“Docket No. 91-2097 SECRETARY OF LABOR,Complainant, v.CHARTWELL CORPORATION, Respondent.OSHRC Docket No. 91-2097DECISION 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 HealthAct of 1970, 29 U.S.C. ?? 651-678, (\”the Act\”) by failing to comply withstandards issued pursuant to that Act. The Secretary also issued a notice of failure toabate violations previously cited and proposed penalties totaling $12,600. After Chartwellcontested the citation, the notice of failure to abate, and the proposed penalties, thecase 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 violationby September 22, 1991. A few days before that date, the Secretary requested an extensionof time, and the judge granted her an additional thirty days, until October 22, 1991, tofile her complaint. On October 16, the judge received a letter from the Secretary statingthat: the parties had agreed to settle the case: a written agreement was being circulatedand the agreement would be forwarded to the judge when it was fully executed by theparties. The judge 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, onDecember 2, 1991, seventeen days after the date specified in the judge’s order, the judgeentered 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 reconsiderhis 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 thatChartwell’s president had informed the Secretary that he agreed to the terms but that hewas sending the document to his attorney to be reviewed. The Secretary stated that she hadnot received the executed document back from Chartwell until November 25, 1991, and thatshe had forwarded it to the judge on December 2, the same day he had dismissed thecitation. The motion recited that. at all times, the parties were in agreement as to theterms of the settlement, and that the Secretary regretted her failure to comply with theOctober 16 order. The Secretary asserted that justice would be served by accepting theagreed-upon settlement.On December 9, 1991, the judge entered an order denying the Secretary’s motion toreconsider. 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 ofwhether the judge abused his discretion by vacating the citations and proposed penaltiesfor failure to comply with his order.I. Arguments.In her petition for review, the Secretary argues that the judge erred in vacating thecitation. The Secretary asserts that the judge should not have imposed a sanction withouthaving first entered an order giving the Secretary an opportunity to show cause why thesanction should not he imposed. The Secretary also argues that, in any event, dismissalwas too severe 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 the Commission’s Rules ofProcedure 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 bythese rules or as required by the Commission or Judge, he may be declared to be in defaulteither:(1) on the initiative of the Commission or Judge, after having been afforded anopportunity 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 thedefaulting party or strike any pleading or document not filed in accordance with theserules.The Secretary’s argument is that alternative (1) of Rule 41(a) requires that the judgeissue a show cause order before declaring a party in default on his own motion. TheSecretary asserts that, because the judge failed to comply with the Commission’s Rules ofProcedure, his order must be reversed.The Secretary is partly correct. Under Rule 41(a), the judge should not have entered hisorder of dismissal on December 2 without affording the Secretary an opportunity to showcause why she should not be held in default. The rule does not, however, requirespecifically that the judge issue an order to show cause, as the Secretary argues; itrequires only that the party be afforded an opportunity to show cause why the sanctionshould not be imposed. Therefore, the Secretary is correct that the judge did err when heentered the order of dismissal on December 2. If that were the last action taken in thiscase by the judge, the proper course for the Commission to follow would be to remand thecase for the judge to afford the Secretary the opportunity to show why she should not besanctioned for her failure to comply.That opportunity has already been afforded the Secretary, however. The Secretary filed amotion for reconsideration. The judge entertained that motion and, based on the argumentsmade in support of the motion, found the Secretary’s grounds inadequate. Under thesecircumstances, the judge’s failure to follow the rule when he entered his December 2 orderdoes not require that his order be reversed, because Rule 41(a)’s requirement that theSecretary be given a chance to explain her noncompliance was accomplished when the judgeentertained the Secretary’s motion for reconsideration. In her motion, the Secretaryoffered an explanation as to why she had failed to comply with the October 16 order, andthe judge found that her explanation was unsatisfactory. Consequently. we do not agreewith the Secretary that Rule 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 the reasons set out inthe motion for reconsideration and thereby afforded the Secretary an opportunity to showcause why she should not be sanctioned. We therefore conclude that the judge’s orderentered 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 ComplyBecause default is specifically mentioned in Rule 41(a) as a possible sanction for failureto file a pleading required by the Rules, it is clearly one of the courses of actionpermitted under the rule. The Secretary asserts. nevertheless, that dismissal is too harsha sanction for the Secretary’s failure to comply and argues that the judge’s order shouldbe vacated because the judge abused his discretion by imposing a sanction too severe forthe offense.In determining whether a sanction imposed by a judgeis excessive, the test is whether the judge abused his or her discretion. A judge has verybroad discretion in imposing sanctions for noncompliance with his or her orders, and willnot be reversed if he or she stays within that discretion. Sealtite Corp., 15 BNA OSHC1130, 1134, 1991 CCH OSHD ? 