“\ufeff\t\tTHE BOARDMAN COMPANY, OSHRC DOCKET NO. 80-75\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } p.style_EndnoteText { line-height:1; font-size:10pt; } .style_EndnoteText span { } span.style_EndnoteTextChar { font-size:10pt; } .style_EndnoteTextChar span { } span.style_EndnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_EndnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t80-75\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTHE BOARDMAN COMPANY,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDecember 16, 1980\t\t\t\t\t\t\t\t\t\tORDER OF REMAND\t\t\t\t\t\t\t\t\t\tA decision of Administrative Law Judge James A. Cronin, Jr., is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. \u00a7\u00a7 651\u2013678. In that decision, Judge Cronin vacated a citation issued to The Boardman Company for the Secretary\u2019s failure to file a timely complaint.\t\t\t\t\t\tFor the reasons that\t\t\t\t\t\tfollow, we reverse the Judge\u2019s decision and remand the matter for further proceedings.\t\t\t\t\t\t\t\t\t\tOn December 13, 1979, the Secretary issued a citation to respondent. Respondent\u2019s notice of contest was dated\t\t\t\t\t\tDecember 26, and\t\t\t\t\t\twas received by the Secretary on December 28. Under Commission Rule 33(a)(1)\t\t\t\t\t\t1, 29 C.F.R. \u00a7 2200.33(a)(1), the Secretary was required to file his complaint by January 17, 1980. Neither a complaint nor a motion for extension of time to file a complaint was filed by the Secretary. On April 2, 1980, Assistant Chief Administrative Law Judge Irving Sommer issued a\t\t\t\t\t\tsua\t\t\t\t\t\tsponte order to the Secretary to show cause why the citation should not stand as a complaint or, in the alternative, to file a complaint within ten days from the notice of order. The Secretary failed to respond to either part of the order.\t\t\t\t\t\t\t\t\t\tOn May 7, 1980, Judge Sommer issued an order allowing the citation to stand as the\t\t\t\t\t\tcomplaint, and\t\t\t\t\t\tallowing respondent 15 days to answer or otherwise plead. On May 23, respondent filed its answer\t\t\t\t\t\tand also\t\t\t\t\t\ta motion to dismiss for the Secretary\u2019s failure to file a\t\t\t\t\t\tcomplaint. On June 23, Judge Sommer denied respondent\u2019s motion and reaffirmed the May 7 order.\t\t\t\t\t\t\t\t\t\tOn July 28, 1980, the case was assigned to Judge Cronin. On July 30, Judge Cronin vacated Judge Sommer\u2019s order of May 7 and granted the Secretary an opportunity to file a motion requesting leave to file a complaint out of time. The Secretary filed the motion on August 8, accompanied by a complaint. Respondent, in turn, filed a memorandum in opposition to the Secretary\u2019s motion and renewed its May 23 motion to dismiss the proceedings.\t\t\t\t\t\t\t\t\t\tIn his decision, Judge Cronin concluded that the Secretary\u2019s failure to file either a timely complaint or adequate justification for the failure constituted a waiver of his right to further participation under Commission Rule 38, 29 C.F.R. \u00a7 2200.382. In rejecting the Secretary\u2019s arguments justifying his failure to file a timely complaint, Judge Cronin correctly anticipated the Commission\u2019s decision in\t\t\t\t\t\tASARCO, Inc., El Paso Div., et al., 80 OSAHRC \u2014\u2014, 8 BNA OSHC 2156, 1980 CCH OSHD \u00b6\t\t\t\t\t\t24,838 (Nos. 79\u20136850, etc., 1980). In that decision, the Commission rejected the Judges\u2019 practice of\t\t\t\t\t\tsua\t\t\t\t\t\tsponte orders permitting citations to stand as complaints.\t\t\t\t\t\t\t\t\t\tNevertheless, we find that the Judge erred by not granting the Secretary\u2019s motion to file a late complaint. As we stated in\t\t\t\t\t\tASARCO:\t\t\t\t\t\t\t\t\t\tIt is well established under Commission precedent that a citation or notice of contest ordinarily should not be dismissed for failure of a party to comply with the Commission\u2019s Rules of Procedure or with other procedural requirements. See, e. g.,\t\t\t\t\t\tCircle T. Drilling Co., 80 OSAHRC \u2014\u2014, 8 BNA OSHC 1681, 1980 CCH OSHD \u00b624,583 (No. 79\u20132667, 1980);\t\t\t\t\t\tDuquesne Light Co., 80 OSAHRC \u2014\u2014, 8 BNA OSHC 1218, 1980 CCH OSHD \u00b624,384 (Nos. 78\u20135034 et al., 1980);\t\t\t\t\t\tRollins Outdoor Advertising, Inc., 77 OSAHRC 24\/C1, 5 BNA OSHC 1041, 1977\u201378 CCH OSHD \u00b621,551 (No. 12528, 1977). Thus, the policy in the law in favor of deciding cases on their merits generally prevails unless the party\u2019s noncompliance results from its own contumacious conduct or results in prejudice to the opposing party.