United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W. 

Atlanta, Georgia 30303-3104 

Secretary of Labor, 

Complainant 

v. OSHRC Docket No. 22-0369 

Rene Silverio Gonzalez/RG Roofing, 

Respondent. 

Representatives: 

Remy B. Smith, Esq. 

U.S. Department of Labor, Office of the Solicitor, Dallas, TX, for Complainant 

Wayne Duncan, Safety Representative 

West Texas Safety Solutions, LLC, for Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER OF DISMISSAL 

Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c), 

confers on the Occupational Safety and Health Review Commission jurisdiction to hold hearings 

to determine the validity of citations issued by the Secretary of Labor for violations of the Act. 

To invoke the jurisdiction of the Commission, a cited employer must file a written notice of 

contest within 15 working days of receipt of any citation. 29 U.S.C. § 659(a). Failure to do so 

results in the citation becoming a final order of the Commission “not subject to review by any 

court or agency.” Id. 

When a cited employer has failed to meet the statutory deadline, it may seek relief from a 

final order under Federal Rule of Civil Procedure 60. 29 C.F.R. § 2200.33 n.1. Among other 

grounds, a cited employer may be granted relief, and its late notice of contest accepted, where it 

establishes the final order was entered as a result of “mistake, inadvertence, surprise or excusable 

neglect.” See Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 

1981)(citations omitted). Whether Respondent, Rene Silverio Gonzalez d/b/a RG Roofing (RG 

Roofing), has met this burden and is entitled to relief is the issue before the court. 
 

 

For the reasons that follow, RG Roofing’s request for relief from a final order of the 

Commission is DENIED. 

BACKGROUND 

On November 12, 2020, the Houston South Area Office of the Occupational Safety and 

Health Administration (OSHA) initiated an inspection of a worksite in Hitchcock, Texas, where 

RG Roofing was performing roofing work. Compliance Safety and Health Officer Marc 

Greenfield conducted the inspection (Tr. 10). CSHO Greenfield went to the worksite where he 

observed individuals working on a roof (Tr. 10). CSHO Greenfield identified the company 

performing the work as RG Roofing. 

RG Roofing is owned by Rene Silverio Gonzalez. Mr. Gonzalez was not at the worksite 

on the day of CSHO Greenfield’s inspection.1 CSHO Greenfield spoke with Johnathan 

Gonzalez, Rene Gonzalez’s son (Tr. 10, 60, 72). Johnathan Gonzalez wrote down the company 

name, contact information, and the names of the employees on site for CSHO Greenfield (Tr. 12-

13; Exh. C-13). Following the inspection, the Secretary issued RG Roofing a Citation and 

Notification of Penalty alleging three serious violations of the standards at 29 C.F.R. 

§§1926.100(a); 1926.501(b)(13); and 1926.1053(b)(1) and proposing a penalty of $8,097.00. 

Federico Rodriguez-Puente, the safety tech for the Houston South Area Office, generated 

the Citation after being directed to do so by the Assistant Area Director (Tr. 23). On December 

28, 2020, he mailed the Citation by certified mail to RG Roofing at the address provided by 

Johnathan Gonzalez during the inspection (Tr. 23-25). United States Postal Service records show 

the Citation was delivered to RG Roofing on January 5, 2021 (Exh. C-2). RG Roofing admits it 

received the Citation.

2 

After receiving the Citation, Mr. Gonzalez attempted to contact the Houston South Area 

Office (Tr. 56). He was unable to specify when or an exact number of times he called the Area 

Office (Tr. 57). He never left a voicemail message (Tr. 58). RG Roofing did not file a written 

notice of contest with the Secretary and the Citation became a final order of the Commission on 

January 27, 2021. 

1 CSHO Greenfield testified he spoke with two individuals, one of whom he believed was Rene Gonzalez. (Tr. 10). 

Whether CSHO Greenfield was mistaken on the day of the inspection or had a faulty memory is not material to any 

issue before the court. 

