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. �