“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION__________________________________SECRETARY OF LABOR, : : Complainant, : : v. : Docket No. 01-1355 :RELIABLE PLASTERING and succ., : : Respondent. :__________________________________:*DECISION AND ORDER*This matter is before the Occupational Safety and Health ReviewCommission(“the Commission”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq.(“the Act”), to determine whether the Secretary’s motion to dismissthe Respondent’s untimely notice of contest should be granted.Respondent has filed no response to the motion.*BACKGROUND*The Occupational Safety and Health Administration (“OSHA”) inspected awork site of the Respondent, resulting in the issuance of a seriouscitation and notification of penalties on June 6, 2001. Pursuant toSection 10(a) of the Act, Respondent was required to notify OSHA of itsintent to contest the citation within 15 working days of its receipt,and failure to file a timely notice of contest would result in thecitation and penalties becoming a final judgment of the Commission byoperation of law. It is undisputed that the citation setting forth thealleged violations and proposed penalties were sent by certified mailand received by the Respondent on June 11, 2001. The statutory notice ofcontest period ended on July 2, 2001 and a notice of contest was notfiled by Respondent on or before said date. By letter received on June16, 2001 the Respondent did not contest the citation and proposedpenalties, but stated he was unable to pay the penalties.*DISCUSSION*The record plainly shows that the Respondent did not file its notice ofcontest within the 15 day period. An otherwise untimely notice ofcontest may be accepted where the delay in filing was caused bydeception on the part of the Secretary or by the Secretary’s failure tofollow proper procedures. An employer is also entitled to relief underthe Federal Rules of Civil Procedure 60(b)(1) if it establishes that theCommission’s final order was entered as a result of “mistake,inadvertence, surprise or excusable neglect”, or under 60(b)(6) for“any other reason justifying relief”, including mitigatingcircumstances such as illness, or a disability which would prevent aparty from protecting its interests. There is no contention that theSecretary acted improperly in this matter.The cover letter accompanying the citations states on page 2 under theheading RIGHT TO CONTEST as follows: “You have the right to contestthis Citation and Notification of Penalty. You may contest all citationitems or only individual items. You may also contest proposed penaltiesand\/or abatement dates without contesting underlying violations. Unlessyou inform the Area Director in writing that you intend to contest thecitation(s) and\/or proposed penalty(ies) within 15 working days afterreceipt, the citation(s) and the proposed penalty(ies) will become afinal order of the Occupational Safety and Health Review Commission andmay not be reviewed by any court or agency.The Commission has held that the OSHA citation “plainly state(s) therequirement to file a notice of contest within the prescribedperiod”.The Commission has held that an employer “must bear the burdenof its own lack of diligence in failing to carefully read and act uponthe information contained in the citations”, and that Rule 60(b) cannotbe invoked to “give relief to a party who has chosen a course of actionwhich in retrospect appears unfortunate or where error or miscalculationis traceable to a lack of care.” \/Accrom Constr. Serv\/., 15 BNA1123,1126 (No. 88-2291,1991).The Respondent had clear notice of the need to contest within the 15working day period, and it is responsible for its failure to actpromptly on its government mail. The circumstances herein areinsufficient to establish entitlement to relief under Rule 60(b).*ORDER*For the reasons set forth above, the Secretary’s motion to dismiss thenotice of contest of the Respondent is GRANTED. The Citation andnotification of penalties is AFFIRMED in all respects.\/S\/IRVING SOMMERChief JudgeDATED: 30 AUG 2001Washington, D.C.”