2 In its prehearing statement and its post-hearing brief, RG Roofing states it was “properly and timely served the 

Citation and Notification of Penalty.” See Rene Silverio Gonzalez dba RG Roofing’s Request for ON RECORD 

Hearing for Scheduled Hearing July 11, 2022; and Respondent’s Post-Hearing Brief (Closing Argument) at p. 3. 

2 
 

 

 

Having not received a notice of contest in the Area Office, Safety Tech Rodriguez-Puente 

confirmed RG Roofing had received the Citation. He then sent a payment demand letter to RG 

Roofing on April 12, 2021 (Exh. C-4). When payment was not received, Safety Tech RodriguezPuente referred the matter to the Debt Collection Accountability Team (DCAT) in Washington, 

D.C., on May 13, 2021 (Tr. 28; Exh. C-4). 

On July 9, 2021, the Houston South Area Office received a voicemail from Mr. Gonzalez 

in Spanish (Tr. 29; Exh. C-14). Amy Whitney of the Area Office forwarded that message to 

Safety Tech Rodriguez-Puente, who forwarded it to Jorge Gomez, a compliance assistance 

specialist with the Houston South Area Office (Exh. C-14). Safety Tech Rodriguez-Puente and 

Compliance Assistance Specialist Gomez, both of whom speak Spanish, each testified he 

returned Mr. Gonzalez’s call (Tr. 28-29; 45-46). Mr. Gonzalez recalls only speaking with 

Compliance Assistance Specialist Gomez (Tr. 60). Regardless of with whom he spoke, the 

record establishes the call was returned the following Monday or July 12, 2021. Mr. Gonzalez 

was informed the matter had been referred to the DCAT in Washington, D.C., and the local 

office was unable to help (Tr. 43, 64). Mr. Gonzalez testified he next contacted his 

representative, Wayne Duncan (Tr. 72-73). He could not recall when he first contacted Mr. 

Duncan. 

On January 19, 2022, the Houston South Area Office conducted an inspection of another 

RG Roofing worksite in Texas City, Texas (Exh. C-11). Based upon that inspection, the 

Secretary issued RG Roofing a Citation and Notification of Penalty alleging repeat violations of 

two of the same regulations as those previously cited in December 2020. The Secretary issued 

the Citation and Notification of Penalty on February 7, 2022 (Exh. C-11). Commission records 

show RG Roofing filed a timely notice of contest to that citation on March 2, 2022. 

RG Roofing did not contact the Secretary regarding the December 2020 Citation between 

July 12, 2021, and March 27, 2022. On March 27, 2022, RG Roofing filed Respondent’s Motion 

for Relief Under Rule 60(B) requesting relief from the final order related to the December 2020 

Citation. The Commission docketed the case and Chief Judge Covette Rooney assigned it to the 

undersigned. 

The undersigned held a hearing on RG Roofing’s motion on August 11, 2022, via video 

teleconference. Mr. Gonzalez was present and represented by Wayne Duncan, a non-attorney 

representative. He testified via a Spanish language interpreter. The parties filed post-hearing 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

briefs on October 17, 2022. For the reasons that follow, RG Roofing has failed to establish it is 

entitled to relief from a final order pursuant to Federal Rule of Civil Procedure 60(b) and its 

motion is DENIED. 

DISCUSSION 

Federal Rule of Civil Procedure 60(b) provides a mechanism by which a court may 

“relieve a party or its legal representative from a final judgement, order, or proceeding.” Rule 

60(b) sets out six grounds for relief. They are: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, could not have 

been discovered in time to move for a new trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged; it is based on an 

earlier judgment that has been reversed or vacated; or applying it prospectively is 

no longer equitable; or 

(6) any other reason that justifies relief. 

Fed. R. Civ. Pro. 60(b)(1) – (6). Courts have consistently held the six grounds for relief are 

mutually exclusive such that if a claim falls under one subsection, it cannot be brought under 

another in the alternative. See, e.g., U.S. v. Hernandez, 797 F.3d 315, 319 (5th Cir. 2015). RG 

Roofing has argued it is entitled to relief on the grounds of excusable neglect on its part or 

subsection (b)(1) of Rule 60. 

