THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

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, DC 20036-3457

Appearances:

Susan G. Salzberg, Esquire

Paul Spanos, Esquire

Rachel A. Culley, Esquire

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

For the Secretary

Melissa A. Bailey, Esquire

Frank D. Davis, Esquire

J. Davis Jenkins, Esquire

Arthur G. Sapper, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C.

For Respondent

Before: 

Carol A. Baumerich

            Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act).  This decision consolidates Docket Nos. 19-1054, 19-1056, and 19-1905.

A few days later, on December 18, 2018, in response to a complaint, OSHA found five members of the same Respondent roofing crew working without fall protection at heights up to fifteen feet at a residence in Old Orchard Beach, Maine.  

A few months later, on May 23, 2019, OSHA received another complaint of Respondent roofers working without fall protection at a residence in Springvale, Maine.  The roofers were exposed to falls from heights up to twenty-one feet.  

OSHA issued citations for these three inspections on June 11, 2019, and November 19, 2019, for several violations, including lack of fall protection for roofers.  For several years before the fatal fall at the December 2018 worksite, Respondent had been cited for violations of the Occupational Safety and Health Administration (OSHA) standard that requires the use of fall protection when a worker is exposed to falls greater than six feet.

I. PROCEDURAL HISTORY

On December 13, 2018, OSHA’s Augusta, Maine Area Office opened an inspection at Respondent’s worksite located in Portland, Maine (Portland inspection).  The Portland inspection was opened due to the fatal fall of a worker performing residential roofing work.  On June 11, 2019, OSHA issued a two-item serious, eight-item willful, and one-item repeat citation to Shawn D. Purvis dba Purvis Home Improvement Co., Inc. for a proposed penalty of $1,116,476 (Portland Citation).  

The Portland Citation alleged violations of construction standards for a ladder jack scaffolding platform erected closer than the minimum required distance to exposed power lines, failure to provide a training program to recognize fall hazards, failure to provide fall protection, and failure to ensure the correct use of portable ladders.  Respondent timely contested the Portland Citation, and the case was docketed as No. 19-1056 with the Commission.

A few days after the Portland inspection, on December 18, 2018, OSHA conducted an inspection of a second Respondent worksite located in Old Orchard Beach, Maine (OOB inspection) in response to a complaint that roofers were working without fall protection.   On June 11, 2019, OSHA issued a one-item serious and five-item willful citation to Shawn D. Purvis dba Purvis Home Improvement Co., Inc. with a proposed penalty of $676,250 (OOB Citation).   

The OOB Citation alleged violations of construction standards for failure to provide eye protection and failure to provide fall protection.  The OOB Citation was timely contested by Respondent and was docketed with the Commission as No. 19-1054.

On May 23, 2019, OSHA conducted an inspection of a third Respondent worksite located in Springvale, Maine (Springvale inspection) in response to a complaint of roofers working at a residence without fall protection.  On November 19, 2019, OSHA issued a one-item serious, one-item willful, and a one-item repeat citation to Shawn D. Purvis dba Purvis Home Improvement Co., Inc. with a proposed penalty of $278,456 (Springvale Citation).

The Springvale Citation alleged violations of construction standards for a ladder jack scaffolding platform erected closer than the minimum required distance from exposed power lines, failure to provide fall protection, and failure to ensure the correct use of portable ladders.  Respondent timely contested the Springvale Citation, and the case was docketed with the Commission as No. 19-1905. 

In that Order, the undersigned found that Respondent knew or should have known the Secretary would have named the Corporation if it, rather than the Individual, was the employer at the worksites where the alleged violative conditions occurred.  Further, the undersigned found that the Secretary timely sought to name the Corporation as the Respondent, in the alternative.

Seventeen witnesses testified at the hearing.  The witnesses called by the Secretary were:  Portland Police Department Evidence Technician Jonathan Reeder; Portland Police Department Detective Jeffery Tully; OSHA Compliance Officer (CO) Gregory Wilson; the Springvale inspection’s eyewitness neighbor; Central Maine Power Environmental Health and Safety Manager George M. Shutts; former OSHA CO Kathryn Simmons; OSHA Area Director (AD) David McGuan; Department of Labor (DOL) Office of Inspector General (OIG) Special Agent (SA) Sean Roberts; former Abuse Investigation Unit attorney of the Maine Workers’ Compensation Board (MWCB) Shannon Collins; MWCB Deputy General Counsel Seanna Crasnick; fiancé of the deceased worker at the Portland worksite [redacted]; and, the Owner and President of Purvis Home Improvement Co., Inc. Shawn Purvis.

II.  ISSUES

 The key issues in dispute are (a) whether Shawn D. Purvis d/b/a/ Purvis Home Improvement Co., Inc. (Individual) is responsible for the violations alleged in the Portland Citation, OOB Citation, and Springvale Citation; (b) whether Respondent is an Employer for purposes of the OSH Act; (c) whether the Secretary met the burden of proof for the fourteen willful, two repeat, and four serious violations cited in the three consolidated dockets; (d) whether the Secretary proved the characterization of willfulness for fourteen violations; (e) whether Respondent  met its burden to establish a “good faith” defense to the violations characterized as willful; and (f) whether the  willful violations at the Portland and OOB worksites may be cited on a per-instance (per-employee) basis.9

For the reasons set forth below, the undersigned finds that Shawn D. Purvis d/b/a/ Purvis Home Improvement Co., Inc. (Individual) is responsible for the violations cited at the inspected Portland, OOB, and Springvale worksites, and thus is the appropriately named Respondent. Further, the undersigned finds Respondent is an Employer under the Act.

As described below all citation items are affirmed; however, the proposed penalty has been reduced to a total of $1,572,340 for the three inspections.  Any argument not specifically addressed below has been considered and determined to have no merit.

III. JURISDICTION

IV.  RELEVANT BACKGROUND & FACTS

History of the business

Shawn Purvis first performed construction work while working for Vanier Construction circa 1999, by doing various carpentry work that included roofing, framing, siding, windows, flooring, and cabinets.  (Tr. 1222-23).  Mr. Purvis started his own business in 2001, providing, among other services, residential siding, windows, doors, gutters, roofing, and snow plowing.  (Tr. 1224-25; GX-165, pp. 29-30).  During the first few years, he used various names for his business including Purvis Home Improvement, Purvis Gutters, and Purvis Plowing (Tr. 1229).  In 2005, he incorporated the business as Purvis Home Improvement Co., Inc.  (Tr. 1233). 

Purvis Home Improvement Co., Inc. was incorporated in the State of Maine on December 16, 2005, with Shawn Purvis as the sole stockholder, President, and Treasurer.  (Tr. 1375, 1434-36; JX-3, RX-6).  Neal Stillman has been the Clerk since incorporation.  (RX-6).  Mr. Purvis has owned 100% of the stock since incorporation.  (GX-165, p. 155).  

Each year, the corporation’s annual reports are filed with the State of Maine.  (Tr. 1376-77; JX-6; RX-6, pp. 1, 7-13, 39, 42, and 45).  The cursory minutes from the annual stockholder meetings show the sole business conducted each year was the continuation of Shawn Purvis as the sole stockholder, Director, President, and Treasurer of the corporation along with Neal Stillman as the Clerk.  (RX-6, pp. 1, 7-13, 39, 42, and 45).  Mr. Stillman was responsible for the corporate records, including setting up the initial corporate documents, recording the minutes for the annual meeting, and filing the annual reports with the State of Maine.  (GX-165, pp. 153-54; JX-6; RX-6).  Mr. Stillman did not testify at the hearing.

The administrative side of the business

Shawn Purvis was responsible for all company operations including sales, advertising, billing, scheduling, estimating project costs, labor acquisition, finances, and tax filings. (Tr. 1373, 1378-79, 1388-89, 1391; GX-165, pp. 29, 33, 154).  Mr. Purvis was the sole person authorized to act on behalf of the corporation.  (Tr. 1389; GX-165, pp. 152-56).  Mr. Stillman had no operational duties: his role was limited to maintaining and filing corporate documents.  (GX-165, pp. 153-54; JX-6; RX-6)        

Day-to-day business operations

Around 2011-2012, Mr. Purvis changed his usual practice and chose to no longer routinely perform the labor at his worksites.  (Tr. 1229-30, 1287, 1534).  Mr. Purvis viewed his role as primarily sales; he solicited business through advertising and word-of-mouth referrals.  (Tr. 1204, 1287, 1373; GX-165, p. 29).  To provide an estimate for roofing work for a prospective client, Mr. Purvis conducted a preliminary onsite review of the worksite to determine the time, cost, and materials needed.  Mr. Purvis provided a written invoice to the homeowner as a bid with the cost estimate for the work.  When the bid was accepted, Mr. Purvis scheduled the date of work with the homeowner and ordered the necessary materials.  (Tr. 1290, 1294, 1348-50).  Mr. Purvis had the sole responsibility of planning a job, including finding the workers to provide the labor.

The roofing process

 At all three worksites inspected by OSHA in this consolidated case, the work was removal of the existing roof and installation of a new roof on a residential home.  There were two primary roles for workers at a worksite—roofer and groundman.  (Tr. 1479-80; GX-165, pp. 139-40). A roofer removed and installed the roof while the groundman stayed on the ground loading the debris into the dump truck.  (Tr. 1479-80).  Mr. Purvis described the roofing process as four steps—pick up the roofing materials from the supplier, strip off the old roof, install the new roof, and take the old materials to the dump.  (Tr. 1290).  

On the first day of a roofing job, Mr. Purvis was at each worksite for a few minutes to explain to the workers the scope of the project and the terms agreed to by the homeowner.  After describing the terms of the job, Mr. Purvis left the worksite and generally did not return.  (Tr. 1301, 1312-13).  

The roofing work began with laying out the tarps on the ground, setting up staging, scaffolds, and ladders for roof access.  (Tr. 1562).  To set up the scaffold staging, ladders were placed against the side of the house with brackets attached to hold a sixteen - or twenty-four-foot plank across them, forming a ladder jack scaffold.  (Tr. 1227-29, 1563, 1651).  Roof bracket scaffold stages were assembled on the roof by nailing brackets into the roof and placing a plank across the brackets.  (Tr. 1227-29, 1764-65).  The staging provided a surface to stand on and to place tools when the roof’s pitch made it difficult to walk up the surface.  (Tr. 1228-29 1563-64, 1764-65).

Proper roof installation required the following steps in a consistent order.  (Tr. 1562-63).  The old shingles were stripped off and the roof deck was prepared for the new roofing materials.  (Tr. 1562, 1655, 1814).  The roof was prepped by installing an underlayment paper, ice/water shield material, and an aluminum drip edge.  (Tr. 1562-63, 1745-46, 1751).  Next, chalk lines were snapped onto the surface to provide a guide for installing shingles in a straight line—the lines were generally marked at five-and-a-half-inches above the top of the row of shingles below.  (Tr. 1563, 1763).  Shingle installation began at the roof’s lower edge.  After three feet of shingle rows were installed, a roof bracket scaffold was installed on the roof’s surface to enable installation of the next section of shingles.  (Tr. 1763-64).  Finally, the roof’s peak was capped with shingles.  (Tr. 1766-67).  Once the roof was capped, scaffolding and equipment were removed, and the debris was placed into the dump truck.  (Tr. 1767-68).  When the work was complete, payment was collected from the homeowner by one of the workers.  (Tr. 1360, 1778-79).

The core workers

 There was a core group of twelve to fourteen individuals who routinely worked at Respondent’s worksites.  (Tr. 1476).  Nine of these individuals worked on at least one of the three worksites at issue here:  Michael Wright, A.L., Anthony Gallant, Michael Happersett, Anthony Purvis, Ryver Daigle, Forrest Daigle, Lennie Dow, and Flavio Campos. Respondent’s handwritten payroll notebook confirms the frequent employment of these individuals on Respondent worksites. (Tr. 1455-58, GX-59). 16   Of the core workers, Dow, Happersett, Gallant, Ryver Daigle, and Forrest Daigle testified at the hearing.  Transcribed administrative interviews with Mr. Dow and Mr. Campos are also in the record.  (GX-45; GX-47).

V.  THE RESPONDENT - PIERCING THE CORPORATE VEIL

“Although a corporation and its shareholders are deemed separate entities for most purposes, the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy.”  Bangor Punta Operations, Inc. v. Bangor & A. R. Co., 417 U.S. 703, 713 (1974).

The First Circuit has considered the propriety of veil piercing related to federal regulations, such as ERISA, the Clean Air Act, and the Railway Labor Act. See Bhd. of Locomotive Eng’rs v. Springfield Terminal Ry. Co., 210 F.3d 18, 26-27 (1st Cir. 2000) (Springfield Terminal) (citations omitted) (the corporate form should not be used to “stymie” the purpose of a federal statute such as the Railway Labor Act), Crane v. Green & Freedman Baking Co., Inc., 134 F.3d 17, 21-22 (1st Cir. 1998) (Crane) (evaluating veil piercing related to ERISA), Alman v. Danin, 801 F.2d 1, 3 (1st Cir. 1986) (Alman) (“deferring too readily to the corporate identity may run contrary to the explicit purposes of [ERISA]”), PBGC v. Ouimet Corp., 711 F.2d 1085, 1093 (1st Cir. 1983) (Ouimet) (“concerns for corporate separateness are secondary to what we view as the mandate of ERISA”), and Town of Brookline v. Gorsuch, 667 F.2d 215, 221 (1st Cir. 1981) (Brookline) (evaluating veil piercing under the Clean Air Act).  

There is no litmus test in the federal courts governing when to disregard corporate form. The Supreme Court has, however, provided some guidance, stating that “the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when to do so would work fraud or injustice.” Taylor v. Standard Gas Co., 306 U.S. 307, 322, 59 S.Ct. 543, 550, 83 L.Ed. 669 (1939). The Court has further indicated that corporate form may not defeat overriding federal legislative policies. See First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 630, 103 S.Ct. 2591, 2601, 77 L.Ed.2d 46 (1983); Bangor Punta Operations, Inc. v. Bangor & Aroostook Railroad Co., 417 U.S. 703, 713, 94 S.Ct. 2578, 2584, 41 L.Ed.2d 418 (1974).

Alman, 801 F.2d at 3.  

Purpose of the OSH Act

To determine whether the corporate form should be disregarded, the purpose of the OSH Act must be examined.  See Springfield Terminal, 210 F.3d at 26-27.  The express purpose of the Occupational Safety & Health Act of 1970 (OSH Act) is to “assure safe and healthful conditions for working men and women.” 29 U.S.C. § 651.  “[T]he statute's broad preventive and remedial intent has been specifically recognized by the Supreme Court. Whirlpool Corp. v. Marshall, 445 U.S. 1, 10-11 (1990). The Court held that the Act ‘is to be liberally construed to effectuate the congressional purpose.’” Sharon & Walter Constr., Inc., (S & W), 23 BNA OSHC 1286, 1293 (No. 00-1402, 2010), citing Whirlpool, 445 U.S. at 13.

