National Roofing Corporation

Plain-English summary

National Roofing filed its notice of contest after the statutory deadline. It claimed that the compliance officer had told it to put the citation away and forget about it. The judge dismissed the contest without investigating that allegation or making factual findings. The Commission set aside the dismissal and remanded for an inquiry into whether deception or a failure to follow proper procedures caused the late filing.

Decision snapshot

• Cited standard(s): None; procedural notice-of-contest issue
• Outcome: Dismissal set aside; late-contest issue remanded for factual findings
• Key point: A claim that OSHA conduct caused a late contest requires a factual inquiry and findings before dismissal

Full text (OSHRC public release)

Docket No. 79-1158

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.
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NORANDA ALUMINUM, INC.
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GENERAL MOTORS CORP., GM ASSEMBLY DIV.
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ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
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CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.
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CCI, INC.
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GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.
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CHAPMAN CONSTRUCTION CO., INC.
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GALLO MECHANICAL CONTRACTORS, INC.
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SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.
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ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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BUNKOFF CONSTRUCTION CO., INC.
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GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.
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GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.
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COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.
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BENTON FOUNDRY, INC.
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MICHAEL CONSTRUCTION CO., INC.
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WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.
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ERSKINE-FRASER CO.
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MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.
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FORTE BROTHERS, INC.
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RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.
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VAMPCO METAL PRODUCTS, INC.
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LEONE INDUSTRIES, INC.
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ASARCO, INC.
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DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.
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FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.
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BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.
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DONALD HARRIS, INC.
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A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.
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ELECTRICAL CONSTRUCTORS OF AMERICA, INC.
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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.
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LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.
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HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.
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INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.
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GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.
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NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.
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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.
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GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.
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WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.
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AUSTIN ROAD CO.
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MAYHEW STEEL PRODUCTS, INC.
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LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.
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NATIONAL ROOFING CORPORATION

OSHRC Docket No. 79-1158

Occupational Safety and Health Review Commission

July 31, 1980

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[*1]
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Irving Sommer is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651-678 ("the Act").
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Judge Sommer granted the Secretary of Labor's ("the Secretary") motion to dismiss as untimely the notice of contest of Respondent, National Roofing Corporation.
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He concluded that Respondent's notice of contest was not filed within fifteen working days from receipt of the notification of proposed penalty as required by section 10(a) of the Act, 29 U.S.C. �
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659(a).
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The judge further concluded that Respondent had not shown that the late filing was due to "deception or failure to follow proper procedures" under the test established in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975). The judge's decision was directed for review by Commissioner Barnako.
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We set aside Judge Sommer's decision and remand for further proceedings.

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n1 29 U.S.C. �
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661(i).

• • • • • • • • • • • • • • • • -End Footnotes-
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                                [*2]
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Respondent, in its notice of contest dated February 27, 1979, asserted that upon personal delivery of the citation "your man [the compliance officer] instructed me to put it away and forget about it." Where, as here, a respondent asserts that the late filing of its notice of contest was due to "deception and violation of proper procedures by the Secretary" an inquiry into the factual basis for the charge and findings of fact regarding the assertion must be made.
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Atlantic Marine, Inc. v. OSHRC, supra at 478; B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD P23,675 (No. 76-2165, 1979).
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Because the judge made no inquiry into Respondent's assertion and no factual findings, his decision must be set aside.

Accordingly, the case is remanded to the administrative law judge to make a factual inquiry and determination as to the circumstances regarding the filing of the notice of contest and for further proceedings consistent with that determination.

SO ORDERED.
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