TH Construction Group

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Some personal identifiers have been redacted for privacy purposes.

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,

v. OSHRC DOCKET NO. 22-0739

TH CONSTRUCTION GROUP,

Respondent.

ORDER OF DISMISSAL FOR LATE NOTICE OF CONTEST

AND FAILURE TO FILE AN ANSWER

Procedural History

On July 26, 2021, following an inspection on April 14, 2021, of a worksite in Dobbs Ferry,
New York, the United States Occupational Safety and Health Administration (“OSHA”) issued a
Citation and Notification of Penalty (“Citation”) to TH Construction Group (“Respondent”) for
alleged violations of the Occupational Safety and Health Act, 29 U.S.C. §§ 6bi51, et seq (“OSH
Act”). The Citation, which resulted from OSHA inspection number 1542437, alleged four serious
violations of OSHA’s construction safety standards.' The Citation proposed a total penalty of
$15,214.

The Citation was mailed to Respondent at 42 Windsor Highway, New Windsor, New York,

'More specifically: Item 1 of the Citation alleged a serious violation of 29 C.F.R. § 1926.100(a), for failure to protect
employees with hard hats or protective helmets; Item 2 alleged a serious violation of 29 C.F.R. § 1926.102(a)(1), for
failure to use proper eye protection; Item 3 alleged a serious violation of 29 C.F.R. § 1926.501(b)(13), for failure to
implement a fall protection system for workers working above six feet; and Item 4 alleged a serious violation of 29
C.F.R. § 1926.1053(b)(6), for failure to keep a ladder on a stable and level surface.

12553. On June 7, 2022, Mr. Thomas Hazard, whose relationship to Respondent is not clear from
the current record, filed a Late Notice of Contest with OSHA challenging the Citation on behalf of
Respondent. In the Late Notice of Contest, Respondent’s representative acknowledges receipt of
the Citation on July 30, 2021. He further alleges that there was a “miscommunication” regarding
the issuance of the Citation, that the workers involved were not Respondent’s employees, and that
he wishes to “furnish the proof of who did the work and remove these charges.”
On June 24, 2022, after having received the Late Notice of Contest, the Commission mailed
a Notice of Docketing and Instructions to Employer (“Notice of Docketing”) to Respondent’s
address in New Windsor, New York. The Notice of Docketing included a guide to the
Commission’s procedures and a postcard that was to be returned to the Commission to verify
Respondent had complied with the employee posting requirements of Commission Rule 7 for the
Citation and Notice of Contest. See 29 C.F.R. § 2200.7. To date, Respondent has not returned this
postcard to the Commission.
On July 12, 2022, the Secretary filed a Motion for an Extension of Time to Plead or
Otherwise Move. In this motion, the Secretary’s representative noted that “[t]his is an apparent late
contest” and asked for 60 additional days to file his Complaint in an attempt to resolve the matter.
The motion further indicated that “[t]he Secretary contacted the respondent’s representative about
this motion, but the respondent’s representative has not responded as of the filing of this motion.”
The undersigned granted the Secretary’s motion on July 28, 2022.
Thereafter, on September 22, 2022, the Secretary filed his Complaint. The Certificate of
Service for the Complaint indicates it was filed in the Commission’s e-filing system and was served
2