The OSH Act states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards. . .”  Section 5 (a) of OSH Act, 29 U.S.C. § 652.  An employer is defined as “a person engaged in a business affecting commerce who has employees. . .” Section 3 (5) of OSH Act, 29 U.S.C. § 652(5).  A person is defined as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.” Section 3 (4) of OSH Act, 29 U.S.C. § 652 (4).  The Act makes no distinction among the many ways an employer may be organized, instead it includes every configuration that an employer may have, from the individual to “any organized group of persons,” to achieve its goal of employee safety.  Id.  

The OSH Act holds that an employer, which it broadly defines, is accountable for workplace safety.  Because the OSH Act places little importance on the organizational nature of an employer, it is appropriate to pierce the corporate veil to achieve the purpose of the OSH Act.  See Springfield Terminal, 210 F.3d at 26-27 (citations omitted) (the corporate form should not be used to “stymie” the purpose of a federal statute).

Upon consideration of the evidence discussed below, the undersigned finds that Shawn Purvis did not consistently observe the corporate form; instead, the lines were blurred, and the corporation was an extension of the individual rather than a separate entity.  Piercing the corporate veil is necessary to avoid injustice and achieve the purpose of the OSH Act.  For the worksites at issue here, in light of the mandate of the OSH Act, the undersigned finds that the corporation was a guise for Mr. Purvis in business operations.

Factors considered

        To determine whether it is necessary to pierce the corporate veil, the undersigned considered the following factors: routine business practices, corporate accounts, corporate filings, tax filings, applications to the state workers’ compensation board, personal and real property ownership, billing invoices, and payroll records.  See generally Springfield Terminal, 210 F.3d at 26-27 (standard for veil piercing is notably imprecise and fact intensive); Valley Fin., Inc. v. U.S., 629 F.2d 162, 172 (D.C. Cir. 1980) (determination for veil piercing unique to the particular corporate structure and facts at issue).

        As discussed below, Mr. Purvis showed respect for the corporate form with the corporate financial accounts, annual state corporate filings, and federal tax filings.  However, in routine business operations, including Mr. Purvis’s presentation of the company through applications, invoices, and advertising, Mr. Purvis showed a disregard of the corporate form.  This disregard is further shown through the use of personal property for routine business activities.  

The company had accounts that were separate from Mr. Purvis’s personal accounts: a bank account, credit cards that were used for advertising and roofing materials, and a corporate account at a local supply company, ABC Supply Co., Inc., for the purchase of construction materials.  (Tr. 1388-91; GX-50, GX-51).  These accounts show a recognition of the corporation as a separate entity.

State corporate filings

Federal tax filings

The applications submitted by Shawn Purvis for 2015, 2016, and 2017 were entered into evidence.  (Tr. 1243; GX-173).  The applications were filled out by hand and signed by Shawn Purvis.  Id.  On the 2015 application, Mr. Purvis listed the applicant’s name as “Shawn Purvis dba Purvis Roofing” and “Shawn Purvis doing business as [] Purvis Roofing.”  (GX-173, pp. 2-8).  The applicant’s name on the 2016 application was written as “Shawn Purvis/Purvis Home Imp. Inc.” and “Shawn Purvis doing business as [] Purvis Home Imp. Inc.”  (GX-173, pp. 10-16).  The applicant’s name on the 2017 application was written as “Shawn Purvis doing business as [] Purvis Home Imp. Inc.”  (GX-173, pp. 18-24).

Respondent argues Mr. Purvis’s use of “dba” or “doing business as” on the applications is meaningless because laypersons often use the term inaccurately and that each application clearly noted that he was applying as the corporation.  (Resp. Reply 5-7).  The undersigned disagrees.  In the 2015 application, Mr. Purvis didn’t refer to the corporation at all; instead, he referred to Purvis Roofing.  For all three years, the application was presented as Shawn Purvis “doing business as” rather than an application solely for the corporation.  (GX-173).  

Work Vehicles

The ownership of the vehicles routinely used at worksites also demonstrates there was no meaningful separation between Mr. Purvis, as an individual, from the corporate entity.  Three vehicles were used at Purvis worksites, a dump truck, passenger van, and box truck.  (Tr. 1476).  Two were owned by Mr. Purvis.  (Tr. 1317-18, 1475-76).  

The dump truck was used to transport roofing materials to the worksite and haul the refuse to the dump.  (Tr. 1320-21, 1475-76).  “Purvis Home Improvement” was displayed on the side of the dump truck.  (GX-100, pp. 16-17).  Mr. Purvis claimed the purchase of the dump truck in 2015 was an investment for the company; however, ownership of the vehicle remained with Mr. Purvis.  (Tr. 1321, 1476).  

On the other hand, the box truck used to bring ladders and tools to a worksite was purchased by the corporation in 2017.  (Tr. 1317-18, 1476; GX-185, pp. 13-14).  A 2019 property tax receipt confirmed the truck was registered to Purvis Home Improvement Co., Inc.  (Tr. 1317-18, 1475-76, 1437-38; JX-4).  Of the three vehicles used at a worksite, this was the only one under the control of the corporation.  

        The lack of any arrangement for the company’s use of vehicles owned by Mr. Purvis demonstrates a lack of a separate corporate identity.  All three vehicles were routinely used at worksites regardless of ownership.  The use of Mr. Purvis’s personal vehicles at the worksites demonstrates the blending of the corporation and Mr. Purvis as an individual, which supports piercing the veil of the corporate form.

Physical location

        The corporation did not pay Mr. Purvis for the use of the Saco location.  (GX-165, pp. 161-62).  Mr. Purvis said that he had considered setting up an arrangement but didn’t follow through with the paperwork.  (GX-165, pp. 161-62).  The routine use of property owned by Mr. Purvis for the business without any payment or other compensation shows a lack of attention to the corporate form and supports piercing the veil.  See generally, United Elec., Radio and Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1095 (1st Cir. 1992) (163 Pleasant St.) (“Successful invocation of the alter ego doctrine requires a showing that businesses, although separately incorporated, have been operated in so imbricated a manner as to justify a reasonable perception that they were one and the same.”).

Even though Purvis Home Improvement Co., Inc. was formed in 2005, the pre-printed invoice form used in 2018 did not reflect the corporate name.  Mr. Purvis’s representation of the company was not true to its corporate identity, as shown by the use of various entity names to conduct business. The invoices and checks show a lack of recognition of the corporate form.

Payroll Methods

Workers were paid in cash, generally at the end of each workday.  (Tr. 1335; GX-46, p. 64; GX-165, pp. 139-40).  There was no receipt book or other means to record the cash disbursements to the workers.  (Tr. 1447; GX-59).

Mr. Purvis’s payment of workers in cash, the informal payroll method used to track who worked on a given day, and the practice of not sending a 1099 form to every individual that worked at a site suggest a casual operation as an individual, rather than the records expected for a corporation and thus, support piercing the veil.

Veil piercing is merited

Mr. Purvis showed respect for the corporate form through annual state corporate filings, separate financial accounts, and annual federal income tax filings.  However, in daily business operations and representations to the public there was a disregard of the corporate form.

Mr. Purvis routinely disregarded the corporate form either by identifying himself as Shawn Purvis dba Purvis Home Improvement Co., Inc. or by not using the corporate name.  His interactions with customers, as shown through his invoices and advertising on the side of the work vehicles, did not reflect the corporate name.  Invoices used the name Purvis Roofing instead of Purvis Home Improvement Co., Inc.  (JX-27; JX-39; GX-40; RX-25).  Checks from customers were made out to Purvis Roofing and not Purvis Home Improvement Co., Inc.  (JX-27; JX-39).  The applications to the state’s workers’ compensation board, where the business is listed as a “dba” and as Purvis Roofing, show a lack of separation between the individual and disregard for the name of the corporate entity.  (GX-173).  The use of the Saco property and two vehicles personally owned by Mr. Purvis for significant business operations demonstrates a lack of attention to the corporate form. His routine activities and public identity demonstrate the business was effectively an extension of the individual rather than a separate corporate entity.  

There were no owners or shareholders other than Mr. Purvis.  Mr. Purvis operated the corporation with little attention to corporate formalities.  The company did not own or have an agreement to use critical assets needed to operate the business, such as the dump truck and passenger van.  Instead, Mr. Purvis just used his personal property as if it were a business asset.  The routine intermingling of Mr. Purvis’s assets with those of the corporation shows there was no separation between Mr. Purvis and the corporation.  Labadie, 672 F.2d at 96 (where there is a unity of interest between the individual and the entity, and respecting the corporate form would insulate the individual from liability, it is proper to pierce the corporate veil to avoid inequitable results).

When balanced against how the business was routinely operated, the annual corporate filings seem to be gestures to meet the minimum requirements to maintain its status as a Maine corporation.  Considering all factors, the undersigned finds the day-to-day actions in which Mr. Purvis disregards the corporate form more telling than annual perfunctory filings.

The undersigned finds that Mr. Purvis’s representation of the company to the public shows that he viewed the corporation as an extension of himself and not as a separate entity.  See generally, Dynamic Visions, 971 F. 3d at 339 (finding company the “alter ego or business conduit” of its sole owner and CEO) (citations omitted).  

Respondent asserts the First Circuit requires a showing of fraud to support veil piercing.  Crane, 134 F.3d at 27. (Resp. Reply Br. 9-10).  In Crane, the court explained that for veil piercing the fraud need not reach the level of a criminal or civil fraud, yet it must be apparent.  Crane, 134 F.3d at 23.  Further, the court in Crane clarified, that in the “ERISA milieu” First Circuit precedent requires a showing of some fraudulent intent for veil piercing.  Crane does not address cases outside the ERISA milieu.

Nonetheless, fraudulent intent has been demonstrated here.  As discussed above, the purpose of the OSH Act is to assure employees are provided “safe and healthful conditions” in the workplace.  The enforcement tool provided to OSHA is the issuance of citations with penalties for violations of the Act.  See sections 9 and 17 of the Act, 29 U.S.C. §§ 658, 666.  Further, “[t]he system of penalties contained in [section]17 allows for increased fines when the need arises to provide an employer with added incentive” to comply with the requirements of the Act.  S&W, 23 BNA OSHC at 1294. (citation omitted).  The maximum penalty for a repeated violation is ten times higher than the maximum for a violation that is not repeated.  See section 17(a)-(b) of the Act, 29 U.S.C. § 666(a)-(b).  The assessment of penalties provides an incentive to the employer to comply with the OSHA standard in the future.  See S&W, 23 BNA OSHC at 1294. (“The threat of a repeat characterization, therefore, was designed to deter an employer from committing violations primarily by creating the potential that a future violation's penalty will be significantly greater.”) (citations omitted).  Assessment of penalties is integral to the regulatory scheme set forth by Congress.

Mr. Purvis’s conduct demonstrates he had no intention of complying with OSHA’s requirements or paying penalties related to violations of those requirements.  In 2006 Mr. Purvis contested an OSHA citation and then reached an agreement to settle the case in exchange for a lower penalty and onsite training from OSHA, discussed below.  Thereafter, Mr. Purvis made operational changes that he intended to shield the corporation from any liability under the OSH Act at his worksites; he testified he believed the workers at his worksites were independent contractors.  (GX-165, pp. 96-97, 108).  Under this scheme, when Mr. Purvis received a citation from OSHA, he did not contest it; instead, he chose to ignore all citations from OSHA.  See generally, Springfield Terminal, 210 F.3d at 38, n. 11 (agreeing with majority that “’manipulation of the corporate form to circumvent a federal regulatory scheme is sufficiently blameworthy’ to constitute fraudulent intent”) (Stahl, J., dissenting).

During a 2012 inspection, when AD McGuan explained that OSHA regulations applied to his worksite, Mr. Purvis simply stated that he would not pay any penalties and if necessary, would dissolve the corporation or change the name of the company to avoid debt collection.  (Tr. 879-80; JX-12).  Mr. Purvis did not contest that citation and continued to ignore subsequent OSHA citations.  Without individual liability, Mr. Purvis can simply dissolve the corporation—as he threatened to do in 2012—and set up a new corporation.  

Respondent asserts Mr. Purvis’s threat to dissolve the corporation during his 2012 discussion with AD McGuan was mere “bombast” because he never acted to dissolve the corporation even after he continued receiving citations from OSHA.  (Resp. Br. 62).  Respondent contends Mr. Purvis’s 2012 threat was an “isolated statement.” (Resp. Reply Br. 7).  The record reveals otherwise.  It was not Mr. Purvis’s only threat that he would not pay OSHA penalties.  In 2015, during the Pine Point inspection, when informed by the OSHA Compliance Officer that citations would issue, Mr. Purvis reiterated that he would not pay OSHA penalties.  In anger, Mr. Purvis told the OSHA CO “you can suck a** I’m not paying any penalties.  They will end up with the rest of the penalties.” (Tr. 670; JX-18; GX-27). Mr. Purvis allowed the rest of the penalties to “end-up” ignored, unpaid.  

Further, Mr. Purvis took no actions to ensure that he was operating the corporation in such a way that it met its obligations under the OSH Act, either as an employer or a general contractor hiring subcontractors.  Mr. Purvis made the choice of inaction.  See generally, Reich v. Sea Sprite Boat Co., Inc., 50 F.3d 413, 418 (7th Cir. 1995) (In a contempt action brought by the Secretary of Labor against the employer, the Seventh Circuit Court of Appeals found “indubitable” that Sea Sprite was the alter ego of Smith, president, and sole stockholder of Sea Sprite.  The court noted that Smith did not observe corporate formalities, continued the violative conduct, ignored penalties and settlement agreement terms.  The court found Respondent Sea Sprite in contempt of court.  The Court granted the Secretary’s Motion to amend the contempt pleading to also accuse Smith and Continental, successor in interest to Sea Sprite, of contempt. The court stated that the more comprehensive judgment against Smith was best as “experience teaches . . .  Smith may resist collection by a combination of passive and active means”).

Flouting OSHA’s assessed penalties impedes OSHA’s ability to enforce workplace safety and health regulations, thus, frustrating the purpose of the OSH Act.  Allowing Mr. Purvis to avoid liability by hiding behind the corporate shield stymies the goals of the OSH Act. See Alman, 801 F.2d at 4 (permitting shareholders to hide behind a “paper corporation” would work an injustice contrary to congressional intent).  

Respondent argues the only justification for veil piercing is where there is a diversion of corporate assets for personal use.  (Resp. Br. 59-60).  Here, that is not an indicator because the profits and losses of a sub-S corporation flow directly to its sole shareholder, Mr. Purvis.  See Cap. Video Corp v. Comm’r, 311 F.3d 458, 466-67 (1st Cir. 2002) (citing 26 U.S.C. § 1366(a)).  The corporation had only one other significant asset, the box truck used to carry equipment to the worksite.  (Tr. 1317-18, 1476; GX-165, pp. 163-64).  Diversion of assets is not dispositive here.

