“SECRETARY OF LABOR,Complainant,v.LOUISIANA-PACIFIC CORPORATION,Respondent.OSHRC Docket No. 86-1266_DECISION_Before: BUCKLEY, Chairman; AREY, Commissioner.BY THE COMMISSION:Certain citations issued by the Secretary of Labor to Louisiana PacificCorporation became final orders of the Commission by operation of lawwhen the company failed to file a timely notice of contest.Louisiana-Pacific has moved for relief from the final orders underFederal Rule of Civil Procedure 60(b).[[1\/]] However, Commission JudgeSidney J. Goldstein denied its motion. Accordingly, the company is nowasking that the judge’s ruling be reversed, that the final orders be setaside, and that a hearing on the merits of the Secretary’s charges be held.The Secretary argues that the Commission lacks jurisdiction to rule onLouisiana-Pacific’s request. The Secretary notes that section 10(a) ofthe Act [[2]], 29 U.S.C. ? 659(a), provides that citations not timelycontested are \”not subject to review by any court or agency.\”[[3\/]]We reject the argument. The Commission and federal courts haverecognized two situations where the finality provision of section 10(a)does not preclude the Commission from hearing an employer’s challenge tothe Secretary’s citations even where a timely notice of contest has notbeen filed. The first is where the Secretary has employed deceptivepractices or fails to comply with required procedures. The Fifth Circuitsuggested in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir.1975) that an employer should not be denied review for not filing anotice of contest within the 15-day limit prescribed in the Act if theSecretary’s deception or failure to follow proper procedures isresponsible for the late filing. The Commission has adopted the FifthCircuit’s suggestion. Keppel’s, Inc., 79 OSAHRC 43\/A2, 7 BNA OSHC 1442,1979 CCH OSHD ? 23,622 (No. 77-3020, 1979); B.J. Hughes, Inc., 79 OSAHRC49\/E6, 7 BNA OSHC 1471, 1979 CCH OSHD ? 23,675 (76-2165, 1979).The second situation is where the employer requests relief under FederalRule of Civil Procedure 60(b). The Third Circuit held in J.I. Hass Co.v. OSHRC, 648 F.2d 190, 195 (3d Cir. 1981) \”that the Commission hasjurisdiction to entertain a late notice of contest under rule 60(b).\”The Commission has agreed with the Third Circuit’s holding in Hass andhas held that an employer may move under Federal Rule of Civil Procedure60(b) for permission to file a late notice of contest. BranciforteBuilders, 81 OSAHRC 80\/A5, 9 BNA OSHC 2113, 1981 CCH OSHD ? 25,591. (No.80-1920, 1981). [[4\/]] Accordingly, we have jurisdiction to entertainLouisiana-Pacific’s request for relief under Rule 60(b).The citations were received by Louisiana-Pacific on June 13, 1986, butthe employer did not file a notice of contest until August 29, 1986.According to an affidavit by Plant Manager Julius C. Byers, Mr. Byersbecame the Operations Manager about two weeks before the issuance of thecitations. As the new Operations Manager, he was responsible for allsafety and health matters. Mr. Byers states in the affidavit that\”[b]ecause of the change in operation management, the citation wasinadvertently overlooked\” and that \”the transition in management focusedon achieving steady production and continued employment and [it] was anoversight or mistake on the outgoing manager’s part to not inform me ofthe citation.\” Byers states in the affidavit that he \”was unaware of theO.S.H.A. citation fine issued … until [he] received a letter from theDenver O.S.H.A. office saying the Company had forgot (sic) to pay thefine regarding the citation.\” This affidavit is the only evidencesubmitted to support the motion.The burden is on the employer to show sufficient basis for relief underthe rule. Branciforte Builders, supra; U.S. V. Harrison County,Mississippi, 463 F.2d 1328, 1330 (5th Cir. 1972); Smith v. Kincaid, 249F.2d 243, 245 (6th Cir. 1957). The affidavit of Byers, the only evidenceLouisiana-Pacific has submitted, is extremely vague in describing whythe company failed to file a timely notice of contest. Mr. Byers appearsto say that the citation simply became lost in the shuffle during achange in management. However, this is not an adequate excuse for theRespondent’s inaction under the terms of Rule 60(b)(1), which requires ashowing of \”excusable\” neglect and not just a showing of simplenegligence. Even during a management transition, a business mustmaintain orderly procedures for handling important documents. Cf. UnitedStates v. One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 319 (5thCir. 1984)(Assertions of office workload are insufficient to set aside adefault judgment under Rule 60(b)). The assertion by Louisiana-Pacificthat it failed to do so does not justify relief under Rule 60(b). SeeSadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir. 1976) (Rule60(b) cannot be invoked \”to give relief to a party who has chosen acourse of action which in retrospect appears unfortunate or where erroror miscalculation is traceable really to a lack of care.\”).We conclude that Louisiana-Pacific has shown neither \”mistake,inadvertence, surprise, or excusable neglect\” within the meaning ofFederal Rule of Civil Procedure 60(b)(1), nor \”any other reasonjustifying relief from the operation of the judgment,\” under FederalRule of Civil Procedure 60(b)(6).Accordingly, we affirm the decision of the Administrative Law Judgedenying the Respondent’s request for relief under Rule 60(b) andgranting the Secretary’s motion to dismiss the notice of contest.