Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457  

APPEARANCES:                             

Nathan E. Henderson, Esquire

Niamh E. Doherty, Esquire

Joseph R. Landry, Esquire  

Department of Labor, Office of the Solicitor, Boston, Massachusetts

For the Acting Secretary

Barry James Billcliff,1 appearing Pro se

  496 Main Street

  Sandown, New Hampshire 03873

  For Respondent Barry Billcliff, d/b/a Billco Roofing, d/b/a Billco Roofing LLC

BEFORE:  

Dennis L. Phillips

            Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the OSH Act or the Act). The case involves allegations by the Occupational Safety and Health Administration (OSHA) that Respondent, Barry Billcliff, operating in his individual capacity and/or using fifteen “doing business as” [D/B/A or d/b/a]2 names identified in the above case caption (Respondent or Mr. Billcliff), was the controlling employer at the Devens SpringHill Suites Marriott Hotel (Devens SpringHill Suites or hotel) and Devens Commons Conference Center (Conference Center) at 31 Andrews Parkway, Devens, Massachusetts (job site or Devens Project) where on October 7, 2021: 1) Respondent did not ensure that frequent and regular inspections were performed by a competent person, 2) a worker was not provided a hard hat, 3) roofers were not protected from falling during unloading of materials on a roof from the ladder hoist, 4) roofers on a steep roof were not protected by fall arrest systems, 5) Respondent did not train its supervisor and subcontractor employees at the job site in the recognition of fall hazards, and 6) a portable ladder did not extend at least three feet above the roof’s edge. Mr. Billcliff denies the allegations and asserts that he was not the controlling employer because he was never at the job site, did not assign or direct any supervisor at the job site, did not have any employee(s) at the job site, did not engage any subcontractor to provide roofers, was not involved in any of the work done at the job site, and never received or deposited any payment for the roofing work performed at the job site.

An in-person trial was conducted from April 4 through April 6, 2023 and June 13 through June 15, 2023 at Boston, Massachusetts producing a 2,363 page transcript. On August 24, 2023, Respondent filed its Post Trial Brief (Resp’t PT Br.).3 On August 29, 2023, Complainant filed her Post Trial Brief (Sec’y PT Br.).

On September 5, 2023, Respondent filed its Response to Secretary’s Post Trial Brief (Resp’t Reply Br.). Complainant filed her Acting Secretary’s Reply Brief on the same date. (Sec’y Reply Br.) In this Brief, she asserts that Respondent makes two main arguments in its Post-Trial Brief: (1) the testimony of virtually every key witness other than himself who testified at trial should be disregarded; and (2) the admission of various trial Exhibits should be reconsidered. She argues that both of these two arguments should be rejected. She argues that the Court should reject Mr. Billcliff’s first argument because: 1) to disregard the testimony of every witness other than himself would be to ignore those who had first-hand knowledge of the relevant facts, to include both OSHA and non-OSHA witnesses, 2) to disregard their testimony would also mean ignoring the overwhelming extent to which the other witnesses provided consistent testimony on the material points, such as Mr. Billcliff’s visits to the job site, Mr. Billcliff’s involvement in scheduling and coordinating the roofing work, Mr. Billcliff’s directing of Mr. Vaughn to oversee that work, Mr. Billcliff’s failure to ensure a safe job site, and Mr. Billcliff’s conversation with Compliance Officer (CO) Brett Bussell on October 7, 2021, and 3) Mr. Billcliff’s complete lack of citing to the transcript in his Post-Trial Brief appears to show that he is relying on what he contends happened at trial, as opposed to what actually happened. The Acting Secretary argues that the Court should not reconsider the admission of any Exhibits because Mr. Billcliff complained about messages like those in Exhibit 107, which consists of a series of messages between Mike Costa, the Asset Manager for the Devens SpringHill Suites, and the foreman05 email account that Mr. Billcliff used. The Court only admitted this Exhibit after Mr. Billcliff withdrew his objections so that he himself could use the Exhibit with Mr. Costa on cross examination. (Tr. 188-91). Similarly, Mr. Billcliff complained about Exhibit 142, which is the May 2022 settlement agreement from a previous case in which Mr. Billcliff admitted he was an “employer” under the OSH Act and accepted a Serious fall protection citation. The Court only admitted this Exhibit after Mr. Billcliff withdrew his objections in connection with being warned that the Acting Secretary would otherwise call a witness to show there was no basis for Mr. Billcliff’s contentions regarding the Exhibit. (Tr. 1845-48). Further, Mr. Billcliff complained about Exhibits 123, 124, and 125, which are the documents submitted by his son as part of the permit application for the Devens Project. The Court only admitted each of these Exhibits after a non-OSHA witness provided foundation and Mr. Billcliff stated that he had no objections. (Tr. 274-88). Lastly, Mr. Billcliff complained about the pages in Exhibit 155 that were admitted, which are a subset of the bank records that were obtained via the subpoena from the Court after Mr. Billcliff repeatedly failed to provide them himself. The Court only admitted these pages after: (1) reviewing the business records certifications provided by the Acting Secretary, (2) hearing the live testimony of Stephanie Lee, the Merrimack Valley Credit Union Vice President of Operations, and (3) giving Mr. Billcliff ample opportunity to cross-examine her. The Acting Secretary also notes that Mr. Billcliff erroneously complained about an Exhibit that was not actually admitted into evidence; i.e., Exhibit 143. (Tr. 227, 259; Sec’y Reply Br.). The Court agrees with the Acting Secretary and finds no basis to either disregard the testimony of: 1) CO Aaron Epstein, 2) Gregory Phillips, 3) Michael Costa, 4) Louis Byrne, 5) Leonardo Bonicenha, and 6) CO Bussell, or reconsider its rulings regarding trial Exhibits, including Exhibits 107-08, 110, 122-26, 128, 130, 133, 140, 142, 148-57, 158-59, 169-71, that were admitted at trial.

On September 8, 2023, Complainant filed her Acting Secretary’s Request for Attorneys’ Fees Incurred As a Result of Respondent’s Failure to Comply with 11/29/2022 Order Regarding Bank Records (Sec’y Request for Attorneys’ Fees).

Photographs, documents, and witness testimony presented at trial prove the Acting Secretary’s case and contradict Respondent’s version of events. The Willful/Serious citation and the five other serious citations are all affirmed and a penalty of $162,274 is assessed by the Court, along with the Court assessing an additional $3,215 as sanctions as an award of attorneys’ fees with regard to Mr. Billcliff’s failures to comply with his obligations regarding the bank records set forth in the Court’s November 29, 2022 Order.

I. CITATIONS AND PLEADINGS

On April 4, 2022, OSHA issued its citations to Respondent identifying the company name:

Company Name: Barry Billcliff, dba Barry James; d/b/a Andover Roofing; d/b/a Barrysroofing INC; d/b/a Billco Roofing; d/b/a Danbar LLC; d/b/a Daniel James Billcliff LLC; d/b/a Local Musicians United; d/b/a Merr. Valley Gutters and Roofing Specialist LLC; d/b/a Merrimack Valley R & G; d/b/a Merrimack Valley Roofers LLC; d/b/a Merrimack Valley Roofing; d/b/a Merrymack Valley Roofing PLLC; d/b/a MVRAG LLC; d/b/a Newburyport Roofing; d/b/a The Marrimack Valley Roofing Companies LLC; d/b/a The Marrimack Valley Roofing and Gutter Company LLC. [emphasis in original Citations].

On April 27, 2022, Complainant amended her original Citations and Notification of Penalty by deleting about fourteen d/b/a’s identified in the original citation and adding about seven new d/b/a’s stating:

The Secretary amends the Citations in Exhibit A under 29 C.F.R. § 2200.34(a)(3) to clarify that the Respondent, Barry Billcliff, is being cited is as follows:

BARRY BILLCLIFF d/b/a BARRY JAMES d/b/a MERRIMACK VALLEY ROOFING d/b/a WWW.MERRIMACKVALLEY ROOFING.COM d/b/a MERRIMACK VALLEY ROOFING & GUTTER d/b/a MERRIMACK VALLEY ROOFING & GUTTER, LLC d/b/a BILLCO ROOFING d/b/a BILLCO ROOFING LLC d/b/a MERRIMACK VALLEY ROOFING, INC. d/b/a MERRIMACK ROOFING LLC d/b/a BAY STATE EXTERIORS d/b/a MARRIMACK VALLEY ROOFING, and any successor(s) of any of the foregoing. (Original Complaint)

On February 2, 2023, Complainant filed her First Amended Complaint adding four new d/b/a’s to the April 27, 2022 case caption as now appears in the above current case caption. CO Bussell testified that OSHA identified as Respondent d/b/a’s in the case caption those names that it had documentation that showed connections to Mr. Billcliff. (Tr. 1783; First Amended Complaint).

On February 14, 2023, Respondent filed its “Answers to Amended Complaint” identifying only “BARRY BILLCLIFF, D/B/A BARRY/S ROOFING” in its caption. In its Answers to Amended Complaint, Respondent asserts a general denial of the citations’ allegations, including asserting that Mr. Billcliff was not an employer under the OSH Act, he did not have knowledge of any unsafe work conditions, “the occurrence was an unpreventable employee misconduct”, “the penalties are not correct”, “the offenses do not qualify as Repeat”, and “the alleged violations do not constitute as ‘Willful’ nor ‘Serious’”. (Answers to Amended Complaint).

At the start of the trial, Mr. Billcliff stated that he represented himself and Billco Roofing d/b/a Billco Roofing LLC. He stated that he owned Billco Roofing d/b/a Billco Roofing LLC and was employed at Billco during all aspects of the Devens Project. He said that Billco was an active company at that time. (Tr. 2245). Mr. Billcliff testified that he and his son, Daniel Grzyboski, do the work for Billco. Mr. Grzyboski testified that Mr. Billcliff was his boss at Billco Roofing. (Tr. 1307, 1325, 2035; Stipulation Number (Stip. No.) 5). He said that there was no Billco email address. (Tr. 2035-37). Mr. Billcliff testified that he filled out the abatement form that came with the violation notice and sent it right in. (Tr. 2261). He gave [redacted] address at 496 Main Street, Sandown, New Hampshire 03873, [redacted].4 Mr. Billcliff did not give any business address . (Tr. 17-19, 1015, 2035, 2276; Stip. Nos. 3, 5). He said that he did not represent any of the other d/b/a names that are identified in the case caption. (Tr. 19).

2. Mr. Billcliff also said that he was employed at: a) Merr Valley R&G LLC, b) Merrimack Valley Roofing & Gutter, LLC, c) Merrimack Valley Roofing, and d) Merrimack Valley Roofers, during the time of the Devens Project.

Mr. Billcliff testified that he was also an employee of Merr Valley R&G LLC during the time of the Devens Project, which he said was the same company as Merrimack Valley Roofers. He said that both Merr Valley R&G LLC and Merrimack Valley Roofers were “active” during the Devens Project. (Tr. 884, 2243-44, 2285-87). Mr. Billcliff testified that Merr Valley R&G was never a “d/b/a”. (Tr. 2260).

  CO Bussell testified that he did not recall Mr. Billcliff initially stating that he worked for Merr Valley R&G LLC or that Jeremy Coito, who Mr. Billcliff alleged owned Merrimack Valley Roofing, was his employer. (Tr. 884, 1870, 2169, 2242-43).

CO Bussell testified that Mr. Billcliff later said that he worked for Merr Valley R&G, LLC. (Tr. 1872-73). During his February 11, 2022 deposition in a separate OSHA case, Docket No. 21-0382, Mr. Billcliff stated that he predominantly did marketing and advertising at Merrimack Valley Roofing and that he first started working for Merrimack Valley Roofing in “maybe 2010.”5 (Tr. 1962, 2006-10). Mr. Billcliff testified that he did not know if there was any Massachusetts Commonwealth tax withholding from his Merrimack Valley Roofing paycheck. (Tr. 2324). He also testified that Mr. Grzyboski was an employee of Merrimack Valley Roofing. Mr. Grzyboski testified at trial that Zachary Haleson, Cameron Tinkham, and Tim Crebase were also Merrimack Valley Roofing employees. (Tr. 1037-39; Stip. No. 5). Mr. Billcliff stated that Merrimack Valley Roofing was “a semantic term that’s used for Merr Valley R&G LLC, which is also the same company as Merrimack Valley Roofing.” (Tr. 2007-08). Mr. Billcliff testified that “during the entire duration of this case [he] was employed by Merr Valley R&G LLC which is better known as Merrimack Valley Roofing & Gutters, LLC.” (Tr. 2259).

B. Mr. Billcliff Obtains the Devens Project Roofing Job.

At 7:45 AM, August 4, 2021, Mike Costa6 sent a message to Mr. Billcliff at foreman05merrimackvalleyroofing@yahoo.com,7 that stated, in part: “Good Morning Barry I understand you did some work for Republic at Robert’s house at [redacted] We have a hotel we own in Devens that is need of evaluation and estimate for numerous leaks we get during the winter months. This is the Springhill Suites.”8 (Tr. 313; Ex. 107, at 6, Ex. 150, Part A, at 32-33). Mr. Costa testified that he was referring to Merrimack Valley Roofing as having done roof work for one of RA Ventures’ general contractors. He also said that he solicited a bid for the Devens SpringHill Suites from Prime Roofing Corporation for the roofing job. He said that he hired Merrimack Valley Roofing because Prime Roofing Corporation did not provide pricing for the bid. (Tr. 311-12, 353-54). He testified that he sent about forty to fifty emails to “Barry James” [Barry Billcliff], all to foreman05merrimackvalleyroofing@yahoo.com, over the course of six months about the project at Devens SpringHill Suites.9 (Tr. 314, 348-49). Mr. Costa testified that he discussed with Barry: 1) scope of work, 2) timing, 3) the actual areas that needed to be replaced, 4) roof measurements, 5) product specifications, 6) color selection and availability, 7) contract negotiation, 8) pricing, 9) payment terms, 10) permitting,10 11) proposals, 12) invoices for the work, material deliveries, and 13) scheduling. (Tr. 315-18). He said they negotiated payment terms where Barry wanted one-half of the payment at the beginning and one-half at the end of the project. (Tr. 317). Mr. Costa testified that the responses that he received from Barry James used a signature block that said: Barry James, Foreman, Merrimack Valley Roofing, Inc., with telephone numbers: 978-884-6732 and 978-866-1860.11 (Tr. 314-15; Ex. 107). Mr. Costa said that Merrimack Valley Roofing was the only contractor that he knew of being on the job site. (Tr. 349). He said that he was never told that someone other than Barry, including Mike LaChance, was taking over the project at the job site. (Tr. 349-50). Mr. Costa said that Barry never mentioned the name Mike LaChance to him and that he never had any communication with Mike LaChance about the project. (Tr. 350-52, 470).

