“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2230 BROWAR WOOD PRODUCTS CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 9, 1979ORDERBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Pursuantto 29 U.S.C. 661(f) and Rule 60(b) of the Federal Rules of Civil Procedure, wereinstate the above-captioned case and remand it to the administrative lawjudge for further proceedings.??????????? OnApril 21, 1978, the Secretary issued to Respondent Browar Wood Products Co.,Inc., two citations alleging several items of violation and proposing penaltiestotaling $480. Browar, which has appeared pro se throughout, contested thepenalties only. A complaint and answer were duly filed, but Browar failed tofile proof of its compliance with the Commission?s requirement that its noticeof contest be posted for the information of affected employees.[1] Consequently, on August30, 1978, Judge Abraham M. Gold ordered Browar?s notice of contest be dismissed.??????????? OnOctober 2, 1978, three days after the Judge?s order became final pursuant to 29U.S.C. 661(i), the Commission received from Browar an undated motion asking theCommission to review the dismissal because it was ?based on a technicalitywhich, in view of the overall picture, is minor and has hurt no one.? Inexplanation, Browar averred it had posted its notice of contest but through?inadvertence and\/or human error? no proof of the posting was ever sent. Alsonoting it properly answered the complaint, Browar pointed out that in theanswer it not only alleged it is one-man business that generally employs onlyone employee but also that all of the violations have been abated. Accordingly,Browar asks for further proceedings on the contest.??????????? OnOctober 4, 1978, the Executive Secretary of the Commission sent to theSecretary of Labor a copy of the motion, and the Secretary has not indicatedany opposition to Browar?s motion.??????????? Thepertinent portions of Rule 60(b) provide that ?[o]n motion and upon such termsas 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 theoperation of the judgment.? Because Browar has averred that, although itproperly filed its answer and posted its notice of contest, it failed to filethe required proof of posting through ?inadvertence and\/or human error,?Browar?s request for relief from the order of dismissal clearly comes withinthe terms of Rule 60(b)(1), with respect to relief for mistake, inadvertence,or excusable neglect.??????????? Indetermining whether relief should be accorded under Rule 60(b), we firstconsider the particular circumstances involved in this case. Essentially Browarseeks relief from a form of default. That is, here a penalty of $480 has beenassessed against Browar because of its failure to comply with a technicalprocedural requirement, i.e., the requirement that proof of the proper postingof a notice of contest be filed with the Commission pursuant to Commission Rule7(d) and (g), rather than because the Secretary established the appropriatenessof the proposed penalties after an evidentiary hearing to develop the factsrelevant to the amount of penalty pursuant to 29 U.S.C. ? 666(j).[2] Moreover, Browar has nowsubmitted a sufficient proof of proper posting of its notice of contestpursuant to Rule 7(d) inasmuch as Morris Browarsky, Browar?s president, who hasrepresented Browar in appearing pro se throughout these proceedings,[3] has represented to theCommission that the notice of contest was posted at or around the time that thecitation was received.[4] No further proof of properposting is required. Accordingly, it clearly appears that the interests of anyaffected employees in these proceedings have been sufficiently protected fromthe outset as our rules require. We also note that Browar has properly answeredthe complaint of the Secretary, setting forth therein several factual bases forchallenging the amounts of the proposed penalties.[5] Since Browar has therebyproperly maintained its contest by apprising the Secretary of its defenses inthe action after having notified employees of the action so that they couldparticipate in the proceedings as a party along with the Secretary, theSecretary, also, has not been prejudiced by Browar?s failure to file its proofof posting. Accordingly it clearly appears, as Browar points out in its motion,that here a relatively substantial penalty has been assessed without a hearingon the basis of a default that has not prejudiced either the Secretary or theaffected employees. Since this is the case, we liberally construe the terms ofRule 60(b)(1) to determine the sufficiency of Browar?s motion, resolving doubtin favor of the motion, to permit, where a weighing of all relevantconsiderations shows it is reasonable and just, a hearing on the merits raisedby the pleadings.[6]??????????? Turning,then, to the substance of the motion itself, we first find that Browar hasestablished it has a genuine and material basis for challenging the penaltiesin this proceeding.[7]Browar refers to the fact that it properly answered the complaint, alleging,among other things, that its operation generally has been safe, that generallyonly one employee is involved in the operation, and that all of the allegedviolations have been abated; and as we stated earlier herein, Browar?s answersufficiently apprised the Secretary of the factual basis for Browar?s contest.[8] We secondly acceptBrowar?s representations of inadvertence and error in failing to comply withour rules. We view the statements made in the motion by Browar?s president asrepresentations of fact supporting the request for Rule 60(b)(1) relief.Although not made under oath in an affidavit, we will admit the statements asevidence.