UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 77–2040 & 77–2947

REBCO STEEL CORPORATION,                                     

 

                                              Respondent.

 

March 31, 1980

ORDER

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

            These cases arise under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The cases are before the Commission on Rebco Steel Corporation’s Petition to Open Defaults, filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.[1] For the reasons that follow, we deny Rebco Steel’s petition.

            On June 13, 1977, and August 18, 1977, the Secretary issued to Rebco Steel, Respondent, citations and notifications of proposed penalty. Rebco Steel’s Vice President W. Dennis Prouty filed notices of contest for Reboc Steel on both occasions, and the cases were docketed as Nos. 77–2040 and 77–2947 respectively. Thereafter, Rebco Steel failed to file answers in response to the Secretary’s complaints in both cases. Moreover, Rebco Steel failed to respond to Commission orders to show cause why the notices of contest should not be dismissed in both cases for failure to file answers. Therefore, on November 30, 1977, and January 11, 1978, in the respective cases, Administrative Law Judge David H. Harris issued orders dismissing Reboc Steel’s notices of contest and affirming the citations and notifications of proposed penalty. The orders became final without review by the full Commission. 29 U.S.C. § 661(i).

            On August 14, 1978, Rebco Steel, by its attorney, filed a Petition to Open Defaults pursuant to Rule 60(b).[2] In support of its petition, Rebco Steel argued that the following circumstances amounting to excusable neglect caused the defaults, and that therefore reinstatement is justified. Having learned that Vice President Prouty mishandled a citation issued by the Secretary to Rebco Steel, Respondent’s president instructed Prouty in June, 1977, to give any contested citations to Rebco Steel’s attorney rather than handle them himself. Notwithstanding this instruction, it was not until July, 1978, when the Secretary tried to collect the penalties, that Rebco Steel’s attorney and, through him, Rebco Steel’s management, first learned of the citations and orders of default in these cases. Rebco Steel thereafter discovered that, even though the instruction to Prouty was given shortly after the citation in No. 77–2040 was issued, and well before the citation in No. 77–2947 was issued, Prouty did not follow it and apparently continued to handle citations himself.

            During 1977, Rebco Steel realized that Prouty was generally mismanaging the company’s affairs. In August, 1977, Rebco Steel hired a replacement for Prouty and after a period of transition lasting until December, 1977, Prouty was released. During this transition period, due to financial losses, Rebco Steel also moved its office to a smaller building in the plant, and reduced and substantially changed managerial and clerical personnel. Rebco Steel asserts that these changes caused the company to fail to discover the citations and final orders of default in the two cases.

            The Secretary filed a memorandum in opposition to Rebco Steel’s petition. The Secretary argues that if Rebco Steel’s unsupported allegations are accepted as fact, they do not establish justifiable or excusable mistake, inadvertence, surprise, or neglect. Rebco Steel failed to provide sufficient reason for its own continuing failure to discover Prouty’s insubordination and neglect before the entry of the final orders of default. In the Secretary’s view, Rebco Steel’s allegations establish nothing more than simple negligence or carelessness, which cannot provide a basis for relief from final orders under Rule 60(b).

            We agree with the Secretary. To begin with, Rebco Steel’s assertions in support of its petition for relief from the final orders cannot be accepted as fact. The company’s petition presents only unsupported assertions made by the company’s attorney concerning why the company failed to file answers to the complaints and responses to the show cause orders. Rebco Steel did not, in addition, submit any affidavit[3] or other evidence to support the assertions. In Browar Wood Products Co., 79 OSAHRC ___, 7 BNA OSHC 1165, 1979 CCH OSHD ¶ 23,326 (No. 78–2230, 1979), a divided Commission accepted as evidence unsworn representations of fact, but there the unsworn representations were made by the president of the respondent company in a motion for reconsideration personally filed by him. The Commission stated that ‘. . . Browar is pro se and apparently a small businessman,’ and reasoned that therefore ‘Browar may not have been aware of the legal technicalities of the judicial process and the need to submit affidavits in support of its motion.’ 7 BNA OSHC at 1167, 1979 CCH OSHD at p. 28,215. These special circumstances clearly are not present in this case.

            Moreover, even if Rebco Steel’s assertions are accepted as true, they do not establish any ground for relief under the pertinent portions of Rule 60(b) providing relief for ‘(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.’

