1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.

OSHRC Docket No. 79-7196

Occupational Safety and Health Review Commission

December 30, 1980

COUNSEL:

[*1]

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Vincent Candiello, General Motors Corporation, for the employer

John C. Harrington, Jr., for the employer

David B. McCall and Steve Walker, FWA Drilling Co., Inc., for the employer

Gary Klingel, Health and Safety Rep., UAW Local 1999, for the employees

OPINION:

ORDER OF REMAND

A decision of Administrative Law Judge Quentin P. McColgin n1 is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. In that decision, Judge McColgin denied the Secretary's motion to file pleading out of time and vacated a citation issued to respondent for the Secretary's failure to file a timely complaint. For the reasons that follow, we reverse the Judge's decision and remand the matter for further proceedings.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Judge McColgin consolidated docket Nos. 79-7196, 80-168, 80-607, 80-610, and 80-1031 for purposes of his decision. The cases are hereby severed for purposes of our review and further proceedings consistent with our decision.

- - - - - - - - - - - - - - - - -End [*2] Footnotes- - - - - - - - - - - - - - - - -

The Commission has recently held that the failure of the Secretary to file a timely complaint does not justify vacating a citation absent a finding that the failure either was the result of the Secretary's contumacious conduct or resulted in prejudice to the employer.

The Secretary's explanation for not filing a timely complaint in this matter is substantially similar to that in Boardman Co., supra. As we found in Boardman, the Secretary's explanation is sufficient to preclude a finding of contumacious conduct. Moreover, at this time respondent has not established any prejudice resulting from the Secretary's failure to file a timely complaint.

Accordingly, we reverse Judge McColgin's decision vacating the citation. We grant the Secretary's motion to file pleading out of time and accept the complaint filed with the motion. The case is remanded to the Judge for further proceedings consistent with this opinion.