After an inspection by an OSHA Compliance Officer on November 23, 1971, petitioners Atlantic Marine, Inc. and Atlantic Dry Dock Corp. were cited for failure to have certain required safety equipment and given 23 days within which to abate the violation. A fine of less than $200.00 was also imposed. Petitioners initially contested the citation, but after negotiations with OSHA they withdrew their Notice of Contest. An order granting their Motion for Withdrawal of Contest was entered on July 18, 1972.

Upon reinspection on September 28, 1972, petitioners were found not to have installed the required safety equipment, and the Secretary issued a Notification of Failure to Correct Violation and of Proposed Additional Penalty of $15,964.00. Petitioners gave the Secretary a Notice of Contest after the 15-day deadline imposed by 29 U.S.C.A. § 659(b).1 The Secretary filed the Notice of Contest with OSHRECOM2 but simultaneously filed a Motion to Dismiss. An ALJ of OSHRECOM initially denied the motion, but it was subsequently granted without a hearing by a different ALJ based solely on petitioners' late filing. The ALJ was upheld upon discretionary review by OSHRECOM, Chairman Moran dissenting. Atlantic Dry Dock Corp., OSHRC Docket No. 2100 & 2101, 19__-19 CCH OSHD P ______ (ALJ 1973); aff'd 19__-19__ CCH OSHD P______ (RC 1974).

Petitioners admit that they filed their Notice of Contest late, but they assert3 that the Secretary's deceptive practices and failure to comply with procedures required by the Act, 29 U.S.C.A. § 651 et seq., and by his own regulations caused them to file late. They urge specifically that (i) during negotiation of the settlement concerning the first citation, they were led to believe by the Secretary that the six months it would take for the required safety equipment to be delivered was satisfactory, (ii) the Secretary failed to advise the petitioners of continuing violation immediately after the reinspection, in violation of the Secretary's own regulations, 29 CFR § 1903.7(e),4 (iii) the Secretary did not issue the Notification of Failure to Correct and of Proposed Additional Penalty "with reasonable promptness" (it was issued 41 days after the reinspection) as required by 29 U.S.C.A. § 658(a),5 and (iv) the Secretary failed to serve the petitioners' counsel of record with the Notification of Failure to Correct Violations and Proposed Additional Penalties, in violation of 29 CFR § 2200.7(b).6 Petitioners in their brief to the ALJ and OSHRECOM made the contention that the Secretary caused them to file late, but no findings of fact were ever made concerning it.

This Circuit has recently held that the Secretary's violation of the Act or his own regulations may void a Citation of Violation if a petitioner can show actual prejudice from such violations. Accu-Namics, Inc. v. Occupational Safety and Health Review Commission, 5 Cir., 1975, 515 F.2d 828. In light of this we have to recognize that a powerful argument can be generated that a petitioner should not be denied review altogether of a Citation of Violation for not having filed a Notice of Contest within the 15-day limit prescribed in the Act if the Secretary's deception or failure to follow proper procedures is responsible for the late filing.

No inquiry of any kind into the factual basis for this charge was made by evidentiary hearing or otherwise, and no findings of fact regarding petitioners' allegations have ever been made, either by the ALJ in granting the Secretary's Motion to Dismiss the Notice of Contest or by OSHRECOM in upholding the dismissal. The ALJ and OSHRECOM apparently viewed § 659(b) as an impenetrable barrier to further consideration of petitioners' claims without regard to the special circumstances claimed.

Before we undertake to decide such an important issue we should be certain that it is factually founded and not just a theoretical possibility. Consequently we vacate OSHRECOM's order of December 4, 1974, which summarily upheld its ALJ's grant of the Secretary's Motion to Dismiss and remand to OSHRECOM for an evidentiary hearing and findings of fact by OSHRECOM or as directed by it to an ALJ concerning petitioners' allegations7 of deception and violation of proper procedures by the Secretary.8

Vacated and remanded.