“Docket No. 78-2463 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company) ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY NAVAJO FOREST PRODUCTS INDUSTRIES METROPAK CONTAINERS CORPORATION AUSTIN BUILDING COMPANY BABCOCK AND WILCOX COMPANY DARRAGH COMPANY BABCOCK & WILCOX COMPANY OTIS ELEVATOR COMPANY R. ZOPPO COMPANY, INC.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? CONTINENTAL GRAIN COMPANY MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d\/b\/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY CAPITAL CITY EXCAVATING CO., INC.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation PULLMAN POWER PRODUCTS, INC.? NATIONAL ROOFING CORPORATION OSCO INDUSTRIES, INC.? HIGHWAY MOTOR COMPANY, d\/b\/a PARK PRICE MOTOR COMPANY S.J. GROVES AND SONS COMPANY CAR AND TRUCK DOCTOR, INC.? PRESTRESSED SYSTEMS, INC.? TEXACO, INC.? GEORGIA HIGHWAY EXPRESS, INC.? RED LOBSTER INNS OF AMERICA, INC.? SUNRISE PLASTERING CORP.? STONE & WEBSTER ENGINEERING CORPORATION H.B. ZACHRY COMPANY (INTERNATIONAL) NATIONAL INDUSTRIAL CONSTRUCTORS, INC.? BUSHWICK COMMISSION COMPANY, INC.? CIRCLE T DRILLING CO., INC.? J.L. FOTI CONSTRUCTION COMPANY, INC.? TEXACO, INC.? KENNETH P. THOMPSON CO., INC.? HENRY C. BECK COMPANY HEATH & STICH, INC.? FARMERS EXPORT COMPANY FOSTER AND KLEISER TURNER WELDING & ERECTION CO., INC.? TRI-CITY CONSTRUCTION CO.? THE DURIRON COMPANY, INC.? SAMSON PAPER BAG CO., INC.? MEL JARVIS CONSTRUCTION COMPANY, Inc.? MIDWEST STEEL ERECTION, INC.? GEISLER GANZ CORPORATION NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY NATIONAL MANUFACTURING COMPANY WALLACE ROOFING COMPANY REYNOLDS METALS COMPANY, INC.? UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.? SUFFOLK COUNTY CONTRACTORS, INC.? NORANDA ALUMINUM, INC.? ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC. GENERAL ELECTRIC COMPANY SERVICE SPECIALTY, INC.? ECCO HIGH FREQUENCY ELECTRIC CORP.? HENRY C. BECK COMPANY REPUBLIC ROOFING CORPORATION EASLEY ROOFING & SHEET METAL CO., INC.? MIDDLETOWN VOLKSWAGEN, INC.? RICHARD ROTHBARD, INC.? AUTOMATIC SPRINKLER CORPORATION OF AMERICA PENNSUCO CEMENT AND AGGREGATES, INC.? AMFORGE DIVISION, ROCKWELL INTERNATIONAL MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.? GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION EDGEWATER STEEL CORPORATION INTERLAKE, INC.? PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.? UNITED STATES STEEL CORPORATION, DUQUESNE PLANT KENT NOWLIN CONSTRUCTION CO., INC.? WANDER IRON WORKS, INC.? SITKIN SMELTING & REFINING, INC.? AMERICAN CYANAMID COMPANY BETHLEHEM STEEL CORPORATION J.L. FOTI CONSTRUCTION CO., INC.? WRIGHT AND LOPEZ, INC.? DELAWARE AND HUDSON RAILWAY CO.? O.E.C. CORPORATION BROWN-McKEE, INC.? DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.? REXCO INDUSTRIES, INC.? MASONRY CONTRACTORS, INC.? CARGILL, INC.? STEWART-WARNER CORPORATION LOUISIANA PACIFIC CORP.; WEYERHAEUSER COMPANY; WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION REBCO STEEL CORPORATION S & H RIGGERS & ERECTORS, INC.? FOREST PARK ROOFING COMPANY LLOYD C. LOCKREM, INC.? ED JACKMAN PONTIAC-OLDS, INC.? CEMENT ASBESTOS PRODUCTS CO.? HARSHAW CHEMICAL COMPANY ARMSTRONG CORK COMPANY DIAMOND ROOFING COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION F. H. LAWSON COMPANY WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY, INC.; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION; LOUISIANA-PACIFIC CORPORATION CONNECTICUT AEROSOLS, INC.? BABCOCK & WILCOX COMPANY AMOCO CHEMICALS CORPORATION DUN-PAR ENGINEERED FORM COMPANY OTIS ELEVATOR CO.? UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION ACME FENCE & IRON CO., INC.? ??? MATTSON CONSTRUCTION CO. INTERNATIONAL HARVESTER CO.? COLONNADE CAFETERIA OSHRC Docket No. 78-2463 Occupational Safety and Health Review Commission January 31, 1980 ?[*1]? Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.? COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL William S. Kloepfer, Associate Regional Solicitor, USDOL David E. Bishop, for the employer OPINION: DECISION BY THE COMMISSION: An October 25, 1978, order of Administrative Law Judge David G. Oringer is before us on a direction for review entered pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? ?? 651-678 (\”the Act\”). – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 29 U.S.C. ?? 661(i). – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – An authorized representative of the Secretary of Labor (\”the Secretary\”) inspected respondent’s premises in April of 1978.? As a result of that inspection, the Secretary issued three citations alleging various violations of the Act.? Respondent filed a timely notice of contest to the citations. The Secretary filed a complaint and respondent filed its answer.? On August 4, 1978, the Commission sent to respondent’s attorney an order stating the following: The Rules of Procedure of the Occupational Safety and Health Review Commission [*2]? require that you post a copy of your NOTICE OF CONTEST and if there is an authorized bargaining representative in your company, that it be served with a copy of the notice of contest. The Commission must receive proof that this has been done within ten (10) days of the date of your receipt of this letter or the Commission may dismiss your contest. No such proof was received by the Commission and Judge Oringer dismissed respondent’s notice of contest. Respondent petitioned the full Commission to review that order and the case was directed for review by Commissioner Barnako. In its petition and brief on review, respondent’s counsel represents that he advised respondent’s manager of the posting requirement and mailed the proof-of-posting card (which was supplied by the Commission) to respondent to be signed and returned to the Commission.? Counsel represents that respondent did not receive the letter and that, because respondent’s manager was on vacation, this fact went unnoticed until Judge Oringer’s order dismissing the notice of contest was received.? Counsel states that posting has been accomplished and that the failure to comply with the Commission’s rules was not intentional.? [*3]? The Secretary did not oppose the petition for review and has filed no brief in opposition. The Commission has hed that, absent a showing of prejudice to the other party, one party’s failure to comply with a procedural rule does not warrant the harsh sanction of dismissal.? Rollins Outdoor Advertising Corp., 76 OSAHRC \u00a0\u00a0\u00a0, 4 BNA OSHC 1861, 1976-77 CCH OSHD P21,311 (No. 6954, 1976); see also, National Industrial Constructors, Inc. v. OSAHRC, 583 F.2d 1048 (8th Cir. 1978). Applying these principles to the facts before us, we find that respondent’s notice of contest should not have been dismissed.? No prejudice to the Secretary or to respondent’s employees has been shown to have resulted from respondent’s actions.? Accordingly, the order of October 25, 1978, is vacated and this case is remanded for further proceedings.? “