OSHRC Docket No. 77-2645

Occupational Safety and Health Review Commission

November 23, 1977



Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

John C. O'Rourke, for the employer


Direction for Review and Order

Pursuant to section 12(j) of the Occupational Safety and Health Act, the judge's order granting Respondent's motion to dismiss the complaint is hereby directed for review.

Judge Harris concluded that the complaint had not been filed in accordance with the requirements of Commission Rule of Procedure 33(a)(1) (29 C.F.R. 2200.33(a)(1)).   He further noted that Respondent's motion was without objection.   Subsequent to his decision, however, Complainant filed an opposition to the motion.   It further appears that the complaint had been filed 5 days after the 20-day filing period specified in Rule 33(a)(1).   Respondent has neither alleged nor shown prejudice from the delay.   In the circumstances, the judge's order is set aside, and the case is remanded for further proceedings.   Rollins Outdoor Advertising Corp., 4 BNA OSHC 1861, 1976-77 CCH OSHD para. 21,311 (No. 6954, Nov. 24, 1976).