“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2829 SAFEWAY STORES, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 16, 1978ORDER OF REMANDBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thismatter is before the Commission on review of an order of Administrative Law JudgeGeorge O. Taylor, Jr. The judge had granted the Secretary of Labor?s motion todismiss Respondent?s notice of contest for not having been filed within thetime period prescribed by 29 U.S.C. 659(a). Thereafter, respondent wrote to theCommission contending, among other things, that it had never received one ofthe two citations involved in this proceeding. Specifically, Respondentcontends that upon being informed by the Secretary?s area director that thecitation and notification of penalty consisted of two pages, Respondent advisedthe area director that it had received only one page, which was numbered ?pageone of one.? Respondent also referred to its prior correspondence with theCommission wherein it admitted it had not filed a timely notice of contest to acitation, but alleged certain circumstances which in its view justified itsfailure to timely file. It requests a hearing.??????????? Therecord indicates that Complainant issued a citation for serious violation,labeled ?citation 1? and ?page 1 of 1,? that alleged two violations.Complainant also issued another citation labeled ?citation 2? and ?page 1 of1,? that alleged a nonserious violation. We assume that citation 2 is the citationassertedly not received[1] and that Respondent hadintended to contest citation 1. We hereby remand this case for consideration ofRespondent?s assertion that it had not received one of the citations and forconsideration of its representations as to why it had not filed a timely noticeof contest. Atlantic Marine, Inc., v. OSHRC 524 F.2d 476 (5th Cir.1975); Seminole Distributors, Inc., 77 OSAHRC 211\/D9, 5 BNA OSHC 1194,1977?78 CCH OSHD para. 22,412 (No. 15761, 1977).[2]?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATE: OCT 16, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2829 SAFEWAY STORES, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 18, 1978ORDERTaylor, Judge:??????????? Thecomplainant?s motion to dismiss the respondent?s notice of contest because itwas not timely filed is granted. Accordingly, Citation Number 1 for seriousviolations, Citation Number 2 for a nonserious violation, and the penaltiesproposed therein are final orders of the Commission by operation of law. 29U.S.C. ? 659(a).?GEORGE O. TAYLOR, JR.Judge, OSHRCWashington, D.C.[1] We note thatcitation 2 appears to be the basis for an alleged repeated violation presentlypending before Judge Taylor in docket no. 78-3369.[2] We emphasize,however, that clerical error by Respondent?s employees does not justify anemployer?s failure to file a timely notice of contest. Womack Constr. Co.,77 OSAHRC 203\/E12, 6 BNA OSHC 1125, 1977?78 CCH OSHD para. 22,354 (No. 76?1445,1977), petition for review filed, No. 78?1178 (9th Cir. Jan. 25, 1978).”