“SECRETARY OF LABOR,Complainant,v.PENNSYLVANIA ELECTRIC COMPANY,Respondent,INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 30,AuthorizedEmployeeRepresentative.OSHRC Docket No. 80-5211_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:This case is before the Commission for review under section 12(j), 29U.S.C. ? 661(i), of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”). Administrative Law Judge Benjamin Ushergranted Respondent’s motion to dismiss the Secretary’s complaint. Wereverse and remand for further proceedings.IOn November 6 and 7, 1979, an OSHA compliance officer conducted aninspection of a Pennsylvania Electric Company (\”PEC\”) workplace in Erie,Pennsylvania. As a result of this inspection, PEC received twocitations on December 10, 1979. The citations involved safety problemssuch as wet floors, nonregulation ladders and exposure to corrosiveliquids. On December 28, PEC filed its notice of contest to thesesafety citations and on January 14, 1980 the case was docketed underOSHRC Docket number 80-0126. The Secretary filed his complaintincorporating the citation by reference on January 21, 1980 and PECfiled its answer to the January 21 complaint on January 31.On January 30, one day before PEC filed its answer to the alleged safetyviolations, the Secretary issued a citation alleging that PEC employeeswere exposed to coal dust in excess of the limits prescribed in 29C.F.R. ? 1910.1000. On February 13, PEC filed its notice of contest tothe January 30 citation. This notice of contest was received by the OSHAarea office. However, the area office neglected to transmit the noticeof contest to the Commission.[[l\/]]Later, the Secretary requested discovery relating to the section1910.1000 citation when he moved for discovery in the 80-0126 case. OnApril 23, PEC objected to the Secretary’s discovery motion and pointedout the procedural defect that docket 80-0126 did not include thealleged section 1910.1000 violation. The Secretary then moved to amendhis original complaint to include the section 1910.1000 allegation. Inthis motion, the Secretary characterized the January 30, 1980 citationas an amendment of the original December 10, 1979 citation.Judge Usher denied the Secretary’s motion noting that under Ed JackmanPontiac-Olds, 80 OSAHRC 26\/D14, 8 BNA OSHC 1211, 1980 CCH OSHD ? 24,349(No. 76-20, 1980) the area director did not have the authority to amendthe citation after the Respondent had filed its notice of contest andalso concluded that it would be \”patently prejudicial\” to allow theamendment.The Secretary did not appeal this decision. Instead, the Secretary fileda new and separate complaint alleging PEC’s violation of section1910.1000. Since the Commission had never received PEC’s notice ofcontest to the January 30 citation, the Executive Secretary requestedthe OSHA area director to transmit the notice of contest before the casewas given a docket number. The Secretary did so and, on September 8, thecase was docketed 80-5211.PEC moved to dismiss this second complaint, and Judge Usher granted themotion. [[2\/]] Judge Usher reasoned,Jurisdiction of this action vested in the Review Commission on December28, 1979, when Respondent filed its Notice of Contest, and the OSHA AreaDirector had no authority to amend the Citation or otherwise alter thepleadings without leave of this Commission. His action purporting toamend the Citation on January 30, 1980, was ‘void.’Complainant’s Complaint, filed in this action on August 4, 1980 (datedJuly 28, 1980), is a nullity because of the invalidity of the Citationupon which it was based.The Secretary petitioned for review and Commissioner Cottine directedreview on the following question:Whether the judge erred in vacating the Secretary’s citation, whichalleged serious violations of permissible exposure levels to coal dustunder 29 C.F.R. ?? 1910.1000(c) and (e), on the ground that itconstituted an invalid attempt to amend a previous citation.IIThe judge properly relied on Ed Jackman Pontiac-Olds to hold that theSecretary could not amend the citation in No. 80-0126, without leave ofthe Commission, after PEC had filed its notice of contest in that case. However, the Secretary’s issuance of the section 1910.1000 citation wasnot merely an attempt to amend the citation at issue in No. 80-0126. Rather, it was a new citation unrelated to the issues in that case andsubject to a new notice of contest. 29 U.S.C. ? 659(c). The Secretaryshould have treated PEC’s notice of contest to the section 1910.1000citation as initiating a new proceeding before the Commission andtransmitted the notice of contest to the Commission within seven days,as required by Rule 32, note 1 supra. Instead, the Secretary did nottransmit the notice of contest to the Commission until almost sevenmonths had elapsed.[[3\/]]In the absence of contumacious conduct, dismissal of a party’s case forfailure to comply with a procedural rule is only appropriate if there isprejudice to the opposing party. Asarco, Inc., El Paso Division, 80OSAHRC 99\/A3, 8 BNA OSHC 2156, 1980 CCH OSHD ? 24,838 (No. 79-6850,1980). See Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371 (7th Cir.1976); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5thCir. 1973). Despite the procedural missteps, the Secretary’s conduct inthis case was clearly not contumacious. Although the Secretary did nottransmit the notice of contest in a timely manner, he did attempt tobring the section 1910.1000 citation within the Commission’sjurisdiction through his motion to amend in No. 80-0126.Since the Secretary’s conduct was not contumacious, the judge’s order ofdismissal cannot stand without a finding that PEC was prejudiced by thedelay in transmittal of the notice of contest. We cannot determine onthe present record whether PEC has in fact been prejudiced. Accordingly, the judge’s order is set aside, and the case is remanded tothe chief judge.[[4\/]] PEC shall be permitted the opportunity to showthat it was prejudiced by the Secretary’s delay in transmitting thenotice of contest and further proceedings shall be conducted asnecessary.[[5\/]]SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 28 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Commission Rule 32, 29 C.F.R. ? 2200.32, provides:Rule 32 Notices of contestThe Secretary shall, within 7 days of receipt of notice of contest,transmit the original to the Commission, together with copies of allrelevant documents.[[2\/]] By this time, the Secretary and PEC had settled the threecitations under Docket No. 80-0126.[[3\/]] PEC claims that Judge Usher’s previous decision bars theSecretary from bringing this action under the doctrines of res judicataand collateral estoppel. However, there is not the necessary identity ofissues to invoke either of the doctrines in this case. See Lawlor v.National Screen Service Corp., 349 U.S. 322 (1955); Steffen v.House-Wright, 665 F.2d 245 (8th Cir. 1981). In No. 80-0126, the judgeruled that the Secretary’s attempt to amend the earlier citation to addthe coal dust allegations was improper. The judge’s denial of theamendment did not invalidate the second citation, which allegeddifferent violations and initiated a new cause of action.[[4\/]] Judge Usher is no longer with the Commission.[[5\/]] Prejudice should only be found if PEC can demonstrate that theprocedural irregularities and delay in this case denied it theopportunity to prepare and present its defenses to the alleged healthviolation. Stripe-A-Zone, Inc., 82 OSAHRC 111\/D2, 10 BNA OSHC 1694, 1982CCH OSHD ? 26,069 (No. 79-2380, 1982); National Industrial Constructors,Inc., 81 OSAHRC 94\/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ? 25,743 (No.76-4507, 1981); Brown and Root Inc., Power Plant Division, 80 OSAHRC17\/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980).”