SECRETARY OF LABOR,
Complainant,

v.

LOUISIANA-PACIFIC CORPORATION,
Respondent.

OSHRC Docket No. 86-1266


DECISION

Before: BUCKLEY, Chairman; AREY, Commissioner.
BY THE COMMISSION:

Certain citations issued by the Secretary of Labor to Louisiana Pacific Corporation became final orders of the Commission by operation of law when the company failed to file a timely notice of contest. Louisiana-Pacific has moved for relief from 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 now asking that the judge's ruling be reversed, that the final orders be set aside, and that a hearing on the merits of the Secretary's charges be held.

The Secretary argues that the Commission lacks jurisdiction to rule 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 "not subject to review by any court or agency."[[3/]]

We reject the argument. The Commission and federal courts have recognized two situations where the finality provision of section 10(a) does not preclude the Commission from hearing an employer's challenge to the Secretary's citations even where a timely notice of contest has not been filed. The first is where the Secretary has employed deceptive practices or fails to comply with required procedures. The Fifth Circuit suggested in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975) that an employer should not be denied review for not filing 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. The Commission has adopted the Fifth Circuit'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 CCH OSHD 23,675 (76-2165, 1979).

The second situation is where the employer requests relief under 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 to entertain a late notice of contest under rule 60(b)." The Commission has agreed with the Third Circuit's holding in Hass and has held that an employer may move under Federal Rule of Civil Procedure 60(b) for permission to file a late notice of contest. Branciforte Builders, 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 for relief 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. According to an affidavit by Plant Manager Julius C. Byers, Mr. Byers became the Operations Manager about two weeks before the issuance of the citations. As the new Operations Manager, he was 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 inadvertently overlooked" and that "the transition in management focused on achieving steady production and continued employment and [it] was an oversight or mistake on the outgoing manager's part to not inform me of the citation." Byers states in the affidavit that he "was unaware of the O.S.H.A. citation fine issued ... until [he] received a letter from the Denver O.S.H.A. office saying the Company had forgot (sic) to pay the fine regarding the citation." This affidavit is the only evidence submitted to support the motion.

The burden is on the employer to show sufficient basis for relief 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 extremely vague in describing why the company failed to file a timely notice of contest. Mr. Byers appears to say that the citation simply became lost in the shuffle during a change in management. However, this is not an adequate excuse for the Respondent's inaction under the terms of Rule 60(b)(1), which requires a showing of "excusable" neglect and not just a showing of simple negligence. Even during a management transition, a business must 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 of office workload are insufficient to set aside a default judgment under Rule 60(b)). The assertion by Louisiana-Pacific that it failed to do so does not justify relief under Rule 60(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 which in retrospect appears unfortunate or where error or miscalculation is traceable really to a lack of care.").

We conclude that Louisiana-Pacific has shown neither "mistake, inadvertence, surprise, or excusable neglect" within the meaning of Federal Rule of Civil Procedure 60(b)(1), nor "any other reason justifying relief from the operation of the judgment," under Federal Rule of Civil Procedure 60(b)(6).

Accordingly, we affirm the decision of the Administrative Law Judge denying the Respondent's request for relief under Rule 60(b) and granting the Secretary's motion to dismiss the notice of contest.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: 27 JAN 1989



SECRETARY OF LABOR,
Complainant,

v.

LOUISIANA-PACIFIC CORPORATION,
Respondent.

ORDER

Following an inspection of the Respondent's worksite in Olathe, Colorado, the Occupational Safety & Health Administration issued to the Company two Citations for various alleged violations of regulations adopted under the Occupational Safety & Health Act of 1970.

In the Citations, dated June 13, 1986, the Respondent was informed that unless it notified the Area Director of the Administration that it intended to contest the Citations or proposed penalties within 15 working days after receipt, the Citations 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 Request to Reassume Jurisdiction, Vacation of Order, and Notice of Contest. In support of the Request pursuant to Rule 60 of the Federal Rules Of Civil Procedure, the Respondent submitted an affidavit of Julius C. Byers who stated therein that on June 1, 1986, he became the plant manager of the Louisiana-Pacific Kremmling, Colorado facility; that he was unaware of the OSHA Citation until requested to pay the penalty; that he is responsible for all safety and health matters; that because of a change in operation management the Citation was inadvertently overlooked; that the items in the Citation had been corrected; that it was an oversight on the part of the outgoing manager not to inform him of the Citation; and that the affidavit should be considered a reassumption of the case and a Notice of Contest.

The Respondent's request is resisted by the Secretary on the ground that the affidavit does not set forth the pertinent reasons for relief spelled out in Rule 60(b) which provides:

Rule 60. Relief from Judgement or Order.

(b) . . . On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgement, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (b) any other reason justifying relief from the operation of the judgment.

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 automatically become 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 the existence of a mistake, inadvertence, surprise or excusable neglect, and that it has a meritorious defense. The affidavit does not allege that the Secretary was guilty of deception or improper conduct, or that the Respondent was confused by the Administration's instructions or misled by any procedural requirements resulting in a failure to file a notice of contest. Nor is there any indication that officers or responsible officials of the Respondent did not receive the Citations. Indeed, the affidavit states that the alleged infractions were corrected. Inasmuch as there is no claim that the Secretary's Citations were not justified or that there was a valid defense to them, Section 60(b) of the Federal Rules of Civil Procedure has no application.

Because the Citations became the final order of the Commission by operation of law, and Rule 60(b) is of no assistance to the Respondent, its Notion to Reassume Jurisdiction, Vacation of Order, and Notice of Contest is denied, and the Citations are affirmed.

Sidney J. Goldstein, Judge, OSHRC

Dated: December 29, 1986


FOOTNOTES:

[[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's legal representative from a final judgement, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment.

[[2/]] The Occupational Safety and Health Act of 1970, 29 U.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 the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees ... within such time, the citation and the assessment, as proposed, shall be deemed 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 her argument that the Commission lacks jurisdiction to grant relief under Rule 60(b) when a citation becomes a final order by operation of law under section 10(a) of the Act. We conclude, however, that Branciforte Builders was correctly decided for the reasons stated in that decision and in J.I. Hass Co. v. OSHRC. We therefore reject the Secretary's arguments and reaffirm the Commission's precedent.