“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 77?2040 & 77?2947 REBCO STEEL CORPORATION, ???????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 31, 1980ORDERBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thesecases arise under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651?678 (?the Act?). The cases are before the Commission on Rebco SteelCorporation?s Petition to Open Defaults, filed pursuant to Rule 60(b) of theFederal Rules of Civil Procedure.[1] For the reasons thatfollow, we deny Rebco Steel?s petition.??????????? OnJune 13, 1977, and August 18, 1977, the Secretary issued to Rebco Steel,Respondent, citations and notifications of proposed penalty. Rebco Steel?s VicePresident W. Dennis Prouty filed notices of contest for Reboc Steel on bothoccasions, and the cases were docketed as Nos. 77?2040 and 77?2947respectively. Thereafter, Rebco Steel failed to file answers in response to theSecretary?s complaints in both cases. Moreover, Rebco Steel failed to respondto Commission orders to show cause why the notices of contest should not bedismissed in both cases for failure to file answers. Therefore, on November 30,1977, and January 11, 1978, in the respective cases, Administrative Law JudgeDavid H. Harris issued orders dismissing Reboc Steel?s notices of contest andaffirming the citations and notifications of proposed penalty. The ordersbecame final without review by the full Commission. 29 U.S.C. ? 661(i).??????????? OnAugust 14, 1978, Rebco Steel, by its attorney, filed a Petition to OpenDefaults pursuant to Rule 60(b).[2] In support of itspetition, Rebco Steel argued that the following circumstances amounting toexcusable neglect caused the defaults, and that therefore reinstatement isjustified. Having learned that Vice President Prouty mishandled a citationissued by the Secretary to Rebco Steel, Respondent?s president instructedProuty in June, 1977, to give any contested citations to Rebco Steel?s attorneyrather than handle them himself. Notwithstanding this instruction, it was notuntil July, 1978, when the Secretary tried to collect the penalties, that RebcoSteel?s attorney and, through him, Rebco Steel?s management, first learned ofthe citations and orders of default in these cases. Rebco Steel thereafterdiscovered that, even though the instruction to Prouty was given shortly afterthe citation in No. 77?2040 was issued, and well before the citation in No.77?2947 was issued, Prouty did not follow it and apparently continued to handlecitations himself.??????????? During1977, Rebco Steel realized that Prouty was generally mismanaging the company?saffairs. In August, 1977, Rebco Steel hired a replacement for Prouty and aftera period of transition lasting until December, 1977, Prouty was released.During this transition period, due to financial losses, Rebco Steel also movedits office to a smaller building in the plant, and reduced and substantiallychanged managerial and clerical personnel. Rebco Steel asserts that thesechanges caused the company to fail to discover the citations and final ordersof default in the two cases.??????????? TheSecretary filed a memorandum in opposition to Rebco Steel?s petition. TheSecretary argues that if Rebco Steel?s unsupported allegations are accepted asfact, they do not establish justifiable or excusable mistake, inadvertence,surprise, or neglect. Rebco Steel failed to provide sufficient reason for itsown continuing failure to discover Prouty?s insubordination and neglect beforethe entry of the final orders of default. In the Secretary?s view, RebcoSteel?s allegations establish nothing more than simple negligence orcarelessness, which cannot provide a basis for relief from final orders underRule 60(b).??????????? Weagree with the Secretary. To begin with, Rebco Steel?s assertions in support ofits petition for relief from the final orders cannot be accepted as fact. Thecompany?s petition presents only unsupported assertions made by the company?sattorney concerning why the company failed to file answers to the complaintsand responses to the show cause orders. Rebco Steel did not, in addition,submit any affidavit[3] or other evidence tosupport the assertions. In Browar Wood Products Co., 79 OSAHRC ___, 7BNA OSHC 1165, 1979 CCH OSHD ? 23,326 (No. 78?2230, 1979), a divided Commissionaccepted as evidence unsworn representations of fact, but there the unswornrepresentations were made by the president of the respondent company in amotion for reconsideration personally filed by him. The Commission stated that?. . . Browar is pro se and apparently a small businessman,? and reasoned thattherefore ?Browar may not have been aware of the legal technicalities of thejudicial process and the need to submit affidavits in support of its motion.? 7BNA OSHC at 1167, 1979 CCH OSHD at p. 28,215. These special circumstancesclearly are not present in this case.??????????? Moreover,even if Rebco Steel?s assertions are accepted as true, they do not establishany ground for relief under the pertinent portions of Rule 60(b) providingrelief for ?