“Docket No. 89-0976 Secretary of Labor,Complainant,v.J. F Shea Company, Inc.,Respondent.Docket No. 89-0976DECISION Before: FOULKE, Chairman; WISEMAN, Commissioner. BY THE COMMISSION:J. F. Shea Company, Inc. filed its notice of contest eight dayslate. The administrative law judge denied Shea’s petition for permission to file a latenotice of contest under Federal Rule of Civil Procedure 60(b). [[1\/]] On review, Sheacontends that the judge erred in denying its motion for relief.I. As a result of an inspection of a worksite in Glenwood Springs,Colorado on December 22, 1988, the Secretary of Labor issued two citations to Shea bycertified mail. According to the return receipt card, the citations were received atShea’s Walnut, California headquarters on January 25, 1989. Under 29 U.S.C. 659 (a), Sheahad until February 15, 1989 to file a notice of contest, which is fifteen working daysafter receipt of the citations. By letter dated February 23, 1989, Shea expressed itsintention to contest the citations and proposed penalty. In a letter dated February 28,the Secretary notified Shea that its notice of contest was late, and informed Shea that itmight wish to file a late notice of contest with the Commission.On March 17, 1989, Shea filed with the Commission its petitionfor permission to file a late notice of contest, in which it requested relief under Rule60(b). Attached to the petition were affidavits from L.W. Brown, Shea’s vice president,Sharon Jessop, Brown’s office assistant, and Robert Gordon, project manager at theColorado project. According to these affidavits, the citations were not delivered toJessop until February 3, 1989, at which time Jessop date-stamped the original and one copyof the citations and gave them to Brown. Jessop stated that \”[a]t that time, [she]had no reason to believe that the citations had been received in [her] office any earlierthan February 3, 1989.\” When Brown subsequently discussed whether to contest thecitations with Gordon, they both relied on the February 3, 1989 date stamp in calculatingthe 15-working day time limit.The Secretary contested Shea’s petition to file a late noticeof contest, contending that the reasons proffered by Shea did not satisfy any of therequirements for relief under Rule 60(b).II.On June 2, 1989, Commission Judge James A. Cronin, Jr. deniedShea’s request to file a late notice of contest under Rule 60(b). The judge noted thatunder Branciforte Builders, 9 BNA OSHC 2113, 1981 CCH OSHD ? 25,591 (No. 80-1920,1981), the burden is on Shea to establish a sufficient justification for relief from thefinal order. The judge found that the record failed to establish the reason for the delaybetween the receipt of the citations by Shea on January 25, 1989, and the delivery of themto Jessop on February 3,1989. In denying relief from the final order, the judge furtherrelied on Stroudsburg Dyeing & Finishing Company, 13 BNA OSHC 2058, 1987-90 CCHOSHD ? 28,443 (No. 88-1830, 1989), where the Commission held that when the employee whoreceives the mailed citation fails to bring it to the attention of the proper officer ofthe company, that failure does not constitute \”excusable neglect\” or \”anyother reason justifying relief\” within the meaning of Rule 60(b). The judge foundthat \”[t]he very situation confronting the Commission in Stroudsburg is againpresented by this record.\” III.On review, Shea does not dispute that service on the companywas effective on January 25, 1989, when one of their employees received and signed for thecitations. Instead, Shea argues that the mistake of date-stamping the citations with theincorrect date was the only event that prevented Shea from filing a timely notice ofcontest. Shea claims that it is entitled to relief under P & A Construction, 10BNA OSHC 1185, 1981 CCH OSHD ? 25,783 (No. 80-3848, 1981).In P & A, the Commission granted relief from a finalorder under Rule 60(b) where an employer’s attorney intended to file a notice of contest,but the attorney’s secretary inadvertently failed to mail it. However, the Commission hasnot granted relief when the negligent handling of a document occurred, as it did here, inthe employer’s own office. Louisiana-Pacific Corp., 13 BNA OSHC 2020 2021, 1987-90CCH OSHD ? 28,409, p. 37,537 (No. 86-1266, 1989) (a business must maintain orderlyprocedures for handling important documents) Stroudsburg Dyeing & FinishingCompany, supra.Shea argues that Stroudsburg is distinguishable from thepresent case. However, the principle behind Stroudsburg is that an employee’s errorin the handling of a citation constitutes neither \”excusable neglect\” nor\”any other reason justifying relief\” under Rule 60(b). Shea’s office assistanterred in date-stamping the citations as having been received by the company when shepersonally received them. Shea focuses on this \”honest clerical error\” but, asthe judge noted, the record failed to establish the reason for the delay between thereceipt of the citations by Shea on January 25, 1989, and the delivery of them to Jessopon February 3, 1989. Shea’s failure to demonstrate any \”orderly procedure forhandling important documents\” indicates that this is a case of simple negligence,which is not an adequate excuse for relief under Rule 60(b).IV. Accordingly, we affirm the decision of the administrative lawjudge denying Shea’s request for relief under Pule 60(b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: June 5 1991SECRETARY OF LABOR,Complainant,v.J. F. SHEA CO., INC.,Respondent.DECISION AND ORDERRespondent has filed a Petition for Permission to File a LateNotice of Contest. By this petition, respondent seeks relief from a final order of thisCommission that resulted from respondent’s failure to file a timely notice of contest.Therefore, this petition will be treated as a request for relief under Rule 60(b) of theFederal Rules of Civil Procedure. [[1]] The Secretary opposes respondent’s request forrelief.Under 29 U.S.C ? 659(a), an employer who has received a citation has fifteen working daysin which to notify the Secretary of Labor that it intends to contest the citation. Therespondent in this case received two citations on January 25, 1989, and filed its noticeof contest on February 23, 1989, eight days after the fifteen-day period had expired. Byfailing to file its notice of contest within the fifteen-day period, the citations andproposed penalties became final orders of this Commission.The burden is on the respondent to establish a sufficientjustification for relief from a final order. Branciforte Builders, 9 BNA OSHC 2113(No. 80-1920, 1981). In support of its petition for relief respondent has attached theaffidavits of three respondent employees. All three employees mistakenly believed that thecitations had been received at respondent’s corporate headquarters on February 3, 1989. Onthat date, Ms. Jessop, assistant to L. W. Brown, respondent’s Vice-President, receivedfrom respondent’s mailroom the mail containing the citations. She opened this mail anddate-stamped the citations as \”Received Feb. 3, 1989.\” The record, however,fails to establish the reason for the delay existing between the receipt of the citationsby respondent on January 25, 1989, and the delivery of them to Ms. Jessop on February 3,1989.As recently as February of this year, the Commission held thatthe mere failure of the employee who received the mailed citation to bring it to theattention of the proper officer of the company does not constitute \”excusableneglect\” or \” any other reason justifying relief\” Stroudsburg Dyeing& Finishing Company, OSHRC Docket No. 88-1830 (February 27, 1989).The very situation confronting the commission in Stroudsburgis again presented by this record. Respondent’s request for relief, therefore, must bedenied.SO ORDERED.James A. Cronin Jr. Judge,OSHRCDated:\u00a0\u00a0\u00a0 June 2, 1989FOOTNOTES: [[1\/]] The rule provides, in pertinent part: Rule 60. Relief From Judgment or Order(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence, Fraud, etc.On notion 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.[[1]] Rule 60. Relief From Judgment or Order(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence, Fraud, Etc. Onmotion and upon such terms as are just, the court may relieve a party or a party’s legalrepresentative from a final judgment, order, or proceeding for the following reasons: (1)mistake, inadvertence, surprise, or excusable neglect… or (6) any other reasonjustifying relief from the operation of the judgment.”