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: 27 JAN 1989————————————————————————SECRETARY OF LABOR,Complainant,v.LOUISIANA-PACIFIC CORPORATION,Respondent._ORDER_Following an inspection of the Respondent’s worksite in Olathe,Colorado, the Occupational Safety & Health Administration issued to theCompany two Citations for various alleged violations of regulationsadopted under the Occupational Safety & Health Act of 1970.In the Citations, dated June 13, 1986, the Respondent was informed thatunless it notified the Area Director of the Administration that itintended to contest the Citations or proposed penalties within 15working days after receipt, the Citations and proposed penalties willbecome the final order of the Occupational Safety & Health ReviewCommission and may not be reviewed by any court or agency.No notice of contest was filed by the Respondent.On August 29, 1986, counsel for the Respondent filed a Request toReassume Jurisdiction, Vacation of Order, and Notice of Contest. Insupport of the Request pursuant to Rule 60 of the Federal Rules Of CivilProcedure, the Respondent submitted an affidavit of Julius C. Byers whostated therein that on June 1, 1986, he became the plant manager of theLouisiana-Pacific Kremmling, Colorado facility; that he was unaware ofthe OSHA Citation until requested to pay the penalty; that he isresponsible for all safety and health matters; that because of a changein operation management the Citation was inadvertently overlooked; thatthe items in the Citation had been corrected; that it was an oversighton the part of the outgoing manager not to inform him of the Citation;and that the affidavit should be considered a reassumption of the caseand a Notice of Contest.The Respondent’s request is resisted by the Secretary on the ground thatthe affidavit does not set forth the pertinent reasons for reliefspelled out in Rule 60(b) which provides:Rule 60. _Relief from Judgement or Order._(b) . . . On motion and upon such terms as are just, the court mayrelieve a party or his legal representative from a final judgement,order, or proceeding for the following reasons: (1) mistake,inadvertence, surprise, or excusable neglect; . . . or (b) any otherreason justifying relief from the operation of the judgment.The filing of a notice of contest is a statutory prerequisite toCommission jurisdiction. Under Section 10(c) of the Act, uncontestedCitations are self-executing and automatically become final orders ofthe Commission by operation of law.To come within the Rule 60(b) and be eligible for relief, the movantmust demonstrate the existence of a mistake, inadvertence, surprise orexcusable neglect, and that it has a meritorious defense. The affidavitdoes not allege that the Secretary was guilty of deception or improperconduct, or that the Respondent was confused by the Administration’sinstructions or misled by any procedural requirements resulting in afailure to file a notice of contest. Nor is there any indication thatofficers or responsible officials of the Respondent did not receive theCitations. Indeed, the affidavit states that the alleged infractionswere corrected. Inasmuch as there is no claim that the Secretary’sCitations were not justified or that there was a valid defense to them,Section 60(b) of the Federal Rules of Civil Procedure has no application.Because the Citations became the final order of the Commission byoperation of law, and Rule 60(b) is of no assistance to the Respondent,its Notion to Reassume Jurisdiction, Vacation of Order, and Notice ofContest is denied, and the Citations are affirmed.Sidney J. Goldstein, Judge, OSHRCDated: December 29, 1986FOOTNOTES:[[1\/]] Rule 60. Relief From Judgment or Order* * *(b) Mistakes; Inadvertence; Excusable Neglect; Newly DiscoveredEvidence, Fraud, etc.On motion and upon such terms as are just, the court may relieve a partyor a party’s legal representative from a final judgement, order, orproceeding for the following reasons: (1) mistake, inadvertence,surprise, or excusable neglect … or (6) any other reason justifyingrelief from the operation of the judgment.[[2\/]] The Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678.[[3\/]] Section 10(a) of the Act provides as follows:If, within fifteen working days from the receipt of the notice issued bythe Secretary the employer fails to notify the Secretary that he intendsto contest the citation or proposed assessment of penalty, and no noticeis filed by any employee or representative of employees … within suchtime, the citation and the assessment, as proposed, shall be deemed afinal order of the Commission and not subject to review by any court oragency.[[4\/]] At the Secretary’s request, we have reconsidered her argumentthat the Commission lacks jurisdiction to grant relief under Rule 60(b)when a citation becomes a final order by operation of law under section10(a) of the Act. We conclude, however, that Branciforte Builders wascorrectly decided for the reasons stated in that decision and in J.I.Hass Co. v. OSHRC. We therefore reject the Secretary’s arguments andreaffirm the Commission’s precedent.”