Sitkin Smelting & Refining, Inc.

Plain-English summary

The judge dismissed Sitkin Smelting's notice of contest after the company failed to answer the Secretary's complaint or comply with an order directing an answer. That ruling affirmed two citations and proposed penalties totaling $11,600. The Commission directed review of whether the notice of contest should serve as a general denial and whether a procedural failure justified dismissal. After its bankruptcy-related stay request was denied, the company took no further action and neither party briefed the issues. The Commission declined substantive review, affirmed the judge's decision, and stated that it retained only the precedential value of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2200.91a; 29 C.F.R. § 2200.92
• Outcome: Default judgment, two citations, and $11,600 in penalties affirmed without substantive Commission review
• Key point: The Commission may decline directed review when the aggrieved party shows no continuing interest and no compelling public interest remains

Full text (OSHRC public release)

Docket No. 77-3491

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

OSCO INDUSTRIES, INC.
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HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.
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PRESTRESSED SYSTEMS, INC.
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TEXACO, INC.
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GEORGIA HIGHWAY EXPRESS, INC.
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RED LOBSTER INNS OF AMERICA, INC.
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SUNRISE PLASTERING CORP.
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STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.
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BUSHWICK COMMISSION COMPANY, INC.
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CIRCLE T DRILLING CO., INC.
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J.L. FOTI CONSTRUCTION COMPANY, INC.
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TEXACO, INC.
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KENNETH P. THOMPSON CO., INC.
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HENRY C. BECK COMPANY

HEATH & STICH, INC.
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FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.
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TRI-CITY CONSTRUCTION CO.
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THE DURIRON COMPANY, INC.
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SAMSON PAPER BAG CO., INC.
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MEL JARVIS CONSTRUCTION COMPANY, Inc.
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MIDWEST STEEL ERECTION, INC.
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GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.
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UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.
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SUFFOLK COUNTY CONTRACTORS, INC.
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NORANDA ALUMINUM, INC.
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ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.
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ECCO HIGH FREQUENCY ELECTRIC CORP.
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HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.
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MIDDLETOWN VOLKSWAGEN, INC.
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RICHARD ROTHBARD, INC.
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AUTOMATIC SPRINKLER CORPORATION OF AMERICA

PENNSUCO CEMENT AND AGGREGATES, INC.
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AMFORGE DIVISION, ROCKWELL INTERNATIONAL

MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.
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GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

EDGEWATER STEEL CORPORATION

INTERLAKE, INC.
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PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.
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UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

KENT NOWLIN CONSTRUCTION CO., INC.
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WANDER IRON WORKS, INC.
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SITKIN SMELTING & REFINING, INC.
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OSHRC Docket No. 77-3491

Occupational Safety and Health Review Commission

April 30, 1980

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

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Richard S. Friedman, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651-678 ("the Act").
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A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review under section 12(j) of the Act, 29 U.S.C. �
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661(i).
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Judge Osterman affirmed the two citations issued to Respondent, Sitkin Smelting & Refining, Inc., as well as proposed penalties totalling $11,600.
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He dismissed Respondent's notice of contest.
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The judge relied on Respondent's failure to file an answer or otherwise respond to an order issued by Administrative Law Judge David H. Harris on February 21, 1978.
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Judge Harris had directed Respondent to answer the Secretary of Labor's complaint within 10 days of receipt of his order or suffer default.

Neither party filed a petition for discretionary review of Judge Osterman's decision.
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Pursuant to 29 C.F.R. �
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2200.91a(a), n1 Commissioner Cottine directed review of this case sua sponte on the following issues:

1.
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[*2]
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Whether the Respondent's Notice of Contest should be treated as a general denial in answer to the complaint.

2.
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Whether the failure to comply with a procedural rule warrants the dismissal of the Respondent's Notice of Contest.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 Section 2200.91a has subsequently been redesignated section 2200.92.
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See 44 Fed. Reg. 70,106, 70,111 (1979).

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Neither party has filed a brief on review.
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Respondent, the party aggrieved by the judge's disposition of the issues directed for review, responded to the direction for review by filing a letter stating that Respondent has "filed for Chapter 11 relief under the Bankruptcy Laws." Respondent took the position that "all proceedings have been stayed." Respondent's letter was treated as a motion to stay Commission proceedings and, as such, was unanimously denied on August 3, 1978.
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Neither party has taken further action before the Commission.

We therefore conclude that the parties, in particular Respondent as the aggrieved party, lack any interest in having this case reviewed.
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We also [*3]
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conclude that the case lacks compelling public interest.
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Accordingly, we decline to pass upon the issues directed for review.
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We affirm the judge's decision without review.
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Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).
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See Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD P20,508 (No. 3336, 1976).
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The judge's decision is accorded the precedential value of an unreviewed judge's decision.
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Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

IT IS SO ORDERED.
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