Respondent asserts the use of Mr. Purvis’s personal property for the corporation’s business is simply a business investment by Mr. Purvis and not support for piercing the corporate veil, relying on 163 Pleasant St., 960 F.2d at 1093.  (Resp. Br. 59-60).  Review of that case discloses it is not comparable to the case here. At issue in 163 Pleasant St. was the subsidiary company’s financial obligations under ERISA through a collective bargaining agreement.  Id.

The undersigned finds there was no meaningful distinction between Shawn Purvis and the corporation.  The purpose of the OSH Act is to provide a safe workplace for workers—the way an employer’s business is organized may not be used to stymie the purpose of the OSH Act.  Thus, piercing the corporate veil to hold Mr. Purvis liable in the guise of Shawn D. Purvis d/b/a Purvis Home Improvement Co., Inc. is merited.  The undersigned finds the Respondent in this consolidated case is Shawn D. Purvis d/b/a Purvis Home Improvement Co., Inc.

VI. RESPONDENT IS AN EMPLOYER

 Respondent makes much of the fact that Mr. Purvis was not on site during the workday and the individual workers at the site chose where to work on the roof, when to start work for the day, and when to take breaks.  (Resp. Br. 29-31, 39).  However, the roofing work had to proceed in a particular series of steps.  Before new shingles could be installed, the old shingles had to be removed.  Then, the moisture barrier and drip edge had to be installed.  Next, chalk lines had to be snapped in place.  Only then could the new shingles be installed. The notion that each worker could proceed independently of the others at a worksite is not credible.  

Respondent asserts the workers were paid for the result of a roofed house and thus Mr. Purvis had no control over how workers performed the work. (Resp. Br. 28).  The undersigned disagrees, short of telling the workers when to hammer a nail or other minute-by-minute instruction, Purvis controlled all aspects of the job to achieve the result of a roofed house.  Mr. Purvis selected the work, provided the materials and equipment, and set the terms of the work product. The workers provided the labor at the site.  

 Respondent relies on Timothy Victory, 18 BNA OSHC 1023 (No. 93-3359, 1997) to support its assertion that the lack of specific instructions from Mr. Purvis to the workers each day demonstrates a lack of control over the means and manner of the work.  (Resp. Br. 30-31).  This is an inapt comparison.

In Timothy Victory, the Secretary cited the owner/operator of a fishing vessel as the employer of two divers that harvested sea urchins from that vessel.  Id.  The Commission found the operator only had control over the boat and that he had no control over how the divers harvested sea urchins.  The Commission found that the divers supplied their own diving and harvesting equipment, their relationship was one of short duration (a single job), and the divers paid the owner/operator forty percent of their catch for use of the boat.  Id.  Based on the combination of these factors, in that instance, the Commission found the boat’s operator was not an employer of the divers and the Secretary was not substantially justified in citing the boat’s owner/operator as an employer.  Id.  

  The facts in Timothy Victory are not comparable to those here.  In Timothy Victory, the divers provided the essential equipment needed to harvest sea urchins and worked individually to harvest them.  Completing a roofing project required the coordination of the materials, labor, and scheduling with a homeowner.  Here, Respondent provided the essential materials and planning needed to complete the work.   Each worker at the Purvis worksite adhered to a roofing process implemented with materials Respondent provided and in coordination with other workers at the site; they could not implement an individual plan.  Further, any significant change that affected materials or cost was controlled by Mr. Purvis.

Another example of the extent of Respondent’s control over the worksite was demonstrated when Mr. Purvis was away for a week of vacation.  Mr. Purvis did not simply hand the control to the workers.  Instead, he preordered all the necessary supplies for a week, left the work orders/instructions for the jobs, and scheduled the workers for the week in advance.  The workers were paid for their work when Mr. Purvis returned from vacation.  (GX-165, pp. 137-38).  This further demonstrates Respondent's control over the manner and means to complete a roofing project.

Respondent asserts the Secretary misunderstands its business model: Mr. Purvis is just a salesman who presents an estimate to the homeowner and then passes the project on to independent contractors.  (Resp. Br. 29; Tr. 1303, 1309; GX-165, p. 34).  The undersigned finds Mr. Purvis was not simply a salesman.  Mr. Purvis did not hand the bid to an independent contractor who then planned and completed the job.  To the contrary, Mr. Purvis did everything necessary to complete a project except perform the labor at a site.  

In conclusion, the undersigned finds that Respondent never relinquished the right to control the manner and means to accomplish the product, which was replacing a roof.  See S&W, 23 BNA OSHC at 1289 (key factor is the company's “right to control the manner and means by which the product” is accomplished).  The workers’ control was limited to whether they chose to work on a particular day and at what time they took a break while at the worksite.  

This factor weighs in favor of an employer-employee relationship.

Skill required

 The skill and experience needed to work at a site varied from no skills to moderate skills and experience.  Mr. Purvis admitted the ground clean-up work did not need any particular skill.  (Tr. 1484-85).  This was evidenced by Mr. Purvis’s admission that in the past he hired two men as groundmen when they simply walked up to an active worksite. (Tr. 1478-79; GX-165, pp. 141-42).  

On the other hand, roofers need a particular skill set.  A roofer had to set up the scaffolds and ladders for roof access, strip off the old roof, and install the new roof.  Roofing skills were learned on-the-job; there was no particular training other than doing the work under the guidance of an experienced roofer.  (Tr. 1678, 1718-19, 1815; GX-47, p. 16).  Mr. Purvis said he got the hang of roofing work after a couple of roofs, but that others don’t learn as quickly.  (Tr. 1314).  The amount of experience present at the worksites varied widely.  At least two individuals, who consistently worked for Respondent, had well over a decade of experience installing roofs, worksite foreman Lennie Dow and Flavio Campos.  (Tr. 1554; GX-45, p. 53; GX-47, pp. 16, 21; GX-165, pp. 196-97, 209-11).  Another roofer at the Portland worksite, Ryver Daigle, had less than a year of roofing experience.  (Tr. 1614, 1840-41; GX-45, p. 57).

Respondent asserts that roofers are highly skilled and must exercise independent judgment.  (Resp. Br. 37).  Mr. Purvis’s statements on this point are equivocal.  He stated that skill is needed to properly install shingles in a straight line to achieve visual appeal and to avoid leaks and ice jams.  (Tr. 1313-14).  However, Mr. Purvis also described roofing work as simply putting four nails in a shingle.  (GX-165, pp. 202, 204, 205).  Mr. Purvis admitted that he previously told CO Wilson that a monkey could be trained to do roofing work.  (Tr. 1484).  

A roofer needs particular skills and some experience to perform competently; however, the work does not require an individual to be highly skilled.  Once learned, the steps for roofing are a standard process.  The room for independent judgement is limited.  The undersigned finds that a roofer’s work was moderately skilled and a groundman’s work required no skill.

Overall, this factor weighs in favor of finding an employer-employee relationship.

Source of tools and instrumentalities

Respondent supplied all the roofing materials, equipment, and vehicles used at a worksite.  Respondent placed the order and paid for the roofing materials. (Tr. 1290, 1348-50).  If any additional materials were needed during a job, Mr. Purvis ordered and paid for those.  (Tr. 1294; GX-46, pp. 45-46).  

Respondent provided the vehicles used at the worksite, a dump truck, box truck, and passenger van.  (Tr. 1476).  The passenger van transported workers to the worksite.  (Tr. 1320-22, 1475-76; GX-165, pp. 216-17).  The dump truck was used to bring the roofing materials to the worksite and take the debris to the dump.  (Tr. 1320-21, 1475-76, 1578-79).  The box truck contained equipment and tools necessary to do the roofing work—compressors, tarps, brackets, planks, ladders, and personal fall arrest equipment.  (Tr. 1317-18, 1476, 1577-78, 1650, 1795, 1803; GX-45, p. 50; GX-185, pp. 13-14).  

Generally, each worker was responsible for bringing the tools on his toolbelt, such as a hammer, tape measure, screwdriver, knife, snips, tack bar, chalk line, and nail guns.  (Tr. 1576, 1650, 1652, 1796-98, 1814, 1828).  Even so, Forrest Daigle used a nail gun provided by the Respondent at the OOB worksite.  (Tr. 1817-18).  

 Respondent’s assertion that the workers provided the tools necessary to complete a job is rejected.  The substantial, essential materials, tools, and vehicles contributed by Respondent surpasses the contribution of each worker’s hand tools.  Respondent provided the essential tools and materials to accomplish the work.  This factor weighs strongly in favor of an employer-employee relationship.                                    

Location of the work

Respondent controlled the location where work occurred and of the morning meeting.  Respondent had a central meeting place, the Saco location, where the work vehicles were stored, and the workers met each morning between 6:30 and 7:00 a.m. to find work for the day.  (Tr. 1311; GX-45, p. 50).  The Saco location was essential to the completion of a project. Each morning Mr. Purvis went to the Saco location, which he personally owned, to meet the workers gathered there.  (Tr. 1310-12; GX-165, pp. 42-43).   (Tr. 1310-12).  If the workers agreed to the job, they travelled to the worksite from the Saco location.  (GX-45, p. 50).  The box truck, dump truck, and passenger van were driven from the Saco location to the worksite by the workers.  (Tr.  1321, 1476; GX-45, p. 50).  

The location of that day’s work was determined by Mr. Purvis when he scheduled the work; the workers were not involved in the selection of the worksite.  The extent of a worker’s control was choosing whether to work on a particular day.  This factor weighs in favor of an employer-employee relationship.

Duration of the relationship between the parties

Long-term, established relationships over several years and multiple projects are indicative of an employment relationship.  Many of the workers at Respondent’s worksites had worked with Respondent for many years.  (Tr. 1610; GX-45, p. 13).  Mr. Purvis estimated there was a core group of 12-14 individuals who worked for him on a regular basis during the 2016-2019 period.  (Tr. 1476).  

For example, Mr. Dow, the foreman at the worksites in these cases, estimated he had worked with Respondent for over fourteen years and during 2018 had worked at between forty and sixty Purvis worksites. (GX-45, p.13).  Mr. Campos had worked for Respondent about fifty percent of his time during the past eight to eleven years.  (GX-45, p. 53; GX-47, pp. 21, 23).  Mr. Happersett spent about fifty percent of his time working with Respondent.  (Tr. 1640).  Mr.  Forrest Daigle had worked with Respondent for about seven years.  (Tr. 1815).  Mr. Sargent worked for Respondent on and off for over ten years.  (GX-165, pp. 211-12).  A.L. worked for Respondent at least two years.  (RX-3; RX-4).  Mr. Gallant and Mr. Wright worked for Respondent for at least three years.  (RX-3; RX-4; RX-27).  Foreman Dow estimated that workers Gallant, Happersett, Forrest Daigle, and Wright worked for Respondent on about fifty worksites in 2018.  (GX-45, p. 52). 

Respondent describes the contract between Respondent and workers as per-job with a defined duration.  (Resp. Br. 40).  To the contrary, even though each worker committed to work one day at a time, they actually had long-term open-ended arrangements with Respondent.  Further, because most of the relationships with workers were long-term, Mr. Purvis did not bother to send an IRS-1099 form to individuals who worked only for a couple of days.  (GX-165, pp. 46-47).

The duration and open-ended nature of these work relationships is akin to that of a traditional employer-employee relationship. See Absolute Roofing & Constr., Inc. v. Sec’y of Labor, 580 F. App'x 357, 362 (6th Cir. 2014) (unpublished) (Absolute Roofing) (“indefinite duration favors employee status rather than independent contractor status”) (citation omitted)

Extent of the hired party's discretion over when and how long to work

 Each worker stated he had control over whether to work, when to go to work, when to leave work, and when to take breaks during the workday.  (Tr. 1565-68, 1770-71, 1816).  Mr. Purvis stated that he did not control when or how long a worker was at a worksite.  (Tr. 1239, 1300-01, 1323-24, 1481).  When Mr. Purvis left a worksite, after explaining the scope of the work, the workers could all go to breakfast and start whenever they pleased.  (GX-165, pp. 43-44).  

 The evidence shows the workers controlled whether they would work on a given day.  (Tr. 1565-68, 1770-71, 1816).  However, they met at the Saco location each morning before 7:00 a.m. to coordinate for the day.  (Tr. 1310-12; GX-45, p. 50; GX-165, pp. 42-43).  The equipment needed to do the roofing work was on Respondent’s vehicles, so they could only do roofing work while the vehicles were on site.  Further, the hours worked on a given day were influenced by external factors, such as weather conditions and hours of daylight.  (Tr. 1567-68, 1799-1800).  

 The undersigned finds the workers, within limited parameters, could choose the timing of their work at a worksite, such as when to begin work or take breaks; however, the flexibility was limited to when the equipment and materials were at the worksite and the time of the morning meeting at Saco.  This factor weighs in favor of an employer-employee relationship.

Method of payment and rate of pay

The record is not dispositive on whether the rate of pay was set by Mr. Purvis or whether it was negotiated with each worker.  The workers who testified at the hearing stated they each determined their own rate of pay.  (Tr. 1580-81, 1653, 1806, 1815-16).   Yet, during his September 2, 2020 deposition Mr. Purvis stated the pay rate was based on whether the worker was a roofer or a groundman—roofers received $250 per day and groundmen $150-175 per day.  (GX-165, pp. 139-40, 205-06). That Respondent paid a consistent daily pay rate based on the job performed, groundman or roofer, is corroborated by Mr. Purvis’s very general handwritten payroll notebook that lists the date worked and the worker’s name or nickname, but no specific job rate negotiated.  (GX-59). Mr. Purvis also stated that he would rather negotiate the terms of the job rather than the rate of pay.  (GX-165, p. 140).  

The undersigned finds each worker’s payment rate had little room for negotiation.  The fact that most workers performing the same job duties received the same rate of pay supports finding that Mr. Purvis controlled the rate of pay for the workers on his worksite and thus, this factor weighs in favor of an employer-employee relationship.  

Whether the work is part of the regular business of the hiring party

Respondent is a business, and roofing is a regular part of that business.  The work performed at the three worksites was integral to fulfilling the contracts Mr. Purvis had with the homeowners.  See Froedtert Mem’l Lutheran Hosp., Inc., 20 BNA OSHC 1500, 1506 (No. 97-1839 2004) (product accomplished by housekeepers was essential to operation of the hospital).  

Respondent’s assertion that Respondent is in the business of sales only and, therefore, roofing is not integral to the business, is rejected.  Respondent is responsible for all aspects of the roofing job including estimating the costs, ordering supplies, providing vehicles and equipment, and securing the laborers to complete the work.  This factor favors an employer-employee relationship.