Timeliness 

The Secretary argues RG Roofing’s motion is time-barred under Fed. R. Civ. Pro. 

60(c)(1). Rule 60(c)(1) requires any motion brought pursuant to Rule 60(b) be made “within a 

reasonable time – and for reasons (1), (2), and (3) no more than a year after the entry of the 

judgment or order or the date of the proceeding.” The December 2020 Citation became a final 

order of the Commission on January 27, 2021.3 RG Roofing filed its motion for relief on March 

27, 2022, or two months past the filing deadline of January 27, 2022. RG Roofing provided no 

explanation for the late filing. RG Roofing’s motion is denied as untimely.4 

3 In his brief, the Secretary refers to the Citation becoming a final order on January 29, 2021. The court calculates 

the 15-working day filing period to have expired on January 27, 2021. 

4 Although a claim brought under Rule 60(b)(6) is not subject to the one-year filing period, RG Roofing did not 

argue relief should be granted under this “catchall” provision. Nor would such a claim have merit. Rule 60(b)(6) 

applies where “circumstances such as absence, illness, or similar disability prevent a party from acting to protect its 

4 
 

 

 

 

 

 

 

 

 

Excusable Neglect 

In addition to its procedural deficiency, RG Roofing’s motion lacks merit. RG Roofing 

has failed to meet its burden to establish its failure to timely file a notice of contest to the 

December 2020 Citation was the result of excusable neglect. 

In cases involving a request for relief from a final order, the Commission has long 

applied the Supreme Court’s analysis stated in Pioneer Invest. Servs. Co. v. Brunswick Assocs. 

Ltd. P’ship, 507 U.S. 380 (1993). The determination of excusable neglect pursuant to Rule 

60(b)(1) is an equitable one, taking into 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 

the delay and whether RG Roofing acted in good faith. Pioneer Investment Serv., 507 U.S. at 

395; Craig Mechanical, Inc., No. 92-0372, 1994 WL 197728, at *3 (OSHRC May 18, 1994). In 

Pioneer, the Supreme Court stated that “inadvertence, ignorance of the rules, or mistakes 

construing the rules do not usually constitute ‘excusable’ neglect.” 507 U.S. at 392. The Court 

found “excusable neglect” to be, in part, an “elastic concept” not restricted to “omissions caused 

by circumstances beyond the control of the movant.” Id. Regarding relief sought pursuant to 

Rule 60(b), the Court stated that “’excusable neglect’ is understood to encompass situations in 

which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394. 

Long-settled Commission precedent focuses on the third factor in the Pioneer equitable 

analysis. Commission precedent states that a “key factor” when evaluating a request for relief is 

“the reason for the delay, including whether it was within the reasonable control of the movant.” 

CalHar Constr., Inc., No. 98-0367, 2000 WL 362466, at *2 (OSHRC April 27, 2000). In 

appropriate circumstances, the Commission finds this to be the dispositive factor. Mere 

carelessness or negligence, even by a layperson, in failing to timely file a notice of contest does 

not amount to “excusable neglect” that would justify relief under Rule 60(b). Acrom Constr. 

Serv., No. 88-2291, 1991 WL 132730, at *6 (OSHRC June 28, 1991).5 

interests.” Branciforte Builders, Inc., 1981 WL 18814 at *4. To be granted relief under Rule 60(b)(6), a party must 

show it was faultless in the delay. “Where a party is partly to blame for the delayed filing, relief from the final order 

must be sought under Rule 60(b)(1) and the party’s neglect must be excusable.” Pioneer Invest. Servs. Co. v. 

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). As discussed herein, RG Roofing’s failure to act was the 

reason for the delayed filing, not other outside forces beyond its control. 

5 The First, Eighth, and D.C. Circuits have agreed with the Commission’s interpretation of Pioneer, placing primary 

importance on the third factor. See Hospital del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001) (per curium) 

5 
 

 

 

 

 

 

 

 

“[I]n general, ‘[w]here it is highly probable that a Commission decision would be 

appealed to a particular circuit, the Commission has ... applied the precedent of that circuit in 

deciding the case—even though it may differ from the Commission's precedent.’” Dana 

Container, Inc., No. 09-1184, 2015 WL 7459426, at n. 10 (OSHRC November 19, 2015), aff’d, 

847 F.3d 495 (7th Cir. 2017) (citation omitted). Under the Act, an employer may seek review in 

the court of appeals in the circuit in which the violation occurred, the circuit in which the 

employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). 

