No. 17-1537

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

Before

Torruella, Lipez, and Kayatta, Circuit Judges.

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.

February 7, 2018 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

- 2 - United States Supreme Court in Darden, Daryl Provencher was a supervisory employee of A.C. Castle. See Nationwide Mut. Ins. Co. v. Darden, 503U.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, 653F.2d38, 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 s