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A.C. Castle Construction Co. Inc. v. Acosta

United States Court of Appeals, First Circuit

February 7, 2018

A.C. CASTLE CONSTRUCTION CO., INC. Petitioner,
v.
R. ALEXANDER ACOSTA, Secretary of Labor; U.S. DEPARTMENT OF LABOR, Respondents.

         PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

          James F. Laboe, with whom Orr & Reno, P.A. was on brief, for petitioner.

          Amy S. Tryon, Senior Attorney, U.S. Department of Labor, with whom Nicholas C. Geale, Acting Solicitor of Labor, Ann S. Rosenthal, Associate Solicitor for Occupational Safety and Health, and Charles F. James, Counsel for Appellate Litigation, were on brief, for respondents.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         General contractor A.C. Castle Construction Co., Inc. appeals fines imposed by the Occupational Safety and Health Administration ("OSHA") for violations related to an accident at a construction worksite in Massachusetts. A.C. Castle argues, among other things, that OSHA wrongly held it responsible for the acts and omissions of a subcontractor. For the reasons below, we affirm.

         I.

         Two roofers fell over twenty feet and sustained serious injuries at a residential construction site in Wenham, Massachusetts on October 2, 2014, when a spruce board used for scaffolding snapped in half. OSHA inspectors promptly investigated the worksite and the two employers involved: A.C. Castle, the general contractor, and Provencher Home Improvements ("PHI"), the sole proprietorship of Daryl Provencher and the only subcontractor on the job. The Secretary of Labor, charged with enforcing the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the "OSH Act"), subsequently cited both A.C. Castle and PHI under the OSH Act. The Secretary proffered two alternative theories for citing both companies, rather than just the roofing subcontractor PHI: first, that under Occupational Safety and Health Review Commission ("Commission") precedent, the two companies constituted a single employer; and, second, that under the common law agency test set forth by the United States Supreme Court in Darden, Daryl Provencher was a supervisory employee of A.C. Castle. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992). Under either legal test, the constructive or actual knowledge that Provencher possessed of the worksite violations would be imputed to A.C. Castle. See Empire Roofing Co. Se., 25 BNA OSHC 2221, 2222 (No. 13-1034, 2016); Cent. Soya de P.R., Inc. v. Sec'y of Labor, 653 F.2d 38, 40 (1st Cir. 1981).

         A.C. Castle and Provencher challenged the citations. Following a three-day testimonial hearing, the Administrative Law Judge ("ALJ") determined that Provencher and A.C. Castle "acted as a single employer in the worksite" and that Provencher "was a supervisory employee working for A.C. Castle." In so ruling, the ALJ did not rest on her finding that Provencher was an employee of A.C. Castle as an independent and sufficient basis upon which to justify the citation of A.C. Castle. Instead, she relied on that finding to provide support for the conclusion that A.C. Castle and PHI could be treated as a single employer. The ALJ also rejected A.C. Castle's argument that it did not have fair notice that it would be treated as a single employer with PHI. Regarding the substance of the citations, the ALJ found that A.C. Castle willfully failed to ensure that the scaffolding was adequate to support the intended load, and assessed penalties totaling $173, 500. The claims against Provencher were dismissed as moot because of his death after the hearing but before the ALJ ruled. After the Commission declined A.C. Castle's petition for review, A.C. Castle filed this appeal.

         II.

         The citations of A.C. Castle hinged on a finding that A.C. Castle was "the employer of the affected workers at the site." Allstate Painting & Contracting Co., 21 BNA OSHC 1033 (Nos. 97-1631 & 97-1722, 2005); see also 29 U.S.C. § 658(a). The ALJ reached this finding after properly placing the burden of proof on the Secretary. See Allstate, 21 BNA OSHC 1033. In now challenging that finding on appeal, A.C. Castle raises three issues: (1)whether substantial evidence supports the ALJ's conclusion that Provencher was a supervisory employee of A.C. Castle, (2)whether the ALJ erred in treating A.C. Castle and PHI as a single employer, and (3) whether the Secretary of Labor violated A.C. Castle's right to fair notice in treating PHI and A.C. Castle as a single employer where before it had not. We address these issues in turn.

         A.

         Brian LeBlanc is the owner and sole manager of A.C. Castle, which has its principal place of business at LeBlanc's home in Danvers, Massachusetts. A.C. Castle normally operates as a general contractor and claimed no direct employees of its own at the time of the OSHA investigation. LeBlanc was friends with Provencher, who was the sole proprietor of PHI, a construction subcontracting company based at Provencher's home in Beverly, Massachusetts. LeBlanc and Provencher had been friends for over thirty years at the time of the OSHA investigation. In 2015, ninety-five percent of Provencher's income came from A.C. Castle. Provencher estimated that generally around seventy-five percent of his projects came from A.C. Castle, as he occasionally performed work for other general contractors.

         The ALJ found that Provencher was employed by A.C. Castle as a supervisor of the workers on the Wenham job site. In reaching this conclusion, the ALJ applied the common law agency test set forth by the Supreme Court in Darden. See Darden, 503 U.S. at 324-24. A.C. Castle argues that the record lacks substantial evidence to support the ALJ's conclusion in applying that test, as evidenced by the ALJ's failure to consider many of the Darden ...


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