on Mr. Hazard by email at the following email address: [redacted].2 Respondent was required to
respond to the Complaint within 21 days of service. 29 C.F.R. § 2200.34(b)(1). To date,
Respondent has not filed an Answer or otherwise responded to the Complaint.
On October 25, 2022, the undersigned issued an Order to Show Cause Why Notice of
Contest Should Not Be Dismissed (“Show Cause Order”) for failure to file an Answer. The Show
Cause Order directed Respondent to show cause, on or before November 8, 2022, as to why it
should not be declared in default for not filing an Answer to the Complaint. The Show Cause Order
explained that if there was no response, all the alleged violations set out in the Citations would be
affirmed and the proposed penalties would be assessed without a hearing.
Two copies of the Show Cause Order were mailed to Respondent’s address in New Windsor,
New York, one by First-Class Mail and one by Certified Mail with return receipt requested. The
return receipt for the copy of the Show Cause Order served via Certified Mail was returned to the
Commission’s office on November 7, 2022. The return receipt indicates that it was delivered on
October 28, 2022. The signature block contains a signature, but it is illegible. Although the address
block on the return receipt contains an incorrect address,3 the tracking information for this copy of
the Show Cause Order (7022 0410 0002 1869 8383) confirms that this copy was, in fact, delivered
to an address in New Windsor, New York on October 28, 2022.4 The copy of the Show Cause Order
sent by First-Class Mail was not returned to the Commission’s office. An additional copy of the
2 Although the Commission’s e-filing system does not contain an email address for Mr. Hazard, the undersigned notes
that this is the same email address Mr. Hazard provided in his Late Notice of Contest.
3 The address block reads:
Cynthia H. Carrillo
L&B FRAMING LLC
3417 Bowden Circle West
Jacksonville, FL 33216
4 A copy of the tracking information for the Show Cause Order sent by Certified Mail is attached to this order as Exhibit
A.
3

Show Cause Order was sent to Mr. Hazard at the email address provided in the Late Notice of
Contest. This email was not returned as undeliverable to the undersigned’s staff member who sent
it.
To date, Respondent has not filed a response to the Show Cause Order nor has it filed an
Answer to the Secretary’s Complaint.
Analysis
Relief Under Federal Rule of Civil Procedure 60(b)
The OSH Act provides that when OSHA has issued a citation to an employer, “the employer
has fifteen working days within which to notify the Secretary that he wishes to contest the citation or
proposed assessment of penalty.” 29 U.S.C. § 659(a). Here, the Citation was issued on July 26,
2021, and Respondent did not file its Late Notice of Contest until nearly a year later on June 6, 2022,
well past the 15 days provided for by the OSH Act.5 On this point, the OSH Act further provides that
“[i]f, within fifteen working days from the receipt of the notice issued by the Secretary the employer
fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty
… the citation and the assessment, as proposed, shall be deemed a final order of the Commission
and not subject to review by any court or agency.” Id. Thus, by operation of law, the Citation has
already been “deemed a final order of the Commission ….”
Even still, the Commission has long held that “in cases where an employer files a late notice
of contest, the employer may be granted relief from the final order under the terms of [Federal Rule
of Civil Procedure (“FRCP”)] 60(b).”6 Randall Mechanical, Inc., 2020 WL 4514843, at *1
5 The undersigned notes that Respondent’s representative has recognized in the Late Notice of Contest itself that, even
though he received the Citation in July of 2021, he failed to file the Late Notice of Contest until June of 2022. The
Secretary also acknowledged that the Late Notice of Contest was late in his Motion for an Extension of Time to Plead or
Otherwise Move.
6 FRCP 60(b), entitled “Grounds for Relief from a Final Judgement, Order, or Proceeding,” provides six grounds for
relief from a final judgment or order, including “mistake, inadvertence, or excusable neglect.” Fed. R. Civ. P. 60(b)(1);
4

