Align Roofing, LLC

Plain-English summary

Align Roofing received an OSHA citation on December 16, 2011, making January 9, 2012 the last day to file a written notice of contest. The company had been told before the citation issued that any contest had to be in writing, but it did not send its notice until January 20, eleven days late. The owner cited confusion about working days, yet acknowledged that his own calculation produced the same January 9 deadline. The judge found no excusable neglect, mistake, fraud, or other basis for relief, dismissed the notice of contest, and affirmed the citation and penalty as a final order.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The late notice of contest was dismissed, and the citation and penalty were affirmed as a final order.
• Key point: An employer's confusion about working days does not excuse a late filing when it knew the correct deadline and the requirement for a written contest.

Full text (OSHRC public release)

                                          United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 12-0280
Align Roofing, LLC.,
Respondent.

Appearances:
Benjamin Stark, Esq., U. S. Department of Labor, Office of the Solicitor,
Atlanta, Georgia
For Complainant

      Mason Fleming, President, Align Roofing, Jacksonville, Florida
      For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                           DECISION AND ORDER

                The Secretary filed a motion to dismiss Respondent’s Notice of Contest asserting

that the notice contesting her Citation was filed late, that the Citation is now a final order of the
Commission and that Respondent is not entitled to relief under Rule 60 (b) of the Federal Rules of
Civil Procedure. Respondent filed no response to this motion.
A hearing was held on the Secretary’s motion and on the timeliness of the Notice of
Contest in Jacksonville Beach, Florida on April 17, 2012. For the reasons that follow, the
Secretary’s Motion is granted, the Notice of Contest is dismissed, and the Citation and Notification
of Penalty are affirmed.
Discussion

      On December 1, 2011, an inspection of Respondent’s jobsite was conducted by the

Occupational Safety and Health Administration (OSHA). As a result of this inspection a Citation
was issued to the Respondent on December 12, 2011. The certified mail receipt indicated that
someone at the Respondent’s residence signed for receipt of the Citation on December 14, 2011.
Respondent’s owner, Mason Fleming, testified that he and his six year old daughter live at the
delivery address and he often receives business mail at this location. He further testified that no
one at that address signed the receipt on December 14, 2012. The signature on the receipt does
not match other signatures of Mr. Fleming on his drivers license and on his letter contesting the
Citation. Mr. Fleming testified that he did receive the Citation as early as December 16, 2011. I
find December 16, 2011 to be the date Respondent actually received the Citation.
Jeffrey Lincoln, the Secretary’s compliance officer, testified that on December 6, 2011,
after the inspection but before the issuance of the Citation by OSHA, he had a telephone
conversation with Mr. Fleming. Mr. Fleming disagreed with the violations found and stated that
he wished to contest the violations. Mr. Lincoln told Mr. Fleming that no Citation had been
issued at that time. He also stated that any notice of contest must be written.
Mr. Romeo, the Assistant Area Director in OSHA’s Jacksonville, Florida office testified
that Mr. Fleming called that office on January 12, 2012, about contesting the Citation. Mr.
Fleming testified the telephone contact was on January 9, 2012. I find the testimony of Mr.
Romeo more credible as the date was verified from contemporaneous notes in his official file.
Mr. Romeo told Mr. Fleming that the time to contest the Citation had expired but told him he could
send a late letter to the Review Commission contesting the Citation. Mr. Fleming sent a written
notice of contest on January 20, 2012, eight days after this conversation.
The Act requires a written notice of contest be filed within 15 working days of receipt of
the Citation. The Secretary calculated the last date for timely notice of contest to be filed was
January 6, 2012. Accepting Respondent’s assertion that receipt was on December 16, 2011, it is
determined that the last date to file a timely notice of contest was January 9, 2012. Respondent
did not file any written notice of contest until January 20, 2012, eleven days late. The Citation
and Notification of Penalty have become a final order of the Commission pursuant to the Act.
Respondent’s delay was not the result of excusable neglect, mistake or inadvertence. He
was given verbal and written notice that a written notice of contest was required within 15 working
days of receipt of the Citation.
No evidence was produced indicating fraud, misrepresentation or other misconduct by the
Secretary. Mr. Fleming only testified as to his confusion as to what constituted a working day.
He admitted, however, that by his own calculation, his final day to timely contest the Citation was
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January 9, 2012. His written letter of contest was not sent until January 20, 2012. Respondent
has failed to demonstrate that it is entitled to relief under Rule 60(b).

                   FINDINGS OF FACTS AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                               ORDER

   It is hereby ORDERED:
   1. The Secretary’s Motion to Dismiss Notice of Contest is Granted.
   2. Respondent’s Notice of Contest is Dismissed.
   3. The Citation and Notification of Penalty are affirmed as a final order of the
       Commission.
   4. No relief is granted pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.




                                           /s/
                                           STEPHEN J. SIMKO, JR.
                                           Judge

Date: June 13, 2012
Atlanta, Georgia

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