“Docket No. 90-2460 SECRETARY OF LABOR,Complainant,v.E. K. CONSTRUCTION COMPANY, INC.,Respondent.OSHRC Docket No. 90-2460DECISION Before: FOULKE, Chairman; WISEMAN,Commissioner.[[1\/]]BY THE COMMISSION:On July 11, 1990, the Occupational Safety andHealth Administration (OSHA) issued to E. K. Construction Co. (\”E. K.\”) bycertified mail three citations, each containing a notification of proposed penalty. Thecertified return receipt shows that E. K. received the citations on July 13, 1990. Thecitations on their face warned that unless a written notice of contest was mailed to theOSHA Area Director in Bayside, New York, within 15 working days of their receipt by E. K.,the citations and their proposed penalties would become final, non-reviewable orders. The15 working-day period for contesting the citations expired on August 30, 1990. On August14, E. K. mailed a letter to the Bayside, New York OSHA area office requesting an informalconference to \”discuss an informal settlement agreement which amicably resolves thismatter without litigation and contest.\” In the letter, E. K. apologized for the\”tardiness\” of its request, and claimed that \”the person assigned in ouroffice to schedule this meeting was unable to follow-up due to a prolonged illness.\”It also claimed that the \”violations have been corrected,\” and attached a sheet\”listing the methods of corrections for each item on the citations.\”On September 5, E. K. mailed a letter to the Commission in which it expressed itsdispleasure at receiving the \”notice of fines.\” It again noted that theindividual assigned to respond to the matter was ill and that \”no one was aware thata written response had been delayed.\” E. K. again requested a \”meeting to be setup to resolve this matter . . . and to arrive at a mutually acceptable solution to theproblem.\”On October 23, 1990, the Secretary filed a motion for an order dismissing E. K.’s\”notice of contest.\” The Secretary argued that E. K.’s failure to file a timelynotice of contest did not warrant relief under Rule 60(b) of the Federal Rules of CivilProcedure.[[2\/]] E. K. did not respond to the motion. Judge Terrill granted the motion,finding:There is no evidence that the Secretary employed deceptive practices nor failed to complywith required procedures. Also, there is no request by Respondent here for relief underF.R.Civ.P. 60(b) substantiating that Respondent’s actions in failing to contest timelywere the result of \”excusable\” neglect rather that \”simplenegligence\”.The judge dismissed E. K.’s notice of contest and affirmed the citations and the proposedpenalty.Review was directed on whether the August 14 and September 5 letters submitted by this prose employer should be treated as a request for relief under Fed. R. Civ. P. 60(b)and if so, whether the employer should be given an additional opportunity to substantiateits claim that its failure to file a timely notice of contest should be excused. E. K.’sonly argument on review is a claim that it did not answer the Secretary’s motion todismiss because it received only a copy of the Secretary’s motion, and did not understandthat it was required to act upon the motion.Even if we found that E. K.’s August 14 and September 5 letters requesting a conferenceshould be treated as a request for relief under Rule 60(b), E. K. has failed to establisha basis for relief under the rule.[[3\/]] E. K’s only proffered reason for not respondingto the citations in time was the \”prolonged illness\” of the person E. K.assigned to schedule the informal conference. However, under the terms of Rule 60(b), thisis not an adequate excuse for E. K.’s failure to timely file a notice of contest. Rule60(b) requires a showing of excusable neglect, not just simple negligence. An employer’sfailure to have a procedure in place to address such occurrences does not provide a basisfor relieving an employer from the effects of the final order.The Commission has consistently denied relief to employers whose procedures for handlingdocuments were to blame for untimely filings. See Louisiana-Pacific Corp.,13 BNA OSHC 2020, 1987-90 CCH OSHD ? 28,409 (No. 86-1266, 1989) (a business must maintainorderly procedures for handling important documents); Stroudsburg Dyeing &Finishing Co., 13 BNA OSHC 2058, 1987-90 CCH OSHD ? 28,443 (No. 88-1830, 1989)(failure of employee who received the citation to bring it to the attention of the properofficer of the company does not constitute \”excusable neglect\” or \”anyother reason justifying relief\”). See also J. F. Shea Company, Inc.,OSHRC Docket No. 89-976 (June 5, 1991) (simple negligence is not an adequate excuse forrelief under Rule 60(b)). E. K. should have had an office procedure that would ensure atimely response to such important documents.E. K.’s claim, that it was misled because the Secretary’s motion was not addressed to E.K., also provides no basis for relief. E. K. was sent a copy of the Commission’s ruleswhen the case was docketed, more than a month before the Secretary’s motion was filed. Wehave held that ignorance of procedural rules does not constitute \”excusableneglect\” within Federal Rule of Civil Procedure 60(b). Roy Kay, Inc., 13 BNAOSHC 2021, 1989 CCH OSHD ? 28,406 (No. 88-1748, 1989) (employer’s argument that it didnot appreciate the importance of the fifteen day requirement because of its lack of priorexperience with OSHA does not constitute \”excusable neglect\” under 60(b)).Accordingly, the judge’s order dismissing E. K.’s notice of contest, affirming theSecretary’s citations and assessing penalties totaling $5,350 is affirmed.Edwin G. Foulke, Jr. ChairmanDonald G. WisemanCommissionerDated: July 17, 1991SECRETARY OF LABOR,Complainant, v. E. K. CONSTRUCTION CO., INC.,Respondent.Docket No. 90-2460ORDER DISMISSING NOTICE OF CONTESTOn July 11, 1990, citations and notification ofproposed penalty were issued by the Department of Labor to the Respondent by certifiedmail.On August 14, 1990, Respondent contested the citations noting that the violations had beencorrected and requested an informal conference.On September 18, 1990, OSHRC docketed the case.On October 23, 1990, the Secretary filed a Motion for Order Dismissing Respondent’s Noticeof Contest. Respondent failed to file a timely response to the motion.There is no evidence that the Secretary employed deceptive practices nor failed to complywith required procedures. Also, there is no request by Respondent here for relief underF.R.Civ.P. 60(b) substantiating that Respondent’s actions in failing to contest timelywere the result of \”excusable\” neglect rather than \”simplenegligence\”. See Louisiana-Pacific Corp., 13 OSHC 2020 (R.C. 1989).Accordingly, Respondent’s notice of contest is dismissed and Citation Nos. 1, 2, and 3 arehereby affirmed and the proposed penalties totaling $5,350 are hereby affirmed byoperation of law.DELBERT R. TERRILL, JR. Judge, OSHRCDATED: November 29, 1990DRT24\u00a0\u00a0 Boston, MAFOOTNOTES: [[1\/]] Commissioner Montoya did not participate in the deliberation or issuance of thisdecision.[[2\/]] The rule provides, in pertinent part: Rule 60. Relief From Judgment or Order*\u00a0 *\u00a0 *(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 judgment, 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.[[3\/]] Since we find that E. K. failed toestablish any basis for relief under Rule 60(b), we need not consider whether the lettersshould be treated as a request for relief under Rule 60(b).”