“SECRETARY OF LABORComplainant,v.TEXAS MASONRY, INC.,Respondent,OSHRC Docket No. 82-0955_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:Following an inspection of Texas Masonry’s worksite on June 24, 1982,the Secretary of Labor issued a citation alleging that Texas Masonryviolated several OSHA scaffolding standards. Texas Masonry contestedthe citation, thereby invoking the Commission’s jurisdiction undersection 10(c), 29 U.S.C. ? 659(c), of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678. The issue before us is whether thecitation should be dismissed due to the Secretary’s failure to transmitTexas Masonry’s notice of contest and file a complaint within the timelimits permitted by the Commission’s rules of procedure. AdministrativeLaw Judge Dee Blythe denied Texas Masonry’s motion to dismiss,concluding that the Secretary’s conduct was not contumacious and thatTexas Masonry was not prejudiced by the Secretary’s proceduralderelictions. The judge’s ruling is before the Commission oninterlocutory appeal. We affirm the ruling and remand for furtherproceedings.ITexas Masonry received the citation on July 23, 1982, and mailed itsnotice of contest on July 31. The OSHA area office in Dallas receivedthe notice of contest on August 3. The area director instructed PaulJ. Hansen, Jr., a safety supervisor in the Dallas OSHA office, toattempt to settle the case. On August 4, Hansen telephoned TexasMasonry’s attorney, James B. Martin, to discuss the possibility ofsettlement. Martin told Hansen that Texas Masonry would not settle foranything short of complete withdrawal of the citation. After discussingthe matter with the compliance officer who had inspected Texas Masonry’sworksite and with the area director, Hansen again contacted Martin onAugust 9,[[1]] informed Martin that OSHA would not withdraw the entirecitation, and proposed a compromise. Martin told Hansen he woulddiscuss the proposal with his client and call him back. When Hansen didnot hear from Martin, he again attempted to telephone Martin onSeptember 9. After finally reaching Martin on September 14, Hansen wasagain informed that Texas Masonry would only settle for completewithdrawal of the citation. The Secretary thereupon sent the notice ofcontest to the Commission, where it was received on September 22.The Commission’s rules of procedure require that the Secretary transmita notice of contest within 7 days of its receipt,[[2]] and that he filea complaint no later than 20 days after receiving the notice ofcontest.[[3]] In this case, the Secretary did not transmit the noticeof contest until approximately 45 days after he received it, and thecomplaint was commensurately late. [[4]] Because the Secretary failedto comply with the time limits in our rules, Texas Masonry moved todismiss the citation. Judge Blythe convened a hearing on the motion.At the hearing, Texas Masonry’s president, Elbert Chadwick, and itsforeman, Larry McDonald, testified that they believed the delay in theproceedings had adversely affected Texas Masonry’s ability to defend thecharges. They noted that the alleged violations concerned a rentedscaffold that was no longer in place, as the job had been completed. They further stated that Texas Masonry’s workforce experiencedconsiderable turnover, and that only 3 of the 12 employees who worked onor near the scaffold were still with the company. Moreover, workers wholeft Texas Masonry often could not subsequently be located. TexasMasonry had not, however, attempted to either locate the employees withknowledge of the scaffold who had left its employment or to takestatements from the employees who remained with the company. Chadwickand McDonald further stated that the language of the citation wasunclear and they did not entirely understand the charges, further addingto the difficulty Texas Masonry faced in presenting its defense.In denying Texas Masonry’s motion to dismiss, Judge Blythe noted that,under Commission precedent, dismissal of a party’s case for failure tocomply with a procedural rule or order is only appropriate if theparty’s conduct is contumacious or if the opposing party is prejudicedin the preparation or presentation of its defense. The judge found thatneither condition was satisfied. The judge rejected Texas Masonry’sprejudice claim as being too \”generalized,\” noting that Texas Masonryhad made no attempt to contact the employees who had left the company orto otherwise preserve evidence, such as by obtaining statements ofpotential employee witnesses who were still with the company.IIThe judge correctly held that dismissal of a party’s case for failure tocomply with a procedural rule is inappropriate in the absence of eithercontumacious conduct by that party or prejudice to the opposing party. _Pennsylvania Electric Co._, 83 OSAHRC 11\/E12, 11 BNA OSHC 1235, 1983CCH OSHD ? 