“SECRETARY OF LABOR,Complainant,v.ROY KAY, INC.,Respondent.OSHRC Docket No. 88-1748_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The Respondent has filed a Motion for Leave to File Notice of ContestNunc Pro Tunc and a Motion to Dismiss Complainant’s Motion to DismissRespondent’s Notice of Contest. By these motions the Respondent isseeking relief from a final order that resulted from the Respondent’sfailure to file a timely notice of contest.[[1\/]] We therefore treat themotions as a request for relief pursuant to Federal Rule of CivilProcedure 60(b).[[2\/]] _See_ _Branciforte Builders_, 81 OSAHRC 80\/A5, 9BNA OSHC 2113, 1981 CCH OSHD ? 25,591 (No. 80-1920, 1981) (An employermay move under Federal Rule of Civil Procedure 60(b) for permission tofile a late notice of contest). The burden is on the Respondent to showsufficient basis for the relief. _Id_.; _U.S. v. Harrison County,Mississippi_, 463 F.2d 1328, 1330 (5th Cir. 1972); _Smith v. Kincaid_,249 F.2d 243, 245 (6th Cir. 1957).In support of the request for relief, the Respondent’s President, LeRoyKay, states in an affidavit that \”Respondent, never having been cited byO.S.H.A. before, and not having a legal department within its employ,did not appreciate the essence of the fifteen day period it had toreply. . . .\” The Respondent also states that \”[a] diligent and goodfaith effort to file a timely Notice of Contest was initiated . . .immediately upon receipt of . . . [the citation].\” At that time, theRespondent \”immediately attempted to contact . . . employees and [the]supervisor of the job site in question . . . to ascertain the validityof the [alleged] violations.\” However, because of the \”hot summer\” andthe \”vacation season,\” the Respondent was unable to contact \”all personsinvolved\” until after the fifteen working day period prescribed by 29U.S.C. ? 659(a), and did not file a notice of contest within that period.The Respondent thus argues that it intended to file a timely notice ofcontest but did not do so because it could not gather all theinformation it needed within the fifteen day period. The Respondent alsoargues that it did not appreciate the importance of the fifteen dayrequirement because of its lack of prior experience with OSHA. However,ignorance of procedural rules does not constitute \”excusable neglect\”within Federal Rule of Civil Procedure 60(b). _Ohliger v. U.S._, 308F.2d 667 (2d Cir. 1962); _U.S. v. Belanger_, 598 F.Supp. 598, 601 (D.Me.1984). Moreover, Rule 60(b) cannot be invoked \”to give relief to a partywho has chosen a course of action which in retrospect appearsunfortunate or where error or miscalculation is traceable really to alack of care.\” _Sadowski v. Bombardier Ltd._, 539 F.2d 615, 618 (7thCir. 1976).In this case, the citation plainly stated the requirement to file anotice of contest within the prescribed time period:You must abate the violations … and pay the penalties proposed, unlesswithin 15 working days (excluding weekends and Federal holidays) fromyour receipt of this Citation and penalty you mail a notice of contestto the U.S. Department of Labor Area Office . . . . You are furthernotified that unless you inform the Area Director in writing that youintend to contest the Citation or proposed penalties within 15 workingdays after receipt, this Citation and the proposed penalties will becomea final order of the Occupational Safety and Health Review Commissionand may not be reviewed by any court or agency.Also, a letter from the OSHA area director sent to the Respondent withthe citation reiterated the notification:If you are considering a request for an informal conference to discussany issues related to this Citation and Notification of Penalty, pleasekeep in mind that a written letter of intent to contest must besubmitted to the Area Director within 15 working days of your receipt ofthe citation. The running of this contest period is not interrupted byan informal conference. Therefore you must take care to schedule theinformal conference early enough in the 15-day period to allow time tocontest subsequent to the informal conference, should you decide to do so.Thus the Respondent was explicitly told that it had to file a notice ofcontest within the fifteen working day period. Even if it was havingdifficulty contacting employees, the Respondent could have preserved itsright to be heard by filing a protective notice of contest within thatperiod. Accordingly we conclude that the Respondent has shown neither\”mistake, inadvertence, surprise, or excusable neglect\” within themeaning of Federal Rule of Civil Procedure 60(b)(1), nor \”any otherreason justifying relief from the operation of the judgment,\” FederalRule of Civil Procedure 60(b)(6).Accordingly we deny the Respondent’s motions and affirm the decision ofthe Administrative Law Judge granting the Secretary’s motion to dismissthe notice of contest.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: 27 JAN 1989————————————————————————SECRETARY OF LABORComplainant,v.ROY KAY CORPORATIONRespondent.Docket No. 88-1748_ORDER_1. With a transmittal letter dated August 17, 1988, the Secretary ofLabor filed a motion to dismiss employer’s Notice of Contest on theground that it was untimely filed.2. No response to the motion has been filed. The motion is granted forthe reasons assigned by the Secretary of Labor in support of the motion.PAUL A. TENNEYJudge, OSHRCDATED: NOV 1 1988Washington, D.C.FOOTNOTES:[[1\/]] Under 29 U.S.C. ? 659(a), an employer who has received an OSHAcitation has fifteen working days in which to notify the Secretary ofLabor that it intends to contest the citation. The Respondent filed itsnotice of contest more than three weeks after the fifteen-day period hadpassed.[[2\/]] We have also considered whether the statutory time limitation onthe filing of notices of contest should be tolled under the equitableprinciples first stated in _Atlantic Marine, Inc. v. OSHRC_, 524 F.2d476 (5th Cir. 1977), and later followed by the Commission. _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 OSAHRC 49\/E6, 7 BNA OSHC 1471,1979 CCH OSHD ? 23,675 (No. 76-2165, 1979). Here, there is no allegationby the Respondent and no indication in the record of any misconduct orimproper procedures on the part of the Secretary. Nor does there appearto be any deficiency in the notice given by the Secretary of theRespondent’s rights and responsibilities, as we discuss more fully laterin our decision. Accordingly, we find no basis for an equitable tollingof the 15-working-day time limitation.”