The Secretary may seek review in the circuit in which the violation occurred or in which the 

employer has its principal office. 29 U.S.C. § 660(b). This case arose, and the company’s 

corporate office is, in Texas, which is in the Fifth Circuit. 

The Fifth Circuit has explicitly found the Commission’s analysis of Pioneer to be “in 

error.” Coleman Hammons v. OSHRC, 942 F. 3d 279, 283 (5th Cir. 2019). The Fifth Circuit held, 

The Commission has focused on the employer’s “control” of the circumstances 

causing an untimely response to the exclusion of other equitable factors. But 

pursuant to Pioneer, “key factor” cannot mean “the only factor.” Rule 60(b)(1) 

contains leeway for parties who make good-faith mistakes. Pioneer held that 

“neglect” by definition encompasses “omissions caused by carelessness.” 

Pioneer, 507 U.S. at 388, 113 S. Ct. at 1495. The excusable neglect inquiry is not 

limited to whether a party’s mistake caused the delay, such cause being expressed 

in the term “neglect,” but equally concerns whether the party’s mistake or 

omission was “excusable.” Focusing narrowly on whether a party is at fault for 

the delay and denying relief if it bears any blame clearly conflicts with Pioneer’s 

more lenient and comprehensive standard. See Halicki [v. La. Casino Cruises, 

Inc.,] 151 F.3d [465, ]468 [5th Cir. 1998)] (reconfirming that the decision in 

Pioneer “abrogated our previous caselaw stringently construing ‘excusable 

neglect’ ” in a comparable Federal Rules provision); see also Robb v. Norfolk and 

W.Ry. Co., 122 F.3d 354, 361-62 (7th Cir. 1997) (“excusable neglect” has a new 

and broader meaning following Pioneer). 

Id. In a more recent case, the Fifth Circuit found relief under Rule 60(b) was not warranted under 

its interpretation of Pioneer as set out in Coleman Hammons. D.R.T.G Builders, LLC v. OSHRC, 

26 F. 4th 306 (5th Cir. 2022). The Fifth Circuit recognized that the failure to timely file was the 

result of “neglect” on the part of the employer in both cases but found the neglect “excusable” in 

(quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)). See Cohen v. Bd. of Trs. of Univ. 

of D. C., 819 F.3d 476, 479-80 (D.C. Cir. 2016) (same); Dimmitt v. Ockenfels, 407 F.3d 21, 24-25 (1st Cir, 2005) 

(same); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366, 366 n.7 (2d Cir. 2003) (same); Graphic 

Communications Int’l Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5-6 (1st Cir. 2001) (same); David E. 

Harvey Builders, Inc. v. Sec’y of Labor, 724 Fed. Appx. 7, 9 (D.C. Cir. 2018) (same). 

6 
 

 

 

 

 

 

 

 

 

Coleman Hammons because it was the result of a single instance of failure to follow procedures 

for handling mail. It found the employer’s neglect in D.R.T.G. Builders was not excusable 

because it was the result of the employer’s failure to have any mail handling procedures at all. 

Taken together, these decisions indicate the Fifth Circuit requires an analysis of the reason for 

the delay that goes beyond merely assigning blame. The court is bound by the analysis followed 

by the Fifth Circuit in Coleman Hammons and D.R.T.G. Builders. 

The Secretary has alleged the length of the delay makes his prosecution of this case more 

difficult. Although generally the passage of time negatively affects witness availability and 

memories, there is no evidence in the record of any specific negative impact on the judicial 

proceedings or prejudice to the Secretary resulting from the delay. These Pioneer factors weigh 

in favor of granting relief. 

