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Ezel / Agency Decisions / 77-2645-commission
OSHRC Commission decision Docket 77-2645 Decided November 23, 1977 Remanded

Midway Industrial Contractors, Inc.

Dismissal for a late complaint set aside and remanded where no prejudice was shown

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Currency note: this decision dates from 1977
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

This is a short Commission order. Midway Industrial Contractors moved to dismiss the Secretary's complaint on the ground that it was filed late, and Administrative Law Judge Harris granted the motion, which was then unopposed, finding that the complaint had not been filed within the 20-day period set by Commission Rule of Procedure 33(a)(1). The Secretary afterward filed an opposition to the motion. On review, the Commission noted that the complaint was only five days late and that Midway had neither alleged nor shown any prejudice from the delay. For those reasons, the Commission set aside the judge's dismissal order and remanded the case for further proceedings.

Decision snapshot

  • Cited standard(s): None identified; the order concerns the timeliness of the Secretary's complaint under Commission Rule of Procedure 33(a)(1).
  • Outcome: The ALJ's dismissal of the complaint was set aside and the case remanded for further proceedings.
  • Key point: A short filing delay in the Secretary's complaint that causes the employer no prejudice does not warrant dismissal.

Full text (OSHRC public release)

Docket No. 77-2645

MIDWAY INDUSTRIAL CONTRACTORS, INC.
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OSHRC Docket No. 77-2645

Occupational Safety and Health Review Commission

November 23, 1977

COUNSEL:

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[*1]
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Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

John C. O'Rourke, for the employer

OPINION:

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)).
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He further noted that Respondent's motion was without objection.
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Subsequent to his decision, however, Complainant filed an opposition to the motion.
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It further appears that the complaint had been filed 5 days after the 20-day filing period specified in Rule 33(a)(1).
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Respondent has neither alleged nor shown prejudice from the delay.
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In the circumstances, the judge's order is set aside, and the case is remanded for further proceedings.
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Rollins Outdoor Advertising Corp., 4 BNA OSHC 1861, 1976-77 CCH OSHD para. 21,311 (No. 6954, Nov. 24, 1976).
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