“SECRETARY OF LABOR,Complainant,v.E & R ERECTORS, INC.,Respondent.OSHRC Docket No. 86-0545_ORDER_By order dated September 18, 1986, the administrative law judgedismissed Respondent’s notice of contest of certain citations becausethe Respondent had not provided proof of notice to affected employees.The judge’s order became final on October 20, 1986.Thereafter, however, Respondent filed a motion to allow an answer and astatement of position. In this statement, Respondent avows that itfailed to provide the required proof of notice to affected employeesbecause Respondent is \”strictly a leasing company with one paidemployee, its controller, who was not exposed to anything, since he wasnot on the [work]site.\” Respondent further states:The controller . . . , not really knowing much about anything butaccounting, thought he was asking for a conference when he sent in thenotice of contest. Not having experience in administrative proceedings,he failed to cause an answer to be filed to the pleadings or do anythingelse until he received a hearing notice, when he called his attorney.In defense to the citations, Respondent asserts that it should not havebeen cited because it did not control the worksite or the use of theequipment that is the subject of the citations. According to Respondent,an uncited subcontractor which rented the particular equipment fromRespondent controlled operations and created any hazardous conditions.Respondent emphasizes, also, that its one employee was never exposed toany hazard and questions whether other employees were exposed.Essentially, Respondent requests us to reinstate its contest. Theattorney appearing now for Respondent alleges that he \”has investigatedthis matter diligently after being brought into the case and believesthat no prejudice will be suffered by allowing the pleading. . . . \”In view of the circumstances of mistake, inadvertence, and excusableneglect stated by Respondent, we set aside the final order and reinstatethe notice of contest pursuant to Rule 60(b)(1) and (6) of the FederalRules of Civil Procedure. We remand the case to the administrative lawjudge for further proceedings. With respect to the matter of notice tothe affected employees, we direct the judge to permit the Secretary topresent any argument he may wish in response to Respondent’s assertionthat there are no affected employees within the meaning of our rules,and determine whether Respondent need comply with this noticerequirement. See commission Rules 1(e) and 7(g) and (h), 29 C.F.R. ?2200.1(e) and 7(g) and (h). SO ORDERED.Ray H. Darling, Jr.Executive SecretaryDATED: November 24, 1986————————————————————————SECRETARY OF LABORComplainantv.E & R ERECTORS, INC.RespondentDOCKET NO. 86-0545_ORDER_1. No response has been filed to my order dated June 18, 1986, notingthat the contesting employer has not complied with Commission Rule 7, 29C.F.R. ? 2200.7, requiring that notice of a contested case be given toaffected employees or their authorized representative, if any. Seeparagraph number 3 of the June 18, 1986, order.2. Accordingly, the notice of contest is hereby dismissed to the extentthat citations numbered W2587-495 issued April 15, 1986, are contested.The failure to provide proof of service is found to prejudice the rightsof affected employees to participate in this proceeding. Commission Rule20, 29 C.F.R. ? 2200.20. Nevertheless, the proposed penalties contestedwill remain in issue.3. Pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10, the citationsand penalty allegations are hereby severed and designated respectivelyas docket numbers 86-545 and 86- 1090. As explained in a separatedocument issued this date, the employer may seek Commission review onthe disposition of the citations under the prescribed procedures.PAUL A. TENNEYJudge, OSHRCDated: September 18, 1986Washington, D. C.”