“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?1031 \u00a0 FWA DRILLING COMPANY, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 30, 1980ORDEROF REMAND??????????? A decision of Administrative Law Judge Quentin P.McColgin[1] is before the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651?678. In that decision, Judge McColgin denied the Secretary?smotion to file pleading out of time and vacated a citation issued to respondentfor the Secretary?s failure to file a timely complaint. For the reasons thatfollow, we reverse the Judge?s decision and remand the matter for furtherproceedings.The Commission hasrecently held that the failure of the Secretary to file a timely complaint doesnot justify vacating a citation absent a finding that the failure either wasthe result of the Secretary?s contumacious conduct or resulted in prejudice tothe employer. Boardman Co., OSHRC Docket No. 80?75 (December 16, 1980); ASARCO,Inc., El Paso Div., 80 OSAHRC ??, 8 BNA OSHC 2156, 1980 CCH OSHD ?24,838(No. 79?6850, 1980).??????????? The Secretary?s explanation for not filing a timelycomplaint in this matter is substantially similar to that in Boardman Co.,supra. As we found in Boardman, the Secretary?s explanation issufficient to preclude a finding of contumacious conduct. Moreover, at thistime respondent has not established any prejudice resulting from theSecretary?s failure to file a timely complaint.??????????? Accordingly, we reverse Judge McColgin?s decisionvacating the citation. We grant the Secretary?s motion to file pleading out oftime and accept the complaint filed with the motion. Respondent is granted 15days to answer the complaint, and the case is remanded to the Judge for furtherproceedings consistent with this opinion.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 30, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?7196 OSHRC DOCKET NO. 80?0168 OSHRC DOCKET NO. 80?0607 OSHRC DOCKET NO. 80?0610 OSHRC DOCKET NO. 80?1031 (Consolidated) GENERAL MOTORS CORPORATION, GENERAL MOTORS ASSEMBLY DIVISION, ALLIED PLANT MAINTENANCE COMPANY OF OKLAHOMA, INC., CLEMENT FOOD COMPANY, MILLCON CORPORATION, FWA DRILLING COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 November 3, 1980DECISIONAND ORDER??????????? By the undersigned?s order of July 21, 1980, these caseswere consolidated in order to resolve the issues common to them, namely,complainant?s failure to file complaints in each of these cases. In thisprevious order, certain orders issued prior to their assignment to theundersigned were vacated. These vacated orders were issued by a CommissionJudge who directed that the contested citations be treated as complaintsnotwithstanding the failure of complainant to file complaints in accordancewith Commission Rule 33(a)(1).[2] Additionally, the July 21,1980 order directed that complaints not be filed in these cases unless theywere accompanied by appropriated motions filed within a prescribed time periodfor leave to file complaints out of time.??????????? It was contemplated that any motion filed pursuant to theJuly 21, 1980 order would contain complainant?s reasons for failing to timelyfile complaints in these cases. Since it was thought that the reasons offeredmight vary from case to case, the undersigned, at the conclusion of his July 21order severed these cases.??????????? In response to that order, complainant has filed in eachcase a motion entitled ?Motion for Leave to File Complaint Out of Time.? Therespondent in each case, has filed a response to the motion opposing the reliefrequested and further requesting that the case be dismissed. Each motion filedby complainant has attached to it an identical affidavit by the RegionalSolicitor of the United States Department of Labor, Dallas, Texas (DallasRegional Solicitor). This affidavit constitutes the sole basis offered bycomplainant in support of the pending motions except for the assertioncontained in three of the motions that ?respondent has suffered no prejudice asa result of the delay in filing said complaint.?[3] Thus, the offering by theDallas Regional Solicitor of identical reasons to justify his failure to timelyfile complaints in these cases again presents common questions of both fact andlaw which warrants the consolidation of these cases. Accordingly, pursuant toCommission Rule 9, the above-entitled cases are hereby consolidated.??????????? After considering the reasons advanced in support of andin opposition to the motions, it is determined that complainant has not shownthe existence of circumstances which would justify permitting the filing ofcomplaints in these cases. Therefore, complainant?s motions are denied.??????????? The position advanced by the Dallas Regional Solicitor inhis affidavit is that on the basis of certain actions by the Commission and itsJudges, he concluded that the Commission considered the filing of complaints?unnecessary.? Further, in order to reduce ?unnecessary paperwork? and conserve?valuable attorney time,? the Dallas Regional Solicitor by reason of his actionor inaction caused complaints not to be filed in these cases.??????????? Commission Rule 33(a)(1) provides:The Secretaryshall file a complaint with the Commission no later than 20 days after hisreceipt of the notice of contest.?After examining this rulein conjunction with the matters claimed by the Dallas Regional Solicitor tohave led him to his conclusion, it is found that there is no reasonable basisfor concluding that complaints in these proceedings are unnecessary or notrequired.??????????? The principal Commission action relied upon by the DallasRegional Solicitor to support his conclusion is the Commission?s decision in IMCChemical Corp., Inc., 78 OSAHRC 95\/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ? 