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.

OSHRC Docket No. 80-168

Occupational Safety and Health Review Commission

December 30, 1980

OPINION:

[*1]

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.

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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.

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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. Boardman Co., OSHRC Docket [*2] No. 80-75 (December 16, 1980); ASARCO, Inc., El Paso Diy., 80 OSAHRC    , 8 BNA OSHC 2156, 1980 CCH OSHD P24,838 (No. 79-6850, 1980).

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. Respondent is granted 15 days to answer the complaint, and the case is remanded to the Judge for further proceedings consistent with this opinion.