Provision of employee benefits and the tax treatment of the hired party

 Respondent did not withhold any taxes from a worker’s pay and used the IRS-1099 form to report each worker’s annual income.  (Tr. 1340-41).  See Absolute Roofing, 580 F. App'x at 361 (IRS-1099-MISC is a federal tax form used for independent contractors).  There were no benefits provided by Respondent to the workers.  (Tr. 1340-41).

Here, the tax treatment and benefits are like those of an independent contractor relationship.  Even so, tax reporting status is not a controlling factor in a Darden analysis. See S&W, 23 BNA OSHC at 1290 (the “failure to withhold federal income and social security taxes was ... not a bona fide reflection of an authentic independent contractor relationship”).  The undersigned finds the tax treatment and lack of benefits are not dispositive in determining the nature of the employment relationship.

Whether the hiring party has the right to assign additional projects to the hired party

• "Wat is Lenny doing repairs. .. Yeah jobs we f*** up” (GX-99, p. 15); 

• “No roofing but you and Lenny can finish siding job if you want” (GX-99, p. 21);  

• “Gonna rain this morning, I have stuff we can do till it stops” (GX-99, p. 21);  

• “I do have at least one repair you can do after rain stops, I’ll probably come up with more” (GX-99, p. 26);   

• “I can give you half day if you wanna come in at 9 and finish that job” (GX-99, p. 29); and,   

• “would like to show you the only snowblow acc I have for now if you wanna ride to my house.” (GX-99, pp. 33-34. See Tr. 1111). 

These messages indicate that other jobs could be assigned to workers.  This is indicative of an employer-employee relationship.  

Whether the hired party has a role in hiring and paying assistants

There is no evidence that a worker ever brought an assistant to a worksite. During his February 2019 deposition, Mr. Purvis stated that a worker was free to bring an assistant to a site, but Mr. Purvis would not be responsible for paying that person.  (GX-46, pp. 60-61; GX-165, p. 73).  During that same deposition, however, Mr. Purvis indicated that because they all met at the Saco location each morning, he was not concerned about having people he didn’t know at a particular worksite.  (GX-46, pp. 61-62).  Because the issue of a worker bringing his own assistant to a worksite is speculative, this factor is not dispositive.

Conclusion of Darden analysis

VI.  PRIOR HISTORY WITH OSHA

Five Inspections Prior to December 2018

1. 2006 Citation, South Portland, Maine

On October 4, 2006, Shawn Purvis signed on behalf of Purvis Home Improvement, Inc., a settlement agreement that resolved citations and penalties issued September 12, 2006, related to inspection no. 310101662 for a worksite in South Portland, Maine.  (Tr. 633, 1247; GX-18, p. 6; GX-161; GX-165, p. 80).  As part of the settlement’s terms, CO Simmons visited Respondent’s worksite later in 2006 and presented a two-hour training session on OSHA’s fall protection requirements to Shawn Purvis and the workers.  (GX-46, pp. 34-36; GX-165, pp. 50-52, 79-80).  The penalties agreed to in the settlement are the only OSHA penalties Respondent paid without a debt collection action.  (Tr. 1247; GX-165, p. 80).  

Pattern of uncooperative behavior

 Shawn Purvis has a long history of uncooperative and hostile conduct toward OSHA personnel.  During the 2012 Westbrook inspection in April 2012, Mr. Purvis refused to answer CO Simmons’s questions and refused to identify the workers on the roof or allow them to be interviewed.  (Tr. 658; JX-9, p. 2).   Later that year in November, Mr. Purvis was plainly hostile when AD McGuan inspected the Fieldings Oil site.  Mr. Purvis was angry and swore at the CO.  (Tr. 875).  Due to this hostile behavior, AD McGuan was concerned for his safety.  (Tr. 875-76).  Mr. Purvis stated if he received a citation that he would not pay the penalties and would dissolve the company if needed.  (Tr. 879; JX-12).

After the 2015 Pine Point inspection, Shawn Purvis told CO Simmons that “you can suck a** I’m not paying any penalties.  They will end up with the rest of the penalties.”  (JX-18; GX-27).

During the investigation for the 2018 Mussey Road Inspection, assistance from DOL’s Office of Solicitor was needed to get Mr. Purvis to comply with the subpoena for an interview.  (Tr. 722; GX-32; GX-39; GX-165, pp. 107-08).  When following up for the required abatement documentation following the 2018 Mussey Road inspection, Mr. Purvis told CO Simmons to not call again and to leave him “the f*** alone.”  (Tr. 727; GX-32).  When CO Wilson followed up for the same information a few weeks later, Mr. Purvis stated the OSHA rules did not apply to him and told Mr. Wilson to “stick his requests up his a**.” (Tr. 383-86; GX-32). When OSHA requested the abatement documentation, including fall hazard abatement, following the Mussey Road citation, it is noteworthy, that Mr. Purvis’s hostile responses to OSHA were stated just weeks before A.L’s fatal fall at Respondent’s Portland worksite.

        To establish a violation of an OSHA standard, the Secretary must prove by a preponderance of the evidence: (1) the cited standard applies; (2) there was noncompliance with the terms of the cited standard; (3) one or more employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.  Donahue Indus., Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 1994); Astra Pharm. Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part, 681 F.2d 69 (1st Cir. 1982).

 The first inspection under contest here, the Portland inspection, was opened on December 13, 2018, after OSHA was notified by the Portland Police Department of a workplace accident that resulted in A.L.’s death.51  (Tr. 129).  

Respondent had an agreement to provide a new roof for a residence on Congress Street in Portland, Maine (Portland worksite).  (GX-60; GX-183, p. 6).  The roofing work at the Portland worksite began on December 12, 2018, and was completed on December 14, 2018.  (JX-30; GX-45, pp. 48-49; GX-47, pp. 70-72).  

The Accident

Because of his location on the roof, foreman Dow saw Shawn Purvis in his truck pull up to the corner across the street about fifteen minutes before A.L. fell. (Tr. 1352; GX-45, pp. 36-37, 39).  Mr. Purvis had come to the area to provide an estimate for a roof at a nearby home and to have lunch with [redacted], Anthony Purvis, who was working at the Portland worksite.  (Tr. 1352, 1456, 1503; GX-59; GX-165, p. 208). Mr. Purvis was sitting in his truck facing away from the worksite making phone calls when he heard loud noises.  As Mr. Purvis exited his truck, he saw [redacted] come around the corner of the house and he ran to where A.L. had fallen to the ground.  (Tr. 1352-53).

First responders were called at 11:33 a.m. (Tr. 57).  Detective Tulley of the Portland Police Department arrived around noon.  (Tr. 40-41, 57).  Detective Tulley did not see any fall arrest harnesses at the site.  He documented the names of the crew members at the site, spoke with some of them, and recorded an interview with Forrest Daigle (Tr. 58-59; GX-105).  

Evidence Technician Jonathan Reeder of the Portland Police Department arrived at the site to collect evidence, take photographs, and take measurements.  (Tr. 40-42; GX-102, pp. 1-48).  A.L. had been transported from the site by emergency personnel prior to Mr. Reeder’s arrival.  (Tr. 51).  

OSHA’s inspection of the Portland worksite

After receiving the notice of a worksite fall injury from the Portland Police Department, COs Wilson and Simmons headed to the worksite; on the way, they received a call that A.L. had died from his injuries.  (Tr. 129-30, 746; JX-30, pp. 8, 24).  At the worksite, the COs met with police department personnel, Detective Tulley and Evidence Technician Reeder.  (Tr. 130-31).  CO Wilson reviewed the photographs taken by Mr. Reeder and requested copies of police documents.  (Tr. 130-31, 747; GX-102).  

There was no one working while the COs were at the site on December 13, 2018.  (Tr.  133, 747; GX-100).   Shawn Purvis and [redacted] Anthony Purvis had left the site to accompany A.L. to the hospital.  (JX-31, p. 3).  The COs first spoke with foreman Dow, and then in turn spoke to the other employees; the conversations that day were brief due to the tragic circumstances, and they informed the employees they would return the next day for a more detailed interview.  (Tr. 156). Mr. Dow showed CO Wilson the fall arrest equipment stored in the box truck.  (JX-31, p. 3).  The brief discussions with the employees confirmed that no one had been wearing fall arrest equipment.  (Tr. 155-56; JX-31, p. 3).  CO Wilson also observed there were no components to erect a guardrail system or a safety net system at the site.  (Tr. 302-03).

There were three work vehicles at the site on December 13, 2018—a passenger van, dump truck, and box truck.  (Tr. 132, 146-49, 747; GX-100, pp. 11-17; GX-102, pp. 40-41).  The box truck at the worksite stored equipment, including the personal fall arrest system anchors, ropes, and harnesses. (Tr. 146-49; GX-100, pp.11-14; GX-47, pp. 81-82, 119).   On the side of the dump truck, “Purvis Home Improvement–Fully Insured–Roofing*Siding*Driveways/Seamless Gutters” was displayed.  (Tr. 148; GX-100, pp. 15-16).  The passenger van at the worksite displayed “Purvis Roofing” on its side.  (GX-100, pp. 16-17).

Description of the roof

On the right side of the house, a ladder jack scaffold was set up along the roof’s eave with multiple ladders leading from the ground to the scaffold as support ladders.  (Tr. 136-37, 245; GX-100, pp. 1, 3; GX-102, pp. 2, 4).  This scaffold’s platform was approximately twenty-one feet, eight inches from the ground.  (JX-30, p. 11).   A large tarp for dumping debris from the roof was draped over the scaffolding from roof to ground.  (GX-86, p. 4; GX-100, p. 8; GX-102, pp. 5, 39; JX-31, p. 2).  CO Wilson photographed the worksite conditions on December 13, 2018.  (Tr. 133; GX-100).  

CO Wilson observed a power line that attached to the right side of the house just below the eave.  (Tr. 137-46; GX-100, pp. 8-10; GX-100, p. 9A).  The end of the scaffold’s plank was about six inches from where the energized power line attached to the right side of the home.  Id.  The voltage of the power line was the standard residential voltage of 120/240 volts.  (Tr. 152, 504-05; GX-106, p. 2).  No one requested Central Maine Power (CMP) to either deenergize the lines or cover the lines.  (Tr. 251-52, 501-03).

Portland inspection continues

When asked who directed the work at the Portland worksite, the employees identified Lennie Dow.60  (Tr. 159, 163; JX-34, pp. 1, 3, 7, 11, 15, 23, 27; GX-186).  On December 14, 2018, Mr. Dow told the employees that day to either wear fall protection or go home, because the prior day’s accident was a “wake up call.”  (Tr. 553; JX-34, pp. 2, 19-22).  When asked if he was the competent person at the worksite, Mr. Dow stated that he was considered the competent person because he was the senior person onsite.  (JX-34, pp. 2, 19-22).  When asked if there was a replacement person for him, Mr. Dow stated there were a couple of other guys that can oversee the crew, but they were not at the site that day, December 14, 2018.  (JX-34, pp. 2, 19-22). 

On December 17, 2018, CO Wilson contacted Shawn Purvis to notify him of the violations he observed at the site on December 13, 2018, and that Purvis would likely receive a citation for those hazards.  (JX-31, p. 4).  During this conversation, Mr. Purvis admitted to CO Wilson that he had seen the crew working on the roof without fall protection that day; CO Wilson ended the call when it became apparent Purvis was becoming agitated.  (JX-31, p. 4).  

During Mr. Dow’s February 2019 deposition, he admitted that Shawn Purvis has the ultimate authority on whether a job is being done according to the agreement with the homeowner.  (GX-45, p. 62).  However, Mr. Purvis didn’t generally get involved during the workday because if a worker had a question, the worker went to either Mr. Dow or Mr. Campos who made “sure it gets done right.”  (GX-45, p. 63).  Even though Mr. Dow could not discipline anyone, if he saw guys get into a fight, he told them to take a walk down the street.  (GX-45, p. 60).  When this occurred, he let Mr. Purvis know what happened at the site that day.  (GX-45, p. 61).  If someone new was at a worksite, Mr. Dow asked if the worker had roofing experience, and if not, then he didn’t allow that person to go onto the roof.  (GX-45, p. 57).  Mr. Dow did this because he felt it was not safe to have someone without experience on a roof, even though he did not consider himself a boss.  (GX-45, p. 57).  Mr. Dow’s actions demonstrate that he felt an obligation to make sure things went well at the site.  

A Citation and Notification of Penalty related to the Portland inspection (Portland Citation) was issued on June 11, 2019, for a total proposed penalty of $1,116,476.  The Portland Citation alleged one serious violation for erecting a ladder jack scaffolding platform closer than the minimum distance to exposed power lines, a serious violation for failure to provide a training program to recognize fall hazards, eight willful violations for failure to provide residential construction fall protection, and one repeat violation for failure to ensure correct use of portable ladders.  Respondent timely contested the Portland Citation, and the case was docketed with the Commission as No. 19-1056.

Citations for Portland Inspection

Serious Citation 1, Item 1 (Portland Inspection, Docket 19-1056)

Employee exposure is established “either by showing actual exposure or that access to the hazard was reasonably predictable.”  Nuprecon LP, 23 BNA OSHC 1817, 1818 (No. 08-1037, 2012) (Nuprecon) quoting Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (emphasis in original), aff’d, 79 F.3d 1146 (5th Cir. 1996).  Employees may come within the zone of danger “while in the course of their assigned working duties, their personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976).  “The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible.”  Calpine Corp., 27 BNA OSHC 1014, 1017 (No. 11-1734, 2018) (finding exposure reasonably predictable where task was on the day’s assignment sheet and the likely route for the worker to carry out the task was adjacent to the unguarded opening), aff'd, 774 F. App’x 879 (5th Cir. 2019) (unpublished).

        Central Maine Power (CMP) provided electricity to the home.  (Tr. 250, 501-05).  The safety manager from CMP verified that the lines were energized at the standard 120/240 residential voltage and that no request had been made to either cover or deenergize the lines.  (Tr. 251, 502-05).  Further, Respondent stipulated there was no request to CMP to turn off the power or to cover the power lines.  (Tr. 251-52; GX-183, p. 15).  Thus, the standard was violated when no attempt was made to have the lines deenergized, moved, or insulated when the scaffold was closer than the three-foot minimum distance.

Knowledge

The Secretary must show that the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.  Peacock Eng'g, Inc., 26 BNA OSHC 1588, 1592 (No. 11-2780, 2017) (citations omitted).  The employer's knowledge is directed to the physical condition that constitutes a violation.  Phoenix Roofing, 17 BNA OSHC at 1079-1080.  It is not necessary to show the employer knew or understood the condition was hazardous.  Id.  