23,149(No. 76?4761, 1978). That case cannot be cited for the proposition thatcomplaints in Commission cases are unnecessary or are not required. In thatcase, the Secretary attempted to withdraw a contested citation before an answerwas filed which withdrawal was objected to by the affected employees. The issuepresented was whether the Secretary, as plaintiff, can unilaterally dismiss theaction pursuant to FED.R.CIV.P. 41(a)(1) before the filing of an answer. TheCommission held that the Secretary could not, reasoning that the issues werejoined and the rights of third parties attached upon the filing of a notice ofcontest. However, the holding in that case was expressly limited to the narrowissues presented there.[4]??????????? The Dallas Regional Solicitor also cites the Commission?saction of adopting simplified proceedings which ?generally do not permit orrequire pleadings? as ?indicative of the importance it ascribes to complaintsand answers in routine cases.? To the extent that the Dallas Regional Solicitorrelies upon this action to support the conclusion that complaints are unnecessaryor are not required, such reliance is badly misplaced.??????????? It is true that under the recently adopted rulesgoverning simplified proceedings, pleadings are generally not permitted orrequired. However, simplified proceedings are available only in those caseswhich are eligible and then only if timely requested by a party and notobjected to by any of the other parties. Thus, to the extent that theCommission?s action in adopting these simplified proceedings indicates theimportance it attaches to pleadings, it can be said that the Commission doesnot consider them important if the parties themselves do not consider themimportant. Corollarily, it can be said that the Commission considers pleadingsimportant in every case, if any of the parties consider them important. Inthese cases, it has been demonstrated by the action of respondents in objectingto complainant?s failure to file complaints that each respondent considerspleadings important. Thus, it follows that the Commission itself would considerpleadings in these cases important, and the Dallas Regional Solicitor?sconclusion to the contrary exceeds the bounds of reason.??????????? This argument also falls by its own weight with respectto two of the five cases involved here. The Dallas Regional Solicitor wouldcharacterize those cases that are eligible for simplified proceedings as?routine cases.? However, two of these cases (Docket Nos. 79?7196 &80?1031) concern violations which are ineligible for simplified proceedings.[5] Since it seems clear thatthe Dallas Regional Solicitor recognized these cases as non-routine, hisargument that pleadings are not considered necessary (important) in ?routine?cases does not support his position. Indeed, his own argument shows that hisfailure to file complaints in Docket Nos. 79?7196 & 80?1031 is unexcusable.??????????? The final series of actions upon which the DallasRegional Solicitor relies are not the actions of the Commission itself butrather the actions of ?judges of the Commission? who, it is claimed ?sinceearly 1979? have entered orders similar to those entered in these cases which?give the Secretary?s citation the legal effect of a complaint where none hasbeen filed . . .? Without question some, but not all, Commission judges haveissued such orders. Nevertheless, it is found that the Dallas RegionalSolicitor could not reasonably rely upon them. Such rulings were not reviewedby the Commission itself and therefore do not constitute precedent. LeoneConstruction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD ? 20,387(No. 4090, 1979). Furthermore, reliance upon such rulings is unjustified sincean intelligent reading of the Commission?s rules (specifically Rules 33(a), 38and 108) would make it clear to anyone that such rulings were erroneous.??????????? A review of the Dallas Regional Solicitor?s action in anearlier case also shows that this same solicitor was on notice that he couldnot ignore the filing requirements of Commission Rule 33(a)(1) with impunity.In Structural Metals Inc., 79 OSAHRC 43\/E4, 7 BNA OSHC 1452, 1979 CCHOSHD ? 23,635 (No. 78?3352, 1979), a case decided June 15, 1979, Judge Martinvacated the citation under circumstances substantially the same as presentedhere. Thereupon, the Dallas Regional Solicitor filed a motion forreconsideration with the Judge who forwarded such motion to the Commission. TheCommission, in turn, treated the motion as a petition for reconsideration whichwas granted. However, rather than pursue the appeal, the Dallas RegionalSolicitor took affirmative steps which resulted in the affirmance of the orderas an unreviewed Commission case.[6]??????????? Thus, it is found that none of the actions cited by theDallas Solicitor, considered separately or in combination, support theconclusion that complaints are unnecessary or not required in Commissionproceedings. It is further found that the cited actions did not mislead theDallas Regional Solicitor into the erroneous belief that complaints wereunnecessary or not required. Instead, he willfully and systematicallydisregarded the filing requirements of Commission Rule 33(a) well knowing thatin some cases such conduct would not be permitted while in others it would. Forthese reasons, it is found that the relief requested on behalf of complainantis unjustified and should not be granted.??????????? As a separate and independent basis for denying thepending motions, it is also found that there is no justification for permittingcomplainant to belatedly file for extensions of time in which to filecomplaints in these cases. To do so would be contrary to Commission Rule 5which provides:Requestsfor extensions of time for the filing of any pleading or document must bereceived in advance of the date in which the pleadings or document is due to befiled.???????????? This rule is clearly applicable to the pending motions.