On August 4, 2021, 8:04 AM, Barry James sent a message to Mr. Costa12, Subject Re: Devens, that stated: “Good morning Mike, I would be happy to stop by and do an inspection and get you a proposal for repair or replace I will start on this today and be in touch. Thank you Barry James”.13 (Ex. 150, Part A, at 29).

Chief Engineer Louis Byrne testified that he first met Mr. Billcliff at the Devens SpringHill Suites around August 4, 2021.14 Mr. Byrne said that he was asked to meet Mr. Billcliff, “bring him up on the roof and show him around.” He said Mr. Billcliff introduced himself as “Barry Billcliff”, the owner of Merrimack Roofing, and that he had come out to look at the roof.15 Mr. Byrne stated that Mr. Billcliff had his son, Daniel Grzyboski, with him.16 He said that new roofs were needed for two buildings that were connected by a bridge, the SpringHill Suites and the next door Conference Center. The roofs were about twenty years old and had a lot of leaks in multiple places. Mr. Byrne said that the job “was a large, very large roofing job”; “the size of a football field.” He stated that “[t]he roof was a very difficult roof to shingle. There was a lot of flat spots, a lot of slopes.” (Tr. 74-80, 134-35, 150, 168-73, 188, 198-99, 311, 333-34, 1015; Ex. 107, at 6-7). Mr. Byrne testified that the hotel roof was three stories above the ground and had no guardrail around it. (Tr. 78). He said that he took Mr. Billcliff and his son up to the roof from the inside of the building since Mr. Billcliff did not have any ladders with him.17 (Tr. 81-82, 170-71). He said they spent about 20-30 minutes on the roof. He said Mr. Billcliff told him: “you just need a new roof.” (Tr. 83). Later, Mr. Byrne said he learned from his boss, Jonathan Mehlmann, that Merrimack Valley Roofing was going to do the job. Mr. Byrne said RA Ventures, the Devens SpringHill Suites property ownership group, hired Merrimack Valley Roofing to do the job. (Tr. 83, 93, 152-53, 195, 201-03). Mr. Mehlmann testified that RA Ventures’ Mike Costa hired “Merrimack Valley Roofing” to do the work on the project. (Tr. 203). Mr. Mehlmann testified that the SpringHill Suites ultimately paid for the roofing work to be done at the hotel.18 (Tr. 202). It was Mr. Mehlmann’s understanding that Merrimack Valley Roofing was responsible for: 1) purchasing materials and equipment, 2) coordinating deliveries to the project, 3) communicating with the permitting agency, 4) overseeing the work, 5) overseeing safety, 6) and setting up the job site. (Tr. 204).

On August 4, 2021, 8:03 PM, Barry James sent a message to Mr. Costa, Subject Re: Fwd: EagleView Report 41571777-27 Andrews Pkwy, Devens, MA (Premium, $80.00, 45621 sq ft), that attached an EagleView Report on the project that EagleView prepared for: Barry James, Merrimack Valley Roofing, P.O. Box 1214, Newburyport, MA 01950, 978-884-6732, that showed the total roof area of the Devens SpringHill Suites and Conference Center to be 45,621 sq ft.19 The Report also states that the predominant pitch of the roof is 5/12, and that the roof is greater than one story high. It also includes photographs of the job site clearly showing the Devens SpringHill Suites hotel to be a three-story building. (Tr. 324-25, 332-33, 1636; Ex. 149, at 1, 5-6).

  During the evening, August 4, 2021, “Merrimack Valley Roofing & Gutter” submitted its proposal from Barry James at Foreman05.MerrimackValleyRoofing@yahoo.com, (978) 884-6732 FOREMAN CELL,20 to Mr. Costa, 27 Andrews Parkway, Devens, MA for “FULL STRIP AND RE-ROOF OF HOUSE ROOF” for $117,850, with options to cut in peak and install ridge vent system for $2,100 and to install ice and water shield full coverage to entire roof for $29,150 (Proposal). The proposal called for 1/3 payment upon scheduling, 1/3 upon material delivery and 1/3 within 30 days of completion. (Tr. 334-35, 368, 1622; Ex. 126).

On August 5, 2021, at 7:53 AM, Mr. Costa sent a message to Barry James that stated: “Barry were you able to check this out and confirm it’s the shingles that are the probably (sic)?21 Are they past their life here? We built this in 2005, so only about16 years old.” (Tr. 319; Ex. 107, at 4).

On August 5, 2021, at 8:19 AM, Barry James, foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “Yes, many of the thermos-seal lines were already broken. They are not completely dead shingles, but at this age they are unable to withstand any extreme weather. They should last another 7 to 10 years of normal conditions. They are not able to keep water out during heavy storms.” (Tr. 320; Ex. 107, at 3). Mr. Costa testified that this exchange of emails indicated that Barry was physically on site at the Devens SpringHill Suites. (Tr. 320).

  On August 5, 2021, at 2:11 PM, Barry James, foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “Good afternoon Mike, Thank you for inviting us out to handle this roof project. Please see your proposal attached to replace the shingled roof of the hotel at 27 Andrews Parkway. Feel free to give me a call if i can answer any questions for you. Barry James Foreman Merrimack Valley Roofing Inc. (978) 884-673222 c (978) 866-186023” (Tr. 320, 372-73; Ex. 107, at 3, Ex. 150, Part A, at 17). CO Bussell testified that “Mr. Costa and the Government believed some” of the emails between Mr. Costa and Mr. Billcliff that Mr. Billcliff produced to the Government were fabricated. (Tr. 1831, 1883).

At 3:00 PM, August 11, 2021, Mike Costa sent a message to Mr. Billcliff that stated, in part: “Barry we have a site meeting to discuss this tmo [tomorrow] What does your availability look like if we were to proceed….” (Ex. 150, Part A, at 15-16).

At 4:26 PM, August 11, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “need to know what day you need to meet you (sic) there if you feel my presence is necessary. It took me almost 2 hours per direction with traffic, so I would need to clear half a day.” (Tr. 337-39; Ex. 150, Part A, at 13). Mr. Costa interpreted Barry’s message as confirming that he had already been to the job site. (Tr. 338-39).

D. Mr. Billcliff Negotiates the Terms of the Agreement to Perform the Devens Project roofing work

At 3:11 PM, August 19, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Barry we are ready to move forward with this. I’m working up a PO for this project.24 What do you need from me to get started. Thanks” (Tr. 416-17; Ex. 150, Part A, at 9, Ex. V, at R-306).

At 3:21 PM, August 19, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “We will need to sign copies of the proposals. Indications on any options, choice of shingle color, and deposit. From there we will put it together and send it to the city for permitting. Once the permit is released, assuming the availability of materials, we can get it right on the schedule” (Ex. 150, Part A, at 8).

At 2:54 PM, August 30, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Hi Barry We’re ready to move forward. I’d like to add the ridge vent in as well…. (Id., at 6-7).

At 3:17 PM, August 30, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated, in part:

Good afternoon Mike. Unfortunately not do those payment terms. I’m not sure if you’ve checked product cost recently, but about ½ of the job is stock because we did not raise our price range to match the grossly inflated material costs. We now have only one half of each job to handle both labor and profit margin. We can do the ½ upon scheduling and then the other half within 30 days of completion. Or 1/3 upon scheduling, 1/3 upon material delivery, and the last third 30 days from completion. If you’re OK with the terms of your current proposal, we can get the job ball rolling and get that project done within the next two weeks.… (Ex. 150, Part A, at 6-7, Part B Re: Devens.msg).

At about 3:34 PM, August 30, 2021, Mike Costa sent a message to Mr. Billcliff that stated, in part: “OK I’ll go ½ now and the other half 30 days after completion. Can you get me a deposit invoice? We’ll work up a contract in the meantime.” (Tr. 420-22; Ex. 150, Part A, at 6, Ex. V, at R-308).

  At 6:24 PM, August 30, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “Good afternoon Mike Please see your deposit invoice attached Feel free to call if you have ant (sic) questions Thank you Barry James Foreman Merrimack Valley Roofing Inc. (978)884-6732 c (978)866-1860 o (978)296 3448 f”. (Tr. 425-26; Ex. 150, Part A, at 6, Ex. V, at R-309).

  On September 2, 2021, Mike Costa signed and dated the Merrimack Valley Roofing & Gutter’s proposal25 and sent it to Barry James. A copy was also sent to the team that manages the hotel.26 (Tr. 337; Ex. 126). The signed proposal has Mike Costa’s name crossed out and “SHS” written in. CO Bussell testified that “SHS’ stood for SpringHill Suites. (Tr. 1890; Ex. 126). Mr. Costa testified that the scope of work included in the proposal came from Barry James and that Barry James learned of the details about the scope of work by visiting the site. (Tr. 336; Ex. 126).

At 2:19 PM, September 2, 2021, Mike Costa wrote in a message to Mr. Billcliff that stated, in part: “Barry just spoke to hotel. They are requesting the deposit be split 2 ways”; one for Devens Commons Conference Center at 31 Andrews Parkway with a deposit amount of $14,500 and another for Devens Hospitality LLC at 27 Andrews Parkway with the deposit amount of $45,300. (Ex. 150, Part A, at 5).

Mr. Costa testified that, based on his negotiations with Barry, Barry James was responsible for: 1) scheduling the work, 2) setting the daily schedule, 3) determining how may days of work would occur, 4) obtaining permits, 5) determining sequencing of the work on the project stages, 6) disposal services, 7) purchasing materials, 8) how many materials to buy, 9) purchasing equipment, 10) ensuring that the work met contract specifications, 11) supervising the work, 12 ) overseeing safety on the project, 13) inspecting the job site for hazards, 14) ensuring that the workers had proper safety equipment, and 15) ensuring that the workers on their project received proper safety training. Mr. Costa stated that Barry told him that Jason Vaughn27 would be Mr. Billcliff’s site contact for the project. He said that Barry never told him that he would be subcontracting out any work. (Tr. 321-23).

At 5:33 PM, September 2, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated, in part: “Good afternoon Mike. Please see the separated invoices attached … Barry James Foreman Merrimack Valley Roofing Inc. (978)884-6732 c (978)866-1860 o (978)296 3448 f”. (Tr. 334; Ex. 150 Part A, at 5). Mr. Costa testified that he received a deposit invoice # 264825A tied to proposal # 1012929, from Merrimack Valley Roofing LLC, calling for $45,300.00 to be due and paid by September 2, 2021 from Barry from “Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 331, 1538-39; Ex. 110, at 1, Ex. 155, at 9, Ex. 190-B, at 1).

  At 11:20 AM, September 13, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “Once the contract and deposit are both recorded, we file for the permit with the town and put the supplies on order.28 From there it is usually a 5 to 7 day process depending on the city[.]” (Ex. 150, Part A, at 3).

At 12:32 PM, September 13, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “I am told the checks went out on Friday.29 You have the signed contract from me. Once you file with Mass Development, please let me know.” (Ex. 150, Part A, at 3).

Mr. Costa testified that he never received a purported email from Barry James, foreman05.merrimackvalleyroofing@yahoo.com, on September 13, 2021, at 1:55 PM,30 that stated “Barry will not be available for this project. Mike LaChance31 will contact you soon. Thank you. Jon.” (Tr. 351-52, 1977-80). The Court finds that the purported September 13, 2021 email from “Jon” and/or Barry James (Mr. Billcliff) to Mr. Costa was not actually sent by “Jon” and/or Barry James to Mr. Costa, or received by Mr. Costa, on September 13, 2021. The Court finds that this purported email was fabricated sometime thereafter. (Tr. 1977-80).

  At 12:45 PM, September 14, 2021, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, that stated: “Correct Were you sending a hard copy of the proposal with the checks?” (Ex. 150, Part A, at 2).

At 12:47 PM, September 14, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Signed proposal sent on 9/2. Attached here” (Tr. 430; Ex. 150, Part A, at 2, Ex. V, at R-317).

CO Bussell testified that a picture on Mr. Bonicenha’s phone showed a September 16, 2021 message from Mr. Billcliff32 from phone ending in 1254, that stated:

Hi, this is Mike from Baystate exteriors … I would like to know your availability, we need to hire a couple more bruise for this season. We have many job stock and ready to go and not enough dollars to do that. Do you have time to do jobs? Baystate exteriors inc, 484 Lowell Street Peabody Mass 01960 Please send c o i33 to Wolfjohnm@aol.com[.]34

(Tr. 502-03; Ex. 128, at 1).