A few months later, at the May 23, 2019, Springvale worksite, discussed below, DOL OIG Special Agent Roberts observed Mr. Dow directing everyone off the roof when they realized “the feds” were at the worksite.  (Tr. 966, 971-72). Mr. Dow then had the employees put on fall arrest equipment while the CO was at the worksite.  (Tr. 972).

During his February 2019 deposition, Mr. Dow stated that he and Flavio Campos are the experienced workers at a worksite. (GX-45, p. 53).  If a worker had no roofing experience, Mr. Dow did not allow that person to work on the roof.  (GX-45, p. 57).  If a worker had a question about what needs to be done at a site, Mr. Dow or Mr. Campos made “sure it gets done right.”  (GX-45, p. 63).  Mr. Dow didn’t have the authority to discipline anyone, but when two guys fought, he told them to take a walk down the street and later informed Mr. Purvis.  (GX-45, pp. 60-61).

Mr. Dow paid workers on behalf of Mr. Purvis.  Ms. [redacted] witnessed Mr. Dow paying A.L. for work at a Purvis worksite when Mr. Purvis was not available.  (Tr. 1105-06, 1150).  A text message from Shawn Purvis to A.L., which states “Pay is at Lenny’s,” supports this observation.  (GX-99, p. 12).  

In addition, Mr. Dow had a long-term relationship with Respondent.  He had worked for Respondent for over fourteen years and in 2018 worked at 40-60 worksites for Respondent.  (Tr. 1609-10; GX-45, p. 13; GX-183, p. 19).  

In his hearing testimony Mr. Dow stated that he had never told an OSHA compliance officer at any time that he was a foreman or in charge.  (Tr. 1600, 1603).  However, the credible record evidence does not support this statement.  Mr. Dow identified himself as the person in charge and ordered employees to wear fall protection at the Portland and OOB worksites. (Tr. 553, 756; JX-25, p. 1; JX-34, pp. 2, 21-22).  The undersigned finds the statements Mr. Dow made to the COs at the worksites and in his depositions are more credible than his statements at the hearing.  The prior statements were made closer in time to the actual events.  Further, the hearing testimony was expressed in such a way as to attempt to protect Respondent from liability.  

Shawn Purvis stated that he spent a few minutes at each worksite at the beginning of a job describing the work to be done, but he made no assignments and generally never returned to a worksite.  (Tr. 1301, 1312-13; GX-46, p. 45).  Respondent asks the undersigned to believe that several individuals doing whatever task they wanted, whenever it suited them, was how the worksite operated.  The assertion that no one was in charge at the worksite is not plausible.  

Re-roofing a house required the implementation of a prescribed series of steps.  Individuals had to work in concert with each other to accomplish this task.  Further, employees stated that when they had questions, they sought the guidance of experienced roofers at the site.  The evidence shows that when there was a question or dispute, Lennie Dow took the lead to resolve the issue.  The other employees at the worksites acknowledged that Mr. Dow was the person that had the lead role at a worksite.

Further, Mr. Dow demonstrated that he felt obligated to make sure things went according to plan at a worksite.  (Tr. 553, 764-65; GX-45, pp. 57, 60-63).  Whether this delegation was explicit or not, after fourteen years of working together, it is clear that Mr. Dow was considered a foreman.  Additionally, Mr. Dow’s payments to employees on behalf of Mr. Purvis are evidence of an explicit delegation of authority.  The undersigned finds that Respondent delegated certain duties both implicitly and explicitly to Lennie Dow.

Respondent also asserts that at the hearing the employees testified there was no worksite boss, they were each their own boss.  (Resp. Br. 35-36).  The undersigned notes that throughout the hearing a pattern emerged from Shawn Purvis and the employee witnesses who worked for him.  The employees seemed to be more assured that no one was in charge at a worksite during the hearing than during their onsite interviews with the CO.  During the onsite interviews, the employees consistently stated they had no bosses, no one told them what to do, when to arrive at or leave a worksite; however, for the roofing work itself they consistently indicated that Mr. Dow was a leader and someone they relied on for advice and guidance.  In contrast, at the hearing the employees seemed to indicate there was no guidance of any kind at any worksite and no one was ever in the lead position.  Further insight into this seeming contradiction is found in the answers from two employees at the OOB worksite. When asked who they worked for they answered, “myself,” but when asked who was the worksite supervisor, they identified Lennie Dow.  (JX-25, pp. 3, 6).  The claim that no one had a lead role at a worksite is not plausible since roofing work required the team to work together to complete tasks in a particular order.  While the workers may not have had an individual who required them to work at a particular project, once work was accepted at a project, the nature of the work required someone to be in charge at that worksite.  

Based on the evidence, the undersigned finds that Lennie Dow’s actions at the worksites establish he was the working foreman at Respondent’s worksites.  Thus, foreman Dow’s actual knowledge that the scaffold was less than the minimum required distance of three feet from the scaffold is imputed to the Respondent.  Knowledge of the hazardous condition is proved.

Serious Characterization

         The Secretary alleged the violation was serious in nature.  A violation is classified as serious under section 17(k) of the Act if “there is a substantial probability that death or serious physical harm could result.”  29 U.S.C. § 666(k).  “[T]he Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.”  Home Rubber Co., LP, No. 17-0138, 2021 WL 3929735, at *5, (OSHRC, Aug. 26, 2021) (Home Rubber) (emphasis in original).

        Here, the scaffold was less than the minimum required distance of three feet from the energized lines.  Contact with the energized lines could result in injuries such as electrical shock, electrical burns, or electrocution.  (Tr. 264; JX-30, p. 4).  Thus, a serious characterization is merited for Citation 1, Item 1.

Penalty

“Once a citation is contested, the Commission has the sole authority to assess penalties.”  Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (citation omitted), aff'd, 73 F.3d 1466 (8th Cir. 1996).  The penalty amount proposed in the citation is given no deference.  See Hern Iron Works, 16 BNA OSHC 1619, 1621 (No. 88-1962, 1994).  

The proposed penalty is $13,260.  (JX-29, p. 6).  In calculating the proposed penalty OSHA assessed the severity as high because contact with the power line could result in serious injuries from electrocution and a resulting fall.  (Tr. 264).  The probability was set as greater due to the close distance of the ladder jack scaffold to the energized power line of six inches. (Tr. 264).  No good faith credit was applied because there was no safety program. (Tr. 265).  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 265-66).  The OSHA Area Director exercised his discretion and allowed no reduction to the penalty for employer size.  (Tr. 900-01; JX-30, pp. 1-2).  The undersigned agrees with the assessment of gravity, good faith, and history.

Respondent asserts that the penalties proposed by the Secretary are not appropriate because there was no consideration for good faith, no credit for size, and penalties cannot be so destructive or so excessive as to cause an undue hardship on Respondent.  (Resp. Br. 85).  

Respondent’s assertion there should be a discount for good faith is rejected.  The Respondent has not exhibited behavior to merit a discount for good faith.  See E.L. Davis Contracting Co., 16 BNA OSHC 2046, 2049 (No. 92-35, 1994) (holding employer deserved no credit for good faith where the owner “testified that he purposely failed to pay the penalties” from prior citations).  Respondent’s assertion that the proposed penalties would inflict an undue hardship is also rejected.  Undue hardship requires an assessment of Respondent’s overall financial health, which is not in evidence here.  However, the undersigned finds that a reduction due to the employer’s small size is appropriate.  “The Commission has viewed the size factor as ‘an attempt to avoid destructive penalties’ that would unjustly ruin a small business.”  A-1 Sewer & Water Contractors, Inc., No. 21-0562, 2022 WL 2102909, at *12 (OSHRC, June 1, 2022), quoting Colonial Craft Reprod., Inc., 1 BNA OSHC 1063, 1065 (No. 881, 1972) (size is related to financial condition and adjusting for size is an attempt to “avoid destructive penalties”).

Based on the small size of this employer, the undersigned applies a 30% reduction to the penalty for the size of the employer.  Further, the undersigned applies a 10% increase to this reduced penalty due to Respondent’s significant history of OSHA inspections resulting in citations.  

Citation 1, Item 1 is affirmed as a serious violation with an assessed penalty of $10,210.

Serious Citation 1, Item 2 (Portland Inspection, Docket 19-1056)

Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.503(a)(1), which sets forth:

(a) Training program.  (1) The employer shall provide a training program for each employee who might be exposed to fall hazards. The program shall enable each employee to recognize the hazards of falling and shall train each employee in the procedures to be followed in order to minimize these hazards.

Serious Characterization & Penalty

        The Secretary alleged the violation was serious in nature.  Home Rubber, 2021 WL 3929735, at *5.  (“[T[he Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.”) (emphasis in original).  The Secretary asserts fall hazard training is necessary to provide employees with information on how to avoid falls that can result in serious injuries.  (Tr. 274-76).  The undersigned agrees the violation is serious.

The proposed penalty is $13,260.  To calculate the proposed penalty the severity was assessed as high because untrained employees could sustain serious injuries from a fall.  (Tr. 274-75).  The probability was set as greater because the work was on a steep pitch roof at heights over twenty feet. (Tr. 275).  No good faith credit was applied due to the lack of a safety program. (Tr. 265, 275).  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 265-66, 275).  The OSHA Area Director exercised his discretion and allowed no reduction to the penalty assessed for size.  (Tr. 901, 906; JX-30, pp. 5-6).  The undersigned agrees with the assessment for gravity, good faith, and history.  As discussed above, the undersigned applies a 30% reduction to the proposed penalty due to the size of the employer and applies a 10% increase to this reduced penalty due to Respondent’s OSHA history.  

        The Secretary asserts that eight employees worked at heights above six feet without fall protection.  The Secretary issued the citations on a per-employee (per-instance) basis for employees A.L., Michael Wright, Anthony Gallant, Michael Happersett, Ryver Daigle, Forrest Daigle, Lennie Dow, and Flavio Campos.

        Respondent asserts that none of the eight named individuals were employees of the Respondent.  For the reasons set forth above, Respondent was the employer of the employees at the Portland worksite.

Applicability

        Employees were engaged in residential construction activities, roofing work, at the Portland worksite.  Employees were working at heights greater than six feet from the ground; the fall distance ranged from twenty-one to thirty-four feet.  The standard applies.

        Respondent argues the standard is not applicable to Citation 2, Item 1, because A.L. was working from a scaffold at the time of his fall and the cited standard does not apply to falls from scaffolds.  (Resp. Br. 66-67).  Respondent’s argument is rejected.  A.L.’s location at the moment of his fall is not the relevant inquiry. A.L. was not exclusively working from the ladder jack scaffold.  A.L. worked on the roof without fall protection and was exposed to falls over six feet.

Thus, the standard applies to the eight exposed employees.

Exposure

        The Secretary issued a citation for each exposed worker on the roof, under OSHA’s violation-by-violation (per-instance) citation policy, rather than a single citation for all exposed employees.  

        Item 1 asserts A.L. was exposed to fall hazards.  A.L. was engaged in roofing work on December 13, 2018.  He was leaving the roof when he fell.  (GX-105).  Exposure for Citation 2, Item 1 is proved.

        Item 2 asserts Michael Wright was exposed to fall hazards.  Mr. Wright was working on the right side of the roof in front of the dormer on December 13, 2018.  (GX-45, pp. 38, 84).  Exposure for Citation 2, Item 2 is proved.

Item 3 asserts Anthony Gallant was exposed to fall hazards.  Mr. Gallant was working on the right side of the roof just behind the dormer on December 13, 2018.  (Tr. 1775, 1805; GX-45, pp. 38-40, 84).  Exposure for Citation 2, Item 3 is proved.

Item 4 asserts Michael Happersett was exposed to fall hazards.  Mr. Happersett was working on the right side of the roof in front of the dormer on December 13, 2018.  (Tr. 1633; GX-45, pp. 38, 84).  Exposure for Citation 2, Item 4 is proved.

Item 5 asserts Ryver Daigle was exposed to fall hazards.  Ryver Daigle confirmed he was engaged in roofing work at the Portland worksite on December 13, 2018.  (Tr. 1842-43).  Exposure for Citation 2, Item 5 is proved.  

Item 6 asserts Forrest Daigle was exposed to fall hazards.  Forrest Daigle was working on the roof on December 13, 2018, when he saw A.L. fall while attempting to get off the roof.  (GX-105).  Exposure for Citation 2, Item 6 is proved.

Item 7 asserts Lennie Dow was exposed to fall hazards.  Foreman Dow was working on the right side of the roof in front of the dormer on December 13, 2018.  (GX-45, pp. 38, 84).  Exposure for Citation 2, Item 7 is proved.

Item 8 asserts Flavio Campos was exposed to fall hazards.  Mr. Campos was at the back of the roof’s right side laying shingles on December 13, 2018.  (GX-47, pp. 54-57, 115).  Exposure for Citation 2, Item 8 is proved.

All eight named employees were exposed to fall hazards at the Portland worksite.

Violation of Standard

No fall protection was in use at the site on December 13, 2018.  Detective Tulley saw no signs that anyone had been wearing personal fall arrest equipment when he arrived at the site and Forrest Daigle told him they were not wearing fall protection.  (Tr. 58; GX-105, p. 6).  Evidence Technician Reeder saw no fall protection equipment at the site or among A.L.’s clothing at the hospital.  (Tr. 48-49).  Foreman Dow admitted they were all working in plain view without fall protection.  (GX-45, pp. 38-40). Mr.  Campos admitted that he was not using fall protection.  (GX-47, pp. 53-54, 63).  CO Wilson’s December 13, 2018 discussions with employees and the December 14, 2018 signed statements from employees confirm they were not wearing personal fall arrest equipment.  (Tr. 155-56; JX-34, pp. 1, 3, 8, 23; GX-186).  Further, CO Wilson observed there was no safety net system in place or the components to erect a guardrail system at the site.  (Tr. 302-03).

Because there was no means of fall protection in use at the site, the requirements of the standard were violated.

Knowledge

        Respondent asserts the violations cannot be willful because Mr. Purvis had a good faith belief that the workers were independent contractors, and he was not responsible for their safety.  (Resp. Reply Br. 13-16).  As set forth above, Respondent is the employer at the Portland worksite for purposes of the OSH Act and thus, responsible for safety at the worksite.

“A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference.”  Angel Bros. Enters., Ltd., No. 16-0940, 2020 WL 4514841, at *8 (OSHRC, July 28, 2020) (Angel Bros.) (citations omitted); see also A.E. Staley Mfg. Co. v. Secy of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002) (upholding Commission’s determination that employer’s plain indifference justified a willful violation); Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st Cir. 1987) (Morello Bros. Constr.) (“an act may be willful if the offender shows indifference to the rules”).

