Docket No. 78-2463

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.

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

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").

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n1 29 U.S.C. § 661(i).

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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 , 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.