(O.S.H.R.C. July 30, 2020), quoting Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-
1920, 1981). However, Respondent has no such avenue of relief in this case. The Second Circuit,
where this case arose and where Respondent’s business address is located,7 has determined that the
Commission lacks jurisdiction over Citations that have been “deemed a final order” under 29 U.S.C.
§ 659(a). See Chao v. Russell P. Le Frois Builders, Inc., 291 F.3d 219, 229-30 (2d Cir. 2002)
(“[W]e conclude that the Commission may not exercise jurisdiction [over a late-filed notice of
contest] based on Rule 60(b)(1).”). The Commission has held that “[w]here it is highly probable
that a case will be appealed to a particular circuit, the Commission generally has applied the
precedent of that circuit in deciding the case — even though it may differ from the Commission’s
precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). Thus, due to
the Second Circuit’s holding in Russell P. Le Frois, Respondent is not entitled to any relief under
FRCP 60(b). See Randall Mechanical, Inc., 2020 WL 4514843, at *1 n.4 (noting the Second
Circuit’s holding that precludes relief from late-filed notices of contest under FRCP 60(b)(1)). The
Citation has been “deemed a final order of the Commission ….” 29 U.S.C § 659(a).
Sanctions for Failure to File an Answer
Even if the Commission had jurisdiction over this proceeding, the undersigned would
nonetheless dismiss the Late Notice of Contest for Respondent’s failure to an Answer or a response
to the Show Cause Order. In this regard, a Commission judge has very broad discretion in imposing
sanctions for noncompliance with the judge’s orders or the Commission’s Rules of Procedure. See
Sealtite Corp., 15 BNA OSHC 1130, 1134 (No. 88-1431, 1991). However, the Commission has
see also, e.g., A.W. Ross, Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000) (applying FRCP 60(b)(1) to a late-filed notice
of contest).
7 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in which
the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the
District of Columbia Circuit. See 29 U.S.C. §§ 660(a) & (b). Here, the alleged violation occurred in New York, in the
Second Circuit, where Respondent’s business address is also located. See 29 U.S.C. § 660(b).
5

held that dismissal is too harsh a sanction for failure to comply with certain prehearing orders unless
the record shows contumacious conduct by the noncomplying party, prejudice to the opposing
party, or a pattern of disregard for Commission proceedings. See Architectural Glass & Metal Co.,
19 BNA OSHC 1546, 1547 (No. 00-0389, 2001).
The undersigned finds the conduct of Respondent to be contumacious and demonstrative of
a pattern of disregard for these proceedings. To start, Respondent never returned the postcard that
was included with the Notice of Docketing, sent to Respondent on June 24, 2022. The Secretary’s
Motion for an Extension of Time to Plead or Otherwise Move further indicates that Respondent’s
representative failed to respond when contacted about the filing of the motion. As to the Show
Cause Order, Respondent received three copies of this order: one by First-Class Mail, 8 one by
Certified Mail,9 and one by email. 10 Over three weeks have passed since the deadline in the Show
Cause Order, and yet Respondent has not filed a response, has provided no excuse for its failure to
do so, and has still not filed an Answer to the Secretary’s Complaint, which was filed over two
months ago.
8 The copy of the Show Cause Order sent by First-Class Mail was never returned to the Commission’s office and, absent
evidence to the contrary, is therefore presumed to have been delivered by the Postal Service. See Minor v. Clinton
Cnty., N.Y., 541 F.3d 464, 472-73 (2d Cir. 2008); Lavelle Constr., 19 BNA OSHC 1149, 1151 n.4 (No. 99-1921, 2000)
(view of Chairman Rogers).
9 As noted above, the return receipt indicates that this copy of the Show Cause Order was delivered on October 28, 2022.
The tracking information for this copy of the Show Cause Order (7022 0410 0002 1869 8383) corroborates delivery of
this copy in New Windsor, New York on the same date. See Ex. A.
10 The copy of the Show Cause Order sent by email to the address provided by Respondent’s representative in the Late
Notice of Contest was not returned as undeliverable to the undersigned’s staff member who sent it. Delivery of this
email is therefore presumed. See, e.g., TV Ears, Inc. v. Joyshiya Dev. Ltd., No. 3:20-CV-01708-WQH-BGS, 2021 WL
165013, at *3-4 (S.D. Cal. Jan. 19, 2021) (finding notice was sufficient where pleadings were sent to email addresses
and were not “bounced back” or returned as undeliverable); Viahart, LLC v. Does 1-73, No. 6:18-CV-604-RWS-KNM,
2020 WL 10692890, at *4 (E.D. Tex. June 17, 2020) (“Federal Courts have presumed delivery of an email if it is not
returned undeliverable and the email address is used by the Defendant in conducting business.” (citing cases)); see also
Shu Chung Lee v. Dir., Div. of Tax’n, No. 007387-2017, 2017 WL 2544295, at *2 (N.J. Tax Ct. June 8, 2017) (State tax
agency was “under no obligation to ensure plaintiff read his emails, or to re-send an application especially when there is
no notice or indication that its initial emails were undeliverable.”); Alexander v. State, No. 04-15-00545-CR, 2016 WL
805494, at *1 (Tex. App. Mar. 2, 2016) (dismissing appeal where the appellant failed to appear for an ordered hearing
and failed to respond to the court’s email which “was not returned as undeliverable”).
6

