“Docket No. 86-1266 SECRETARY OF LABOR, Complainant, v. LOUISIANA-PACIFIC CORPORATION, Respondent.OSHRC Docket No. 86-1266DECISIONBefore: BUCKLEY, Chairman; AREY, Commissioner. BY THE COMMISSION:Certain citations issued by the Secretary of Labor to LouisianaPacific Corporation became final orders of the Commission by operation of law when thecompany failed to file a timely notice of contest. Louisiana-Pacific has moved for relieffrom the final orders under Federal Rule of Civil Procedure 60(b).[[1\/]] However,Commission Judge Sidney J. Goldstein denied its motion. Accordingly, the company is nowasking that the judge’s ruling be reversed, that the final orders be set aside, and that ahearing on the merits of the Secretary’s charges be held.The Secretary argues that the Commission lacks jurisdiction torule on Louisiana-Pacific’s request. The Secretary notes that section 10(a) of the Act[[2]], 29 U.S.C. ? 659(a), provides that citations not timely contested are \”notsubject to review by any court or agency.\”[[3\/]]We reject the argument. The Commission and federal courts haverecognized two situations where the finality provision of section 10(a) does not precludethe Commission from hearing an employer’s challenge to the Secretary’s citations evenwhere a timely notice of contest has not been filed. The first is where the Secretary hasemployed deceptive practices or fails to comply with required procedures. The FifthCircuit suggested in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975) that anemployer should not be denied review for not filing a notice of contest within the 15-daylimit prescribed in the Act if the Secretary’s deception or failure to follow properprocedures is responsible for the late filing. The Commission has adopted the FifthCircuit’s suggestion. Keppel’s, Inc., 79 OSAHRC 43\/A2, 7 BNA OSHC 1442, 1979 CCH OSHD ?23,622 (No. 77-3020, 1979); B.J. Hughes, Inc., 79 OSAHRC 49\/E6, 7 BNA OSHC 1471, 1979 CCHOSHD ? 23,675 (76-2165, 1979).The second situation is where the employer requests reliefunder Federal Rule of Civil Procedure 60(b). The Third Circuit held in J.I. Hass Co. v.OSHRC, 648 F.2d 190, 195 (3d Cir. 1981) \”that the Commission has jurisdiction toentertain a late notice of contest under rule 60(b).\” The Commission has agreed withthe Third Circuit’s holding in Hass and has held that an employer may move under FederalRule of Civil Procedure 60(b) for permission to file a late notice of contest. BranciforteBuilders, 81 OSAHRC 80\/A5, 9 BNA OSHC 2113, 1981 CCH OSHD ? 25,591. (No. 80-1920, 1981).[[4\/]] Accordingly, we have jurisdiction to entertain Louisiana-Pacific’s request forrelief under Rule 60(b).The citations were received by Louisiana-Pacific on June 13,1986, but the employer did not file a notice of contest until August 29, 1986. Accordingto an affidavit by Plant Manager Julius C. Byers, Mr. Byers became the Operations Managerabout two weeks before the issuance of the citations. As the new Operations Manager, hewas responsible for all safety and health matters. Mr. Byers states in the affidavit that\”[b]ecause of the change in operation management, the citation was inadvertentlyoverlooked\” and that \”the transition in management focused on achieving steadyproduction and continued employment and [it] was an oversight or mistake on the outgoingmanager’s part to not inform me of the citation.\” Byers states in the affidavit thathe \”was unaware of the O.S.H.A. citation fine issued … until [he] received a letterfrom the Denver O.S.H.A. office saying the Company had forgot (sic) to pay the fineregarding the citation.\” This affidavit is the only evidence submitted to support themotion.The burden is on the employer to show sufficient basis forrelief under the rule. Branciforte Builders, supra; U.S. V. Harrison County, Mississippi,463 F.2d 1328, 1330 (5th Cir. 1972); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957).The affidavit of Byers, the only evidence Louisiana-Pacific has submitted, is extremelyvague in describing why the company failed to file a timely notice of contest. Mr. Byersappears to say that the citation simply became lost in the shuffle during a change inmanagement. However, this is not an adequate excuse for the Respondent’s inaction underthe terms of Rule 60(b)(1), which requires a showing of \”excusable\” neglect andnot just a showing of simple negligence. Even during a management transition, a businessmust maintain orderly procedures for handling important documents. Cf. United States v.One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 319 (5th Cir. 1984)(Assertions ofoffice workload are insufficient to set aside a default judgment under Rule 60(b)). Theassertion by Louisiana-Pacific that it failed to do so does not justify relief under Rule60(b). See Sadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir. 1976) (Rule 60(b)cannot be invoked \”to give relief to a party who has chosen a course of action whichin retrospect appears unfortunate or where error or miscalculation is traceable really toa lack of care.