“\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1333 KARL KEHM CONSTRUCTION CO. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDEROF REMANDApril 27, 1973Before VAN NAMEEand BURCH, CommissionersVAN NAMEE,COMMISSIONER:OnOctober 11, 1972, Judge Leon J. Moran issued an order granting respondent?smotion for dismissal of complainant?s citation and proposed penalty. The motionwas predicated on the ground that complainant had failed to forwardrespondent?s notice of contest to the Commission within three days of receiptas required by Commission interim Rule 7(c)(2) (29 CFR 2200.7(c)(2)), and hadfailed to file its complaint within 10 days, as required by interim Rule7(d)(1) (29 CFR 2200.7(d)(1)).Pursuantto the authority vested in the members of the Commission by section 12(j) ofthe Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat.1590, hereinafter referred to as the ?Act?), I directed review of the Judge?sorder on November 10, 1972. For reasons given hereafter we reverse and remand.Wehave reviewed the record and note that by letter dated August 21, 1972,complainant?s Area Director represented that he did not timely file a notice ofcontest received by him on August 7, 1972 because he inadvertently mistook itfor a duplicate of a notice of contest contesting another citation previouslyissued to the same employer. The complainant reiterated the error and reasonfor same in his complaint, and he requested that the provisions of 29 CFR2200.7(c)(2) and (d)(1) relating to time for filing be waived.Therecord discloses that Respondent was issued a citation dated July 21, 1972 anda notification of proposed penalties dated July 25, 1972. Thereafter Respondentwas issued a second citation and notification of proposed penalties relating toa second alleged violation and dated July 31, 1972. Respondent then filednotices of contest as to each citation. Both notices of contest were receivedby the Area Director on August 7, 1972. Said notices of contest are identicalin form and nearly identical in content. The notice relating to the citationdated July 21 was instituted as OSHRC Docket No. 1209, and it was timely filedwith the Commission. We also note that Respondent by its motion requests thatwe vacate the Secretary?s citation of July 25. We presume Respondent refers tothe first citation which is the citation with regard to which there has beencompliance with our rules.Inview of the fact that Respondent is itself unable to distinguish between itsown notices of contest there can be no doubt that the Area Director could alsocommit the same error and consider one notice of contest to be a duplicate ofthe other. Error of this kind clearly constitutes an excusable mistake orinadvertence for which the extreme sanction of vacation of the citation shouldnot be applied.Inthe past we have applied the extreme sanction in those instances of vacationwhere an Area Director has not forwarded a notice of contest because in hisview the employer?s writing was not a notice of contest. (Secretary of Labor v.Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464; Secretary of Labor v.Brent Towing Co., Inc., OSHRC Docket No. 1003, Pet. for Jud. Rev., Docket No.72?3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v. LennoxIndustries, Inc., OSHRC Docket No. 1106.) We used the sanction in these casesbecause the function of determining the legal sufficiency of a notice ofcontest is an adjudicatory function, and the action of the Area Directoroperated to deprive an employer of his statutory right to a hearing as providedfor by section 10(c) and to usurp the responsibility of this Commission toprovide the hearing. The present case is clearly distinguishable.Accordingly,it is ORDERED that: (1) the Judge?s order be and the same is hereby set aside,(2) the Respondent?s motion to dismiss is denied, and (3) the case is remandedfor further proceedings.? \u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1333 KARL KEHM CONSTRUCTION CO. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 11, 1972MORAN, JUDGE,OSAHRC:Ruling on the Respondent?smotion to dismiss the Secretary?s citation and proposed penalty granted.”