(1) mistake, inadvertence, surprise, or excusable neglect; . . . or(6) any other reason justifying relief from the operation of the judgment.???????????? Toshow mistake or inadvertence justifying relief under the rule, a petitioner ?mustmake some showing of why he was justified in failing to avoid mistake andinadvertence.? 11 C. Wright & A. Miller, Federal Practice and Procedure? 2858 at 170 (1973). Mere carelessness does not justify relief under theseprovisions. 7 Moore?s Federal Practice ?60.22[2] at 254 (2d ed. 1978).Moreover, by the terms of the rule, neglect must be shown to be excusable.??????????? In Monroe& Sons, supra note 2, the Commission applied Rule 60(b) to reinstatethe Respondent company?s notice of contest which had been dismissed due to thecompany?s failure to answer the Secretary?s complaint. In the company?s requestfor reinstatement, the company claimed that it had failed to answer thecomplaint because of a belief that the notice of contest satisfied therequirement for an answer. The company had appeared pro se during theproceedings leading to the dismissal order, and noting this the Commissionstated that ?[o]ur experience reveals that . . . pro se employers are oftenconfused by the legal terms used in various communications involved in thesecases and that they genuinely believe that submission of a notice of contestsatisfies the requirement for . . . an answer . . ..? 4 BNA OSHC at 2017,1976?77 CCH OSHD at p. 25,773. The Commission therefore essentially held that theemployer had shown justifiable mistake or excusable neglect.??????????? Here,however, Rebco Steel has at best shown only carelessness or simple neglect.Rebco Steel asserts that in June, 1977, its vice president, Prouty, wasinstructed to refer all contested citations to the company?s attorney sinceProuty had mishandled an earlier citation. The company also asserts that asreplacement for Prouty was hired in August, 1977, and a transition periodfollowed until Prouty?s firing in December. In addition, Rebco Steel maintainsthat staff turnover and a change in its office location caused the failure todetect Prouty?s inaction. However, at the time of the issuance of the showcause orders in these cases Prouty?s replacement had already been hired. Fromthis it is obvious that Rebco Steel failed to adequately supervise Prouty orotherwise act to assure responses to the chief judge?s orders even though itknew of Prouty?s unreliability and had a replacement on the job before thesecases were dismissed. Accordingly, this neglect is not excusable. Moreover,under the circumstances, other staff changes and Rebco Steel?s relocation ofits offices do not support a conclusion of justifiable mistake or inadvertence,or excusable neglect.??????????? Finally,in order to secure relief under Rule 60(b)(6), a petitioner must demonstratesome ground other than those included in clauses (1) through (5) of the rule.Moore?s Federal Practice, supra ?60.27[1] at 343. Once relief is unavailableunder clause (1) because a petitioner?s carelessness resulted in the finaljudgment, relief is also unavailable under clause (6). Sears, Sucsy &Co. v. Insurance Co. of North America, 392 F. Supp. 398, 412 (N.D. Ill.1975).?Accordingly, we deny the petition. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 31, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 77?2040 & 77?2947 REBCO STEEL CORPORATION,???????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 30, 1977ORDERRespondent herein has failed to file its Answer asrequired by 29 CFR 2200.33(b) and good cause therefor appearing, it is??????????? ORDEREDthat the Notice of Contest filed herein by the Respondent be and the same ishereby withdrawn and the Citation and Notification of Proposed Penalty hereinbe and they are hereby affirmed as the final order of the Occupational Safetyand Health Review Commission.?DAVID H. HARRISJudge, OSHRC\u00a0\u00a0[1] Pursuant to 29U.S.C. ? 661(f), the proceedings of the Commission are governed by the FederalRules of Civil Procedure except to the extent that the Commission has adopted adifferent rule. See also 29 C.F.R. ? 2200.2(b).[2] While Rebco Steelreferred only to Rule 60(b) generally in its petition, in its memorandum of lawsupporting the petition the company specifically referred to subsections (1)and (6) of the rule.Thepertinent portion of the rule provides that ?[o]n motion and upon such terms asare just, the court may relieve a party . . . from a final judgment, order, orproceeding for the following reasons: (1) mistake, inadvertence, surprise, orexcusable neglect;. . . or (6) any other reason justifying relief from theoperation of the judgment.? The Commission has held that a case in which anadministrative law judge?s decision has become final without Commission reviewmay be reinstated if the requirements of Rule 60(b) are satisfied. Monroe& Sons, Inc., 77 OSAHRC 14\/B7, 4 BNA OSHC 2016, 1976?77 CCH OSHD ?21,470 (No. 6031, 1977), aff?d, No. 77?3157 (6th Cir. February 26, 1980).[3] Commission Rule69, 29 C.F.R. ? 2200.69, provides:Rule 69 AffidavitsAn affidavit may be admitted as evidencein lieu of oral testimony if the matters therein contained are otherwisecontained are otherwise agree to its admission.”