The Secretary is not required to show the employer had a malicious motive in order to prove a willful violation.  Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001) (Kaspar Wire).  (“An employer's motive for failing to comply with the Act's requirements, however, need not be evil or malicious in order to find a violation willful.”).  “Secretary can establish intentional disregard for the Act’s requirements by showing that “the employer was actually aware, at the time of the violative act, that the act was unlawful . . ..”  Home Rubber, 2021 WL 3929735, at *2 citing AJP Constr., Inc. v. Sec'y, 357 F.3d 70, 74 (D.C. Cir. 2004) (AJP Constr.) (citation omitted).  

“The Commission has found heightened awareness where an employer has been previously cited for violations of the standards in question, is aware of the requirements of the standards, and is on notice that violative conditions exist.”  Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999) (citations omitted); see also, AJP Constr., 357 F.3d at 74 (upholding willful violation “because prior citations and warnings coupled with [employer’s] failure to act demonstrated that it was aware of the unsafe conditions and yet chose not to correct them”).

In 2006, CO Simmons visited Respondent’s worksite and presented a two-hour training on OSHA’s fall protection requirements to Mr. Purvis and his workers as part of a settlement for prior citations.  (GX-46, pp. 34-36; GX-165, pp. 50-52, 79-80).  Mr. Purvis admitted that he had been aware since 2006 that OSHA required fall protection when working over six feet.  (GX-165, p. 77).     

Mr. Purvis confirmed that he had reviewed the August 2018 citations issued for the Mussey Road inspection that included a citation for a violation of § 1926.501(b)(13), which is the same fall protection standard at issue here.  (GX-46, p. 38).  About one month before the accident at Respondent’s Portland worksite, CO Simmons talked to Mr. Purvis about abatement for the Mussey Road fall protection citation.  (Tr. 385-86; GX-32).  

Mr. Purvis was aware of the standard’s requirements, knew that employees would necessarily be working at heights over six feet, and knew they generally did not wear fall protection.  Yet, Purvis made no effort to ensure the employees used fall protection at Respondent’s worksite.  Further, the many years Respondent received OSHA citations for fall hazard violations and Mr. Purvis’s general attitude that fall protection was not necessary, demonstrate Mr. Purvis was also plainly indifferent to fall hazards at Respondent’s worksite.  Respondent showed intentional disregard of the standard’s requirements, was plainly indifferent to the safety of the employees, and had a heightened awareness based on its own history of citations for fall protection violations.  See Angel Bros., 2020 WL 4514841, at *8 (“willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference”).  The violations are willful.  

Good faith defense not supported

“A willful charge is not justified if an employer has made an objectively reasonable, good faith effort to comply with a standard or to eliminate a hazard even though the employer's efforts are not entirely effective or complete.”  Revoli Constr. Co., 19 BNA OSHC 1682, 1685 (No. 00-0315, 2001) (citation omitted); see also, Elliot Constr. Corp., 23 BNA OSHC 2110, 2117 (No. 07-1578, 2012).  The test is “an objective one—whether the employer's belief concerning a factual matter or concerning the interpretation of a standard was reasonable under the circumstances.” Williams Enters., Inc., 13 BNA OSHC 1249, 1259 (No. 85-355, 1987) (Williams Enters.). “[A]n employer is not necessarily spared from a finding of willfulness by taking any measure, regardless of how minimal, to enhance employee safety.” J.A. Jones Constr., 15 BNA OSHC at 2209 (emphasis added). “[T]he employer bears the burden of proving that its belief was objectively reasonable under the circumstances or, in other words, nonfrivolous.”  Dover High Performance Plastics, Inc., No. 14-1268, 2020 WL 5880242, at *4 (OSHRC, Sept. 25, 2020) (citations omitted).

Respondent asserts that a willful characterization is not merited here because Shawn Purvis had a good faith belief the business was operated in such a way that OSHA regulations would not apply.  (Resp. Br. 77).  Respondent asserts that when Mr. Purvis began issuing IRS-1099 forms to the workers, he thought this meant they were independent contractors.  (Tr. 1234-39).  Mr. Purvis claimed that he looked at the state workers’ compensation guidelines to determine whether his workers were independent contractors.  (Tr. 1234, 1239, 1253-54; GX-148).  Mr. Purvis also believed that his annual applications to the State of Maine Workers’ Compensation Board for a rebuttable presumption of independent contractor status supported his position that OSH regulations did not apply to his business.  (Resp. Br. 77-78).  Respondent asserts that Mr. Purvis’s good faith belief was further demonstrated when he told the COs at prior inspections that he had no employees.  (Resp. Br. 79-80).   These arguments are rejected.  

As a basis for his good faith belief, Respondent points to the discussion between Mr. Purvis and OSHA AD McGuan during the 2012 Fieldings inspection, discussed above, in which Mr. Purvis thought he had proved to OSHA that he had no employees.  Even if Mr. Purvis believed that AD McGuan had agreed with him during the 2012 Fieldings inspection, subsequent citations from OSHA evidenced his belief was incorrect.  

Further, Mr. Purvis’s reference to or reliance on IRS or workers’ compensation guidelines is not a good faith attempt to determine whether Mr. Purvis was responsible for safety at Respondent’s worksites.  Mr. Purvis cites no reason for his belief that rules of other government agencies would also apply to his duties and responsibilities under the OSH Act. This is especially so, as the OSHA Compliance Officer who inspected Respondent’s Mussey worksites informed Mr. Purvis that the OSHA regulations applied to those Respondent worksites. (JX-20; GX-165, pp. 107-08).  Mr. Purvis states that he had not consulted with an attorney or government agency for guidance regarding OSHA regulations applicable to the business.  (GX-46, pp.70, 82).  He had access to advice from Neil Stillman, the corporation’s clerk, but did not take advantage of this resource.  Instead, Mr. Purvis chose to rely on his own review of information related to other agencies to conclude he had no responsibility for safety at his worksites.

Relying on his applications to the State of Maine was also not an objective good faith belief he had no employees.  The application to the State of Maine Workers’ Compensation Board had no connection to OSHA.  The application form stated a “predetermination from the Board is not binding on the [Maine] Department of Labor” and the application only pertained to the applicant.  (Tr. 1034-36; GX-173, p. 2).  Therefore, even if the applicant was an independent contractor in Maine’s workers’ compensation system, it did not mean the applicant’s workers at a worksite were independent contractors.  (Tr. 1052).

As further support, Respondent points to an October 30, 2018 letter he received from the U.S. Department of Justice regarding the closure of a referral to the Department of Treasury for “certain citations and penalties” issued by OSHA, as proof for his good faith belief he had no employees.  (Resp. Br. 81-82).  This letter simply stated that a previous referral to the Treasury Department was closed, and the penalties withdrawn; it made no representation that Respondent generally had no OSHA obligations or responsibilities at his worksites.  (GX-148, p. 3).  This letter does not support Mr. Purvis’s belief that his workers were independent contractors.

Respondent’s belief that he had no obligation to comply with OSHA regulations is not objectively reasonable and does not support a good faith defense.  Respondent took no actions to confirm his belief was accurate even after he received multiple citations from OSHA for violations at his worksites.  See Williams Enters., 13 BNA OSHC at 1259 (Employer’s belief must be objectively reasonable under the circumstances).

Finally, Respondent asserts that his good faith belief does not need to be reasonable.  (Resp. Br. 82-83, citing Cheek v. U.S., 498 US 192, 202 (1991) (at issue were inappropriate jury instructions in a criminal tax case)).  In Cheek, the Court held the judge had erred when he instructed the jury the defendant’s belief was not objectively reasonable and as such, they could not consider it during their deliberation.  Id. at 203.  The Court stated that this jury instruction was outside the judge’s role; that “knowledge and belief are characteristically questions for the factfinder.”  Id.  The issues in Cheek have little relevance to the instant case.  The case here does not concern a criminal charge related to the tax code.  Here, the undersigned is the fact finder, not a jury.  Further, the Court in Cheek was evaluating willfulness under federal tax precedent.  Id. at 201.  Cheek is not apt to the issues here.  Respondent’s argument is rejected.  

Respondent’s good faith defense against willfulness fails.  See Morrison-Knudsen Co., 16 BNA OSHC 1105, 1124 (No. 88-0572, 1993) (citations omitted) (employer bears the burden of proving that its belief was objectively reasonable under the circumstances). The violations are willful.

Violation-by-Violation Penalty Assessment (Per-Instance Policy)

        The Directive sets forth policy guidance regarding cases where the Secretary exercises prosecutorial discretion to issue per-instance citations.  See generally, Kaspar Wire Works, Inc., v. Sec’y of Labor, 268 F.3d 1123, 1131 (D.C. Cir. 2001) (“Secretary’s decision to assess per instance penalties reflects use of an enforcement tool within her authority”). Three requirements provide guidance for the issuance of per-instance citations: (1) the violation must be willful; (2) the violation must fall within at least one of the seven enumerated categories; and (3) the language of the cited OSHA standard must support citation of discrete violations.  Directive, section H (Guidance).  The seven enumerated categories include, among others, an employer with extensive history of prior violations, a violation that results in a fatality or large number of injuries, and an employer’s overall conduct that amounts to clear bad faith.  Id.

        Here, the Secretary followed the policy guidance stated in the Directive.  As discussed above, the violations are willful in nature.  Further, Respondent met several of the seven enumerated categories—Respondent had knowledge of the OSHA requirement, the violation resulted in a fatality, Respondent has an extensive history of OSHA violations, and Respondent’s conduct overall showed clear bad faith to his duties under the OSH Act.  Finally, the cited standard’s text sets forth the duty for fall protection to be provided “per employee.”  

        Per-instance citations are supported by Commission precedent.  The Commission has long-held the Act supports per-instance penalty assessments.  See Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2001 (No. 89-265, 1997) (Section 17(j) of the Act allows for per-instance penalties); Sanders Lead Co., 17 BNA OSHC 1197, 1204-05 (No. 87-260, 1995) (assessing per-instance penalties for violations of lead medical removal protection standard) (Sanders); J.A. Jones Constr., 15 BNA OSHC at 2213-14 (instance-by-instance penalties assessed based on failure to provide fall protection guarding); Caterpillar, Inc., 15 BNA OSHC 2153, 2173 (No. 87-0922, 1993) (Commission has authority to assess separate penalties for separate violations of a single standard); Hoffman Constr. Co., 6 BNA OSHC 1274, 1275 (No. 4182, 1978) (allowing per-instance penalty for each  improperly guarded scaffold).      

The determination of an “instance” depends on the action required to meet the requirements of the cited standard. See Gen. Motors, 2007 WL 4350896, at *36-38 (duty to provide LOTO training and retraining for each employee); Andrew Catapano Enters., Inc., 17 BNA OSHC 1776, 1778-79 (No. 90-0050, 1996) (consolidated) (violation for each unprotected trench at a worksite); Sanders, 17 BNA OSHC at 1200 and 1203 (separate penalties assessed for each violation of medical removal standard and each instance of failure to provide a respirator fit-test);  J.A. Jones Constr., 15 BNA OSHC at 2212 (affirmed violations for each instance of unguarded floor or wall openings at a construction site); Hoffman Constr., 6 BNA OSHC at 127 (affirmed violation for each improperly guarded scaffold).

Hartford holds:

Some standards implicate the protection . . . of individual employees to such an extent that the failure to have the protection in place for each employee permits the Secretary to cite on a per-instance basis.  However, where a single practice, method or condition affects multiple employees there can be only one violation of the standard.  

Hartford, 17 BNA OSHC at 1365.  The facts of Hartford are not an apt comparison.  In Hartford, employees worked on a flat, low-pitch roof.  There, the judge and Commission found the violation at the Hartford site was caused by a “single course of conduct”—a lack of perimeter guarding—that would have resolved the issue for all exposed employees.  Hartford, 17 BNA OSHC at 1362.

Here, to comply with the cited standard the employer may choose one of three fall protection options—a personal fall arrest system, guardrails, or a safety net system. § 1926.501(b)(13).  Due to the proximity of the neighboring homes a safety net system could not be installed at this worksite.  (Tr. 302-03, 581).  A guardrail system was not available for use at the site; even so, installation of a guardrail would require a worker to use a personal fall arrest system during installation, and a guardrail would have to be moved frequently during the roofing process.  (Tr. 302-03).  Further, the steep pitch of the roof made installation of an effective guardrail system difficult.  (Tr. 302).  Finally, no components of a guardrail system were available at the worksite.  (Tr. 302).  As demonstrated by the use of personal fall arrest systems by the employees the day after the accident, a personal fall arrest system was the means available at the worksite to protect employees.  

Because a personal fall arrest system was needed to protect each exposed employee, per-instance citations are supported by the cited standard.  See Smalis, 2009 WL 1067815, at *31 (per-instance violations and penalties are appropriate for individual acts); see generally, J. A. Jones Constr., 15 BNA OSHC at 2213 (“we affirm the judge's decision that individual penalties may be assessed for each instance of improper fall protection”).  The undersigned affirms the eight cited violations of 29 C.F.R. § 1926.501(b) (13).  

Penalty Amount

The proposed penalty for each instance is $132,598 (the total proposed for the eight cited willful items was $1,060,784.  (Tr. 908-99; JX-29, p. 25).  Severity was assessed as high because roofers were working at heights from twenty-one to thirty-four feet, and a fall from that height can result in death.  (Tr. 304-05).  Probability was assessed as greater because of the steepness of the roof increasing the likelihood of a fall.  (Tr. 305).  No reduction was applied for good faith due to the lack of a safety program.  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 265-66, 281, 305, 909).  The OSHA Area Director exercised his discretion and allowed no reduction for size in the proposed penalty.  (Tr. 901, 906; JX-30, pp. 10, 16, 23, 29, 35, 41, 47).  The undersigned agrees with the assessments for gravity, good faith, and history.

Just five days earlier, the day of A.L.’s fatal fall, foreman Dow and these same four employees had also worked at Respondent’s Portland worksite without fall protection.  Worksite foreman Dow had been on the garage roof stripping shingles before the COs arrived.  (GX-45, p. 49).  The crew had removed the prior night’s snow from the garage and breezeway roofs before beginning their work.  Snow remained on the roof of the rest of the home.  (Tr. 326-27; GX-112). 

The height from the breezeway roof to the ground was eight feet, seven inches and from the garage’s eave to the ground was ten feet, four inches.  (Tr. 757, 763; GX-117; GX-112, p. 13; GX-112[11A]; GX-112[17A]).  The peak of the garage was fifteen feet, eight inches from the ground. (Tr. 333; GX-118, pp. 4-5). The pitch of the garage roof was 5:12 (5 in 12).  (Tr.  611-16; JX-26, pp. 2, 6-7; JX-28, p. 7).

CO Wilson observed vehicles with Respondent’s name at the worksite—the dump truck was in the driveway and the box truck was parked on the street in front of the residence.  (Tr. GX-112, pp. 11, 20, 25).  CO Simmons began taking photographs of the worksite.  (Tr. 326; GX-112).  The COs obtained signed interview statements from Lennie Dow and five other employees.  (Tr. 328-30; JX-25).  When asked for the name of their supervisor, four of the five employees responded that Mr. Dow was the supervisor.  (Tr. 330; JX-25, pp. 2, 3, 5, 6).   

