“SECRETARY OF LABOR,Complaint,v.E. CLIFFORD DURRELL & SON,Respondent.OSHRC Docket No. 90-0808_ORDER_This matter is before the Commission on a Direction for Review enteredby Commissioner Velma Montoya on June 26, 1990. The parties have nowfiled a Stipulation of Settlement.Having reviewed the record, and based upon the representations appearingin the Stipulation of Settlement, we conclude that this case raises nomatters warranting further review by the Commission. The terms of theStipulation of Settlement do not appear to be contrary to theOccupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation of Settlementinto this order. This is the final order of the Commission in this case.See 29 U.S.C. {secs} 659(c), 660(a) and (b).Edwin G.Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: April 18, 1991LYNN MARTIN, SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABORComplainant,v.E. CLIFFORD DURRELL & SON, INC.,and its successors,Respondent.OSHRC DOCKET NO. 90-0808INSPECTION No. 102843505 REGION IIISTIPULATION OF SETTLEMENTComplainant, Lynn Martin, Secretary of Labor, United States Departmentof Labor, by her attorneys, and Respondent, E. Clifford Durrell & Son,Inc, by its representative, James F. Sassaman, in order to conclude thismatter without the necessity of further litigation, herein agree andstipulate as follows:1. Complainant hereby moves to amend its Citation and Notification ofProposed Penalty issued on January 17, 1990, in the following particulars:_Citation No. 1_a. Item No. 1, item and penalty deletedb. Item No. 2, amended as to penalty from 480.00 to 300.00_Citation No. 2_a. Item No. 1, instance (c) only deleted.b. Item Nos. 2, 3, 4, and 5 deleted.As grounds therefore, Complainant states that after additionalinvestigation and consideration, the above amendments more accuratelyreflect the gravity of the alleged violations as well as Respondent’sgood faith, size, and history.2. Respondent hereby moves the Commission for an order to allow it towithdraw its Notice of Contest to the Citations and Notification ofProposed Penalty as amended by this Stipulation. In support of itsmotion, Respondent represents:a. That complete abatement of the violative conditions has beenaccomplished or will be accomplished in accordance with the terms ofthis Stipulation;b. That Respondent has posted its Notice of Contest on the jobsite attime of docketing;c. That a copy of this Stipulation of Settlement has been posted inaccordance with the requirements of 29 CFR {sec} 2200.7 serve allaffected employees on April 5, 1991 at the jobsite;d. Respondent agrees to continue to comply with the applicableprovisions of the Occupational Safety and Health Act of 1970 (29 U.S.C.{sec}, et seq.), and the applicable safety standards pursuant to the Act;e. That a check in the amount of $300.00, made payable to \”OSHA-LABOR\”,will be forwarded to the Occupational Safety and Health Administration,Philadelphia Area Office, within twenty (20) days of the date of thisStipulation.3. None of the foregoing agreements, stipulations or actions taken byRespondent shall be deemed an admission by Respondent of any of theallegations contained in the Citations. Respondent specifically denieseach such allegation. The agreements, statements, stipulations andactions herein are made solely for the purpose of settling this mattereconomically and amicably without further litigation and shall not beused by anyone for any other purpose except for subsequent enforcementproceedings filed by the Secretary against Respondent under the Act.4. The Citations and Notification of Proposed Penalty as amended by thisStipulation shall become a final order of the Commission.5. Each party to this proceeding is to bear its own costs, fees andexpenses incurred at each and every stage of this proceeding.BY:E. CLIFFORD DURRELL & SONS, INC.Robert P. DavisSolicitor of LaborJames F. SassamanRepresentative for RespondentMarshall H. HarrisRegional SolicitorJoseph T. CrawfordAttorneyU.S. DEPARTMENT OF LABORAttorneys for ComplainantSecretary of Labor,Complainant,v.E. Clifford Durrell & Son, Inc.,RespondentDOCKET NO: 90-0808_ORDERGRANTING SECRETARY’S CROSS MOTION FOR SUMMARY JUDGMENTDENYING RESPONDENT’S MOTION FOR RELIEF FROM JUDGMENTDISMISSING UNTIMELY FILED NOTICE OF CONTEST_The relevant facts are uncontroverted and set forth in detail in theSecretary’s brief in support of its motion to dismiss the notice ofcontest. That detailed statement of facts is hereby incorporated byreference. Similarly, the facts asserted in Respondent’s motion forrelief are accepted as fact for the purposes of this disposition and areincorporated herein by reference.Briefly stated, Respondent, after receiving a citation and notificationof proposed penalty on January 17, 1990, transmitted it to itsrepresentative who was instructed to file a notice of contest. Throughthe unintentional error of an employee of Respondent’s representative,who it appears placed the notice of contest