In response to a leading question by Mr. Billcliff, Mr. Bonicenha said “Yes” that he met Mr. Billcliff at the Devens SpringHill Suites’ parking lot on “July 10th” [2021].35 He testified that Mr. Billcliff told him that the roofing materials were going to come from ABC Supply.36 (Tr. 499, 611-12). At the Devens Project parking lot he talked with Mr. Billcliff about the price, where the materials were coming from, and the dumpster. He said, “Barry asked me if you have all of the harnesses and the rope; I said yes. That’s the conversation.” (Tr. 517-18, 612, 628).

  On September 20, 2021, at 12:32 PM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, stating:

Good afternoon Mike,37 We got all the paperwork in order today. We secured the shingles and are currently working on finding the rubber ro[unintelligible] now. If we can find a source that has enough EPDM rolls, we should be able to get that on the schedule within a week [] the release of the permit[.] I will update you again when we have an exact date. Thank you John Wolfe38 (Tr. 370-71, 379; Ex. 150, Part A, at 2).

At 12:32 PM, September 20, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Thanks Barry” (Tr. 434, 471; Ex. 150, Part A, at 1-2, Ex. 150, Part B, Ex. V, at R-319).

CO Bussell testified that on September 20, 2021, 1:49 PM, Mr. Billcliff deposited a check into an account where Mr. Billcliff was the only person authorized to deposit checks39 into that account at the Plaistow branch, Merrimack Valley Credit Union, with an unidentifiable signature on behalf of Merrimack Valley Roofing appearing on the back of check number 015640, dated September 10, 2021, issued by Devens Hospitality LLC, 27 Newburyport, MA 01950 in the amount of $45,300 made out to Merrimack Valley Roofing LLC, PO Box 1214, NewBuryport, MA 01950 and drawn on Unibank.40 (Tr. 1556-60, 1855, 1861-65, 2079-80, 2259-61; Ex. 155, at 9, 13 [Sealed], 107-08).41 CO Bussell testified that telephone number (978) 866-1860 is associated with this Merrimack Valley Credit Union’s Marrimack Valley Roofing Co., LLC bank account. (Tr. 1641). Mr. Billcliff testified that he had “no personal knowledge about these” [two checks for $45,300 and $45,714].42 On March 8, 2022, Mr. Billcliff told CO Bussell and Assistant Area Director (AAD) LeRose that he could not recall43 whether he had seen the two checks from the Devens Project before and that he highly doubted that these two checks were deposited into an account that was connected to his name.44 (Tr. 2070-71; Ex. 155, at 9, 11).

CO Michael C. Grover testified that checks written out to Merrimack Valley Roofing, Marrimack Valley Roofing and Barry Billcliff valued at $2,019,981.08 were deposited from October 2019 through July 2022 into the same account at the Merrimack Valley Credit Union into which Mr. Billcliff deposited the checks from Devens Commons Conference Center, LLC for $14,500 and from Devens SHS Devens Hospitality LLC for $45,300 on September 10, 2021 and from Devens Commons Conference Center, LLC for $14,436 and from Devens SHS Devens Hospitality LLC for $45,714 on November 12, 2021. (Tr. 1434-42, 2323-24; Exs. 155, at 13-14 (sealed), 169).

The Court finds that Mr. Billcliff’s trial testimony that he knows that Unibank check numbers 015640 and 015777 at Attachment 2 in the Secretary’s discovery request were not true and correct copies of the checks that he actually received from Devens Hospitality (Devens SpringHill Suites) concerning the roofing work performed at the job site to not be credible. (Tr. 2087; Ex. 155, at 9, 11). The Court further finds that Respondent’s July 8, 2022 assertions in its Responses to the Secretary’s Requests for Admissions (RFA) Nos. 7 and 8 that it [Mr. Billcliff] has no personal knowledge that Unibank check numbers 015640 and 015777 were received by Respondent from Devens Hospitality (Devens SpringHill Suites) concerning the roofing work performed at the job site and that Mr. Billcliff has no recollection of depositing the checks into the Merrimack Valley Credit Union’s Marrimack Valley Roofing Co., LLC bank account to be without any reasonable basis and to be false assertions.45 (Tr. 2088; Ex. 100, at 8, Ex. 155, at 9, 11, 13-14 [sealed]).

  On September 22, 2021, 5:21 PM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated:

Hey Mike, just so you know, all the paperwork is in order, we applied for the permit. We ordered the materials.46 The rubber roofing materials are not in stock but have been ordered through the manufacturer. As soon as the materials are consolidated and ready for delivery. I’ll let you know and we will put that on the schedule. I’m assuming about two weeks out[.] (Ex. 150, Part A, at 1).

  On September 22, 2021, 12:32 PM, Mike Costa sent a message to Barry saying: “Thanks Barry”[.] (Ex. 150 Part A, at 1-2).

  Mr. Costa testified that he did not sign as the “Homeowner”47 at either of two places that appear on the permit application at Exhibit 123, at 5, that are dated September 23, 2021. He said that the signature appearing at both places for the homeowner to sign was illegible to him. (Tr. 345-47; Ex. 123, at 5). At trial, Mr. Grzyboski testified that he told CO Bussell during his March [8], 2022 interview that he signed directly below the “John Wolfe” homeowner’s signature48 on the permit application at Exhibit 123, at 5, at “F”. (Tr. 1175-77, 1192, 1329, 1336-38; Ex. 123, at 5, at “F”). At trial, Mr. Grzyboski testified that he could not confirm that the signature at the bottom right [above “Contractor’s Signature NOTICE”] of page 5, Exhibit 123, or at Exhibit 123, at 5, at “F”, was his signature. (Tr. 1256, 1262, 1329, 1338-39; Ex. 123, at 5).

Acting upon Mr. Billcliff’s order to get the permit for the Devens Project, on September 24, 2021, Daniel Grzyboski signed, under penalties of perjury, with telephone number [redacted],49 a Department of Industrial Accidents Office of Investigations form that identified Billco Roofing LLC,50 496 Main Street, Sandown, NH as the insured and applicant employer with 4 employees to do roof repairs at 27 Andrews Parkway, Devens, MA using “Insurance Solutions Corporation” as the workers’ compensation insurer. (Tr. 274, 280-81; Ex. 123, at 8, Ex. 124, at 2-3; Stip. No. 6). At trial, Mr. Grzyboski testified that Billco Roofing’s business address is 496 Main Street, Sandown, New Hampshire 03873. (Tr. 1016, 1030). He said that he was primarily employed as a general laborer and has helped with “installs” at Merrimack Valley Roofing and Gutter, LLC for roughly the past ten years where he reports to Mr. Billcliff and others, including “John” (last name unknown), but also helps out “a handful a year” at Billco Roofing. (Tr. 1020-21, 1033-34, 1119, 1314). He testified at trial that his Merrimack Valley Roofing and Gutter, LLC employer’s business address was 520 Merrimack Street, Methuen, Massachusetts. (Tr. 1113, 1311).

CO Bussell testified that he contacted Peter Lowitt, Director of the Devens Enterprise Commission, as part of his OSHA investigation and asked him for documents used in the permit application to do the roofing work at Devens SpringHill Suites, which he provided. (Tr. 1528-30). Mr. Lowitt testified that Exhibit 124, at p. 6, appeared to be a copy of the contract between Billco Roofing LLC, 496 Main Street, Sandown, NH 03873 (978) 884-6732 and 27 Andrews Parkway, for a roofing job for $60,000.00.51 (Tr. 281; Ex. 124, at 6). The “contract” identified “Barry” as the “Contact” “c/o John Wolf GC”, “Phone: (978) 866-1860”. It also identified Daniel Grzyboski as the Supervisor.52 Mr. Grzyboski testified at trial that he did “not know John’s [Wolf] last name, ….”, but said he briefly met “John” more than ten times. He described “John” as probably somewhere between 67 to 72 inches tall. (Tr. 281-82, 1035-36, 1264, 1530-31; Ex. 124, at 6).

Another picture on Mr. Bonicenha’s phone showed a September 24, 2021 message from Mr. Billcliff from his phone ending in 1254 to Mr. Bonicenha, that stated: “I haven’t received a Certificate of Insurance from you yet. I have a couple of very big projects coming up in two weeks and I need many more guys. Are you able to help?” (Tr. 503-04, 651; Ex. 128, at 1).

On September 27, 2021, Daniel Grzyboski submitted, at Mr. Billcliff’s request, a permit application to the Devens Enterprise Commission for Billco Roofing LLC, 496 Main Street, Sandown, NH, telephone number: 978 884-6732 [Mr. Billcliff’s cell phone number],53 to “strip and roof of shingled portion of roof (304 sq)” located at the Marriott SpringHill Suites, 27 Andrews Parkway, Devens, Massachusetts. (Tr. 273-76, 1055, 1126-27, 1141, 1530-31, Stip. No. 4; Ex. 123). At trial, Mr. Grzyboski admitted that he told CO Bussell during his March 2022 interview that he used his Massachusetts Construction Supervisor’s license54 to fill out the permit application.55 (Tr. 1132-33; Ex. 125, at 2; Stip. No. 7). He also admitted at trial that during his March [8], 2022 interview he told CO Bussell that he wrote the numbers alongside the “CONST. SUPER. LIC. NO.” (Tr. 1145, 1192; Ex. 123, at 2). At trial, he also acknowledged that his address, at “496 Main Street, Sandown, NH” appears below “Builder Daniel Grzyboski”. (Tr. 1149; Ex. 123, at 2). At trial, he also admitted telling CO Bussell during his March [8], 2022 interview that he filled out the whole document at Exhibit 123 and wrote in “Mike Costa, 27 Andrews Parkway, Devens, MA, phone: 978 866 1860” (a phone number used by Mr. Billcliff) alongside and below the “Owner.”56 (Tr. 1152-55, 1192, 1833; Ex. 123, at 2, at “A”). The application identified “Mike Costa”, phone number: 978 866 1860,57 as the owner of the SpringHill Suites.58 (Tr. 1155-56; Ex. 123, at 2, at “B”). Mr. Costa testified that he did not sign the document as the owner and phone number 978-866-1860 was not his phone number.59 He also said that he did not give anyone authorization to sign the building permit application for him. (Tr. 343-44; Ex. 123, at 2). CO Bussell identified the scribbled signature appearing alongside the “Owner Signature” as “John Wolfe”.60 (Tr. 1531; Ex. 123, at 2). At trial, Mr. Grzyboski admitted telling CO Bussell during his March [8], 2022 interview that “John”,61 who he said worked for Merrimack Valley Roofing and Billco, signed alongside the “Owner Signature”. (Tr. 1159-61, 1192; Ex. 123, at 2, at “C”). The application shows that the name printed below the builder’s signature is “Daniel Grzyboski” with a telephone number: “[redacted]” and is dated “9-27-21”. (Tr. 279; Ex. 123, at 3). The permit application showed that the estimated cost of the construction was written in with $60,000.62 (Ex. 123, at 2). The permit application included a required photocopy of Mr. Grzyboski’ s Massachusetts Construction Supervisors License along with photo identification.63 (Tr. 1054-55; Ex. 123, at 2, 4). Mr. Grzyboski also certified that he was authorized by the owner to make the permit application as his/her authorized agent. (Tr. 282, 411; Ex. 124, at 7). Mr. Costa testified that he gave Merrimack Valley Roofing permission to pull a permit. (Tr. 411). But Mr. Costa testified that neither he, nor anyone in his office, authorized Mr. Grzyboski to submit the permit application that contained the permit materials that appear therein. (Tr. 347-48; Exs. 123-24). Mr. Costa testified that Mr. Billcliff did not tell him that: 1) his home improvement contractor’s license had been revoked,64 2) he did not have a construction supervisor’s license,65 and 3) he, himself, was unable to obtain a permit from the permitting agency for the Devens Project. (Tr. 348). Mr. Costa testified that a construction supervisor’s license was needed to pull a permit. (Tr. 410). The building permit application documents included a Certificate of Liability Insurance dated “6/4/2021” identifying “BILLCLIFF BARRY DBA BILLCO ROOFING 496 Main St” and another Certificate of Liability Insurance also dated “6/4/2021” identifying “Billco Roofing LLC, 496 Main Street” as the insured. (Tr. 274, 280; Ex. 123, at 8; Ex. 124, at 2). These two Certificates of Liability Insurance identify Merrimack Valley Roofing Inc., 520 Merrimack Street, Methuen, MA 01844 as the Certificate Holder. (Ex. 123, at 8, Ex. 124, at 2).

Director Lowitt testified that the Devens Enterprise Commission ultimately issued a permit in response to Mr. Grzyboski’ s application, shortly after September 27, 2021.66 (Tr. 288). He testified that the permit “must have been picked up.”67 (Tr. 295). Mr. Lowitt said that his office did not receive another permit application from anyone other than Billco Roofing, LLC for the October 2021 roofing job at Devens SpringHill Suites. (Tr. 278). He further testified that the Devens Enterprise Commission has yet closed out the permit because it has not yet received a final inspection request for the job. (Tr. 296).

In early October 2021, Mr. Billcliff or someone else acting on his behalf, arranged for both a dumpster and roofing materials to be delivered for the Devens Project and confirmed same with Mr. Costa. (Tr. 205, 339-40; Ex. 108, at 2; Ex. 151). On October 1, 2021, Mr. Billcliff emailed Mr. Costa to provide a schedule for the work. (Ex. 108, at 5, Ex. 151).

Mr. Bonicenha testified that his company, L&A, was hired by Mr. Billcliff to do roofing work at the SpringHill Suites and Conference Center.68 He said that he communicated with Mr. Billcliff only through phone calls before starting the Devens Project.69 He said that the job was scheduled to be completed in two weeks. He said that he had about eight or nine workers on the job every day. (Tr. 497-98). Mr. Billcliff did not make any effort to determine whether Mr. Bonicenha was qualified or competent to supervise the safety conditions at the Devens Project. The only conversation Mr. Billcliff had about safety with Mr. Bonicenha was to inquire if he had “all of the equipment.” (Tr. 517). Mr. Vaughn did not discuss safety with Mr. Bonicenha prior to when OSHA came to the worksite. (Tr. 518).