During his interview, worksite foreman Dow stated he had thought it would be okay to proceed that day without fall protection.  (JX-25, p. 1).  As the COs spoke with Lennie Dow, they requested the employees use the fall arrest equipment that was in Respondent’s box truck.  (Tr. 764). At foreman Dow’s direction, the employees set up the equipment and used the personal fall arrest equipment the remaining time the COs were onsite. (Tr. 764; GX-45, p. 27; GX-112, pp. 21-22, 24-26).  Mr. Dow confirmed that as soon as the COs left the worksite, the employees removed the fall protection.  (GX-45, p. 27). 

A Citation and Notification of Penalty related to the Old Orchard Beach worksite (OOB Citation) was issued on June 11, 2019, for a total proposed penalty of $676,250.  (JX-23).  The OOB Citation alleged one serious violation for lack of eye protection and five willful violations for failure to provide fall protection to roofers.  Respondent timely contested the OOB Citation, and the case was docketed with the Commission as No. 19-1054.

As set forth below, Citation 1, Item 1 and Citation 2, Items 1 through 5 are affirmed.

Citations for OOB Inspection

Serious Citation 1, Item 1 (OOB Inspection, Docket 19-1054)

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.102 (a)(1), which sets forth:

(a) General. (1) The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.

The Secretary alleges that Forrest Daigle was operating a pneumatic nail gun without eye protection.  (JX-23, p. 6).  Respondent alleges the standard does not apply because the Secretary did not establish there was a hazard that required the use of eye protection.  (Resp. Br. 70).  

Applicability & Violation of the Standard

When an employer is required to provide personal protective equipment upon the condition of a hazard, the Commission has set forth the following test.

In determining whether [the employer] should have been aware of the existence of a hazard requiring it to use protective equipment, we apply the well-established principle that a broad regulation must be interpreted in the light of the conduct to which it is being applied, and external, objective criteria, including the knowledge and perceptions of a reasonable person, may be used to give meaning to such a regulation in a particular situation.

Andrew Catapano Enters., 17 BNA OSHC at 1783 (citations omitted).  The evidence of a risk of harm from the hazard can be shown a number of ways, including lay opinion testimony. Id.    

Respondent asserts there is no evidence the use of the nail gun presented a hazard of flying particles into the eye or a misfired nail.  (Resp. Br. 70-71).  As support, Respondent offers the testimony of the worker Forrest Daigle that a safety nozzle prevented the gun from misfiring and that in seven years he did not know of an instance where particles came out of a nail gun.  (Tr. 1819-20).  

Respondent asserts CO Wilson’s testimony does not support the existence of a hazard here.  (Resp. Br. 71-72).  Further, Respondent asserts that Mr. Daigle’s testimony about the use of the nail gun should be given greater weight than the CO’s testimony.  The cases Respondent relies on for this assertion are inapt here.  In ConAgra Flour Milling Co., the Commission found the Secretary’s witness did not have a realistic understanding of how the operation in question, filling batteries with fluid, was performed and thus found the testimony of ConAgra’s witnesses, who had first-hand experience with the process, merited greater weight.  16 BNA OSHC 1137, 1141 (No. 88-1250, 1993) (generally employees’ knowledge of a specific work activity is given greater weight than a witness without first-hand experience of the work operation), rev’d on other grounds, 25 F.3d 653 (8th Cir. 1984).  Here, the nail gun’s use is not disputed, and the Secretary’s witness had first-hand experience with its operation.

The other case relied on by Respondent is also inapt.  Donovan v. GMC, 764 F.2d 32, 37 (1st Cir. 1985).  In Donovan, the court found that the employer’s recommendation to its employees to wear steel-toed shoes was not an adequate basis for an OSHA citation where the Secretary's witness had little first-hand experience with the operations of an automotive parts warehouse.  Donovan, 764 F.2d at 37 (giving weight to the testimony of employer’s witnesses that it was not the custom and practice to wear safety shoes at an automotive warehouse where Secretary’s witnesses had no first-hand experience).  Here, Respondent’s only support is from Mr. Daigle, who had no experience with nail gun safety and was using a borrowed nail gun.  (Tr. 1818).

        The pneumatic nail gun was used to install shingles without the use of eye protection.  The cited standard applies and was violated.

Exposure & Knowledge

        CO Wilson observed and photographed Forrest Daigle using a pneumatic nail gun owned by the Respondent without wearing any kind of eye protection.  (Tr. 337-38, 341, 1817-18; JX-24; JX-28; GX-112).  Exposure is proved.  

Respondent had actual knowledge that Mr. Daigle was not wearing eye protection through worksite foreman Lennie Dow.  When CO Wilson arrived, foreman Dow was standing in the driveway with a plain view of Forrest Daigle using the nail gun to install shingles.  (Tr. 341; JX-24).  As discussed above, as the worksite foreman, Dow’s knowledge is imputed to Respondent.  The Secretary has proved the cited standard was applicable.  

Serious Characterization & Penalty

        The Secretary alleged the violation was serious in nature.  Home Rubber, 2021 WL 3929735, at *5 (“The Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.”) (emphasis in original). The Secretary asserts injury or loss of vision can occur from the lack of eye protection while using a pneumatic nail gun.  (Tr. 342-43).  The undersigned agrees the violation is serious.

The proposed penalty is $13,260.  To calculate the proposed penalty the severity was assessed as high because of the serious injury that can result.  The probability was set as greater because it is unknown what lies below the surface being nailed into.  No good faith credit was applied due to the lack of a safety program.  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 342-43).  The OSHA Area Director exercised his discretion and allowed no reduction to the penalty assessed for size.  (Tr. 910-11; JX-24, pp. 1-2).  The undersigned affirms the assessments for gravity, good faith, and history.  As discussed above, the undersigned applies a 30% reduction to the proposed penalty due to the size of the employer and applies a 10% increase to this reduced penalty for Respondent’s history of OSHA citations.  

Citation 1, Item 1 is affirmed as a serious violation with an assessed penalty of $10,210.

Willful Citation 2, Items 1 through 5 (OOB Inspection, Docket 19-1054)

Citation 2, Items 1 through 5 allege a willful violation of 29 C.F.R. § 1926.501(b)(13), which requires, in pertinent part:

(13) Residential construction. Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.

        The Secretary issued the citations on a per-employee (per-instance) basis.  The Secretary asserts that five employees were roofing at heights above six feet without fall protection.  Respondent asserts that it was using a safety monitoring system as an alternative fall protection measure, as set forth at 29 C.F.R. § 1926.510(b)(10). (Resp. Br. 73).

Applicability

        Employees were engaged in residential construction activities, roofing work, at the OOB worksite.  (Tr. 345-47, 761-64; GX-112; JX-28).  The distance from the roof to the ground ranged from eight feet, seven inches to fifteen feet, eight inches.  (Tr. 333, 757, 763; JX-28).  The standard applies.

Exposure

        The Secretary issued five citations, a citation for each exposed worker on the roof at the OOB worksite, under OSHA’s violation-by-violation citation policy, rather than a single citation for all exposed employees.  

        Item 1 asserts Forrest Daigle was exposed.  Mr. Daigle was photographed at two areas, the first was the garage roof near where it intersected the breezeway roof and the second was farther up the garage roof.  (Tr. 1817-18; JX-24; JX-28, p. 2; GX-112, pp. 5-8, 13).  Exposure for Citation 2, Item 1 is proved.

        Item 2 asserts Anthony Gallant was exposed.  Mr. Gallant was photographed standing on the breezeway roof.  (Tr.  348, 1785-87; GX-112, pp. 11-12; JX-24; JX-28, p. 3).  He claimed it was his day to “stand around” and make sure no one was too close to the edge.  (Tr. 1784).   Exposure for Citation 2, Item 2 is proved.

Item 3 asserts Michael Wright was exposed.  Mr. Wright was photographed kneeling on the breezeway roof.   (Tr.  348; GX-112, pp. 11-12; JX-24; JX-28, p. 4).  Exposure for Citation 2, Item 3 is proved.

Item 4 asserts Michael Happersett was exposed. Mr. Happersett was photographed standing on the garage roof. (Tr.  348; GX-112, pp. 13-14; JX-24, p. 22; JX-28, pp. 5-6).  Exposure for Citation 2, Item 4 is proved.

Item 5 asserts Lennie Dow was exposed.  Foreman Dow had been on the garage roof prior to the CO’s arrival, stripping shingles without the use of fall protection.  (Tr. 348-49; GX-45, p. 49; JX-25, p.1).  Exposure for Citation 2, Item 5 is proved.

Knowledge

Worksite foreman Lennie Dow was at the site and saw the employees without fall protection.  Further, during his interview, Mr. Dow admitted that earlier that morning he had been working on the roof without fall protection.  The crew had believed it wasn’t that dangerous, so no one had worn fall protection.  (Tr. 327; GX-45, p. 49; JX-25, p. 2).  As discussed above, as the foreman, Dow’s knowledge can be imputed to Respondent.  See Jacobs Field, 25 BNA OSHC at 1218 (citations omitted) (“The actual or constructive knowledge of a supervisor is imputable to the employer.”).  

Violation of Standard

The distance of a potential fall ranged from eight feet seven inches to fifteen feet eight inches.  (Tr. 332-333, 757, 763; GX-118).  None of the three fall protection methods set forth in § 1926.501(b)(13) were in use at the worksite.  Personal fall arrest systems were not in use.  (Tr. 344-46, 349, 761; JX-25, pp. 1, 2, 5; GX-112, pp. 6-13).  There were no guardrails and no safety net system at the site.  (JX-26, pp. 6-7).

Employees were not using fall protection and were exposed to falls greater than six feet.  The standard was violated.

A safety monitoring system was not used as fall protection

Respondent asserts that it was using a safety monitoring system as fall protection at the site with Anthony Gallant as the monitor.  This argument fails for several reasons.  

Shawn Purvis’s estimate that the pitch of the garage roof was 4:12 (4 in 12) or less is given less weight than the CO’s testimony that the pitch was 5:12 (5 in 12).  (Tr. 1356-57).  Respondent asserts CO Wilson’s use of a “roof pitch guide” template to calculate the slope of the roof was not a reliable means to accurately calculate pitch.  (Resp. Br. 73).  The template is a transparent plastic guide with pre-printed roof angles at various degrees of pitch.  The template is visually aligned with the roofline at the site or laid over a photograph of the roof to match the roof’s pitch to the angle on the template.  (Tr. 271, 611-13, 615-16; JX-28, p. 7).  COs routinely use this template to determine a roof’s pitch.  (Tr. 616, 845-46).  

The undersigned credits CO Wilson’s testimony of the roof’s pitch.  CO Wilson used a tool that is routinely used by OSHA to determine the pitch of a roof.  Shawn Purvis described no method or tool he used to calculate the pitch of the roof.  CO Wilson used photographs of the roof, whereas Mr. Purvis recalled his visual assessment of the roof when providing a bid to the customer.  Further, the lack of any prior assertion that a safety monitoring system was in use leads the undersigned to conclude that Mr. Purvis’s estimate of the roof pitch was contrived to meet the definition of a low-slope roof.  Mr. Purvis’s testimony on the pitch of the roof at the OOB worksite is given no weight.

Second, a safety monitoring system without a warning line system may only be used on a roof that is 50-feet or less in width.  29 C.F.R. § 1926.501(b)(10).  There is no evidence in the record regarding the width of the roof at the OOB worksite.  Thus, a safety monitoring system alone was not allowed.

There was also no mention by Mr. Purvis during his two days of hearing testimony that Anthony Gallant was a safety monitor at the OOB site or that a safety monitoring system had been in use at the OOB site.  During direct examination Mr. Purvis identified Anthony Gallant in a photograph standing on the breezeway roof, but there was no testimony adduced about Mr. Gallant’s activity on the roof in that photograph.  (Tr. 1358; GX-112, p. 10).  Because there was no other testimony or other evidence that a safety monitoring system was in use at the OOB worksite, Mr. Gallant’s testimony on this point is given no weight.  The undersigned finds that a safety monitoring system was not in use at the site.  

        Respondent’s assertion that a safety monitoring system was being implemented at the OOB worksite as fall protection is rejected.  This worksite did not meet the criteria for the use of a safety monitoring system alone and further, Respondent did not meet the requirements of such a system.

        There was no fall protection in use at the worksite, thus the cited standard was violated.

 For the same reasons set forth regarding the Portland Citation, discussed above, a willful characterization is supported for the fall protection violations at the OOB worksite.  

 Shawn Purvis was aware of the standard’s requirement, knew the workers would be working at heights over six feet, and knew they generally did not wear fall protection.  Mr. Purvis had received citations for fall protection violations from OSHA at prior worksites.  His general attitude demonstrated a plain indifference to fall protection safety at the worksite.  Just five days before, a worker fell to his death at Respondent’s Portland worksite due to a lack of fall protection, yet no efforts were made to have the employees at the OOB worksite use fall protection.  As discussed above, Respondent’s good faith defense fails.  

A willful characterization is supported for the fall protection violations at the OOB worksite.

Violation-by-Violation Penalty Assessment (Per-Instance)

        Rather than issuing one citation item for the violation of 29 C.F.R. § 1926.501(b)(13), the Secretary issued five willful citation items, one for each exposed worker on the roof at the OOB worksite, under OSHA’s violation-by-violation citation policy.  

The cited standard allows an employer a choice of three options for fall protection: a personal fall arrest system, guardrails, or a safety net system. 29 C.F.R. § 1926.501(b)(13).  Due to the configuration of the home and surrounding environment a safety net system could not be installed at this worksite.  (JX-26, p. 7; GX-112, pp. 14, 18—displaying proximity of trees and shrubs; see Tr. 302-03, 581).  Components to assemble a guardrail system were not available at the site.  (Tr. JX-26, pp. 6-7). Further, the worksite job was re-roofing.  During the initial installation of a guardrail system, use of a personal fall arrest system would be required.  During re-roofing, as the old roof was removed and the new roof installed, the guardrail system frequently would have to be repositioned. (Tr. 302-03; JX-26, p. 6).  As demonstrated by the donning of the personal fall arrest systems while the COs were at the site, a personal fall arrest system was provided for use at the site.  (Tr. 764-65; JX-26, pp. 6-7; GX-112, pp. 21, 22, 24).  Respondent did not provide equipment to erect a safety net system or guardrail equipment. (JX-26, p. 7).

        As discussed above, the cited standard supports citing on a per-instance basis.  The duty set forth under the standard is to provide a fall protection method to protect each employee working at heights above six feet.  See generally, J. A. Jones Constr., 15 BNA OSHC at 2213 (“we affirm the judge's decision that individual penalties may be assessed for each instance of improper fall protection”).  A per-instance penalty may be assessed here. The undersigned affirms the five cited violations of 29 C.F.R. § 1926.501(b) (13).  

