“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?610 \u00a0 MILLCON CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 30, 1980ORDER OF REMAND??????????? Adecision 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.??????????? TheCommission has recently held that the failure of the Secretary to file a timelycomplaint does not justify vacating a citation absent a finding that thefailure either was the result of the Secretary?s contumacious conduct orresulted in prejudice to the employer. Boardman Co., OSHRC Docket No.80?75 (December 16, 1980); ASARCO, Inc., El Paso Div., 80 OSAHRC ??, 8BNA OSHC 2156, 1980 CCH OSHD ?24,838 (No. 79?6850, 1980).??????????? TheSecretary?s explanation for not filing a timely complaint in this matter issubstantially similar to that in Boardman Co., supra. As we found in Boardman,the Secretary?s explanation is sufficient to preclude a finding of contumaciousconduct. Moreover, at this time respondent has not established any prejudiceresulting from the Secretary?s failure to file a timely complaint.??????????? Accordingly,we reverse Judge McColgin?s decision vacating the citation. We grant theSecretary?s motion to file pleading out of time and accept the complaint filedwith the motion. Respondent is granted 15 days to answer the complaint, and thecase is remanded to the Judge for further proceedings consistent with thisopinion.?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 \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0November 3, 1980DECISION AND ORDER??????????? Bythe undersigned?s order of July 21, 1980, these cases were consolidated inorder to resolve the issues common to them, namely, complainant?s failure tofile complaints in each of these cases. In this previous order, certain ordersissued prior to their assignment to the undersigned were vacated. These vacatedorders were issued by a Commission Judge who directed that the contestedcitations be treated as complaints notwithstanding the failure of complainantto file complaints in accordance with 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.??????????? Itwas contemplated that any motion filed pursuant to the July 21, 1980 orderwould contain complainant?s reasons for failing to timely file complaints inthese cases. Since it was thought that the reasons offered might vary from caseto case, the undersigned, at the conclusion of his July 21 order severed thesecases.??????????? Inresponse to that order, complainant has filed in each case a motion entitled?Motion for Leave to File Complaint Out of Time.? The respondent in each case,has filed a response to the motion opposing the relief requested and furtherrequesting that the case be dismissed. Each motion filed by complainant hasattached to it an identical affidavit by the Regional Solicitor of the UnitedStates Department of Labor, Dallas, Texas (Dallas Regional Solicitor). Thisaffidavit constitutes the sole basis offered by complainant in support of thepending motions except for the assertion contained in three of the motions that?respondent has suffered no prejudice as a result of the delay in filing saidcomplaint.?[3]Thus, the offering by the Dallas Regional Solicitor of identical reasons tojustify his failure to timely file complaints in these cases again presentscommon questions of both fact and law which warrants the consolidation of thesecases. Accordingly, pursuant to Commission Rule 9, the above-entitled cases arehereby consolidated.??????????? Afterconsidering the reasons advanced in support of and in opposition to themotions, it is determined that complainant has not shown the existence ofcircumstances which would justify permitting the filing of complaints in thesecases. Therefore, complainant?s motions are denied.??????????? Theposition advanced by the Dallas Regional Solicitor in his affidavit is that onthe basis of certain actions by the Commission and its Judges, he concludedthat the Commission considered the filing of complaints ?unnecessary.? Further,in order to reduce ?unnecessary paperwork? and conserve ?valuable attorneytime,? the Dallas Regional Solicitor by reason of his action or inaction causedcomplaints not to be filed in these cases.??????????? CommissionRule 33(a)(1) provides:The Secretary shall file a complaint withthe Commission no later than 20 days after his receipt of the notice ofcontest.?After examining this rule in conjunction with thematters claimed by the Dallas Regional Solicitor to have led him to hisconclusion, it is found that there is no reasonable basis for concluding thatcomplaints in these proceedings are unnecessary or not required.??????????? Theprincipal Commission action relied upon by the Dallas Regional Solicitor tosupport his conclusion is the Commission?s decision in IMC Chemical 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 that complaintsin Commission cases are unnecessary or are not required. In that case, theSecretary attempted to withdraw a contested citation before an answer was filedwhich withdrawal was objected to by the affected employees. The issue presentedwas whether the Secretary, as plaintiff, can unilaterally dismiss the actionpursuant 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]??????????? TheDallas Regional Solicitor also cites the Commission?s action of adoptingsimplified proceedings which ?generally do not permit or require pleadings? as?indicative of the importance it ascribes to complaints and answers in routinecases.? To the extent that the Dallas Regional Solicitor relies upon thisaction to support the conclusion that complaints are unnecessary or are notrequired, such reliance is badly misplaced.??????????? It istrue that under the recently adopted rules governing simplified proceedings,pleadings are generally not permitted or required. However, simplifiedproceedings are available only in those cases which are eligible and then onlyif timely requested by a party and not objected to by any of the other parties.Thus, to the extent that the Commission?s action in adopting these simplifiedproceedings indicates the importance it attaches to pleadings, it can be saidthat the Commission does not consider them important if the parties themselvesdo not consider them important. Corollarily, it can be said that the Commissionconsiders pleadings important in every case, if any of the parties considerthem important. In these cases, it has been demonstrated by the action ofrespondents in objecting to complainant?s failure to file complaints that eachrespondent considers pleadings important. Thus, it follows that the Commissionitself would consider pleadings in these cases important, and the DallasRegional Solicitor?s conclusion to the contrary exceeds the bounds of reason.??????????? Thisargument also falls by its own weight with respect to two of the five