[7] If there is a distinctionbetween a motion for leave to file a pleading out of time and a motion for anextension of time in which to file out of time, it is a distinction without adifference.??????????? While the literal language of the rule would seem to precludeconsideration of an untimely filed motion for a time extension, the Commissionhas indicated in Rollins Outdoor Advertising, Inc., 77 OSAHRC 24\/C1, 5BNA OSHC 1041, 1977 CCH OSHD ?21,551 (No. 12528, 1977), that under certaincircumstances, an untimely filed motion for an extension of time can befavorably considered. However, the circumstances that justified suchconsideration in that case were the absence of prejudice and a showing of ?goodfaith effort to file in a timely manner.? In this case, there has been noshowing of prejudice. However, there has also been no showing of a good faitheffort to file in a timely manner. To the contrary, the reasons asserted by theDallas Regional Solicitor affirmatively show that no effort was made, in good faithor otherwise, to timely file complaints in these cases. Indeed, it is clearthat the Dallas Regional Solicitor had no intention of filing complaints inthese cases until the undersigned?s July 21, 1980 order caused him toreconsider. Thus, the special circumstances which the Commission found tojustify the granting of an untimely filed motion for an extension of time in RollinsOutdoor Advertising, Inc., supra, are not present here.??????????? In view of this action, it is now appropriate to considerthe imposition of sanctions pursuant to Commission Rule 38. This rule provides:Failureto file any pleading pursuant to these rules when due, may, in thediscretion of the Commission or the Judge, constitute a waiver of the right tofurther participation in the proceedings. (Emphasis added.)???????????? This rule specifies a sanction which can bediscretionarily imposed when a complaint is not filed when due. Since in thesecases, the belatedly submitted complaints have not been permitted to be filed,it would appear appropriate to impose such a sanction.??????????? Nevertheless, complainant argues that such a sanction canonly be imposed upon a showing of prejudice. In support of this position,complainant relies upon Rollins Outdoor Advertising, Inc., supra.Complainant?s reliance upon this case is again misplaced. In that case, whichalso emanated from the Dallas Regional Office, the Commission reversed theJudge?s order dismissing the complaint and vacating the citation which orderwas predicated upon complainant?s failure to timely file a complaint. However,the basis of reinstating the citation there was the absence of a showing ofprejudice by respondent, coupled with a showing of a good faith effort bycomplainant to comply with the rules. For the reasons previously stated, no effortwas made to comply with the Commission?s rules in these cases. Indeed, theconduct of the Dallas Regional Solicitor, as shown by the matters set forth inthis order, constitutes a willful and contemptuous disregard to theCommission?s Rules of Procedure, conduct which cannot be condoned or tolerated.Thus, the Commission?s decision in Rollins Outdoor Advertising, Inc.,supra, is not controlling and it is found that the circumstances of this casewarrants the imposition of the specified sanction even though prejudice has notbeen shown.??????????? For these reasons, it is hereby ORDERED, that:??????????? 1. The motions filed in each of these cases entitled?Motion for Leave to File Complaint Out of Time? are hereby DENIED.??????????? 2. By virtue of complainant?s failure to timely file complaintsin these cases in accordance with Commission Rule 33(a)(1), complainant shallbe deemed to have waived his right to further participation in theseproceedings.??????????? 3. The contested citations issued in these cases areVACATED.?Quentin P. McColginJudge, OSHRCDated: November 3, 1980[1] Judge McColginconsolidated docket Nos. 79?7196, 80?168, 80?607, 80?610, and 80?1031 forpurposes of his decision. The cases are hereby severed for purposes of ourreview and further proceedings consistent with our decision.[2] Complaints wereoverdue in these cases for periods ranging from 112 days to 51 days as of thedates of the orders which were subsequently vacated. The critical dates in eachof these cases are set out in the undersigned?s July 21, 1980 order.[3] See ?Motion forLeave to File Complaint Out of Time,? Docket Nos. 80?0168, 80?0607 and 80?1031.[4] ?For the purposeof applying Federal Rule 41(a)(1) to adjudications under the [OccupationalSafety and Health] Act, a citation and notice of contest should be treated likea complaint and answer, respectively.? IMC Chemical Corp., Inc., supra,6 BNA OSHC at 2076.[5] Docket Nos.79?7196 & 80?1031 allege violations of 29 U.S.C. ? 654(a)(1) and 29 C.F.R.?\u00a01910.1000, respectively. Both of these alleged violations are includedin those which are ineligible for simplified proceedings. See Commission Rule202.[6] Curiously, theDallas Regional Solicitor omits all reference to the Structural Metals case inhis affidavit.[7] Despite thespecific direction contained in the July 21, 1980 order to ?address thepossible application? of Commission Rule 5, complainant failed to do so.”