in the mail to Respondentrather than to the OSHA office, no timely oral or written notice ofcontest was filed.Respondent does not allege any deceptive or improper behavior on OSHA’spart. It argues that the error in mailing, apparently made by anemployee of its representative, was of such an innocent nature as towarrant relief from the dismissal of a late notice of contest.Respondent also argues that due to the color blindness of Respondent’sprincipal he could not know that the \”copy\” of the notice of contestprovided to him by his representative was, in fact, the improperlyaddressed original intended to be mailed to OSHA.Within 15 working days of receipt of the citation and notification ofproposed penalty an employer must file a notice of contest or they are\”deemed a final order of the [Review] Commission and not subject toreview by any court or agency.\” Section 10(a), 29 U.S.C. {sec} 659(a),of the Occupational Safety and Health Act of 1970, 29 U.S.C. {secs}651-678 (\”the Act\”).It has been consistently held since the Commission decision in Keppel’sInc., 7 BNA OSHC 1442 (No. 77-3020, 1979), that a notice of contestwhich has not been filed within 15 working days of the receipt of thecitation by Respondent is invalid \”unless the employer can show that thedelay in filing was caused by the Secretary’s deception or failure tofollow procedures.\” Keppel’s, supra. at 1443, citing, Atlantic Matine,Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1977). Ten years later, the Firstcircuit reiterated the principle in similar language in Secretary ofLabor v. Barrretto Granit Corp., 830 F.2d 396, 399 (1st cir. 1987).Since Respondent concedes the absence of deceptive practices or failureto follow procedures on the part of OSHA, its late notice of contestmust be dismissed unless it is otherwise eligible for relief.Relief from the harsh result of dismissing a late notice of contest hasbeen made available to Respondents before the Commission through thevehicle of Rule 60(b) of the Federal Rules of Civil Procedure which areapplicable to Commission proceedings by virtue of Commission Rule2(b).[[1]] In Branicforte Builders, Inc., 9 OSHC 2113, 2117 (No.80-1920, 1981), (\”Branciforte\”), the Commission adopted the holding ofthe Third Circuit in J.I. Hass Co. v. OSHRC, 648 F.2d 190 (3d Cir.1981), that where an employer files a late notice of contest, theemployer may be granted relief from the final order under the terms ofRule 60(b). The Commission there noted that relief might fall undereither subsection (1) or (6) of Rule 60(b).[[2]] Branciforte, supra.Under the terms and application of Rule 60(b), however, relief from thedismissal of the notice of contest is not warranted in this case. Theonly mistake, inadvertence or neglect pointed to by Respondent was thatof its representative or, at least an employee of its representative.The color blindness of Respondent’s principal is irrelevant in that the\”mistake\” relied upon by Respondent is that of its representative inmisdirecting the notice of contest. More than the simple negligenceshown here is necessary to demonstrate excusable neglect. Havingestablished an internal process for the filing of notices of contest andhiring and relying on employees to perform this function is nothing morethan choosing a course of action the unfortunate results of which do notsupport relief. Respondent, having selected and chosen to rely on arepresentative, cannot now disavow the representative’s actions, or beautomatically excused by the lack thereof. The example used by theCommission in Branciforte, that of a party who had no actual knowledgeof the service of process, makes it clear that simple error is notwithin the contemplation of the relief from judgment rule.[[3]] Relieffrom the judgment of dismissal of this late notice of contest is notappropriate under the facts of this case.Respondent’s motion for relief from judgment is DENIED.Complainant’s cross motion to dismiss the notice of contest as untimelyis GRANTED.Accordingly, it is ORDERED THAT1. Respondent’s notice of contest is dismissed.2. Citations No. 1 and 2 are affirmed in their entirety.3. A total civil penalty of $960 is assessed\/Michael H. SchoenfeldJudge, OSHRCDated: JUN 4 1990Washington, D.C.FOOTNOTES:[[1]]Rules of Procedure of the Occupational Safety and Health ReviewCommission, 29 C.F.R. {secs} 2200.1-.212 (1988).[[2]]Rule 60(b), in pertinent part, reads;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 mayrelieve a party or his legal representative from a final judgment,order, or proceeding for the following reasons; (1) mistake,inadvertence, surprise, or excusable neglect;(6) any other reason justifying relief from the operation of the judgment.[[3 ]] See, Roy Kay,Inc.,13 BNA OSHC 2021 (No. 88-1748, 1989);Louisiana-Pacific Corp.,13 BNA OSHC 2058 (No. 86-1266, 1989);Stroudsburg Dyeing & Finishing Co.,13 BNA OSHC 2058 (No. 88-1830, 1989); Rebco Steel Corp., 8 BNA OSHC 1235 (No. 77-2040, 1980).”