A.C. CASTLE CONSTRUCTION CO., INC. Petitioner,
R. ALEXANDER ACOSTA, Secretary of Labor; U.S. DEPARTMENT OF LABOR, Respondents.
FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH
F. Laboe, with whom Orr & Reno, P.A. was on brief, for
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.
Torruella, Lipez, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
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.
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).
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.
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.
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.
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