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Construction Companies Must Timely Comply with Deadlines to Challenge OSHA Violations

22 February 2023

Costas Cyprus

The Administrative Law Judge’s decision in Secretary of Labor v. Rene Silverio Gonzalez/RG Roofing shows the importance for a construction company not to neglect but rather timely respond to any OSHA citation(s) and file a written notice of contest within 15 working days of receipt of the citation to preserve its ability to defend and challenge its merits.

Upon receipt of a citation, a company can chose to engage in an informal settlement process, and the documentation included with the OSHA citation typically outlines those procedures. However, should the matter not be resolved, and if the company does not accept the citation (and its corresponding fine(s)), in order to ensure its rights to challenge, it must send a written Notice of Contest within 15 work-days of receipt of the citation, or else risk having the citation and any corresponding fine/penalty become final, and the last word.

In this underlying matter, following a November 12, 2020 OSHA inspection at a worksite in Hitchcock, Texas, the Secretary of Labor issued a Citation alleging three serious violations on safety standards in relation to the RG Roofing’s operations at the site and a proposed penalty of $8,097. The Citation was mailed on December 28, 2020. Upon receipt of the Citation, RG Roofing’s owner, Rene Silverio Gonzalez, attempted to contact the local OSHA office but he could not offer any details as to when or the exact number of times he called the office and he never left any voicemails. RG Roofing never filed a written notice of contest and the Citation became a final order on January 27, 2021. OSHA thereafter sent a payment demand letter to RG Roofing. As payment was not received, the matter was referred to the respective debt collection office in May 2021. The local OSHA office on July 9, 2021 received a voicemail in Spanish from Mr. Gonzalez and the call was returned on July 12, 2021, and which point it was explained to him that the matter had been referred to debt collection and their office could take no further action.

On January 19, 2022, OSHA conducted another inspection of RG Roofing’s worksite in Texas City, Texas and based on the inspection, issued a Citation, alleging repeat violations of the same regulations as those cited in the December 2020. RG Roofing filed a timely notice of contest for this latter Citation and thereafter its representative, made an application for RG Roofing to be relieved from the final judgment arising from the December 2020 Citation.

The ALJ denied the motion on both procedural and meritorious grounds. The motion was procedurally untimely (as it was late by two months) and RG Roofing had not demonstrated excusable neglect. The ALJ, citing to applicable case law, “takes account all relevant circumstances surrounding RG Roofing’s failure to file a timely notice of contest, including the danger of prejudice to the Secretary, the length of delay and its potential impact on the judicial proceedings, the reason for delay and whether RG Roofing acted in good faith.” Here, the record showed little evidence of how RG Roofing handled its mail. Mr. Gonzalez testified that he receives his business mail at his home, the Citation was properly addressed, and although he does not read or write English, he engages his son when receiving mail in English. No other evidence of its mail handling procedures were offered. Although, Mr. Gonzales testified that he had resolved prior OSHA citations by calling the area office, and he attempted the same process unsuccessfully here but since he could not offer any details as to these attempts, this was given little evidentiary value.

Moreover, the ALJ found that RG Roofing had not acted in good faith in that it only sought to contest the Citation only after it had received a subsequent citation and the negative consequences of failing to challenge the initial Citation became evident.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445