[9] We note in this regardthat Browar is pro se and apparently a small businessman, having according toit one employee most of the time. In such circumstances, Browar may not havebeen aware of the legal technicalities of the judicial process and the need tosubmit affidavits in support of its motion. Moreover, we consider Browar?srepresentations as unchallenged. The Secretary actually received notice of thisclaim for relief, since the Executive Secretary of the Commission forwarded acopy of the motion to him and the motion clearly is within the terms of Rule60(b). Even though it is clear the Commission will consider whether to grantRule 60(b) relief in view of Monroe & Sons, Inc., 77 OSAHRC 14\/B7, 4BNA OSHC 2016, 1976?77 CCH OSHD para. 21,470 (No. 6031, 1977),[10] the Secretary has notfiled an opposition to the motion.??????????? Accordingly,because we accept the representations of inadvertence and error set forth inthe motion of Browar for relief pursuant to Rule 60(b), we vacate the order ofthe judge, reinstate the case, and remand to the judge for further proceedingsconsistent with this order. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 09, 1979COTTINE, Commissioner, dissenting:??????????? Thiscase presents several important issues involving the interrelation ofCommission review of the administrative law judges? decisions under section12(j) of the Act, 29 U.S.C. ?\u00a0661(i), and relief under Rule 60(b) of theFederal Rules of Civil Procedure. I agree that the Commission may invoke Rule60(b) to afford relief from final orders even though the thirty-day reviewperiod has elapsed. Monroe & Sons, supra. However, I must dissentfrom my colleagues? premature decision to grant the motion for relief fromjudgment filed by the Respondent in this case.??????????? Thesystem of adjudicating cases under the Act requires that Rule 60(b) be appliedjudiciously. Under section 12(j) of the Act, an administrative law judge?sdecision becomes final unless it is directed for review within 30 days. 29U.S.C. ? 661(i). Within that 30 day period, an aggrieved party may file apetition for review taking exception to any portion of the judge?s decision.Commission Rule 91, 29 C.F.R. ? 2200.91. These procedures prescribe a detailedappellate process. 29 U.S.C. ?? 659?661; 29 C.F.R. ?? 2200.90 et seq. Rule60(b) cannot be invoked to circumvent that process.??????????? It iswell settled that Rule 60(b) is not a substitute for appeal. 7 Moore?sFederal Practice ?60.18[8]; see also Ackermann v. United States, 340U.S. 193, 197?198 (1950); Martinez-McBean v. Government of Virgin Islands,562 F.2d 908 (3d Cir. 1977); Wagner v. United States, 316 F.2d 871 (2dCir. 1963). Thus, before the Commission can determine whether a party isentitled to relief from a judgment, it must initially conclude that the partyhas raised one of the specific grounds for relief set forth in Rule 60(b). Amotion is not properly entertained when a party raises substantive issues thatshould have been timely pursued in a petition for review. See Commission Rule91a(b)(1)?(4), 29 C.F.R. ? 2200.91a(b)(1)?(4).??????????? Theletter from Browar Wood Products, Inc. (?Browar?) was received by theCommission one working day (three calendar days) after the judge?s decisionbecame a final order under section 12(j) of the Act. In the letter, Browarasserts that its failure to submit the required proof of posting was the resultof ?. . . inadvertence and\/or human error. . . .? Browar makes no specificreference to Rule 60(b). However, Browar claims that it committed the principalerror, rather than exclusively challenging the rulings and decision of theadministrative law judge. This distinguishes Browar?s request for relief fromthose properly assigned to a petition for review. Therefore, I would concludethat the assertion of inadvertence is sufficient to raise a claim for relief underRule 60(b)(1).[11]??????????? Nevertheless,my colleagues err in providing the requested relief at this time. By grantingBrowar relief under Rule 60(b), the majority has deprived the Secretary as theadverse party of its most basic rights to notice and an opportunity to beheard. These basic procedural rights are embodied in the Commission?s rules.All papers in a case, including motions, must be served on every other party.Commission Rule 7(a), 29 C.F.R. ? 2200.7(a). In addition, each party is to beafforded 10 days to file a response to a motion. Commission Rule 37, 29 C.F.R.? 2200.37. My colleagues state that a copy of the motion was transmitted to theSecretary. I disagree. A copy of the Browar letter was sent to the Secretary.However, as the majority correctly observes, the letter is rather ambiguous anddoes not specifically refer to Rule 60(b). Therefore, the letter fails toprovide effective notice of the relief requested by Browar. Moreover, theCommission has not independently informed the Secretary of its decision totreat this ambiguous and unspecific letter as a motion under Rule 60(b).Furthermore, the Secretary has not been afforded the opportunity to argue theappropriateness of that determination. These errors are compounded by mycolleagues? reliance upon the Secretary?s failure to oppose the motion or tochallenge Browar?s factual representations. In view of the lack of notice, Ican ascribe no weight to the Secretary?s inaction.??????????? IfBrowan?s claim is demonstrably meritorious, then this case should bereinstated. However, that determination cannot be made on the basis of whatcurrently stands as an ex parte motion. Accordingly, I would have notified theparties of the decision to consider Browar?s claim for relief under Rule 60(b)and afforded them the opportunity to present all evidence and legal argumentrelevant to the appropriate disposition of that claim.