“Docket No. 79-1158 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? 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.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? 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.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation PULLMAN POWER PRODUCTS, INC.? NATIONAL ROOFING CORPORATION OSHRC Docket No. 79-1158 Occupational Safety and Health Review Commission July 31, 1980 ?[*1]? Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.? 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. ? ?? 651-678 (\”the Act\”).? Judge Sommer granted the Secretary of Labor’s (\”the Secretary\”) motion to dismiss as untimely the notice of contest of Respondent, National Roofing Corporation.? 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. ?? 659(a).? 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.? We set aside Judge Sommer’s decision and remand for further proceedings. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 29 U.S.C. ?? 661(i). – – – – – – – – – – – – – – – – -End Footnotes-? [*2]? – – – – – – – – – – – – – – – – 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.? 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).? 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.? “