On October 4, 2021, 6:16 AM, Mr. Costa sent a message to “Barry James” that stated: “How long do you think this project will take? Also hotel has asked that no work begin before 8am.” (Tr. 326, 1923; Exs. 152, I).

On October 4, 2021, 6:33 AM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated: “Ok, 6 days plus rain outs like today.” (Tr. 326; Ex. 152).

On October 5, 2021, 11:08 AM, Mr. Costa sent a message to Barry James that stated: “Barry did you guys start today?” (Ex. 108, at 4).

On October 5, 2021, 11:10 AM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Re: Devens, that stated: “No, tomorrow. It’s raining today” (Ex. 108, at 3-4).

On October 5, 2021, 11:12 AM, Mr. Costa sent a message to Barry James that stated, in part: “My only ask is you communicate any delays or issues with me so I can let the hotel know.” (Tr. 438; Ex. 108, at 3, Ex. V, at R-322).

On October 5, 2021, 11:33 AM, Mr. Costa sent a message to Barry James that stated, in part: “I am the one you should communicate with during this project for any delays, or days when your crew isn’t going to be on site.” (Tr. 436; Ex. 108, at 2, Ex. V, at R-321).

On October 5, 2021, 11:45 AM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated:

OK, my apologies. So we plan on starting tomorrow about 8 o’clock. We will have someone on site around seven and the rest of the crew will show up around 730. We know that we cannot start making any noise until eight. We will have 12 to 14 guys there with four vehicles and will coordinate with you as far as closing and reopening entries or other egress issues. Our contact that will be on site the entire time is Jason Vaughn. He is a tall fellow with a beard and usually has a blue hoodie. Only your office number is on your email, is that the best way to get hold of you or do you have a cell phone to communicate via text?

(Tr. 323, 339-40; Ex. 108, at 1).

One picture taken by CO Bussell on October 7, 2021 of Mr. Bonicenha’s cell phone showed an 11:14 AM [no date identified] message from Mr. Billcliff from 978-904-1254 to Mr. Bonicenha that stated: “I’m going to have the site manager, Jason, give you a call to set up a big job. He will be there for the entire job and get you anything that you need.”70 (Tr. 502-03, 507-09, 1525-26, 1665-68; Ex. 128, at 2-4).

When Mr. Bonicenha visited the job site for about three to four hours a day, he spoke with Mr. Vaughn, who he understood was Mr. Billcliff’s supervisor at the job site.71 Mr. Bonicenha testified that “Jason used to tell me all the time I [Mr. Vaughn] am going to take care of all of these guys [L&A workers] and all of the jobs for you [Bonicenha] because I [Bonicenha] have another job going – going at the same time. He [Vaughn] said I [Vaughn] take care of those guys and their job is going well.” Mr. Bonicenha testified that Mr. Vaughn’s job at the job site was to make it safe for the workers; but that he [Vaughn] did “nothing” to do so.72 Mr. Bonicenha testified that he normally stayed at his worksites and ensured that his workers wore harnesses; but on the Devens Project he was free to be present at his other jobs because Mr. Vaughn was the supervisor at the Devens Project job site.73 (Tr. 618). He said that he called Mr. Vaughn “a couple of times in the day” to check on the job and Mr. Vaughn said everything is good. (Tr. 627). He said that Mr. Vaughn told him that he told Bonicenha’s workers to wear their harnesses. (Tr. 588). He said that Mr. Vaughn told him that he worked for his friend, Mr. Billcliff, and was to be paid around $800 per week.74 (Tr. 498-99, 508, 518-22, 627-28).

  Near the end of the Devens Project, Mr. Bonicenha asked “Mike” [in reality Mr. Billcliff] and/or Mr. Vaughn for some more materials, including two boxes of nails and shingles. He said that Mr. Billcliff provided some shingles,75 and he [Bonicenha] bought some of the materials, nails and ridge vent, to get the job completed.76 He testified that Mr. Billcliff [who was referring to himself as “Mike”] told him that if he saved the receipt, he [Billcliff] was going to pay him at the end of the job. (Tr. 499-500, 520, 636-38, 761-62, 901-08). Mr. Bonicenha testified that he and Mr. Billcliff agreed that the price for L&A’s roofing work was $47,850. He said that the messages at Exhibit 128 constituted the whole agreement between Mr. Billcliff and L&A. (Tr. 508-09; Ex. 128).

During the first day of the job; i.e. October 6, 2021, Mr. Byrne testified he first met Jason Vaughn and Mr. Vaughn told him that he “was supervising the job” “for Merrimack Roofing.”77 (Tr. 84-85, 100, 208). Mr. Byrne further testified that he did not really want to talk with Mr. Vaughn anymore because it was his understanding that Mr. Vaughn was not going to go up onto the roof because he was afraid of roofs.78 (Tr. 84-86, 175-76, 792-93). During the course of the job, Mr. Byrne said that he gave some instructions about the job to Mr. Vaughn. As examples, he said he told Mr. Vaughn to: 1) remove a ladder that barely made it up to the roof,79 2) clean up, and remove nails at, the Devens Project’s parking lot, and 3) remove plastic paper and shingles from trees located in front of the building.80 (Tr. 86-87, 175, 177, 180, 728-29, 734). Mr. Mehlmann also testified that Mr. Vaughn was “perfectly fine” with being told by him “to make sure the parking lot’s cleared, what time they were starting as to not interrupt, you know, our guests that were staying at the hotel, making sure what time they’d be done at night.…”81 (Tr. 207-08, 729-30). Mr. Byrne stated that Mr. Vaughn “sat in his car for the whole project, mostly. He just – moved his car from side to side. He would get out and walk around.”82 (Tr. 87-88, 739). Mr. Mehlmann also testified that Mr. Vaughn “was sitting in his car or just watching them work really.” (Tr. 207). Mr. Byrne saw Mr. Vaughn try to communicate with the workers using sign language since the workers did not speak English.83 Mr. Byrne testified that Mr. Vaughn “was incapable of supervising the job, a roofing job of that scope. He was definitely incapable of it.” (Tr. 178-79). He also said that the roofers, who were part of Mr. Bonicenha’s crew at the job site, “don’t know how to do roofing.” (Tr. 178-79, 183-84). Mr. Byrne said that Mr. Bonicenha told him that he was subcontracted to Mr. Billcliff, and it was Mr. Byrne’s understanding that Mr. Bonicenha was a partner with another gentleman. (Tr. 184-86). Mr. Byrne testified that before OSHA arrived at the job site, he saw more than one person “riding up and down the shingle lift, and they were walking up the other one [ladder] that could barely make it to the roof.”84 (Tr. 186, 196-97). He said the ladder “basically made it to the gutter.” (Tr. 186).

On October 6, 2021, OSHA received a complaint of employees working on a roof with no fall protection. (Tr. 1488). On October 7, 2021, AAD Joe LeRose assigned the OSHA inspection to CO Bussell.85 (Tr. 1488). CO Bussell observed safety hazards at the job site that were in plain view of Mr. Vaughn, including workers working in a hoist area at a height above 6 feet without adequate fall protection, workers working on a steep roof at a height above 6 feet without adequate fall protection, workers not wearing protective hard hats where required, and ladders not extended at least three feet above the point at which the ladder contacted the building. (Tr. 1489-1503, 1508-09; Ex. 129). CO Bussell saw five employees working on the roof without any fall protection. He also saw employees on the ground working in a hoisting area. One employee did not have any personal protective equipment (PPE) or a hard hat on within that hoisting area.86 (Tr. 1489-90). He also saw employees using a ladder to access, and egress from, the roof. (Tr. 1490). He took many photographs at the job site on October 7, 2021 that he testified accurately reflected the conditions at the Devens SpringHill Suites hotel. (Tr. 585-86, 922, 1491-93; Ex. 129). CO Bussell described the job site as a large three-story hotel, several hundred yards long, with a roof greater than 30 feet in height. (Tr. 1493).

CO Bussell testified that the photographs at Exhibit 129, at 26-28, show Jason Vaughn walking around the job site observing the workers as they worked. CO Bussell perceived this man to be the person in charge of the job site and learned that Mr. Vaughn was the site manager for Merrimack Valley Roofing. (Tr. 586, 1503-04, 1506; Ex. 129, at 26, 28). He performed an opening conference and opened an inspection with Mr. Vaughn.87 (Tr. 1504-05). Mr. Vaughn told the CO that he was there to oversee the Devens Project, and he had been there for two days. (Tr. 1506, 1511). CO Bussell testified that Mr. Vaughn told him that he had “zero” roofing experience. (Tr. 2194-95). CO Bussell testified that workers at the job site told him that Mr. Vaughn was responsible for telling them when to start and stop their day. (Tr. 2198). He also said that no worker at the job site told him that Mr. Billcliff trained them personally. (Tr. 2198).

CO Bussell told Mr. Vaughn that the workers on the roof were not protected from falls and asked him to remove the employees from the hazard, which he did. (Tr. 1505). Mr. Vaughn called his supervisor, Mr. Billcliff, so that he could provide the CO with a phone number for the business that he worked for.88 He told the CO that if he had any issues with changes or the quality of the work that he would call Mr. Billcliff. (Tr. 1506-07, 1511). Mr. Vaughn asked the CO if he would talk directly to Mr. Billcliff, which he did after Mr. Vaughn handed him his phone. The CO saw “Barry” on Mr. Vaughn’s cell phone’s screen. CO Bussell told Mr. Billcliff who he was, and that he was there to open an OSHA inspection.89 Mr. Billcliff provided a phone number for the company that ended with 1860. Mr. Billcliff told the CO that he worked for Merrimack Valley Roofing, but that Merrimack Valley Roofing was not doing the job.90 He said that the job was being done by Bay State Exteriors and Mike LaChance and gave the CO the phone number ending in 1254 to reach Mr. LaChance.91 Mr. Billcliff told the CO that he was not the owner of Merrimack Valley Roofing, which he said was owned by John Wolfe, who had a phone number ending in 1860.92 Mr. Billcliff testified that “a lot of times I’ll call him [John Wolfe] at” 978-866-1860 “three or four times in a day.” He also testified that the email address for John Wolfe shown on his phone is “John@Merrimack Valley, the WolfJohn”. (Tr. 2253-54). Mr. Billcliff testified that he made John Wolfe aware of this case and Mr. Wolfe “said he was going to take care of it.” (Tr. 2255). Mr. Billcliff testified that “[t]here’s still questionability about his [John Wolfe’s] full name.” 93 (Tr. 704, 1931, 2170). CO Bussell said that Mr. Billcliff gave him Mr. Wolfe’s email address and told him Mr. Wolfe lived at a condominium with over 80 units.94 (Tr. 2170). During one of his interviews, Mr. Vaughn told CO Bussell that he had never heard of, or met, John Wolfe.95 (Tr. 745, 1506-07, 2195-97). CO Bussell testified that Mr. Vaughn told him that he was speaking to Mr. Billcliff on October 7, 2021. Mr. Vaughn testified that CO Bussell and Mr. Billcliff talked for about 45 minutes or so on October 7, 2021. CO Bussell testified that the only place he got the name “LaChance” was from Mr. Billcliff during his discussion conducted on Mr. Vaughn’s cell phone that showed “Barry” on October 7, 2021.96 (Tr. 747, 1723, 1827-28, 1837). The Court finds that Mr. Billcliff’s October 7, 2021 statement to CO Bussell that Mr. Wolfe owned Merrimack Valley Roofing was false. (Tr. 745-46, 798-800, 1507, 1511-13).

CO Bussell determined that Mr. Vaughn was not competent to recognize and address any safety hazards or perform regular job site inspections because he did not know why the roofers were not tied off, at what height they were required to be tied off, or how far the ladder needed to be above the roof’s edge.97 Mr. Vaughn had not received any OSHA fall protection training, and told the CO that he did not “know s_ _ _ about construction.” (Tr. 782-83, 922, 1508-11). CO Bussell found that there was no safety plan for the work site.98 (Tr. 1508-09, 1526). He also learned that the employees at the job site were not trained in safety. Mr. Bonicenha told the CO that his employees had not been trained.99 (Tr. 1509, 1526). The CO saw that, although there were a couple of harnesses in L&A’s van, there were not enough harnesses for all of the employees up on the roof. He also saw that there were no hard hats100 at the job site. (Tr. 1510, 1526). CO Bussell testified that there was no evidence that showed that Mr. Vaughn told the L&A workers at the job site to wear fall protection or hard hats before the CO arrived.101 He also said that there was no evidence to show that Mr. Vaughn did anything to ensure that the job site was safe for the workers who were there. (Tr. 1527-28).

When Mr. Bonicenha showed up at the job site, CO Bussell opened a second inspection of L&A, who had employees on the roof and ladder. He presented his credentials to him and went through all of the hazards that the CO had observed from his camera, and went over the ways to mitigate those hazards. He also interviewed Mr. Bonicenha and workers at the job site. (Tr. 520, 586-88, 773, 1524-28; Ex. 129). CO Bussell testified that he took pictures of Mr. Bonicenha’s cell phone during his October 7, 2021 inspection.102 CO Bussell asked Mr. Bonicenha how he knew about the Devens Project and Mr. Bonicenha told him that he “received text messages from Barry and then he showed me the chain.” (Tr. 1675).