\”).We conclude that Louisiana-Pacific has shown neither\”mistake, inadvertence, surprise, or excusable neglect\” within the meaning ofFederal Rule of Civil Procedure 60(b)(1), nor \”any other reason justifying relieffrom the operation of the judgment,\” under Federal Rule of Civil Procedure 60(b)(6).Accordingly, we affirm the decision of the Administrative LawJudge denying the Respondent’s request for relief under Rule 60(b) and granting theSecretary’s motion to dismiss the notice of contest.FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED: 27 JAN 1989SECRETARY OF LABOR, Complainant, v. LOUISIANA-PACIFIC CORPORATION, Respondent.ORDERFollowing an inspection of the Respondent’s worksite in Olathe,Colorado, the Occupational Safety & Health Administration issued to the Company twoCitations for various alleged violations of regulations adopted under the OccupationalSafety & Health Act of 1970.In the Citations, dated June 13, 1986, the Respondent wasinformed that unless it notified the Area Director of the Administration that it intendedto contest the Citations or proposed penalties within 15 working days after receipt, theCitations and proposed penalties will become the final order of the Occupational Safety& Health Review Commission and may not be reviewed by any court or agency.No notice of contest was filed by the Respondent.On August 29, 1986, counsel for the Respondent filed a Requestto Reassume Jurisdiction, Vacation of Order, and Notice of Contest. In support of theRequest pursuant to Rule 60 of the Federal Rules Of Civil Procedure, the Respondentsubmitted an affidavit of Julius C. Byers who stated therein that on June 1, 1986, hebecame the plant manager of the Louisiana-Pacific Kremmling, Colorado facility; that hewas unaware of the OSHA Citation until requested to pay the penalty; that he isresponsible for all safety and health matters; that because of a change in operationmanagement the Citation was inadvertently overlooked; that the items in the Citation hadbeen corrected; that it was an oversight on the part of the outgoing manager not to informhim of the Citation; and that the affidavit should be considered a reassumption of thecase and a Notice of Contest.The Respondent’s request is resisted by the Secretary on theground that the affidavit does not set forth the pertinent reasons for relief spelled outin Rule 60(b) which provides:Rule 60. Relief from Judgement or Order.(b) . . . On motion and upon such terms as are just, the courtmay relieve a party or his legal representative from a final judgement, order, orproceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusableneglect; . . . or (b) any other reason justifying relief from the operation of thejudgment.The filing of a notice of contest is a statutory prerequisite to Commission jurisdiction.Under Section 10(c) of the Act, uncontested Citations are self-executing and automaticallybecome final orders of the Commission by operation of law.To come within the Rule 60(b) and be eligible for relief, the movant must demonstrate theexistence of a mistake, inadvertence, surprise or excusable neglect, and that it has ameritorious defense. The affidavit does not allege that the Secretary was guilty ofdeception or improper conduct, or that the Respondent was confused by the Administration’sinstructions or misled by any procedural requirements resulting in a failure to file anotice of contest. Nor is there any indication that officers or responsible officials ofthe Respondent did not receive the Citations. Indeed, the affidavit states that thealleged infractions were corrected. Inasmuch as there is no claim that the Secretary’sCitations were not justified or that there was a valid defense to them, Section 60(b) ofthe Federal Rules of Civil Procedure has no application.Because the Citations became the final order of the Commissionby operation of law, and Rule 60(b) is of no assistance to the Respondent, its Notion toReassume Jurisdiction, Vacation of Order, and Notice of Contest is denied, and theCitations are affirmed.Sidney J. Goldstein, Judge, OSHRCDated: December 29, 1986FOOTNOTES: [[1\/]] Rule 60. Relief From Judgment or Order* * *(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence, Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’slegal representative from a final judgement, order, or proceeding for the followingreasons: (1) mistake, inadvertence, surprise, or excusable neglect … or (6) any otherreason justifying relief from the operation of the judgment.[[2\/]] The Occupational Safety and Health Act of 1970, 29U.S.C. ? 651-678.[[3\/]] Section 10(a) of the Act provides as follows:If, within fifteen working days from the receipt of the notice issued by the Secretary theemployer fails to notify the Secretary that he intends to contest the citation or proposedassessment of penalty, and no notice is filed by any employee or representative ofemployees … within such time, the citation and the assessment, as proposed, shall bedeemed a final order of the Commission and not subject to review by any court or agency.[[4\/]] At the Secretary’s request, we have reconsidered herargument that the Commission lacks jurisdiction to grant relief under Rule 60(b) when acitation becomes a final order by operation of law under section 10(a) of the Act. Weconclude, however, that Branciforte Builders was correctly decided for the reasons statedin that decision and in J.I. Hass Co. v. OSHRC. We therefore reject the Secretary’sarguments and reaffirm the Commission’s precedent.”