\t\t\t\t\t\tDuquesne Light Co., supra.\t\t\t\t\t8 BNA OSHC at 2163, 1980 CCH OSHD at pp. 30,619\u201330,620.\t\t\t\t\t\t\t\t\t\tWe conclude that the failure to timely file a complaint in this matter does not constitute contumacious conduct. The record reveals that the Secretary has not failed to comply with any order of the Commission. First, Judge Sommer\u2019s show\t\t\t\t\t\tcause\t\t\t\t\t\torder gave the Secretary the option of not filing a response if he was willing to have the citation stand as the complaint. Second, after Judge Cronin issued his order of July 30, the Secretary timely filed a motion to file a complaint out of time. Finally, the Secretary argues that its failure to file a timely complaint in the first instance resulted from its interpretation of the Commission decision in\t\t\t\t\t\tIMC Chemical Group, Inc., 78 OSAHRC 95\/C14, 6 BNA OSHC 2075, 1978 CCH OSHD \u00b623,149 (No. 76\u20134761, 1978),\t\t\t\t\t\trev\u2019d,\t\t\t\t\t\tNos. 79\u20133018 and 79\u20133041 (6th Cir., December 5, 1980).33 Although we rejected the Secretary\u2019s interpretation of IMC in ASARCO, Inc., supra, we find that the Secretary\u2019s explanation for its failure to file a timely complaint is sufficient to preclude a finding of contumacious conduct. ASARCO, Inc., supra. Moreover, at this time respondent has not established any prejudice resulting from the Secretary\u2019s failure to file a timely complaint.\t\t\t\t\t\t\t\t\t\tAccordingly, we reverse Judge Cronin\u2019s granting of respondent\u2019s motion to dismiss and deny said motion. We grant the Secretary\u2019s motion to file pleading out of time and accept the complaint filed with the motion. Respondent is granted 15 days to answer the complaint and the case is remanded to the Judge for further proceedings, consistent with this opinion.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRAY H. DARLING, JR.\t\t\t\t\t\t\t\t\t\tEXECUTIVE SECRETARY\t\t\t\t\t\t\t\t\t\tDATED: DEC 16, 1980\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t80-75\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTHE BOARDMAN COMPANY,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSeptember 15, 1980\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tComplainant\u2019s Motion\t\t\t\t\t\tFor\t\t\t\t\t\tLeave To File Pleading Out Of Time, dated August 8, 1980, will be denied, and complainant\u2019s citation vacated.\t\t\t\t\t\t\t\t\t\tOn December 13, 1979, Citation No. 1 was issued, and respondent\u2019s notice of contest, dated December 26, 1979, was received by complainant, the Secretary of Labor, on December 28, 1979. This Commission received the case from the Secretary on January 4, 1980.\t\t\t\t\t\t\t\t\t\tCommission Rule 33(a)(1) (29 C.F.R. \u00a7 2200.33(a)(1)) provides:\t\t\t\t\t\t\t\t\t\tThe Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAs applied to this case, Rule 33(a)(1) required the Secretary to file his complaint by January 17, 1980, 20 days after December 28, 1979.\t\t\t\t\t\t\t\t\t\tNo complaint was filed by complainant in compliance with Rule 33, and no motion for an extension of time to file a complaint was filed prior to April 2, 1980. On that date, a Commission judge issued a\t\t\t\t\t\tsua\t\t\t\t\t\tsponte order to the Secretary to show cause why the contested action should not stand as a complaint, or alternatively to file a complaint within ten days from notice of the order. Complainant neither responded to this order to show cause nor filed a complaint.\t\t\t\t\t\t\t\t\t\tOn May 7, 1980, the same judge issued an order reciting that no response had been received to the April 2, 1980 order and proclaiming that the \u2018contested action\u2019 would stand as the complaint in the case. The order further granted respondent 15 days to answer or otherwise plead. On May 23, 1980, the respondent filed its Answer, and also, a Motion\t\t\t\t\t\tTo\t\t\t\t\t\tDismiss for\t\t\t\t\t\tfailure of the Secretary to file a complaint and because the \u2018contested action\u2019 was not an adequate statement of the relief sought and the grounds therefore. By order dated June 23, 1980, the judge denied respondent\u2019s motion to dismiss and reaffirmed his May 7, 1980 order.\t\t\t\t\t\t\t\t\t\tOn July 28, 1980, this case was assigned to the undersigned judge for hearing. By order, dated July 30, 1980, the prior order of May 7th treating the \u2018contested action\u2019 as a complaint was vacated as unauthorized and contrary to this Commission\u2019s Rules of Procedure. The order further granted complainant an opportunity to file within 15 days an \u2018appropriate motion\u2019 requesting leave to file a complaint out of time.