CO Bussell testified that Wolfjohnm@aol.com was “the email address for that employer [L&A] to email documents to.” (Tr. 1665-66, 1752; Ex. 128, at 1). CO Bussell testified the first part of the September 16, 2021 message from Mr. Billcliff to Mr. Bonicenha was inaccurate because: 1) Bay State Exteriors was not involved with the Devens Project, 2) the CO believed that Mr. Billcliff never intended to pay L&A, 3) the 484 Lowell Street address was fictitious, and 4) the Wolfjohnm@aol.com email address was actually tied to Mr. Billcliff. (Tr. 1722-23; Ex. 128). CO Bussell testified that Mr. Bonicenha thought he had a contract with Bay State Exteriors. (Tr. 1753).

CO Bussell testified that the messages between Messrs. Bonicenha and Billcliff at Exhibit 128 constituted the “contract” between L&A and Mr. Billcliff to do the work at the job site. (Tr. 1726; Ex. 128). CO Bussell testified that the four photographs that he took of Mr. Bonicenha’s cell phone were taken in the context of identifying the employer and to prove the contract. (Tr. 1754-55). Mr. Billcliff testified at trial that he knew “nothing” about L&A before the Devens Project began. (Tr. 1984-85). The Court finds this statement to not be credible.

CO Bussell testified that OSHA issued a citation to L&A, co-owned by Mr. Bonicenha, assessing the same fines as Respondent, except for that relating to frequent regular inspections by a competent person.103 He said L&A had zero OSHA history and was fined about $25,000. (Tr. 1528, 1662-63, 1718, 1721; Ex. 128, at 4). CO Bussell testified that Mr. Bonicenha was not actively supervising his employees working at the job site on October 7, 2021. CO Bussell testified that October 7, 2021 was the second day of roofing work at the job site. (Tr. 1757). Mr. Bonicenha had not been at the job site on October 7, 2021 prior to the OSHA inspection. CO Bussell testified that Mr. Bonicenha told him later that day on October 7, 2021 that L&A was only providing labor at the job site and that the “quality control, the supervisor, all that at the site was being performed by Merrimack Valley Roofing.”104 He said that Mr. Vaughn managed the project when he [Bonicenha] was not there. (Tr. 593, 1734-35, 1522, 1525-27).

  CO Bussell said that “Jason was there to oversee the job site” and Mr. Vaughn was “identified several places as being manager of the job site.” (Tr. 1742). CO Bussell testified that Mr. Vaughn “told the hotel manager he was there to supervise the site. He [Vaughn] told me [CO Bussell] he was there to oversee the site, grab materials and water.”105 (Tr. 1743, 1827). CO Bussell also testified that there were messages that stated Mr. Vaughn was the manager or supervisor and that there were emails to Mike Costa that said that Mr. Vaughn was either the supervisor or manager. (Tr. 1743). He also said that Mr. Billcliff sent a message to Mr. Bonicenha that identified Mr. Vaughn as the site manager.106 (Tr. 1743-44; Ex. 128, at 2). CO Bussell also testified that Mr. Vaughn introduced himself to Jonathan Mehlmann as the site supervisor and told him that if there were any issues with the job he should come directly to him. (Tr. 1744). After CO Bussell left the job site on October 7, 2021, Mr. Vaughn testified that he informed the hotel manager, Jonathan [Mehlmann], that there were harness, hard hat and ladder infractions. (Tr. 940).

  CO Bussell testified that Mr. Vaughn told him that he had been in contact with Mr. Billcliff about issues with the job, including trying to obtain Mr. Billcliff’s approval for a possible change order because Mr. Billcliff had to approve all change orders. (Tr. 791, 1747). CO Bussell testified that he felt that the job site:

  was Mr. Vaughn’s site. He dictated the quality. … he purchased the materials. He was   there to do the quality. He was the only one that was authorized to interact with the   property owner. He was responsible, like I said, for procuring additional materials. It   really appeared to me that Mr. Vaughn was the site manager or in control of that site.… I

asked Mr. Bonicenha are you going to be staying here this entire time, and he said no,   and I said, well then you need to understand – have an understanding between you and   Mr. Vaughn that, like, the frequent regular inspections need to be performed by a competent

person. You need to have an inspection program. You need to be out there   observing these employees to make sure they’re being tied off. As a manager, that knowledge is imputed back to the company owner, and I explained some of that to them, to Mr. Bonicenha for sure. (Tr. 1527, 1759-60).

  CO Bussell testified that Mr. Vaughn gave him Mr. Billcliff’s name when he first walked onto the job site on October 7, 2021. (Tr. 1675). Mr. Vaughn told him that he [Vaughn] was the site supervisor. (Tr. 1676). The SpringHill Suites hotel manager, Jonathan Mehlmann, also told CO Bussell that Mr. Vaughn had introduced himself as the “Site manager, site supervisor” and told him to contact him if there were any issues.107 Mr. Vaughn also told Mr. Mehlmann that the proposal for the job was from Merrimack Valley Roofing. (Tr. 1522-23, 1676). Mr. Byrne also testified that he told CO Bussell when the CO came to the job site that Mr. Vaughn was the supervisor and running the job. (Tr. 174-75).

CO Bussell testified that there were five workers atop the roof and four workers on the ground. These nine workers were all L&A employees. (Tr. 1525, 1826; Ex. 129, at 3, 6-12, 16-18, 20-21, 23). CO Bussell testified that the photograph at Exhibit 129, at 18, shows an employee wearing a bright yellow shirt with a hood right at the roof’s edge without any fall protection or guardrails.108 (Tr. 1500; Ex. 129, at 9, 16-18). CO Bussell testified that the photographs at Exhibit 129, at 3, 6-7, show that there were also no harnesses being worn by a second employee wearing a pale yellow shirt and hood.109 He said that “employee has no harness, no rope, no lanyard, nothing connected to his person for fall protection.” He said that the photograph at Exhibit 129, at 8, shows the same employee carrying a 50 to 70 pound roll of material on his shoulder while walking across a pitched roof that “really further increase[s] the likelihood of a fall….”110 He said the employee was also not wearing a hard hat.111 (Tr. 1494-95, 1822-23; Ex. 129, at 3, 6-8). CO Bussell testified that the photograph at Exhibit 129, at 11, shows a third employee, who is wearing a bright neon yellow shirt, “talking on his cell phone and traversing the roof without any fall protection.” Mr. Bonicenha agreed that the roofer was not wearing any fall protection. (Tr. 587, 1495; Ex. 129, at 1, 11). In its Answers to Amended Complaint, Respondent admitted “one employee removed his harness lanyard and did not re-install it in time [for the OSHA inspection].” (Answers to Amended Complaint, at 7). CO Bussell said that the photograph at Exhibit 129, at 12, shows a fourth employee, who is wearing a black shirt and baseball cap, removing the previous shingles while not wearing any fall protection. Mr. Bonicenha agreed that the roofer was one of his workers and that he was not wearing any fall protection.112 (Tr. 587, 618, 1495; Ex. 129, at 12). The CO said that the photograph at Exhibit 129, at 23, shows a fifth employee, who is wearing a gray shirt and black hat, bringing materials around the roof with tripping hazards at his feet within feet of the roof’s edge while “not wearing any harness or other means of fall protection.” (Tr. 1495-96; Ex. 129, at 23). CO Bussell said that the same employee who was shown earlier kneeling atop the roof with a red-pad on his mid-back in the photograph at page 18, Exhibit 129, was also not wearing a harness at that time.113 (Tr. 587-88, 1497, 1762; Ex. 129, at 17-18, 23). CO Bussell further testified during cross examination that the person shown on the roof in the photograph at page 23, Exhibit 129, was “absolutely not wearing a harness.” (Tr. 1761-62; Ex. 129, at 23). CO Bussell also testified that harnesses “just weren’t being worn” by the workers at the job site. (Tr. 1781).

CO Bussell testified that the photograph at page 22, Exhibit 129, shows that the laddervator was not affixed to the roof and there was nothing affixed to the edge of the roof that goes three feet above for the workers to grab onto. (Tr. 1763-64; Ex. 129, at 22). He further said that the photograph at Exhibit 129, at 20, shows that:

There’s also no guardrails in and around that hoisting area, so as you’re reaching off the roof’s edge to then take materials off of that hoist, those guardrails would be there or that fall protection would be there to help prevent you from falling off the roof as you’re off balance grabbing bundles of, you know, anywhere from 50 to 70 pounds of material from that and then trying to bring it up onto the roof, so – (Tr. 1497-1500; Ex. 129, at 20).

He said that he saw employees taking rolls of underlayment114 and ice and water shield115 off of the roof. (Tr. 1501-02; Ex. 129, at 22).

CO Bussell testified that the photographs at pages 20-21, Exhibit 129, show an employee coming down a ladder that’s not three feet above the roof, so the employee has nothing to grab onto as he transitions from the roof around onto the ladder. (Tr. 1498-99, 1502, 1763-64, 1770-77; Ex. 129, at 20-21). CO Bussell said that “[t]he violation was to prove the ladder wasn’t three feet above.” Mr. Bonicenha admitted that the ladder probably extended only one foot and a half beyond the roof surface. He identified “Flaco” as one of his workers who is shown using the ladder in the photograph at Exhibit 129, at 21. He also identified the worker [wearing a red vest] standing on the roof by the ladder to the left as being one of his workers. (Tr. 590, 682, 1773-74, 1780; Ex. 129, at 19-21). CO Bussell saw five employees using the ladder to come down from the roof. (Tr. 1499).

CO Bussell testified that when he left the job site following his inspection on October 7, 2021 there were no hazards because nobody was working on the roof, on ladders or within the hoisting zone. (Tr. 1741-42). He said he explained to Messrs. Vaughn and Bonicenha every hazard and what they had to do to mitigate those hazards and if they did so the employees could go back to work.116 (Tr. 750-51, 923-24, 1522-23, 1742, 1745, 1758-59, 1801-02). Mr. Vaughn testified at trial that CO Bussell said to him: “put the harness – put harnesses on, the hard hats, the ropes, get all that done, adjust the height of the ladder to the three feet, and you’re good to go.” Mr. Vaughn said that he told the L&A workers to put their harnesses and hard hats on. He said, “in a way I feel responsible for this, but I don’t.” (Tr. 935-36).

Mr. Vaughn testified that when he first arrived at the job site, he “didn’t have the confidence to instruct” the workers to wear harnesses and hard hats. (Tr. 765, 810). Mr. Vaughn testified that after CO Bussell departed the job site on October 7, 2021, he [Vaughn] changed his role at the job site and he laid “down the law per se” and told the workers to wear hard hats and harnesses “at all times and essentially be more than what Leo [Bonicenha] was,….” He said he “was never letting that happen again, no way.” He also told the workers to make sure that the ladder extended at least three feet over the edge of the roof.117 He said that he “kept an eye on the hard hat, harness and ladder.” (Tr. 752-53, 756, 772). He said that he “was very militaristic in the way that I spoke and handled things …”, or “I guess you could say” “more stern.” (Tr. 764-65, 890-91). He also said that he spoke with Mr. Billcliff about doing this. (Tr. 766). Mr. Vaughn testified that after CO Bussell came to the job site it was his [Vaughn’s] obligation to tell the workers to wear harnesses and hard hats. (Tr. 807-08).

Mr. Billcliff testified at trial that during his January 12, 2023 deposition he said that he did not do anything to ensure that inspections of the project were performed by a competent person, or that he conducted any safety-related inspection of the job site. (Tr. 1986-89).

On about October 7, 2021, CO Bussell performed research that he used to prepare the “Summary Exhibit of Business Names Respondent Used in Connection with the Project” (Summary of Business Names) that appears at Exhibit 170. (Tr. 1872-73; Ex. 170). He said that he found that Merrimack Valley Roofing118, www.merrimackvalley roofing.com, Merrimack Valley Roofing & Gutter,119 Merrimack Valley Roofing & Gutter, LLC, Billco Roofing,120 Billco Roofing LLC, Merrimack Valley Roofing, Inc121, Merrimack Valley Roofing, Merr Valley R&G LLC, The Marrimack Valley Roofing Co, LLC, and Merrimack Valley Roofing LLC were not registered as Corporations in New Hampshire or Massachusetts as of October 7, 2021. (Tr. 1538-39, 1542, 1563-69, 1623; Ex. 170).

On October 19, 2021, 11:12 AM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Devens, that stated, in part: “For the most part, we should be complete with the roof by Wednesday, and back on Thursday to do the final inspections and any small items that came up on the punchlist.” (Tr. 327, 340-41; Ex. 153, at 2).

On October 20, 2021, 9:44 PM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Re: Devens, that stated, in part: “Good afternoon Mike, Thank you for inviting us out to handle this roof project[.] Please see your final invoice attached….” (Tr. 327; Ex. 153, at 1).

Mr. Costa testified that on about October 20, 2021, he received a purported “final invoice” # 264825 tied to proposal # 1012929, from Merrimack Valley Roofing LLC, calling for $59,975.00 to be due and paid by October 20, 2021. The purported “final invoice” was sent to Mr. Costa from Barry from “Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 341; Ex. 153, at 3). Mr. Costa testified that this was not the final invoice because it reflected “an incorrect final amount.” (Tr. 341).

Mr. Costa testified that on about October 20, 2021, he received a final corrected invoice # 264825B tied to proposal# 1012929, from Merrimack Valley Roofing LLC, calling for $45,714.00 to be due and paid by October 20, 2021. The final corrected invoice was sent to Mr. Costa from Barry from “Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 331, 341, 1538-39; Exs. 110, at 3, 190-B, at 3).

On October 21, 2021, Mr. Bonicenha testified that he received a message from 978-904-1254 from someone he thought was named “Mike”122 that stated: “Just so you know, we just got an email from Brett Bussell from OSHA. He needs me to go meet with him tomorrow morning in North Andover (sic) discuss the violations[.]” Mr. Bonicenha said that he never met “Mike.” (Tr. 596-97, 633; Ex. 130, at 1).