            To show mistake or inadvertence justifying relief under the rule, a petitioner ‘must make some showing of why he was justified in failing to avoid mistake and inadvertence.’ 11 C. Wright & A. Miller, Federal Practice and Procedure § 2858 at 170 (1973). Mere carelessness does not justify relief under these provisions. 7 Moore’s Federal Practice ¶60.22[2] at 254 (2d ed. 1978). Moreover, by the terms of the rule, neglect must be shown to be excusable.

            In Monroe & Sons, supra note 2, the Commission applied Rule 60(b) to reinstate the Respondent company’s notice of contest which had been dismissed due to the company’s failure to answer the Secretary’s complaint. In the company’s request for reinstatement, the company claimed that it had failed to answer the complaint because of a belief that the notice of contest satisfied the requirement for an answer. The company had appeared pro se during the proceedings leading to the dismissal order, and noting this the Commission stated that ‘[o]ur experience reveals that . . . pro se employers are often confused by the legal terms used in various communications involved in these cases and that they genuinely believe that submission of a notice of contest satisfies the requirement for . . . an answer . . ..’ 4 BNA OSHC at 2017, 1976–77 CCH OSHD at p. 25,773. The Commission therefore essentially held that the employer had shown justifiable mistake or excusable neglect.

            Here, however, Rebco Steel has at best shown only carelessness or simple neglect. Rebco Steel asserts that in June, 1977, its vice president, Prouty, was instructed to refer all contested citations to the company’s attorney since Prouty had mishandled an earlier citation. The company also asserts that as replacement for Prouty was hired in August, 1977, and a transition period followed until Prouty’s firing in December. In addition, Rebco Steel maintains that staff turnover and a change in its office location caused the failure to detect Prouty’s inaction. However, at the time of the issuance of the show cause orders in these cases Prouty’s replacement had already been hired. From this it is obvious that Rebco Steel failed to adequately supervise Prouty or otherwise act to assure responses to the chief judge’s orders even though it knew of Prouty’s unreliability and had a replacement on the job before these cases were dismissed. Accordingly, this neglect is not excusable. Moreover, under the circumstances, other staff changes and Rebco Steel’s relocation of its offices do not support a conclusion of justifiable mistake or inadvertence, or excusable neglect.

            Finally, in order to secure relief under Rule 60(b)(6), a petitioner must demonstrate some ground other than those included in clauses (1) through (5) of the rule. Moore’s Federal Practice, supra ¶60.27[1] at 343. Once relief is unavailable under clause (1) because a petitioner’s carelessness resulted in the final judgment, relief is also unavailable under clause (6). Sears, Sucsy & Co. v. Insurance Co. of North America, 392 F. Supp. 398, 412 (N.D. Ill. 1975).

 

Accordingly, we deny the petition. SO ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAR 31, 1980

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 77–2040 & 77–2947

REBCO STEEL CORPORATION,                                    

 

                                              Respondent.

 

 

November 30, 1977

ORDER

Respondent herein has failed to file its Answer as required by 29 CFR 2200.33(b) and good cause therefor appearing, it is

            ORDERED that the Notice of Contest filed herein by the Respondent be and the same is hereby withdrawn and the Citation and Notification of Proposed Penalty herein be and they are hereby affirmed as the final order of the Occupational Safety and Health Review Commission.

 

DAVID H. HARRIS

Judge, OSHRC

 

 


[1] Pursuant to 29 U.S.C. § 661(f), the proceedings of the Commission are governed by the Federal Rules of Civil Procedure except to the extent that the Commission has adopted a different rule. See also 29 C.F.R. § 2200.2(b).

[2] While Rebco Steel referred only to Rule 60(b) generally in its petition, in its memorandum of law supporting the petition the company specifically referred to subsections (1) and (6) of the rule.

The pertinent portion of the rule provides that ‘[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, 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.’ The Commission has held that a case in which an administrative law judge’s decision has become final without Commission review may be reinstated if the requirements of Rule 60(b) are satisfied. Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976–77 CCH OSHD ¶21, 470 (No. 6031, 1977), aff’d, No. 77–3157 (6th Cir. February 26, 1980).

[3] Commission Rule 69, 29 C.F.R. § 2200.69, provides:

Rule 69 Affidavits

An affidavit may be admitted as evidence in lieu of oral testimony if the matters therein contained are otherwise contained are otherwise agree to its admission.