\t\t\t\t\t\t4\t\t\t\t\t\tOn August 8, 1980, complainant filed his Motion\t\t\t\t\t\tFor\t\t\t\t\t\tLeave To File Pleading Out Of Time. Respondent filed a memorandum in opposition to the Secretary\u2019s motion on August 15, 1980 and renewed its request of May 23, 1980 that this proceeding be dismissed.\t\t\t\t\t\t\t\t\t\tIn support of his motion to file his complaint out of time, the Secretary appended the affidavit of James E. White, Regional Solicitor of the United States Department of Labor, Dallas, Texas. Neither the motion nor affidavit justifies, or establishes good cause for, the Secretary\u2019s failure to file a timely complaint in this case. To the contrary, they simply demonstrate that the Regional Solicitor\u2019s Office in Dallas, Texas Deliberately adopted, and has consistently followed for years, a policy of noncompliance with the complaint filing requirement of Commission Rule 33(a)(1).\t\t\t\t\t\t\t\t\t\tIn an attempt to justify his initiation of this practice, the Secretary\u2019s Regional Solicitor points to a \u2018very heavy caseload\u2019 and to a series of court and Review Commission decisions and judges\u2019\t\t\t\t\t\tsua\t\t\t\t\t\tsponte orders which led him to conclude that the Commission considers the complaint \u2018an unnecessary document.\u2019\t\t\t\t\t\t\t\t\t\tThe size of an attorney\u2019s case load is a completely unsatisfactory reason for failing to comply with a key procedural rule of the Commission. although a heavy case load is the bane of many attorneys, and apparently for the Secretary, a permanent cross to bear, it does not constitute an adequate excuse for failing to file essential pleadings in a timely fashion. To conclude otherwise would undoubtedly result in a widespread disregard of the Commission\u2019s Rules of\t\t\t\t\t\tProcedure by parties and seriously impede the Commission\u2019s ability to provide for the orderly presentation and resolution of the issues brought before the Commission.\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s reliance upon\t\t\t\t\t\tIMC Chemical Group Inc., 78 OSAHRC 95\/C14, (No. 76\u20134761, 1978) to justify his noncompliance with Rule 33(a)(1) is badly misplaced. That case involved a motion by the Secretary to voluntarily withdraw a citation after a notice of contest had been filed but before a complaint or answer had been filed. Contrary to the Secretary\u2019s contention that this case stands for the proposition that a citation is to be treated as a complaint in all situations, the Commission there held only that for the purpose of applying Rule 41(a)(1) of the Federal Rules of Civil Procedure to Commission adjudications the citation and notice of contest would be treated as \u2018analogous\u2019 to a complaint and answer in ordinary civil litigation.\t\t\t\t\t\t\t\t\t\tThe Secretary stresses that he relied on the extensive practice of certain Commission judges to issue\t\t\t\t\t\tsua\t\t\t\t\t\tsponte orders which consistently treated the citation as a complaint where no timely complaint had been filed by the Secretary. This excuse lacks both substance and sincerity. The Commission has never ruled on the validity of these rulings, and the orders, therefore, have no precedential value. The Dallas Regional Solicitor also was not misled or lulled into relying on these rulings. Rather, he took a calculated risk, knowing full well that other Commission judges disapproved of this practice and had vacated similar orders which had relieved the Secretary of his responsibility to file a complaint. For example, see\t\t\t\t\t\tStructural Metals Inc., 79 OSAHRC 43\/E4, (No. 78\u20133352, 1979).\t\t\t\t\t\t\t\t\t\tIn further support of his failure to file a complaint in this and other cases and his argument that a complaint in Commission proceedings has become unnecessary, the Secretary points to the Commission\u2019s adoption of Simplified Proceedings (29 C.F.R. \u00a7 2200.200 et seq.) He suggests that the Commission\u2019s use of simplified proceedings, which prohibits the filing of a complaint, is indicative of the little importance the Commission attributes to complaints in \u2018routine cases.