  On October 22, 2021 at 6:06 PM, Mr. Billcliff sent a message to Mr. Bonicenha from phone number 978-904-1254 that stated:

Where is a punch list for the hotel. We have a couple other issues some of the guys not listed on the workman’s comp, the liability is for siding, not for roofing, and they want to assess us $42,000 in fines call the violations. There (sic) are also very upset that the fire department reported that the guys were still not wearing harnesses and lanyards even after OSHA stop by. I [Billcliff] had to make the guys put on harnesses many times and Jason had to make the guys put on harnesses and follow OSHA guidelines over and over and over again. We need to see if the guys can go to an OSHA training course and then they will bring the fines down and abate some of them[.]

(Tr. 597-98; Ex. 130, at 4).

On October 22, 2021, at 6:13 PM, Mr. Bonicenha sent a message to Mr. Billcliff at 978-904-1254 that stated: “Look, I’ll tell you something I also got a fine at work. Each one of you is at risk. Let’s see what has to be done at work and you pay me[.]” (Tr. 598; Ex. 130, at 5). Mr. Bonicenha testified that his OSHA citation and fine that he received was for a lack of fall protection because his workers were not wearing harnesses on the roof. (Tr. 598).

On October 25, 2021, at 7:29 AM, Mr. Billcliff sent a message to Mr. Bonicenha from 978-904-1254 that stated:

They came back out on Wednesday, but there was nobody left on the roof because the project was pretty much done, there was only people cleaning up. But even those people were not wearing the right Footwear, guess, or hard hats for the construction site being that there was still a trust issues and debris on the ground and that was even more fine[.]

(Ex. 130, at 8).

Shortly thereafter at 7:36 AM, October 25, 2021, Mr. Bonicenha received a message from 978-904-1254 from Mr. Billcliff that stated:

Define everybody. New Management Company, the general contractor, the company that pull the permits, the company that bought the materials, the contractor, and the subcontractor. The GC [general contractor] pays the most by far because we are the ones that are responsible for the job. (Tr. 598-600; Ex. 130, at 11).

Mr. Bonicenha testified that the general contractor for the Devens Project was “Barry Billcliff.” (Tr. 600).

  Mr. Bonicenha testified at trial as follows:

Q. And what is your opinion as to Mr. Billcliff’s truthfulness?

A. I have my opinion about Mr. Billcliff is a fake guy. He is a very liar to us you know? He lies all the time. That’s my opinion.

(Tr. 603).

On November 3, 2021, Mr. Costa sent a message to Mr. Billcliff that stated:

I received the final invoice kicked back from out (sic) hotel mgmt … company. Please see   my notes below.

  Devens Commons Conference Center

  31 Andrews Parkway

  Deposit Amount: $14,500

  Devens Hospitality LLC

  27 Andrews Parkway

  Deposit Amount: $45,300

  I am waiting to hear back from them on anything that may have come up after last week’s   storm. Will let you know shortly.

  Thanks again.

  (Tr. 440; Ex. V, at R-328).

On November 12, 2021, the Devens SpringHill Suites issued a final payment to Merrimack Valley Roofing LLC in the amount of $45,714 for the hotel portion of the work performed at the Devens Springhill Suites. This payment did not include payment for work performed at the adjacent Conference Center. (Tr. 209-12, 217-18, 333-34, 341; Exs. 110, at 4, 149, at 6). Mr. Costa said that he regrets hiring Mr. Billcliff to do the Devens Project. (Tr. 352).

CO Bussell testified that on November 16, 2021, 10:58 AM, Mr. Billcliff deposited check number 015777 into an account where Mr. Billcliff is the sole person authorized to deposit checks into that account at Merrimack Valley Credit Union. The check had an unidentifiable signature on behalf of Merrimack Valley Roofing appearing on the back of the check. Check number 015777, dated November 12, 2021, was drawn on Unibank, issued by Devens Hospitality LLC, 27 Newburyport, MA 01950, in the amount of $45,714 to Merrimack Valley Roofing LLC, PO Box 1214, NewBuryport, MA 01950.123 (Tr. 1556-60, 1855, 1861-65, 2080-81; Ex. 155, at 11, 14 [Sealed], 107-08).

CO Bussell testified that he confirmed that the two checks at Exhibit 155, at 13-14 [sealed], were deposited at Merrimack Valley Credit Union in an account named “Marrimack” Valley Roofing/Barry Billcliff.124 (Tr. 1553-54, 2118-19; Ex. 155, at 13-14 [sealed]). CO Bussell identified Mr. Billcliff in a photograph taken on November 16, 2021 at the Merrimack Valley Credit Union. (Tr. 1866-68; Ex. 108). During his March 8, 2022 interview with CO Bussell, Mr. Billcliff told him that he could not recall receiving or depositing checks that were payment for the Devens Project roofing job, or that he had been paid well over $100,000 for the work at the job site. (Tr. 1551-52). At trial, Mr. Billcliff admitted saying during his January 12, 2023 deposition that he could not recall receiving any payment at all related to the Devens Project. (Tr. 2110). Vice President of Operations Lee also testified that both check numbers 015640 and 015777 were deposited into the account where Barry Billcliff, 496 Main Street, Sandown, New Hampshire 03873, tele: 978-884-6732, email: barry@merrimackvalleyroofing.com,125 is the owner/signer on that account. (Tr. 532; Ex. 155, at 9, 11, 469-71).

Mr. Billcliff testified at trial that he “wouldn’t know” if he ever paid Mr. Bonicenha the more than $47,000 he was owed in the fall of 2021 for work L&A did on the Devens Project. He said neither he nor Merrimack Valley Roofing was responsible for paying him. He said it was his understanding that Mike LaChance would have paid him. But, although he heard Mr. Bonicenha’s testimony in Court saying that he was not paid, Mr. Billcliff said that he had also heard that Merrimack Valley paid him. He said, “I don’t have any personal knowledge either way.” (Tr. 2327-29). Mr. Bonicenha testified that no one has paid L&A the $47,000 that it is owed for the work that it did at the Devens Project in October 2021. He said that Mr. Billcliff owes him “$47,000 and something.” (Tr. 594-95, 614).

M. The Devens SpringHill Suites requests Mr. Billcliff resolve leaks that Continue after Mr. Billcliff and L&A installed the new roof.

  Mr. Byrne testified that after Respondent and L&A finished working at the job site there were “more leaks” than existed before the roof was redone. (Tr. 92-93). He said “I had 20 leaks before the roof got re-roofed and then I had a hundred leaks. It was a disaster. All I could do was put buckets underneath them, the leaks.” (Tr. 93). Mr. Byrne testified that Mr. Mehlmann contacted RA Ventures about the leaks. (Tr. 93). Mr. Costa testified that the SpringHill Suites hotel was still having issues with leaks, so he asked Barry to revisit those issues. On December 20, 2021, Mr. Costa sent a message to Mr. Billcliff and stated: “Barry I am told someone from our team at the Springhill Suites that there was a leak over the weekend. Can you have someone check it out?” (Ex. 154, at 2). Later in the day on December 20, 2021, Mr. Billcliff then replied by sending a message: “Sure, I can swing over there in a little bit, do you have any information as to around where it came in.” (Ex. 154, at 1-2).

  On December 21, 2021, Mr. Costa sent a message to Mr. Billcliff that stated: “Not sure, the GM, Jon, pinged me. If you swing through, can you check in with him?” (Tr. 442-46, 468; Ex. V, at R-331).

On December 22, 2021, at 11:18 AM, Mr. Costa sent a message to Barry James that stated: “Barry can you let me know when you plan on swing over?” (Tr. 341-42, 354-55, 357; Ex. 154, at 1).

Mr. Byrne testified that the leaks continued, and Mr. Billcliff came out to the hotel to see some photographs Mr. Byrne had taken of the leaks.126 Mr. Byrne said that he was not giving Mr. Billcliff the photographs because he already had them. Mr. Byrne testified that Mr. Billcliff was “yelling at me and screaming at me” in the hotel lobby.127 Overhearing Mr. Billcliff’s yelling and screaming, Mr. Mehlmann came running over and told Mr. Billcliff to leave.128 (Tr. 94-95, 150-52, 154-55, 228). Mr. Byrne testified that Mr. Billcliff had repeatedly failed to show up to do repairs of the roof. (Tr. 143-46). He said two men eventually went back up to the roof for about half an hour and put silicone on a few spots. He said that Merrimack Roofing was scheduled to come out to the SpringHill Suites hotel to do some roof repairs on December 24, 2021. But, he said it did not show up on that date. Mr. Byrne also testified that he doubted that any Merrimack Roofing roofers showed up at the Devens SpringHill Suites on December 25, 2021. He said that was the last that Merrimack Roofing had to do with the job. (Tr. 95, 143-44, 149-50, 155). Mr. Byrne said that he regretted that the SpringHill Suites hotel hired Barry Billcliff and Merrimack Valley to do the job because it was “one of the worst roofing jobs I ever saw done in my life.” (Tr. 97, 163, 195-96). Mr. Byrne testified: “There were holes that you could stick your hand in. There were holes that animals could go through. There were holes that the rain could go through. There were parts that were missing shingles. There were parts that weren’t shingled correctly.” (Tr. 196).

On Monday, December 27, 2021, 3:23 PM, Barry James foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject: Re: Devens Hotel, that stated, in part:

We had a crew over there on Friday [December 24, 2021]. There was nothing seen out of place or any smoking guns. We put some silicone on some of the flashing in other areas that are susceptible being as none of the shingles have had a chance to stick down yet. The thermos-seal lines have not had enough time in heat to set 100%. Our speculation is that wind driven rain got underneath shingles and were able to ride down the nail holes. (Tr. 357; Ex. 154, at 1).

Messrs. Byrne and Costa testified that eventually, another company, Prime Roofing Corporation, did all the roof repairs over the period of about a month. (Tr. 96, 194-95, 312).

On December 21, 2021, CO Bussell conducted an administrative interview of Mr. Billcliff at the OSHA Andover area office for which he issued an administrative subpoena for Mr. Billcliff to also bring 37 document items to the interview.129 Mr. Billcliff brought no documents to the interview. (Tr. 1542-44). CO Bussell testified that during Mr. Billcliff’s December 21, 2021 interview, he told him that he had no knowledge of the job or that his son Daniel had pulled the permit for the Devens Project. CO Bussell also said that Mr. Billcliff told him that he had never been to the job site.130 He told the CO that he uses Barry James (James being his middle name) commonly in correspondence due to past legal woes. (Tr. 1544-46, 1841-43, 1888-89, 2016-17). CO Bussell also testified that Mr. Billcliff told him during the interview that the messages between Messrs. Costa and James were not from him and “that somebody else had signed the emails Barry James and used his personal cell phone number in the signature or it said Barry James with a cell phone number right below it, that somebody else was using that email and sending those emails.”131 (Tr. 1544-45, 1929). CO Bussell also testified that Mr. Billcliff told him during the December 21, 2021 interview that the CO had spoken with someone else when using Mr. Vaughn’s cell phone on October 7, 2021, and that it was not him [Billcliff] who he had talked to that day.132 (Tr. 1546). CO Bussell testified that he determined that Mr. Billcliff was being “evasive and untruthful” during his December 21, 2021 interview. (Tr. 1546-47).

CO Bussell testified at trial that during an OSHA administrative interview of Mr. Vaughn that he conducted on January 12, 2022,133 Mr. Vaughn stated that he was paid for his time at the work site.134 (Tr. 1699-1701). Mr. Vaughn also told the CO on January 12, 2022 that he never received any “paycheck” for his work at the job site. He told the CO that he received only small cash payments for the work that he did at the job site for two days. (Tr. 720, 1645-46). He told the CO that “I’m there trying to earn a paycheck. I’m there trying to see to [too] if I actually like the job and if it was something I can actually do, so I go there and I give it a few-day trial, and I go – I’m in trouble with OSHA because I don’t know a f---ing ting about what I’m doing.”135 (Tr. 1646). At trial, Mr. Vaughn admitted that he told CO Bussell on January 12, 2022 that he received cash payments for the work that he did for two days, just for the hours he put in.136 (Tr. 726).

At trial, Mr. Billcliff testified that he paid Mr. Vaughn “[z]ero for being at the work site.” (Tr. 2334). He said he paid him “small amounts that do not pertain to this, anything about this case whatsoever in any way, manner, form.” He said that “this was him helping me out with some personal stuff that has nothing to do with construction whatsoever….” He said Mr. Vaughn “was there working for free, ….” Mr. Billcliff testified that he quite likely paid Mr. Vaughn less than $1,000. (Tr. 2334-37). In his Answers to Amended Complaint, Mr. Billcliff stated Mr. Vaughn “did attest that the job under Merrimack Valley Roofing as a supervisor, which is uncontested to be the reason he was on site to observe, consists of enforcing OSHA compliance and doing regular inspections of the jobsite, materials, and equipment.” (Answers to Amended Complaint, at 5). At trial, Mr. Vaughn testified that while interacting with subcontractors or others at the job site he wanted “it to be representative of” Mr. Billcliff. (Tr. 814-15). The Court finds any trial testimony by Messrs. Billcliff and Vaughn that he did not receive any payment for his being at the job site as a supervisor for two weeks to not be credible. (Tr. 814).