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2230 BROWAR WOOD PRODUCTS CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 30, 1978ORDER??????????? Therebeing no proof of posting of the Notice of Contest as notice to affectedemployees, as required by Commission Rule 7, and there being no response to theCommission order dated July 12, 1978, the Notice of Contest is dismissedwithout prejudice.?ABRAHAM M. GOLDJudge, OSHRCDated: August 30, 1978?Washington, D.C.[1] Commission Rule7(d) and (g), 29 C.F.R. 2200.7(d) and (g), provide the following:(d) Proof of service shall be accomplishedby a written statement of the same which sets forth the date and manner of service.Such statement shall be filed with the pleading or document.(g) In the event that there are anyaffected employees who are not represented by an authorized employeerepresentative, the employer shall, immediately upon receipt of the notice ofthe docketing of the notice of contest . . ., post, where the citation isrequired to be posted, a copy of the notice of contest and a notice informingsuch affected employees of their right to party status and of the availabilityof all pleadings for inspection and copying at reasonable times. A notice inthe following form shall be deemed to comply with this paragraph[.] (Succeedingform deleted).[2] 29 U.S.C. ? 666(j)provides that[t]he Commission shall have authority toassess all civil penalties provided in this section, giving due considerationto the appropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the good faith ofthe employer, and the history of previous violations.[3] See CommissionRule 30(c) and 22(d), 29 C.F.R. 2200.30(c) and 29 C.F.R. 2200.22(d). Rule30(d), pertaining to the form of pleadings and motions, states that?[p]leadings shall be signed by the party filing or by his representative[which] . . . signing constitutes a representation by the signer that he hasread the document or pleading, that to the best of his knowledge, informationand belief the statements made therein are true, and that it is not interposedfor delay.?Rule22(d) provides that ?[n]othing contained herein shall be construed to requireany representative to be an attorney at law.?[4] In full, Browarhas averred the following:Weposted the Notice of Contest when we received it, which was when the citationwas served upon us. However, through inadvertence and\/or human error, no proofof posting was sent.BecauseBrowar refers to receiving the notice of contest, but a notice of contestactually originates with the employer and here originated with Browar?spresident, and because Browar refers also to having posted the notice ofcontest when the citation was received even though a notice of contest is filedin response to a citation, the averment is not without literal ambiguity.However, because Browar unequivocally states the notice of contest was postedand because its averment is made in direct reference to the judge?s ordervacating the notice of contest for failure to post the notice, we think it isreasonable to find that Browar timely posted the notice of contest. SeeCommission Rule 7(g), set forth in note 1 hereof.[5] In its answer,Brower asserted no penalties should be assessed for the following reasons:Respondenthas been in business for upwards of forty years and there has never been anaccident as a result of the failure of respondent to use the safeguard methodspromulgated in the Act.Respondenthas used safeguard methods which it believes are greatly superior to thoserequired by the Act.Respondenthad never received prior notice of the safety requirements from the Complainantand never knew what the requirements were.Respondent,after notification by the Complainant, never received a reasonable time, orreasonable opportunity, to do what Complainant required, but was immediatelynotified of a penalty in the sum of $480.00.Aftera consultation with the Complainant, respondent was offered a settlement, towit: one-half of the amount sued for, but respondent, believing it should payno assessment, refused said offer. Paragraph IX of the Complaint states that?several? of respondent?s employees are affected by the violations, but doesnot state the exact number, inferring that this is a large place of businessand that a great may employees are involved. The truth of the matter is thatthis is a one man business and that, at times, two employees are used, butthat, the majority of the time, Respondent has only one employee.[6] See Tolson v.Hodge, 411 F.2d 123 (4th Cir. 1969); Tozer v. Charles A. Krause MillingCo., 189 F.2d 242 (3d Cir. 1951); Trueblood v. Grayson Shops ofTennessee, 32 F.R.D. 190 (E.D. Va., 1963).[7] See, e.g., Tozerv. Charles A. Krause Milling Co.; Trueblood v. Grayson Shops ofTennessee, supra note 6.[8] See notes 2 and 5supra.[9] See 29 C.F.R.2200.69.[10] Pet. for reviewfiled, No. 77?3157 (6th Cir., March 16, 1977). See also C & C PlumbingCo. and M & M Contractors, Inc., 77 OSAHRC 204\/D14, 6 BNA OSHC 1131,1977?78 CCH OSHD ?22,361 (Nos. 5422 & 5423, 1977).[11] Rule 60. ReliefFrom Judgment or Order.(b) MISTAKES: INADVERTENCE: EXCUSABLENEGLECT: NEWLY DISCOVERED EVIDENCE: FRAUD, ETC. On motion and upon such termsas are just, the court may relieve a party or his legal representative from afinal judgment, order or proceeding for the following reasons: (1) mistake,inadvertence, surprise, or excusable neglect.”