Citation against builder affirmed due to failure to engage in litigation

An administrative law judge of the Occupational Safety and Health Review Commission affirmed a citation and $3,880 fine against a Texas employer who failed to participate in the litigation process after initially contesting the citation.

The U.S. Occupational Safety and Health Administration conducted an inspection of a K&E Builders LLC worksite in Lubbock, Texas, in September 2017 and issued a citation and notification of penalty alleging one serious violation of the Occupational Safety and Health Act in March, according to review commission documents.

K&E presented no contrary proof to dispute that it is an employer except to state in its notice of contest that “the guys you found working were subcontracted” and failed to appear at a pretrial conference call or provide requested documents, according to the ruling in Secretary of Labor v. K&E Builders LLC.

“The court finds (K&E’s) repeated failures to engage in the litigation process illustrate a pattern of disregard for the commission’s proceedings,” the law judge said in affirming the citation and penalty. “(K&E) has been given multiple opportunities and plenty of time to comply with commission rules of procedure and this court’s orders and the court has yet to receive any communication or contact from (K&E).”

Delays in this case are “wholly attributable” to K&E, including its failure to respond to mail sent to an address where it is presumed it received the mail since none of the mail was returned as “undeliverable,” according to the law judge.

The review commission also conveyed due notice to K&E of its procedural rights and provided ample warning that its failure to comply with court orders may result in the dismissal of its notice of contest, the law judge added.

“At every instance, (K&E) has failed to take advantage of the opportunity to advise the court that it has not abandoned its case before the commission,” the law judge said. “Every indication before the court is (K&E) has walked away from its contest. Under these circumstances, the court sees no worthwhile purpose in allowing this case to proceed to a hearing when there is no basis to believe (K&E) will fulfill its pre-trial obligations or actually appear at the trial. The court finds (K&E) relinquished its case with the intent to abandon.”

The administrative law judge’s decision became a final order of the review commission on Wednesday.

A spokesman for the employer could not be immediately reached for comment.