On March 8, 2022, CO Bussell again interviewed Mr. Billcliff during which Mr. Billcliff told him that he told Merrimack Valley Roofing that he was going to originally take on the Devens roofing project and he had a contract to do so. (Tr. 1916-18, 1936). The CO said Billcliff told him that he did marketing and advertising137 for Merrimack Valley Roofing & Gutters.138 (Tr. 1548). This time, Mr. Billcliff told CO Bussell that he had instructed his son Daniel to pull the permit for the roofing job under his [Billcliff’s] Billco company, but used a Merrimack Valley check to pay for the permit.139 Mr. Billcliff told CO Bussell that he “was originally going to sub that job for Merrimack Valley through my Billco company. It was going to be our first big job, and as I said, I was very upset that they140 wound up subbing it to somebody else instead, ….”141 (Tr. 1548-50, 1843, 2047). Mr. Billcliff told CO Bussell that he did not perform a site visit at the Devens SpringHill Suites on August 4, 2021, or meet with Mr. Byrne there. (Tr. 1945-47).142

On March 8, 2022, CO Bussell interviewed Mr. Grzyboski, then allegedly an employee of Merrimack Valley Roofing. He told CO Bussell that he did not know the name, Mike LaChance. (Tr. 1115-16). Mr. Grzyboski said that he understood that the information that he provided during the March 8, 2022 interview must be true, accurate, and correct to the best of his knowledge and memory. (Tr. 1333-36).   

On March 8, 2022, CO Bussell conducted another interview of Mr. Vaughn where Mr. Vaughn told him that he had “zero” roofing experience. At trial, Mr. Vaughn admitted telling the CO on March 8, 2022 that he called Mr. Billcliff while the CO was at the job site. (Tr. 1647-48). He further told the CO that while he was at the job site he only communicated with Mr. Billcliff, and he did not know of anyone else who worked at Merrimack Valley Roofing. Mr. Vaughn also told the CO that Mr. Billcliff told him to make sure that the guys on the roof are tied off and that he had “no clue” who the roofers worked for. (Tr. 1648-50). Mr. Vaughn also told the CO that he had never heard of “Bay State Exteriors” or “John Wolfe”.143 (Tr. 747-48, 1651).

CO Bussell testified that Mr. Bonicenha told him on March 23, 2022 that Mr. Billcliff saw the telephone numbers on the side of a L&A’s van going down the road and called and spoke with Mr. Bonicenha or his partner Alex; and that is how Mr. Billcliff originally contacted L&A. (Tr. 1717-18, 1725). CO Bussell testified that he saw one of L&A’s vans on highway 495 that had “L&A Property” displayed on it. (Tr. 1729). Mr. Billcliff denied calling Mr. Bonicenha when testifying. (Tr. 2239). The Court credits Mr. Bonicenha’s testimony in this regard over the denial by Mr. Billcliff.

CO Bussell testified that he showed Mr. Bonicenha photographs of Mr. Billcliff on March 23, 2022 that were taken off of Mr. Billcliff’s Facebook page. (Tr. 1715).

R. OSHA Issues Three Citations to Mr. Billcliff and his D/B/A Names on April 4, 2022

CO Bussell testified that OSHA issued citations to Mr. Billcliff and various other d/b/a names. Three citations were issued on April 4, 2022 to Respondent; all recommended by CO Bussell. (Tr. 1653-55).

In his December 6, 2022 Supplemental Response to the Acting Secretary’s Discovery request nos. 9 and 16, Mr. Billcliff claimed that Merrimack Valley Roofing gave the Devens Project job to Leo Bonicenha and Mike LaChance, who was responsible for the job.144 (Tr. 1973-76; Ex. 185, at 5). Respondent did not include any information in Respondent’s December 6, 2022 Supplemental Response to the Secretary’s written discovery that: 1) Mr. Billcliff closed the Marrimack Valley Roofing account at the Merrimack Valley Credit Union on August 12, 2022, 2) Mr. Billcliff was the only authorized user on that account from September, 2021 through August, 2022, 3) Mr. Billcliff’s name was the only name associated with the account, 4) the name and address of Mr. Billcliff was the name and address on each monthly bank statement for the account,145 and 5) Mr. Billcliff deposited the Devens Project checks into the account. (Tr. 2110-32; Ex. 185).

At trial, Mr. Billcliff testified that he agreed that his response to Request No. 36, at page 17 of Respondent’s December 6, 2022 Supplemental Response to the Secretary’s written Discovery requests stated that he could not remember any instance where he may have given any discipline to any subcontractor as pertains to this case in the last two years. (Tr. 1999-2000; Ex. 185, at 17).

On January 12, 2023, Mr. Billcliff was deposed in this case. (Tr. 1941, 2007). At trial, Mr. Billcliff admitted saying during his January 12, 2023 deposition that he did not know if John Wolfe is his “actual name or not; not sure.” He also said that he was “Unsure” if a person named John Wolfe worked at Merrimack Valley Roofing. He further said that he did not have any relationship at all with John Wolfe. He said that he did not recall ever seeing John Wolfe working at Merrimack Valley Roofing or on a Merrimack Valley Roofing job site, meeting John Wolfe in person, speaking to him on the phone, or emailing him. He stated that he could not recall when asked to describe the physical characteristics of John Wolfe. (Tr. 2062-68). At trial, Complainant stated her position that “John Wolf is an extremely mysterious identity here that connects back to Mr. Billcliff, …” (Tr. 863). The Court finds that John Wolfe is a fictional character made up by Mr. Billcliff.

At trial, Mr. Billcliff admitted saying in his January 12, 2023 deposition:

Q. So before Mr. Grzyboski applied for the permit for the project you had the contract.”

A. We would have had to have.

Q. Who did you have that contract with?

A. I don’t recall.

Q. Was the contract with Merrimack Valley Roofing?

A. Most likely.

(Tr. 1941-42).

At trial, Mr. Billcliff also admitted saying during his January 12, 2023 deposition:

Q. Do you work with Jeremy Coito?

A. Not today.

Q. Does Jeremy Coito work at Merrimack Valley Roofing?

A. Possibly.

Q. Have you interacted with Jeremy Coito at Merrimack Valley Roofing?

A. Possibly.

Later in the deposition, Mr. Billcliff stated:

Q. Does Jeremy Coito direct you at Merrimack Valley Roofing?

A. I do not recall.

Q. Is he your supervisor?

A. I do not recall.

(Tr. 2331-32).  

At trial, Mr. Billcliff further admitted saying during his January 12, 2023 deposition that he denied ever working with Mr. Bonicenha on a job prior to the Devens project. (Tr. 1943). At trial, Mr. Billcliff testified that he never met with Mr. Bonicenha in person regarding the Devens Project in the fall of 2021. Mr. Billcliff admitted that he had represented to the Court in a prior filing that “it was a straight out lie that [he] had ever met with Leo Bonicenha,” that he “had never even heard of Leo prior to this case,” and that he had “never had any form of contact with Leo in [his] life.” (Tr. 1944-45, 1984-88). The Court finds Mr. Billcliff’s assertions that he never heard of Mr. Bonicenha before work on the Devens Project started to not be credible.

    3. Mr. Vaughn’s February 9, 2023 Deposition

On February 9, 2023, Mr. Vaughn was deposed by Government counsel in this case. (Tr. 694-96). During his deposition, Mr. Vaughn, upon advice of his legal counsel, refused to answer a question as to whether he had had “any discussion with Barry Billcliff in preparation for your deposition today?” based upon the Fifth Amendment.146 (Tr. 694-96).

4. Mr. Grzyboski’s February 9, 2023 Deposition

Mr. Grzyboski stated that he said during his February 9, 2023 deposition that a construction supervisor was “someone who is on the site … to make sure both the job goes smoothly and the process overall goes safe and there’s no sort of any issues as far as anything from the OSHA regulations to state requirements….” (Tr. 1121). At trial, Mr. Grzyboski admitted saying during his February [9], 2023 deposition that Mr. Billcliff was one of the people who told him what to do at Merrimack Valley Roofing. (Tr. 1117-18, 1218).

Mr. Vaughn testified that he has a degree in criminal justice with a minor in sociology from Salem State College. (Tr. 698). At the time of trial, he said that he was the owner of a ceramic coating and window cleaning company that has no employees. (Tr. 698-99). At trial, Mr. Vaughn testified that the cash payments that he received at the time of the Devens Project from Mr. Billcliff were “[n]ot for the time on the project,” because he was “never employed”. (Tr. 720, 892). Mr. Vaughn testified “I wasn’t going to be paid” and Mr. Billcliff’s cash payment to him was “[n]ot for this job.” (Tr. 811-14, 831, 957, 961). But he also testified that he was on the Devens Project to help pay his bills. (Tr. 956). He also admitted at trial saying at his February 9, 2023 deposition that “I needed the money to pay my bills, and that’s it.” (Tr. 962). The Court finds Mr. Vaughn’s testimony that he was at the job site not as an employee, but on his own volition, free will and without pay, to not be credible.

Mr. Vaughn testified that he had “pretty much zero” construction experience and “never really had a construction job.” He also said that Mr. Billcliff knew this. (Tr. 699-701, 770). He said that Mr. Billcliff knew that he was out of work and was looking to earn a paycheck before he started his job with Mr. Billcliff at the Devens Project. (Tr. 702-03). He said that initially Mr. Billcliff talked with him about setting up the job, watching for the work on the project, to see whether the workers were working, taking long lunch breaks, and ensuring that the L&A workers were not stealing things. He said he was to report on these things to Mr. Billcliff, which he did. Mr. Vaughn testified that he typically called Mr. Billcliff at the end of every day and told him how things went for the day. He said he reported the progress made on the roof of the SpringHill Suites hotel and Conference Center buildings every day to Mr. Billcliff. Mr. Vaughn said that these conversations were work related “for the most part.” (Tr. 708-11, 737, 756-60, 889, 894).

At the trial, Mr. Vaughn said that he was to be Mr. Billcliff’s eyes on the project. He testified:

Q. Mr. Vaughn, what did you mean by being Barry’s eyes on the project?

A. Just overseeing the job as far as, you know, he told me to make sure that everyone’s wearing their hard hats and their harnesses, make sure they’re not stealing as you stated, just make sure everything’s kind of in order and there’s nothing really, you know, it’s not a circus. It’s a construction site. It’s looking clean and stuff like that. That’s about it.

(Tr. 711-12).

Mr. Vaughn testified at trial that, although he had no specific memory of it or the date it occurred, Mr. Billcliff told him before OSHA showed up at the job site to “make sure everyone has their hard hats and harnesses on at all times and that’s what I did.” (Tr. 715, 785, 795-96, 835-37). Mr. Vaughn’s vague recollection at the trial being told by Mr. Billcliff, before OSHA showed up at the job site, to make sure the workers wore hard hats and harnesses on at all times was impeached by his prior February 9, 2023 deposition testimony where he said “I don’t exactly know [when Mr. Billcliff told him]. I would assume it was prior to, but you’re – you’re asking me to give a specific date. I don’t know, sir, I couldn’t tell you.” He further said: “I couldn’t tell you if you told me before or after. You’re trying to make me recollect something that was almost two years ago. This is – that’s absurd.” (Tr. 716). He also said during his deposition that he had “no clue” before OSHA’s CO showed up at the job site about the need for the workers to wear harnesses. (Tr. 719). At trial, Mr. Vaughn also admitted saying at his deposition that: “If I had known that s__t [the OSHA rules about harnesses], sir, don’t you think that I would have f__king told them to put it [a harness] on. Honestly, if I had known that this had to be done and this had to be done, I would have made sure it was done.” (Tr. 775-76). The Court finds that Mr. Billcliff did not tell Mr. Vaughn to make sure that the workers wore hard hats and harnesses at all times before Mr. Bussell appeared at the job site on October 7, 2021. The Court finds any testimony at trial by Mr. Vaughn that is contrary to the Court’s finding to not be credible. (Tr. 778-80).

At trial Mr. Vaughn also admitted saying at his February 9, 2023 deposition that:

Q. And before Mr. Bussell showed up, what did you do, if anything, to detect OSHA violations on the job site?

A. If I had known there was OSHA violations, they wouldn’t have f__king done that. I have no idea. Listen, I’m somebody that I’m not going to put up with crap. If you’re supposed to do something, do it, and I’m going to make you do it. I’m a pretty intimidating guy when I want to be, so if I knew the rules, I would have made them abide by it. If I had known they had to wear a harness and be tethered like you told me and the ladder was supposed to be a certain height over, I would have made sure they did it every freaking time, but I didn’t know, sir. That’s what I don’t get. You can ask me 700 questions. There’s the answer. It’s in a nutshell.

(Tr. 777).

He also testified at trial that Mr. Billcliff told him to “learn the OSHA rules as the job went along, but as soon as I dealt with this, I wanted – I didn’t even care. I wasn’t even going to look because I didn’t give a s__t. Sorry….” He said that he “never” studied the OSHA guidelines. (Tr. 717, 913). At trial, Mr. Vaughn testified that no one told him before OSHA arrived at the job site about any safety plan, safety policies, safety disciplinary policies, fall protection plan, or job hazard analysis. (Tr. 718). He further said that it was not his job to supervise the workers at the job site, because it was Mr. Bonicenha’s job to do so. The Court finds the testimony that Mr. Vaughn was not at the job site to supervise the workers to not be credible. (Tr. 712-14).

   6. Mr. Billcliff’s Trial Testimony

  Mr. Billcliff testified that he was not an employer, had no employees and did not hire employees, including any employees on the job site.147 (Tr. 1928-29, 2202-04, 2278). He said that he did not pay, or set wages for, any employees working on the job site. He said that he paid only Billco and Relocation employees who were not connected to this case. (Tr. 2202-04, 2278). He said that he did not schedule or assign work to, or determine the hours of, any employee involved in this case. He said that he did not train or discipline any employees involved in this case. Mr. Billcliff testified that he did not establish employee benefits for any employees involved in this case. (Tr. 2204). He said that he had not worn a hard hat or been in a situation that required wearing a hard hat in ten years. (Tr. 2204).