29,398, pp. 39,582-83 (No. 88-1431, 1991) (citing NationalHockey League v. 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 to impose the sanction ofdismissal 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 thatthe judge erred as a matter of law in exercising his discretion.Duquesne Light Co., 8 BNA OSHC 1218, 1221 n.17. 1980CCH 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 of judicial opinion. Itoccurs when a judge’s decision is clearly unreasonable, arbitrary, or fanciful, when thedecision is based on erroneous conclusions of law, when the judge’s findings of fact areclearly erroneous, or when the record contains no evidence on which the judge rationallycould 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 havebeen given weight is not considered, when an irrelevant or improper factor is consideredand given significant weight, or when all proper factors are considered, no improperfactors are considered, but the judge commits a clear error of judgment in weighing thesefactors. 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 discretionby imposing too harsh a sanction is the availability of other sanctions. Unfortunately,the sanctions available to the Commission’s administrative law judges are limited. Forexample, 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 lawjudge does not have such power. Some of the other sanctions available to the judge, suchas the striking of a pleading, are tantamount to finding the party in default. TheSecretary has suggested no intermediate sanction that would be effective in assuringcompliance, and we do not see any. Under these circumstances, we are unwilling to set downa blanket rule holding that, when a judge attempts to promote expeditious adjudication (orsettlement) of cases before the Commission and insure economical and efficient handling ofthe cases on his or her docket by imposing sanctions on a party who is more than two weeksdelinquent. it constitutes an abuse of the judge’s discretion to hold that party indefault 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 asanction imposed under Rule 41(a) if presented with \”sufficient\” reasons to setit 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 ofdismissal was not warranted because her conduct was not contumacious and Chartwellsuffered 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 theeffect of the delay on Chartwell, these arguments do not necessarily constitute sufficientgrounds under Rule 41(b) to set aside the sanction imposed by the judge. Prejudice andcontumacy are factors to he considered in determining whether a severe sanction iswarranted, but they are not the only ones. An important factor here is the Secretary’sfailure to give any explanation 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 of compliance. The Secretaryhas explained why she did not file the executed agreement by the date specified: She hadnot received it back from Chartwell. What the Secretary has failed to do in either hermotion for reconsideration or her petition for discretionary review, is to offer areasonable explanation of why she failed to perform the alternative means specified by thejudge of complying with his order by filing a complaint. The Secretary also has failed tomake any representation that she ever communicated with Chartwell or its attorney toattempt to hasten the review process. Finally, the Secretary has offered no explanationwhy, although she had the signed agreement in hand a week before the judge entered hisfirst order of dismissal, she failed to file the agreement promptly. Given the Secretary’sfailure to give any explanation at all for her omissions, we find that she has not givensufficient reason to set aside the judge’s December 9 order.As the judge’s October 16 order stated, citing authority, the fact that settlementnegotiation are being conducted or that there is a tentative agreement on the terms orsettlement [[2]] does not relieve either party from its obligation to file pleadings ontime or to comply with our rules.III. ConclusionFor the reasons stated above, we hold that the judge did not abuse his discretion when heentered his December 9 order denying the Secretary’s motion for reconsideration andaffirming his order of December 2, which had vacated the citations and notice of proposedpenalties. The judge’s order of December 9, 1991, is therefore affirmed.Edwin G. Foulke, Jr.,ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: August 28, 1992Docket No. 91-2097ORDER Complainant’s Motion for Reconsideration of Order Vacating the Citation and Notificationof Proposed Penalty and for Acceptance of a Fully Executed Stipulation of Settlement hasbeen considered.The motion does not address why a complaint was not filed. The Order of October 16, 1991could have been met by filing either a fully executed stipulated of settlement or acomplaint. Complainant’s motion thus sets forth 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 the Commission orJudge and upon motion expeditiously made, the Commission or Judge may set aside a sanctionimposed 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 datethe judge specified for filing either a complaint or a signed settlement agreement. TheSecretary’s reliance on the statement by Chartwell’s president that the written agreementlooked acceptable to him completely overlooks the fact that he also stated that he wantedit reviewed by his attorney. The fact that Chartwell had sent the written agreement to itsattorney means that the attorney could have reviewed the document and document andsuggested 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 “