The court next turns to the reason for the delay and whether RG Roofing acted in good 

faith. As in D.R.T.G Builders, the record contains scant evidence of a system by which RG 

Roofing handles its mail. Mr. Gonzalez admits he receives business mail at his home address and 

confirmed the accuracy of the address to which the Citation was issued. When queried by the 

court, Mr. Gonzalez, who does not read or write English, testified he engages the aid of his 

English-literate son when receiving correspondence written in English. RG Roofing presented no 

other evidence of its mail handling procedures. 

Mr. Gonzalez testified when he received an OSHA citation in the past, he had resolved it 

by calling the area office. He attempted unsuccessfully to follow that same process here. RG 

Roofing seems to argue its failure to file a timely written notice of contest should be excused 

because it took all reasonable steps under the circumstances, including the unusual circumstance 

of the ongoing pandemic.6 According to Mr. Gonzalez, he attempted to contact the Houston 

South Area Office by phone several times without success. Mr. Gonzalez’s testimony about 

these calls is not corroborated and so vague as to lack probative value. Even assuming the 

veracity of Mr. Gonzalez’s claim, this testimony is insufficient evidence to establish RG Roofing 

acted timely. The court cannot assume those calls were made within the 15-business-day 

requirement or conclude they were made with reasonable promptness. Mr. Gonzalez could not 

6 On March 13, 2020, then-President Donald Trump issued Proclamation 9994 Declaring a National Emergency 

Concerning the Novel Coronavirus Disease (COVID-19) Outbreak. 85 FR 153337 (March 13, 2020). The court 

takes judicial notice that, in the following months, many offices of the Federal Government limited their activities 

and reduced or eliminated in-office staffing. 

7 
 

 

 

 

 

 

 

 

 

 

 

 

recall when or how many calls he made. He kept no record of the calls and admitted he did not 

leave voicemail messages. He provided no explanation why he did not do so. RG Roofing never 

attempted to contact the Area Office in writing and provided no reason why it could not have 

done so.7 Nor did RG Roofing provide any explanation for its failure to act again until July of 

2021. When informed the Area Office could offer no help at that time, RG Roofing did nothing.8 

RG Roofing’s contention it did all it could under the circumstances is unsupported by the facts. 

RG Roofing’s actions were more than simple negligence. RG Roofing’s vague claims it 

did all it knew to do does not persuade the court to find otherwise. The face of the Citation 

spelled out RG Roofing’s options and obligations. When calling was unsuccessful, RG Roofing 

could have, and should have, followed the instructions on the first page of the Citation directing 

it to “mail a notice of contest to the U.S. Department of Labor Area Office at the address shown 

above.” Instead, it did nothing. The court has taken into consideration the unique circumstances 

presented by the pandemic. The circumstances presented by the pandemic do not explain why 

RG Roofing never submitted a written notice of contest or why it did nothing from July 12, 

2021, to March 27, 2022. The timing of RG Roofing’s actions belies any claim it acted in good 

faith. RG Roofing acted only when the negative consequences of its failure to contest the 

Citation became evident. RG Roofing has failed to meet its burden to establish it acted in good 

faith and has failed to establish its negligence should be excused. 

Giving weight to all of the factors set out in Pioneer, and considering the totality of the 

circumstances, RG Roofing has not established it is entitled to relief for the Commission’s final 

order under Fed. R. Civ. Pro. 60(b). 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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

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

ORDER 

Based upon the foregoing decision, it is HEREBY ORDERED that Respondent’s 

Motion for Relief Under Rule 60(b) is DENIED. 

7 The Citation makes repeated references to the requirement a notice of contest must be submitted in writing and 

contains directions on where to mail a written request to contest a citation. 

8 Mr. Gonzalez’s testimony regarding attempts to contact the DCAT after speaking with Compliance Assistance 

Specialist Gomez and before contacting Mr. Duncan is inconsistent and vague (Tr. 64 and 72-73). It is given no 

weight. 

8 
 

 

 

 

 

--

It is further ORDERED that the notice of contest filed in this case is DISMISSED. 

SO ORDERED. 

/s/___________________________ 

Heather A. Joys 

Dated: October 31, 2022 Administrative Law Judge, OSHRC 

Atlanta, GA 

9