During cross examination by Mr. Billcliff at trial, CO Bussell characterized Mr. Billcliff as “[e]vasive, dishonest, untruthful, all along the lines of that. Uncooperative” and “lacking integrity.” (Tr. 1677-78). He said Mr. Billcliff “cooperated zero with the investigation process. I didn’t know what companies you were doing business as. I didn’t know how many employees.… I couldn’t find any legitimate companies, so I don’t know what things you do business as, what entities you do business as, ….” (Tr. 1783).

7. Mr. Grzyboski’s Trial Testimony

Mr. Grzyboski testified at trial that on March 27, 2023 he [Grzyboski] filed a document with the New Hampshire Secretary of State’s website registering a newly formed limited liability company called Merrimack Valley Roofing and Gutter, LLC. He said that he did so because he wanted to get into a management position sometime in the future. Before this filing he said that he did not know if there was any Merrimack Valley Roofing and Gutter, LLC. (Tr. 1021-23, 1027-28). At trial, Mr. Grzyboski invoked his Fifth Amendment right and refused to answer the Secretary counsel’s question as to what is the street address of the principal office of Merrimack Valley Roofing and Gutter, LLC.148 (Tr. 1032-33).

T. Mr. Billcliff’s Prior January 4, 2021 OSHA Fall Protection Citation in Docket No. 21-0382

OSHA Compliance Officer Aaron D. Epstein testified that on October 15, 2020 he conducted an inspection of a worksite at 77 Bradford Avenue, Bradford, Massachusetts 01835 of Barry Billcliff, d/b/a Barry’s Roofing, 496 Main Street, Sandown, NH 03873, where its employees were stripping a roof atop a garage. (Tr. 1360-1415; Ex. 140, Ex 141, at 3). He further said that on January 4, 2021 OSHA issued a 1 item Repeat-Serious citation to Barry Billcliff, d/b/a Barry’s Roofing for a violation of 29 C.F.R. § 1926.501(b)(13) because “employees were working at heights greater than 6 feet without personal fall protection exposing them to a fall hazard.” The foreman at the Bradford job site told CO Epstein that he worked for Mr. Billcliff, and the foreman identified Mr. Billcliff as the owner of the company doing the work on the garage’s roof.149 The foreman told the CO that he and his sons, who at the time were atop the garage’s roof, worked for Merrimack Valley Roofing and Gutter.150 He told the CO that they knew that they were required to have fall protection since they were working above six feet, but that the fall protection was in the van. (Tr. 1368-80; Exs. 140-41). CO Epstein also stated that the foreman told him that a white van at the job site was owned by Merrimack Valley Roofing and Gutter and registered to Mr. Billcliff at 496 Main Street, Sandown, NH 03873. The CO said that the van had the same telephone numbers, 978-866-1860 and 978-884-6732, showing on its side that were the phone numbers of the foreman’s employer, Mr. Billcliff.151 The CO testified that the van’s license plate number was [redacted]. (Tr. 1368-78, 1416-17; Ex. 140, Ex. 41, at 5-6, Ex. 145). CO Epstein said that he hand-delivered the January 4, 2021 citation to Mr. Billcliff’s home on March 23, 2021. (Tr. 1381, 1421). On May 4, 2022, Mr. Billcliff signed a “Stipulated Settlement Agreement” that resolved the January 4, 2021 citation and stated that “Respondent [Barry Billcliff, d/b/a Barry’s Roofing] is an employer under section 3(5) of the [OSH Act of 1970] Act.” (Ex. 142).

Mr. Billcliff said at trial that he did not recall if Merrimack Valley Roofing had a written safety program, a person responsible for safety, or someone who trains workers. (Tr. 1971-72, 1991). Mr. Billcliff testified at trial that he searched for, but found no, documents that described the qualifications, work experience, hazard or safety assessments, written fall protection plans, and training, including safety training, of any of the workers present at the Devens Project on October 7, 2021, including copies of job applications, resumes, and training certificates. He also testified that he searched for, but found no, documents that showed the extent to which the workers at the Devens Project had been provided with fall protection as of October 7, 2021. (Tr. 1992-98; Ex. 100, at 19, 25, 27-28). Mr. Billcliff also testified at trial that he searched for, but found no, documents concerning safety and health policies, including employee handbooks and safety manuals. (Tr. 1993-95; Ex. 100, at 8-9).

Mr. Billcliff also did not produce documents concerning: 1) any hazard or safety assessment(s) which Respondent or any subcontractor, Parent, or Affiliates of Respondent conducted prior to the issuance of the Citations concerning the hazards that workers may encounter while working at the job site, 2) any discipline given to a worker or supervisor at a roofing job by Respondent or any subcontractors, Parent, or Affiliates of Respondent for failing to follow any safety rule at any worksite other than the job site for the two years preceding the date of the OSHA inspection, October 7, 2021, and/or 3) contracts, subcontracts, agreements, or other documents concerning any work performed by any of Respondent’s subcontractors, Parent or Affiliates at the job site. (Tr. 1989-2001; Ex. 100, at 8-9, 12, 16, 18-19, 24-25, 27-29, 52-53).

The following facts were stipulated to by both parties in the Joint Pre-Hearing Statement (J. Pre-Hr’g Statement) and the stipulations were accepted by the Court. (Tr. 67; J. Pre-Hr’g Statement, at 17).

3.  [redacted] 496 Main Street, Sandown, New Hampshire.

4. Mr. Billcliff’s personal cell phone number is 978-884-6732.

5. Daniel Grzyboski is Mr. Billcliff’s son.

6.  [redacted] 496 Main Street, Sandown, New Hampshire, [redacted].

7.  Mr. Grzyboski holds a Massachusetts Construction Supervisor’s License.

(Tr. 67; Sec’y PT Br., at 3-4).

During the trial, the parties also stipulated that Mr. Grzyboski “can give a long list of instances where he contends his father was truthful.” (Tr. 1306).

The evidence at trial established the following:

Under the OSH Act, an employer is “a person engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). Both Messrs. Billcliff and Grzyboski admitted that Mr. Grzyboski is an employee of Merrimack Valley Roofing, one of the d/b/a names. (Tr. 1037, 1115, 1117-18, 2007-08, 2118). And as Mr. Grzyboski further testified, Mr. Billcliff was his supervisor and told him what to do as an employee, to include applying for the permit for the Devens Project. (Tr. 1034, 1118, 1126-28). There were also multiple other employees of Merrimack Valley Roofing other than Mr. Grzyboski. (Tr. 1037-39, 2007-08). Still further confirmation that Mr. Billcliff is an employer is provided by the fact that he paid Mr. Vaughn to be onsite at the Devens Project and supervise the roofing work being done there on Mr. Billcliff’s behalf. (Tr. 321, 552, 702-03, 726; Ex. 108, at 1). On September 24, 2021, Daniel Grzyboski also signed, under penalties of perjury, a Department of Industrial Accidents Office of Investigations form that identified Billco Roofing LLC, a company Mr. Billcliff said he owned and was employed at during all aspects of the Devens Project, as the applicant employer with 4 employees to do roof repairs at 27 Andrews Parkway, Devens, MA. (Tr. 280-81, 2245; Ex. 124, at 3). On May 4, 2022, Mr. Billcliff also admitted that he was an employer under section 3(5) of the OSH Act pertaining to OSHRC Docket No. 21-0382 and Inspection No. 1498677 when he signed the settlement agreement in that prior case. (Ex. 142, at 1, ¶ 1(d)).

The Commission’s application of the multi-employer worksite doctrine is well established. See, e.g., McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000). Under this doctrine, a controlling employer is liable if “it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” Stormforce of Jacksonville, LLC, No. 19-0593, 2021 WL 2582530, at *6 (OSHRC, March 8, 2021). An employer that is a controlling employer is liable for violations of the OSH Act.152 The multi-employer citation policy addresses “the peculiar needs of preventing hazards at construction sites, which ‘often entail different employees being exposed to hazards created by more than one employer.”’ Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1724 (No. 95-1449, 1999) quoting U.S. v. Pitt-Des Moines, Inc., 168 F.3d 976, 985 (7th Cir. 1999). A controlling employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate violations due to its supervisory authority and control over a worksite. See Summit Contractors, Inc., 22 BNA OSHC 1777, 1781 (No. 03- 1622, 2009) (stating “[t]he Secretary’s multi-employer citation policy is to the same effect” as Commission precedent), aff’d, 442 F. App’x 570 (D.C. Cir. 2011); Centex-Rooney Constr. Co., No. 92-0851, 1994 WL 682931, at *2 (OSHRC, Dec. 2, 1994). A controlling employer at a multi-employer worksite is responsible for taking reasonable steps to protect the exposed employees of subcontractors. Am. Wrecking Corp., No. 96-1330, 2001 WL 1668964, at *8 (OSHRC, Dec. 20, 2001)(consolidated), aff’d in relevant part, 351 F.3d 1254 (D.C. Cir. 2003).

The evidence shows that Mr. Billcliff was a controlling employer given the role that Mr. Vaughn had onsite and Mr. Billcliff’s actions. Mr. Billcliff ensured that his supervisor, Jason Vaughn, would be onsite during the entire Devens Project. As Mr. Vaughn described it, he was to be “Barry’s eyes on the Project.” (Tr. 711). Mr. Vaughn testified that his job was to get the workers what they needed, watch them work, and ensure they were working. (Tr. 709-10).

Mr. Billcliff informed Mr. Costa that Mr. Vaughn would be onsite. (Ex. 108, at 1). Mr. Costa testified that his understanding, based on his discussions with Mr. Billcliff, was that Mr. Billcliff would be responsible for all aspects of the Devens Project, including the fifteen matters identified at Section II, D, above. (Tr. 321-23).

Mr. Billcliff also expressly informed subcontractor Leo Bonicenha that “Jason,” the “site manager,” would “be there for the entire job and get [him] anything that [he] need[s].” (Tr. 1506-08, 1527; Ex. 128, at 4). Mr. Vaughn told Mr. Bonicenha he would be responsible for the job site when Mr. Bonicenha could not be there because of another job. (Tr. 518-19). CO Bussell observed Mr. Vaughn walking around at the Devens Project, overseeing the roofing work. (Tr. 1503-04). Mr. Vaughn told CO Bussell that Merrimack Valley Roofing was responsible for the Devens Project, and that he was the supervisor onsite to oversee the work. (Tr. 1506). When CO Bussell indicated that the roofers were exposed to fall hazards, Mr. Vaughn yelled to them to remove them from the roof, and they followed his instruction. (Tr. 518-19, 591,1505). Mr. Vaughn testified that, after OSHA came onsite, he instructed the workers to wear harnesses and hard hats and they complied. (Tr. 752-56, 806-07). Mr. Vaughn also testified that, after OSHA came onsite, he then spoke daily with Mr. Billcliff about the Devens Project, to include reporting on progress and whether the workers were wearing harnesses and hard hats and complying with the OSHA fall protection and hard hat requirements. (Tr. 522, 756, 702-03, 726, 761-66).

Mr. Billcliff controlled every aspect of the Devens Project, from initially obtaining the job, to arranging permitting, materials, and labor, and receiving all payments for the work as provided by the documents admitted into evidence, including Mr. Billcliff’s messages with Mr. Costa about subjects such as the scope and specifications of the Devens Project, payment terms, color selections, the permit application and related documents, and the relevant bank records. (Tr. 312-17, 332, 1115-17, 2008; Exs. 107-08, 123-25, 149, 151-54).

As a controlling employer under the OSH Act, Mr. Billcliff was required to ensure that reasonable steps were taken to comply with the requirements of the cited standards. But, as detailed below, he did not do so.

“Barry James” is listed as a d/b/a because Mr. Billcliff admitted that is the name he often uses and that name was used multiple times in connection with the Devens Project e.g., in the messages to Mike Costa in which the name “Barry James” appeared with Mr. Billcliff’s personal telephone number ending in 6732. (Tr. 2016-17; e.g., Ex. 107 at 3, Ex. 149)

“John Wolf(e)” is listed as a d/b/a because Mr. Billcliff told CO Bussell on October 7, 2021 that John Wolf was the owner of Merrimack Valley Roofing153 and could be reached at the telephone number ending in 1860. (Tr. 1507). CO Bussell testified that he was never able to speak with the alleged Mr. Wolf in person, despite his best efforts. (Tr. 1513-15). When CO Bussell tried to speak with the alleged Mr. Wolf by telephone, he believed the person on the other end was Mr. Billcliff pretending to be the alleged Mr. Wolf. (Tr. 1515-22). The evidence at trial showed that: (a) the only demonstrably real person connected to the telephone numbers and email address that Mr. Billcliff provided for the alleged Mr. Wolf was Mr. Billcliff himself,154 and (b) Mr. Billcliff did not call anyone named John Wolf to testify, even though the Court repeatedly stated to Mr. Billcliff that he could call the alleged Mr. Wolf to make an offer of proof. (Tr. 1519-21). Here, the Court has found that John Wolfe is a fictional character made up by Mr. Billcliff.

The remainder of the d/b/a names at issue here are “business” names, not the names of individuals, alleged or otherwise. The following table, as largely depicted in the Acting Secretary’s post-trial brief, summarizes business names that were properly included as a d/b/a in the case caption.155 There was no persuasive evidence at trial that any of these purported business names was actually a registered corporation or limited liability company in either New Hampshire or Massachusetts as of the time of the OSHA inspection, October 7, 2021. Mr. Billcliff is not entitled to hide behind any business name that was not actually used in connection with the roofing work at issue, especially when that business name was not incorporated or otherwise registered as of the relevant time in New Hampshire or Massachusetts. (Sec’y PT Br., at 25).