Vrex Construction, Inc.

Plain-English summary

OSHA issued Vrex Construction serious construction citations with proposed penalties totaling $34,738. After filing a timely contest, the company did not return its posting verification, answer the Secretary's complaint, respond to an order to show cause, or follow through after Commission staff made repeated contact attempts. The judge found that this conduct showed a pattern of disregard for Commission rules and proceedings. Vrex was declared in default, its notice of contest was dismissed, and the citations and penalties were affirmed in full.

Decision snapshot

• Cited standard(s): The order identifies only the construction regulations in 29 C.F.R. Part 1926, without listing individual standards.
• Outcome: The contest was dismissed by default, and $34,738 in proposed penalties was assessed.
• Key point: Repeated failure to answer or obey Commission orders supported dismissal and entry of default.

Full text (OSHRC public release)


VREX CONSTRUCTION, INC., OSHRC Docket No. 18-1573 Comm. R. 101(a)

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.                      OSHRC
Docket
No.

18-1573

VREX CONSTRUCTION, INC.,

Respondent.

ORDER
OF
DEFAULT

On
August
23,
2018,
the
Occupational
Safety
and
Health
Administration
("OSHA")
issued
a
Citation
and
Notification
of
Penalty
("Citation")
to
Respondent
for
OSHA
inspection
number
1298614.

The
Citation
alleged
serious
violations
of
the
construction
safety
regulations at
29
C.F.R.
§
1926
for
a
proposed
total
penalty
of
$34,738.

Respondent
filed
a
timely
notice
of
contest
through
its
president,
Vedat
Rexhepi.
The
case was
docketed
with
the
Commission
and
the
Notice
of
Docketing
was
sent
to
the
Respondent at
its
record
address
on
October
5,
2018.
The
Notice
of
Docketing
included
a
postcard
that
was to
be
returned
to
the
Commission
to
verify
Respondent
had
complied
with
the
employee
posting
requirements
of
Commission
Rule
7.
See
29
C.F.R.
§
2200.7.
Respondent
did
not
return
the
postcard.

On
June
28,
2019,
the
Secretary
filed
the
Complaint
in
this
matter.
Respondent
did
not
file
an
Answer
as
required
by
Commission
Rule
34(b),
29
C.F.R.
§
2200.34(b).

On
August
16,
2019,
the
undersigned
issued
an
Order
to
Show
Cause
Why
Notice
of
Contest
Should
Not
Be
Dismissed
("Order")
to
Respondent.
The
Order
directed
Respondent
to
show
cause
on or
before
August
30,
2019,
as
to
why
it
should
not
be
declared
in
default
for
not
filing
an
Answer
to
the
Complaint.
The
Order
expressly
stated
that
a
failure
to
respond
will
result
in
all
violations
set
out
in .
the
Citation
being
affirmed
and
the
proposed
penalties
assessed
without
a
hearing.

The
Order
was
sent
to
Respondent,
at
its
record
address,
through
the
United
States
Postal
Service
("USPS")
by
regular
first-class
mail
and
by
certified
mail
1
with
return
receipt
requested.
The
mailing
by
regular
first-class
mail
was
not
returned
and
is
presumed
delivered.
Respondent
received
and
signed
for
the
certified
mailing
on
August
26,
2019.
It
is
concluded
Respondent
received
the
Order.

The
undersigned's
office
staff
attempted
to contact
Respondent
by
phone
on October
2,
2019
and
October
16,
2019.
A
message
requesting
a
reply
call
was
left
each
time.
There
was
no
response
to
these
phone
calls.
On
October
23,
2019,
my
staff
called and
spoke
with
a
representative
of
the
Respondent,
who
promised
to
file
documents
in
the
Commission's
efiling
system.
Despite
that,
Respondent
has
not
responded
to
the
Order,
did
not
provide
an
Answer,
and
has
not
otherwise
communicated
with
my
office . 2

The
sanction
of
a
default
judgment
is
appropriate
" when
any party
has
failed to
plead
or

otherwise
proceed
as
provided
by
these
rules
or
as
required
by
the
Commission
or
Judge."

29

C.F.R.

§
2200. 101 (a).
3
A
judge
has
very broad discretion in imposing sanctions for

1
The
certified
mailing
tracking
number
was
7017-3040-0001-1132-2068.

2
The

Commission
expects

a

business

to

maintain

"orderly

procedures

for

handling

important

documents."

Louisiana-Pacific

Corp.,
13
BNA
OSHC
2020,
2021
(No.
86-1266,
1989)
(citations
omitted).

3
Commission
Rule
101 (a),
29
C.F.R.
§
2200.
101 (a),
provides
in
pertinent
part
that:
"Sanctions.
When
any
party
has
failed
to
plead
or
otherwise
proceed
as
provided
by
these
rules
or
as
required
by the
.
.
.
Judge,
he
may
be
declared
to
be
in
default
.
.
.
after
having
been
afforded
an
opportunity
to
show
cause
why
he
should
not
be
declared to
be
in
default.
.
.
.Thereafter,
the
.
.
.
Judge,
in
[her]
discretion,
may
enter
a
decision
against
the
defaulting
party.''

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).
The
Commission
has
long
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).

Respondent's
conduct
here
shows
a
pattern
of
disregard
for
Commission rules
and
proceedings.
As
set
out
above,
Respondent
did
not
verify
comp liance
with
the
posting
requirements
of
Commission
Rule
7,
did
not
provide
an Answer
to
the
Complaint,
and
did
not
respond
to
the
Order
to
Show
Cause.

For
these
reasons,
Respondent
is
found
to
be
in
DEFAULT,
its
n otice
of
contest
is
DISMISSED,
and
the
OSHA
citation
issued
to
Respondent
on
August
23,
2018,
inspection
number
1298614
is
AFFIRMED
in
its
entirety
and
penalties
ASSESSED.

SO
ORDERED.

/s/            

Covette Rooney

Chief Judge

Dated: December 26, 2019

Washington, D.C.

"