“Docket No. 83-0040 SECRETARY OF LABOR, Complainant,v.ELMER CONSTRUCTION CORP., Respondent.OSHRC Docket No. 83-0040DECISIONBefore:\u00a0 BUCKLEY, Chairman; CLEARY Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The question in this case is whether the administrative law judge properlydismissed Elmer Construction Company’s notice of contest for being untimely.\u00a0 Wereverse the administrative law judge’s decision and remand the case for a hearing on themerits.On September 21, 1982, an OSHA compliance officer inspected Elmer’s New YorkCity workplace.\u00a0 On October 6, 1982, the Secretary issued a citation alleging seriousviolations of two OSHA standards and proposing a penalty of $320.\u00a0 Elmer received thecitation on October 20.\u00a0 On October 26, Elmer sent a check for $320 in full paymentof the penalty.Toward the end of October, Elmer hired Richard Biaggi as its attorney.\u00a0On November 1, Biaggi called the New York OSHA office and spoke to Lawrence Cimato,the Safety Supervisor.\u00a0 According to Cimato, the tenor of the conversation was thatBiaggi \”would like to contest the violation that was issued against (Elmer) onOctober 6.\”\u00a0 Cimato told Biaggi that Elmer had paid the $320 penalty and thatthe case was ready to be closed.\u00a0 Biaggi expressed surprise that Elmer had paid thepenalty.\u00a0 Testimony at the hearing indicated that the president of Elmer had limitedskills in English and this might have led to some of the confusion.Biaggi and Cimato also discussed when Biaggi would have to submit a notice ofcontest. [[1]]\u00a0 At the time of the conversation, neither man knew when Elmer hadreceived the citation.\u00a0 Cimato knew that the citation had been issued on October 6and, assuming that Elmer had received the citation within a few days, speculated to Biaggithat the time for the notice had already passed.In fact, this assumption was not true.\u00a0 Since Elmer had received thecitation on October 20, under section 10(a) of the Act Elmer had until November 10 tonotify the Secretary that it contested the citation.In a letter dated November 12, Biaggi wrote the New York OSHA office that,. . . it is the position of my client, Elmer Construction Corporation, that it has notviolated any act, statute or regulation concerning the above captioned matter.\u00a0 Iwrite this letter knowing that Elmer Construction Corporation has issued a check inpayment of said violations.\u00a0 I first became aware of the payments on November 1stwhen I spoke with Larry Cimato of your office.\u00a0 On that date I called to contest theviolations.Please do not consider said payments as an admission of wrongful conduct bymy client.\u00a0 Mr. Orellano of Elmer Construction Corporation was not fully aware of hisright to contest the violations.Cimato did not consider the November 12 letter a notice of contest. \u00a0Rather, he testified that he considered the letter \”a disclaimer of guilt,\”which he said are fairly common.\u00a0 The letter was added to the case file.The Commission has allowed a late notice of contest if the circumstancessurrounding the late notice warrant a relaxation of the 15- day rule of section 10(a).\u00a0 See Con-lin Construction Co., 83 OSAHRC , 11 BNA OSHC 1757, 1983 CCHOSHD ? (No. 83-371, 1983); Merritt Electric Co., 81 OSAHRC 75\/D4, 9 BNA OSHC 2088,1981 CCH OSHD ? 25,556 (No. 77-3772, 1981).\u00a0 This is in keeping with theCommission’s policy in favor of allowing employers an opportunity for a full hearing onthe merits.\u00a0 See Seminole Distributors, Inc., 77 OSAHRC 211\/D9, 6 BNAOSHC 1194, 1977-78 CCH OSHD ? 22,412 (No. 15671, 1977).We find that Elmer should not be denied a hearing under the circumstances ofthis case.\u00a0 The conversation between Cimato and Biaggi was confusing.\u00a0 Cimatoinadvertently may have given Biaggi the impression that the time for filing a notice ofcontest had passed.\u00a0 This, in turn, may have caused Elmer to submit the notice ofcontest late.\u00a0 Compounding this confusion are the limited language skills of Elmer’spresident and the problems Biaggi had in communicating with his client.Given these circumstances, we set aside the administrative law judge’sdecision and remand the case for proceedings on the merits of the alleged violations.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 SEP 18 1984 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]),telephone (202-606-5398), fax (202-606-5050) or TTY (202-606-5386).FOOTNOTES: [[1]] Pursuant to section 10(a) of the Act, 29 U.S.C. ? 659(a), an employermust notify the Secretary that it intends to contest the citation or proposed penaltywithin 15 working days of its receipt of the notification of proposed penalty thataccompanies the citation.”