26,449 (No. 80-5211, 1983). We further agree with the judgethat the Secretary’s conduct is not properly characterized ascontumacious. The delay in transmitting the notice of contest resultedfrom Hansen’s attempt to settle the case as his supervisor hadinstructed, not from any desire to deliberately delay the proceedings. Hansen was not as diligent as he should have been in conducting thesettlement inquiry, but a mere lack of diligence is not contumacious.Nevertheless, we also note that it would have been a simple matter forthe Secretary to have complied with our rules of procedure whileattempting to settle this case. We further note that there is a publicinterest in prompt and orderly adjudication under the Act, and theCommission’s rules of procedure are designed to achieve this goal. Wetherefore expect all parties to comply with our procedural rules.The judge was also correct in concluding that Texas Masonry’s argumentthat its defense would be impaired by the Secretary’s delay intransmitting the notice of contest was insufficiently specific toestablish prejudice. _Jensen Construction Co. of Oklahoma v_. _OSHRC_,597 F.2d 246 (10th Cir. 1979). However, Texas Masonry may be able tomake a more particularized showing of prejudice following a hearing onthe merits of the alleged violations. _See_ _Gannett Corp._, 4 BNA OSHC1383, 1976-77 CCH OSHD ? 20,915 (No. 6352, 1976). Accordingly, if TexasMasonry can show, after a hearing, that the Secretary’s failure totimely transmit the notice of contest prejudiced its defense on themerits, it may renew its motion to dismiss. _See_ _PennsylvaniaElectric_ _Co_., _supra_.Accordingly, the judge’s ruling denying Texas Masonry’s motion todismiss is affirmed,[[5]] and the case is remanded for furtherproceedings consistent with this opinion.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: FEB 24 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Hansen had tried unsuccessfully to call Martin on August 5 and 6.[[2]] Rule 32, 29 C.F.R. ? 2200.32, provides:The Secretary shall, within 7 days of receipt of a notice of contest,transmit the original to the Commission, togetherwith copies of all relevant documents.[[3]] Rule 33(a)(1), 29 C.F.R. ? 2200.33(a)(1), provides:The Secretary shall file a complaint with the Commission no later than20 days after his receipt of the notice of contest.[[4]] After transmitting the notice of contest, the Secretary requestedthat the proceedings be conducted under the Commission’s rules forsimplified proceedings, 29 C.F.R. ?? 2200.200-12. Until such a requestis acted upon, the requirement that pleadings be filed is stayed. 29C.F.R. ? 2200.203(d). Ultimately Texas Masonry objected to the request,and it was denied by Judge Blythe. 29 C.F.R. ? 2200.203(b)(4). Whenthe Secretary thereupon filed his complaint, he contended it was timelybecause the time for filing it had been suspended pending the judge’saction on the request for simplified proceedings.Whether or not the complaint was timely filed does not alter the thrustof Texas Masonry’s motion to dismiss, which was based on the delaycaused by the late transmittal of the notice of contest. Accordingly,even if the filing of the complaint was in technical compliance with ourrules, the essential basis of Texas Masonry’s motion is not altered.[[5]] Chairman Rowland would grant Texas Masonry’s motion to dismiss thecitation. In his view, dismissal is appropriate if the Secretary’slate transmittal of the notice of contest was patently unreasonable,unnecessary, and unjustified. _Pennsylvania Elec. Co_., 11 BNA OSHC at1238, 1983 CCH OSHD at p. 33,593 (Rowland, Chairman, dissenting). Inthis case, nothing prevented the Secretary from transmitting the noticeof contest while simultaneously attempting to settle the case. TheSecretary’s agents, however, simply decided that the pursuit ofsettlement should take priority over compliance with the Commission’srules of procedure. Thus, instead of transmitting the notice of contestwithin 7 days, as Commission Rule 32 requires, the Secretary did nottransmit it for approximately 45 days. In Chairman Rowland’s view, sucha delay without any necessity or justification mandates dismissal of thecitation.”