified by the judge of complying with his order byfiling a complaint. The Secretary also has failed to make anyrepresentation that she ever communicated with Chartwell or its attorneyto attempt to hasten the review process. Finally, the Secretary hasoffered no explanation why, although she had the signed agreement inhand a week before the judge entered his first order of dismissal, shefailed to file the agreement promptly. Given the Secretary’s failure togive any explanation at all for her omissions, we find that she has notgiven sufficient reason to set aside the judge’s December 9 order.As the judge’s October 16 order stated, citing authority, the fact thatsettlement negotiation are being conducted or that there is a tentativeagreement on the terms or settlement [[2]] does not relieve either partyfrom its obligation to file pleadings on time or to comply with our rules.III. ConclusionFor the reasons stated above, we hold that the judge did not abuse hisdiscretion when he entered his December 9 order denying the Secretary’smotion for reconsideration and affirming his order of December 2, whichhad vacated the citations and notice of proposed penalties. The judge’sorder of December 9, 1991, is therefore affirmed.Edwin G. Foulke, Jr.,ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: August 28, 1992————————————————————————Docket No. 91-2097ORDERComplainant’s Motion for Reconsideration of Order Vacating the Citationand Notification of Proposed Penalty and for Acceptance of a FullyExecuted Stipulation of Settlement has been considered.The motion does not address why a complaint was not filed. The Order ofOctober 16, 1991 could have been met by filing either a fully executedstipulated of settlement or a complaint. Complainant’s motion thus setsforth no reasonable basic for reconsideration. Accordingly, it is DENIED.MICHAEL H. SCHOENFELD Judge, OSHRCDated: DEC 1991Washington, 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 theCommission or Judge and upon motion expeditiously made, the Commissionor Judge may set aside a sanction imposed under paragraph (a) of thisrule. See ? 2200.90(b)(3).[[2]] We would point out that a tentative agreement was all the partieshad on the date the judge specified for filing either a complaint or asigned settlement agreement. The Secretary’s reliance on the statementby Chartwell’s president that the written agreement looked acceptable tohim completely overlooks the fact that he also stated that he wanted itreviewed by his attorney. The fact that Chartwell had sent the writtenagreement to its attorney means that the attorney could have reviewedthe document and document and suggested changes or advise Chartwell notto sign it at all. A case is not truly \”settled\” until a settlementagreement has been accepted by all the parties”