Based on the foregoing considerations, in the event jurisdiction is not foreclosed by the law
of the Second Circuit, the undersigned still finds dismissal of Respondent’s Notice of Contest is
warranted. See Ark. Abatement Servs., Inc., 17 BNA OSHC 1163, 1164-65 (No. 94-2210, 1995)
(“[W]here a party’s default indicates disrespect for, or indifference to, Commission proceedings, the
party’s claims properly are dismissed.”); Sealtite Corp., 15 BNA 1130, 1134 (88-1431,
1991) (contumacious conduct established where party engaged in a “consistent pattern” of failure to
respond to judge’s orders).
ORDER
Based on the foregoing:
1. Respondent’s Late Notice of Contest, construed as motion for relief under FRCP
60(b), is DENIED.
2. In the alternative, if jurisdiction is found, Respondent is found to be in DEFAULT,
its Notice of Contest is DISMISSED, and the Citation issued to Respondent on July 26, 2021, as a
result of OSHA inspection number 1542437 is AFFIRMED in its entirety and $15,214 in penalties
are ASSESSED.
SO ORDERED.
/s/
Covette Rooney
Chief Judge, OSHRC
Dated: December 1, 2022
Washington, D.C.
Exhibit A
7

8

TVSW22, 328 Pel USPS comm - USPS Tracking? Resuis

USPS Tracking’

Tracking Number:
70220410000218698383

Copy Add to Informed Delivery
(https://informeddelivery.usps. conv)

Latest Update

‘Your item wes delivered to an individual at the address at 3-29 pm on October 26, 2022 in NEW
WINDSOR, NY 12553.

*oeqpea4

Get More Out of USPS Tracking:
USPS Tracking Plus®
® Delivered
Delivered, Left wath Individual

NEW WINDSOR, NY 12553
October 28, 2022, 3:29 pm

* Out for Delivery

NEW WINDSOR, Nv 12553
October 28, 2022, 10:16 am

* Arnived at Post Office
NEW WINDSOR, Ny 12553
October 28, 2022, 10:05 am

* Departed USPS Regional Facility
ALBANY NY DISTRIBUTION CENTER
October 27, 2022, 9:03 pm

* Arrived at USPS Regional Faciity
| ALBANY NY DISTRIBUTION CENTER
Mp6 O06, ups comgo Trac ContinmAcHON "ait fabets 1702206 100002 1 b696383

2

TWSW22, 326 Pl USPS.com® - USPS Tracking® Rhesus
October 27, 2022, 1:38 pm

* in Transit to Next Facility
October 26, 2022

* Departed USPS Regional Facility
GATHERSBURG MD DISTRIBLTION CENTER
October 25, 2022, 10-33 pm

* Arrived at USPS Regional Facility
GAITHERSBURG MD DISTRIBUTION CENTER
October 25, 2022, 9:47 pm

* Hide Tracking History

Text & Email Updates v

USPS Tracking Plus® ¥ 3
s
=

Product Information

See Less “A.
Track Another Package
Enter tracking of barcode numbers

Need More Help?

Contact USPS Tracking support for further assistance.

FAQs

heipg:i/iools. usps. conmigo! TrackConfinmAction?git_tabets1=702204 100002 18696283 22

10

CERTIFICATE OF SERVICE
This is to certify that a copy of the Order was mailed to the parties listed below by first
class mail on [date].
SOL ADDRESS
RESPONDENT
/s/
, Legal Asst.
Post Office Address:
Judge
One Lafayette Centre
1120 20th Street, N.W., Room 990
Washington, D.C. 20036-3457
(202) 606-5405 FAX (202) 606-5409
11