\u2019 Perhaps so, but the fact remains that Rule 33 requirements continue to govern proceedings before an Administrative Law Judge until the Commission notifies the parties that simplified proceedings are in effect. Simplified proceedings, of course, are unavailable unless a case is eligible, a party requests them, and no party files an objection to the request. It should be noted in this regard that complainant did not request simplified proceedings here, and the present case is not even eligible for simplified proceedings because the citation alleges a violation of 29 C.F.R. \u00a7 1910.95(b)(3). See 29 C.F.R. \u00a7 2200.202, Table A. Until the Commission formally\t\t\t\t\t\tamends Rule 33(a)(1), it must be presumed that the Commission still considers a complaint to be a necessary pleading in conventional proceedings.\t\t\t\t\t\t\t\t\t\tFinally, the Secretary tries to justify his noncompliance with Rule 33 on the ground that it reduces \u2018unnecessary paperwork\u2019 and conserves \u2018valuable attorney time.\u2019 This reason constitutes sheer effrontery and clearly demonstrates the utter disdain the Dallas Solicitor\u2019s Office has for Commission Rule 33(a)(1).\t\t\t\t\t\t\t\t\t\tNone of the Secretary\u2019s reasons, either singly or in combination, justifies his failure to file a timely complaint in accordance with Commission Rule 33(a)(1) prior to issuance of the April 2, 1980 order. Therefore, the Secretary\u2019s Motion\t\t\t\t\t\tFor\t\t\t\t\t\tLeave To File Pleading Out Of Time will be denied.\t\t\t\t\t\t\t\t\t\tFurther, the Secretary\u2019s failure to file a complaint in accordance with Rule 33(a)(1) is deemed a waiver of his right to further participation in these proceedings, and the citation and notification of proposed penalty will be vacated (See 29 C.F.R. \u00a7 2200.38).\t\t\t\t\t\t\t\t\t\tThe Secretary claims that no prejudice has been shown by respondent and argues that a Commission judge may not exercise his discretion under Commission Rule 38 and vacate the citation in the absence of prejudice. Although agreeing with the Secretary that respondent has not shown that it has suffered prejudice\t\t\t\t\t\tsufficient\t\t\t\t\t\tto impede his ability to defend, this judge disagrees that the absence of such prejudice precludes vacation of the citation in this case. The discretionary power bestowed by Rule 38 may be exercised even in the absence of prejudice whenever a party\u2019s failure to file a timely pleading is unjustified. Moreover, the exercise of this power is particularly appropriate, even compelled, in a situation like here where a party has intentionally failed to file the required pleading.\t\t\t\t\t\t\t\t\t\tFor the above reasons, it is ORDERED:\t\t\t\t\t\t\t\t\t\t1. Complainant\u2019s Motion\t\t\t\t\t\tFor\t\t\t\t\t\tLeave To File Pleading Out Of Time is DENIED.\t\t\t\t\t\t\t\t\t\t2. Complainant\u2019s failure to file a timely complaint in accordance with Commission Rule 33(a)(1) constitutes a waiver of his right to further participation in the proceeding.\t\t\t\t\t\t\t\t\t\t3. Citation No. 1 and the Notification of Proposed Penalty, issued December 13, 1979, is VACATED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJames A. Cronin, Jr.\t\t\t\t\t\t\t\t\t\tJudge, OSHRC\t\t\t\t\t\t\t\t\t\tDated: September 15, 1980\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\tCommission Rule 33(a)(1), 29 C.F.R. \u00a7 2200.33 provides:\t\t\t\t\t\t\t\t\t\t\u00a7 2200.33. Employer contest.\t\t\t\t\t\t\t\t\t\t(a) Complaint. (1) The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\tCommission Rule 38, 29 C.F.R. \u00a7 2200.38, provides as follows:\t\t\t\t\t\t\t\t\t\t\u00a7 2200.38. Failure to file.\t\t\t\t\t\t\t\t\t\tFailure to file any pleading pursuant to these rules when due, may, in the discretion of the Commission or the judge, constitute a waiver of the right to further participation in the proceedings.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\tIn\t\t\t\t\t\tIMC\t\t\t\t\t\tthe Commission held that in applying Fed. R. Civ. P. 41(a) (dismissal of actions) to Commission proceedings a citation and notice of contest should be treated as a complaint and answer.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\tCommission Rule 5 mandates that requests for extensions of time for filing a pleading must be received prior to the date the pleading is due to be filed. Previously, however, the Commission has not insisted on literal compliance with Rule 5 if a party has made a good faith effort to file his request and pleading in a timely manner and in the absence of prejudice.\t\t\t\t\t\tRollins Outdoor Advertising, 77 OSAHRC 24\/C1, (No. 12528, 1977).\t\t\t”