casesinvolved here. The Dallas Regional Solicitor would characterize those casesthat are eligible for simplified proceedings as ?routine cases.? However, twoof these cases (Docket Nos. 79?7196 & 80?1031) concern violations which areineligible 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.??????????? Thefinal series of actions upon which the Dallas Regional Solicitor relies are notthe actions of the Commission itself but rather the actions of ?judges of theCommission? who, it is claimed ?since early 1979? have entered orders similarto those entered in these cases which ?give the Secretary?s citation the legaleffect of a complaint where none has been filed . . .? Without question some,but not all, Commission judges have issued such orders. Nevertheless, it isfound that the Dallas Regional Solicitor could not reasonably rely upon them.Such rulings were not reviewed by the Commission itself and therefore do notconstitute precedent. Leone Construction Co., 76 OSAHRC 12\/E6, 3 BNAOSHC 1979, 1975?76 CCH OSHD ?20,387 (No. 4090, 1979). Furthermore, relianceupon such rulings is unjustified since an intelligent reading of theCommission?s rules (specifically Rules 33(a), 38 and 108) would make it clearto anyone that such rulings were erroneous.??????????? Areview of the Dallas Regional Solicitor?s action in an earlier case also showsthat this same solicitor was on notice that he could not ignore the filingrequirements of Commission Rule 33(a)(1) with impunity. In Structural MetalsInc., 79 OSAHRC 43\/E4, 7 BNA OSHC 1452, 1979 CCH OSHD ? 23,635 (No.78?3352, 1979), a case decided June 15, 1979, Judge Martin vacated the citationunder circumstances substantially the same as presented here. Thereupon, theDallas Regional Solicitor filed a motion for reconsideration with the Judge whoforwarded such motion to the Commission. The Commission, in turn, treated themotion as a petition for reconsideration which was granted. However, ratherthan pursue the appeal, the Dallas Regional Solicitor took affirmative stepswhich resulted in the affirmance of the order as an unreviewed Commission case.[6]??????????? Thus,it is found that none of the actions cited by the Dallas Solicitor, consideredseparately or in combination, support the conclusion that complaints areunnecessary or not required in Commission proceedings. It is further found thatthe cited actions did not mislead the Dallas Regional Solicitor into theerroneous belief that complaints were unnecessary or not required. Instead, hewillfully and systematically disregarded the filing requirements of CommissionRule 33(a) well knowing that in some cases such conduct would not be permittedwhile in others it would. For these reasons, it is found that the reliefrequested on behalf of complainant is unjustified and should not be granted.??????????? As aseparate and independent basis for denying the pending motions, it is alsofound that there is no justification for permitting complainant to belatedlyfile for extensions of time in which to file complaints in these cases. To doso would be contrary to Commission Rule 5 which provides:Requests for extensions of time for thefiling of any pleading or document must be received in advance of the date inwhich the pleadings or document is due to be filed.???????????? Thisrule 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.??????????? Whilethe literal language of the rule would seem to preclude consideration of anuntimely filed motion for a time extension, the Commission has indicated in RollinsOutdoor Advertising, Inc., 77 OSAHRC 24\/C1, 5 BNA OSHC 1041, 1977 CCH OSHD?21,551 (No. 12528, 1977), that under certain circumstances, an untimely filedmotion for an extension of time can be favorably considered. However, thecircumstances that justified such consideration in that case were the absenceof prejudice and a showing of ?good faith effort to file in a timely manner.?In this case, there has been no showing of prejudice. However, there has alsobeen no showing of a good faith effort to file in a timely manner. To thecontrary, the reasons asserted by the Dallas Regional Solicitor affirmativelyshow that no effort was made, in good faith or otherwise, to timely filecomplaints in these cases. Indeed, it is clear that the Dallas RegionalSolicitor had no intention of filing complaints in these cases until theundersigned?s July 21, 1980 order caused him to reconsider. Thus, the specialcircumstances which the Commission found to justify the granting of an untimelyfiled motion for an extension of time in Rollins Outdoor Advertising, Inc.,supra, are not present here.??????????? Inview of this action, it is now appropriate to consider the imposition ofsanctions pursuant to Commission Rule 38. This rule provides:Failure to file any pleading pursuant tothese rules when due, may, in the discretion of the Commission or theJudge, constitute a waiver of the right to further participation in theproceedings. (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 can only be imposed upon a showing ofprejudice. In support of this position, complainant relies upon Rollins OutdoorAdvertising, Inc., supra. Complainant?s reliance upon this case is againmisplaced. In that case, which also emanated from the Dallas Regional Office,the Commission reversed the Judge?s order dismissing the complaint and vacatingthe citation which order was predicated upon complainant?s failure to timelyfile a complaint. However, the basis of reinstating the citation there was theabsence of a showing of prejudice by respondent, coupled with a showing of agood faith effort by complainant to comply with the rules. For the reasonspreviously stated, no effort was made to comply with the Commission?s rules inthese cases. Indeed, the conduct of the Dallas Regional Solicitor, as shown bythe matters set forth in this order, constitutes a willful and contemptuousdisregard to the Commission?s Rules of Procedure, conduct which cannot becondoned or tolerated. Thus, the Commission?s decision in Rollins OutdoorAdvertising, Inc., supra, is not controlling and it is found that thecircumstances of this case warrants the imposition of the specified sanctioneven though prejudice has not been shown.??????????? Forthese reasons, it is hereby ORDERED, that:??????????? 1.The motions filed in each of these cases entitled ?Motion for Leave to FileComplaint Out of Time? are hereby DENIED.??????????? 2. Byvirtue of complainant?s failure to timely file complaints in these cases inaccordance with Commission Rule 33(a)(1), complainant shall be deemed to havewaived his right to further participation in these proceedings.??????????? 3.The contested citations issued in these cases are VACATED.?Quentin P. McColginJudge, OSHRCDated: November 3, 1980\u00a0[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.”