“Docket No. 80-5211 SECRETARY OF LABOR, Complainant,v.PENNSYLVANIA ELECTRIC COMPANY, Respondent,INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 30,AuthorizedEmployeeRepresentative.OSHRC Docket No. 80-5211DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:This case is before the Commission for review under section 12(j), 29 U.S.C.? 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”).\u00a0 Administrative Law Judge Benjamin Usher granted Respondent’smotion to dismiss the Secretary’s complaint.\u00a0 We reverse and remand for furtherproceedings.IOn November 6 and 7, 1979, an OSHA compliance officer conducted an inspection of aPennsylvania Electric Company (\”PEC\”) workplace in Erie, Pennsylvania.\u00a0 Asa result of this inspection, PEC received two citations on December 10, 1979.\u00a0 Thecitations involved safety problems such as wet floors, nonregulation ladders and exposureto corrosive liquids.\u00a0 On December 28, PEC filed its notice of contest to thesesafety citations and on January 14, 1980 the case was docketed under OSHRC Docket number80-0126.\u00a0 The Secretary filed his complaint incorporating the citation by referenceon January 21, 1980 and PEC filed 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 employees were exposed tocoal dust in excess of the limits prescribed in 29 C.F.R. ? 1910.1000. On February 13,PEC filed its notice of contest to the January 30 citation. This notice of contest wasreceived by the OSHA area office. However, the area office neglected to transmit thenotice of contest to the Commission.[[l\/]]Later, the Secretary requested discovery relating to the section 1910.1000citation when he moved for discovery in the 80-0126 case. On April 23, PEC objected to theSecretary’s discovery motion and pointed out the procedural defect that docket 80-0126 didnot include the alleged section 1910.1000 violation. The Secretary then moved to amend hisoriginal complaint to include the section 1910.1000 allegation. In this motion, theSecretary characterized the January 30, 1980 citation as an amendment of the originalDecember 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 amend the citation after the Respondenthad filed its notice of contest and also concluded that it would be \”patentlyprejudicial\” to allow the amendment.The Secretary did not appeal this decision. Instead, the Secretary filed anew and separate complaint alleging PEC’s violation of section 1910.1000. Since theCommission had never received PEC’s notice of contest to the January 30 citation, theExecutive Secretary requested the OSHA area director to transmit the notice of contestbefore the case was 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 December 28,1979, when Respondent filed its Notice of Contest, and the OSHA Area Director had noauthority to amend the Citation or otherwise alter the pleadings without leave of thisCommission. His action purporting to amend the Citation on January 30, 1980, was ‘void.’Complainant’s Complaint, filed in this action on August 4, 1980 (dated July28, 1980), is a nullity because of the invalidity of the Citation upon which it was based.The Secretary petitioned for review and Commissioner Cottine directed reviewon the following question:Whether the judge erred in vacating the Secretary’s citation, which allegedserious violations of permissible exposure levels to coal dust under 29 C.F.R. ??1910.1000(c) and (e), on the ground that it constituted an invalid attempt to amend aprevious citation.IIThe judge properly relied on Ed Jackman Pontiac-Olds to hold that the Secretarycould not amend the citation in No. 80-0126, without leave of the Commission, after PEChad filed its notice of contest in that case.\u00a0 However, the Secretary’s issuance ofthe section 1910.1000 citation was not merely an attempt to amend the citation at issue inNo. 80-0126.\u00a0 Rather, it was a new citation unrelated to the issues in that case andsubject to a new notice of contest.\u00a0 29 U.S.C. ? 659(c).\u00a0 The Secretary shouldhave treated PEC’s notice of contest to the section 1910.1000 citation as initiating a newproceeding before the Commission and transmitted the notice of contest to the Commissionwithin seven days, as required by Rule 32, note 1 supra.\u00a0 Instead, the Secretary didnot transmit the notice of contest to the Commission until almost seven months hadelapsed.[[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 is prejudice to theopposing party.\u00a0 Asarco, Inc., El Paso Division, 80 OSAHRC 99\/A3, 8 BNA OSHC 2156,1980 CCH OSHD ? 24,838 (No. 79-6850, 1980).\u00a0 See Chicago Bridge & Iron Co. v.OSHRC, 535 F.2d 371 (7th Cir. 1976); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d230 (5th Cir. 1973). Despite the procedural missteps, the Secretary’s conduct in this casewas clearly not contumacious.\u00a0 Although the Secretary did not transmit the notice ofcontest in a timely manner, he did attempt to bring the section 1910.1000 citation withinthe Commission’s jurisdiction 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 the delay intransmittal of the notice of contest.\u00a0 We cannot determine on the present recordwhether PEC has in fact been prejudiced.\u00a0 Accordingly, the judge’s order is setaside, and the case is remanded to the chief judge.[[4\/]]\u00a0 PEC shall be permitted theopportunity to show that it was prejudiced by the Secretary’s delay in transmitting thenotice of contest and further proceedings shall be conducted as necessary.[[5\/]] SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 FEB 28 1983 The Administrative Law Judge decision in this matter is unavailable in this format. \u00a0To obtain a copy of this document, please request one from our Public Information Officeby 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, transmitthe original to the Commission, together with copies of all relevant documents.[[2\/]] By this time, the Secretary and PEC had settled the three citationsunder Docket No. 80-0126.[[3\/]] PEC claims that Judge Usher’s previous decision bars the Secretaryfrom bringing this action under the doctrines of res judicata and collateral estoppel.However, there is not the necessary identity of issues to invoke either of the doctrinesin 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 judge ruled that theSecretary’s attempt to amend the earlier citation to add the coal dust allegations wasimproper. The judge’s denial of the amendment did not invalidate the second citation,which alleged different 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 the proceduralirregularities and delay in this case denied it the opportunity to prepare and present itsdefenses to the alleged health violation. Stripe-A-Zone, Inc., 82 OSAHRC 111\/D2, 10 BNAOSHC 1694, 1982 CCH 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 OSAHRC 17\/B8, 8 BNA OSHC 1055, 1980 CCH OSHD? 24,275 (No. 76-3942, 1980).”