Penalty

As stated above, the cited standard supports a per-instance penalty.  However, the undersigned finds that a 30% reduction to the maximum penalty for Respondent’s size is merited. Further, the undersigned applies a 10% increase to this reduced penalty due to Respondent’s significant history of OSHA citations.  Thus, each cited willful item is assessed a penalty of $102,100, with a total for all five items of $510,500.

Citation 2, Items 1 through 5 are each affirmed as willful with penalty of $102,100 for each violation.  

C.  SPRINGVALE INSPECTION & CITATIONS

Facts for the Springvale Inspection

The residence was a two-story home with a one-story sunroom attached on its right side.  (GX-130; GX-137; GX-138).  Shawn Purvis had visited the Springvale worksite a few weeks before to provide an estimate to the homeowner for the replacement of the home’s main roof and attached sunroom roof.  (Tr. 1359-60, 1407, 1409, 1419; GX-130).

A neighbor called OSHA on May 23, 2019, with a complaint that she saw workers on a nearby roof without any apparent fall protection.  (Tr. 481-82).  The neighbor became aware of the roofers because they were talking loudly and there was a lot of cursing.  (Tr. 481).  She recognized the company’s name on the truck from the news and saw that the workers were in the process of re-roofing the house.  (Tr. 481-82; GX-130; GX-132).  The neighbor saw that the workers were not using fall protection because “most of them didn’t even have a shirt on.”  (Tr. 482-83).   

The neighbor observed a man standing on the sunroom roof, which appeared to be almost flat.  (Tr. 493-95; GX-129, GX-130, GX-131).  She saw two other workers standing on a ladder jack scaffold installing shingles on the right side of the steep-pitched main roof of the house.  (Tr. 495; GX-129, GX-130, GX-131).  She also observed one individual that appeared to direct the work because workers were asking him questions.  (Tr. 484-85).  

Prior to going to the worksite on May 23, 2019, OSHA requested an agent from the Department of Labor’s Office of the Inspector General (OIG) accompany them during the inspection.  (Tr. 963).  Special Agent (SA) Sean P. Roberts from the OIG’s office attended the inspection due to concern for the safety of the OSHA inspectors.  (Tr. 963)  

SA Roberts arrived at the Springvale worksite at about 12:45 p.m. on May 23, 2019, and parked across the street.  (Tr. 963-64).  He observed roofing work in progress and trucks with the Purvis name on the side.  (Tr. 963-64).  From his vehicle, SA Roberts observed and photographed roofers working without fall protection.  (Tr. 964-65; GX-139).  SA Roberts then briefly left the site to meet OSHA CO Bill Ferguson and the Springvale police at a location about a mile away; he then returned to the worksite along with CO Ferguson and the police.  (Tr. 965-66). 

When they arrived at the Springvale site, someone yelled, “the feds are here.”  (Tr. 966).  SA Roberts observed Lennie Dow directing the employees on the roof to come down from the roof.  (Tr. 966, 971-72).  The neighbor noticed that when the police and OSHA arrived “some of his employees ran” down to the end of the street.  (Tr. 488).  The neighbor continued observing and taking photographs, which she later provided to OSHA.  (Tr. 486-87; GX-129 through GX-136).  

Three employees were photographed on the main roof’s right side working without fall protection.  (Tr. 374, 482, 484, 963-64, 1429, 1825-26, 1846-47; GX-129 through GX-136; GX-139; RX-26).  Worksite foreman Lennie Dow stood on the ladder jack scaffold.  (Tr. 1429; GX-130).  Ryver Daigle stood near the edge of the sunroom roof.  (Tr. 1846-47; GX-130).  In another photo, Forrest Daigle was standing on the sunroom roof, while Ryver Daigle stood on the ladder jack scaffold.  (Tr. 1825-26; GX-133).  Michael Happersett was photographed working on the ground.  (Tr. 1637-38; GX-137, p. 11). On December 13, 2018, the day of A.L.’s fatal fall, foreman Dow and the three named employees, Forrest Daigle, Ryver Daigle, and Michael Happersett, had also worked on Respondent’s Portland worksite, without fall protection.  

A ladder was used to access the sunroom roof from the ground.  (Tr.  381-82; JX-38, p. 14).  The top of the ladder extended just a few inches above the surface of the sunroom roof.  (GX-137, p. 14). The eave of the sunroom roof was ten feet two inches above the ground.  (Tr. 378-79; GX-138, pp. 8-11; JX-38). 

A Citation and Notification of Penalty related to the Springvale worksite (Springvale Citation) was issued on November 19, 2019, for a total proposed penalty of $278,456.  (JX-35).  The Springvale Citation alleged one serious violation for failure to have a scaffold greater than the minimum distance from an energized power line, one willful violation for failure to provide fall protection, and one repeat violation for improper use of a ladder.  Respondent timely contested the Springvale Citation, and the case was docketed with the Commission as No. 19-1905.

As set forth below, Citation 1, Item 1, Citation 2, Item 1, and Citation 3, Item 1 are affirmed.

Citations for Springvale Inspection

Serious Citation 1, Item 1 (Springvale Inspection, Docket No. 19-1905)

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.451(f)(6), which requires in pertinent part:

(6) The clearance between scaffolds and power lines shall be as follows: Scaffolds shall not be erected, used, dismantled, altered, or moved such that they or any conductive material handled on them might come closer to exposed and energized power lines than as follows: . . .  Insulated lines voltage, Less than 300 volts.  Minimum distance, 3 feet. . . . Uninsulated lines voltage, Less than 50 kv, Minimum distance, 10 feet.

29 C.F.R. § 1926.451(f)(6).

        The Secretary alleges that the ladder jack scaffolding platform was less than twelve inches away from exposed power lines that were not deenergized or protected.  Respondent asserts the Secretary has not proved the lines were energized nor that the distance was less than three feet.  (Resp. Br. 74-75).

Applicability & Employee Exposure

A ladder jack scaffold was erected along the roof’s eave on the home’s left side where energized power lines attached to the home.  (GX-137, pp. 9-10).  The standard applies. 

Employee exposure is established “either by showing actual exposure or that access to the hazard was reasonably predictable.”  Nuprecon, 23 BNA OSHC at 1818.  Ladder jack scaffolds were used at the Springvale worksite as working platforms for the roofers.  (Tr. 1228-29).  A ladder jack scaffold was erected front-to-back along the main roof’s eave on the left side.  (Tr. 391, 393-94; GX-137, pp. 9-10). Energized power lines were attached to the left side of the home, just below the roof’s eave near the home’s front corner.  (Tr. 390; GX-138, pp. 3-6).  A ridge hook ladder was on the left side of the roof just above the area where the electrical lines were near the plank of the ladder jack scaffold.  The ridge hook ladder above the ladder jack scaffold indicates a worker had been or would be working in the area.  Further, a worker was standing near the back of the home on the plank of the ladder jack scaffold.  (GX-137, pp. 9-10).  Employee exposure is proved.

Knowledge

The Secretary must show that the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.  See Peacock Eng'g, 26 BNA OSHC at 1592 (citations omitted).  Shawn Purvis had previously visited the worksite to provide an estimate for roofing the main house roof and attached sunroom.  (Tr. 1359-60, 1407, 1409, 1419; GX-130).  To provide the estimate, Purvis walked around the home and saw that electrical lines attached to the home.  (Tr. 1423-24).  Further, Purvis knew that ladder jack scaffolds would be erected along the roof’s eaves to provide work platforms for employees.  (Tr. 1228-29).  Thus, with reasonable diligence, Mr. Purvis could have known a scaffold would be erected near the area where the electrical lines attached to the residence.  Knowledge is proved. 

Violation of Standard

CMP provided electricity to the residence.  (Tr. 370).  The CMP Health and Safety Manager’s testimony that the power lines to the residence were 120/240 volts and were neither deenergized nor covered on May 23, 2019, is given great weight.  (Tr. 504-506).  Further, Respondent admitted it did not contact CMP to have the power lines de-energized or covered.  (Tr. 370-71, 504-06; GX-183, p. 17).  Respondent’s assertion the lines were covered or de-energized is rejected.  

Serious Characterization & Penalty

        The Secretary alleged the violation was serious in nature.  Home Rubber, 2021 WL 3929735, at *5 (“The Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.”) (emphasis in original).  

        Here, the scaffold was less than the minimum required distance of three feet from the energized lines.  Contact with the energized lines could result in injuries that include electrical shock, electrical burns, or electrocution.  (Tr. 372-73; JX-38, pp. 1-2). Thus, a serious characterization is merited for Citation 1, Item 1.

        The proposed penalty is $13,260.  In calculating the proposed penalty OSHA assessed the severity as high because contact with the power line could result in serious injuries from electrocution and a resulting fall.  The probability was set as greater due to the close distance from the power line to the scaffold. No good faith credit was applied because there was no safety program.  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 372-73).  The OSHA Area Director exercised his discretion and allowed no reduction to the proposed penalty for employer size.  (Tr. 900-01; JX-38, pp. 1-2).  The undersigned affirms the assessments for gravity, good faith, and history.  As discussed above, the undersigned applies a 30% reduction to the proposed penalty due to the size of the employer and applies a 10% percent increase to this reduced penalty for Respondent’s OSHA citation history.

Citation 1, Item 1 is affirmed as a serious violation with an assessed penalty of $10,210.

Willful Citation 2, Item 1 (Springvale Inspection, Docket No. 19-1905)

Citation 2, Item 1 alleges a willful violation of 29 C.F.R. § 1926.501(b)(13), which requires, in pertinent part:

(13) Residential construction. Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.

        The Secretary asserts that employees working on a roof with an 11/12 (11 in 12) pitch were not protected from fall hazards. Three employees were exposed to a fall of twenty-one feet, four inches on May 23, 2019.  Respondent does not dispute there was no fall protection in use at the Springvale site; however, Respondent asserts a willful characterization is not warranted.  (Resp. Br. 75-76).

Applicability, Exposure, Violation of the Standard, & Knowledge

        Employees were engaged in residential construction activities, roofing work, at the Springvale worksite.  (Tr. 482-83, 964-65; GX-129 through 136; GX-139).  The cited standard is applicable.

Both the neighbor and Special Agent Roberts observed employees on the roof without fall protection.  (Tr. 482-483; 964-65).  Exposure to the cited violation is proved.

The distance of a fall from the roof ranged from ten feet to twenty-one feet.  (Tr. 357, 377; GX-138, pp. 7, 9-11, 14-15; JX-38, pp. 4, 7).   Respondent concedes there was no fall protection in use at the site.  (Resp. Br. 75-76).  Violation of the standard is proved.

As discussed above, Lennie Dow was the foreman at the worksite.  He was on the roof with the others who were working without fall protection in plain view.  Foreman Dow’s knowledge is imputed to Respondent.  See Jacobs Field, 25 BNA OSHC at 1218 (citations omitted) (“The actual or constructive knowledge of a supervisor is imputable to the employer.”).  Knowledge is proved.

For the same reasons set forth in the discussion of the Portland Citation above, a willful characterization is supported for the fall protection violation at the Springvale worksite.   

Shawn Purvis was aware of the standard’s requirements, knew that employees would be working at heights over six feet, and knew they generally did not wear fall protection.  Mr. Purvis had received many citations from OSHA at prior worksites and his general attitude demonstrated a plain indifference to fall protection safety at the worksite.  Further, Mr. Purvis knew that just a few months before, a roofer working without fall protection fell to his death at Respondent’s Portland worksite, yet Mr. Purvis made no effort to ensure the employees at the Springvale worksite used fall protection.  As discussed above, Respondent’s assertion of a good faith defense against willfulness fails. 

The willful characterization is supported for the fall protection violation at the Springvale worksite. 

Penalty

The maximum penalty for a willful violation is $132,598.103  The proposed penalty was $132,598.  Severity was assessed as high because roofers were working at heights between ten feet to twenty-one feet and a fall from that height can result in serious injuries or death.  (Tr. 377; JX-38).  Probability was assessed as greater because of the steep pitch of the roof.  (Tr. 377; JX-38).  No reduction was applied for good faith due to the lack of a safety program.  The penalty was increased by 10% due to the history of prior OSHA citations for violations of the fall protection standard.  (Tr.  378).  The OSHA Area Director exercised his discretion and allowed no reduction to the penalty assessed for size.  (Tr. 912-13; JX-38, pp. 1-2, 5, 12-13).  The undersigned affirms the assessments for gravity, good faith, and history.  However, the undersigned applies a 30% reduction to the proposed maximum penalty due to the size of the employer and applies a 10% percent increase to this reduced penalty because of Respondent’s OSHA citation history.  

Citation 2, Item 1 is affirmed as a willful violation with a penalty of $102,100.

Repeat Citation 3, Item 1 (Springvale Inspection, Docket No. 19-1905)

Citation 3, Item 1 alleges a repeat violation of 29 C.F.R. § 1926.1053(b)(1), which requires, in pertinent part:  

1. (1)When portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to gain access . . . 

The Secretary asserts that the ladder used to access the roof did not extend at least three feet above the surface, which exposed employees to a fall of ten feet, two inches due to the lack of safe transition from ladder to roof surface.   Respondent does not dispute the violation exists but does dispute the repeated characterization.  (Resp. Br. 76).

Applicability, Exposure, Violation of the Standard & Knowledge

 The employees used the ladder to access the sunroom roof.  (GX-137, pp. 1, 5, 13).  The cited standard applies, and employees were exposed.

 The distance from the sunroom roof to the ground was ten feet, two inches.  (Tr. 378-79; GX-138, p. 11).  The top of the ladder was just a few inches above the sunroom roof’s surface, well below the three-foot (three-rung) requirement.  (Tr. 378-79; GX-137, pp. 1, 5, 13).  The cited standard was violated.

As discussed above, Lennie Dow was the foreman at the site and knew the ladder did not extend three feet above the roof’s edge.  Foreman Dow’s knowledge is imputed to Respondent.  Knowledge is proved.

Repeat Characterization & Penalty

        Citation 3, Item 1 of the Springvale inspection is characterized as repeat.  As set forth in the discussion above for the Portland Citation, the repeated characterization is based on the prior citation issued to Respondent for inspection no. 1046978 (Pine Point inspection) for the identical standard, 29 C.F.R. § 1926.1053(b)(1), that became a final order on April 13, 2015.  (Tr. 308-09; JX-16, p. 7; JX-29, p. 24; JX-30, p. 58).  Here, the repeated characterization is supported because there was a final order of the same standard within five years prior to the November 19, 2019 Springvale Citation.  

        The proposed penalty for this citation item is $132,598.  OSHA assessed the severity as high because a fall from ten feet, two inches while transitioning from ladder to roof could result in serious injury.  (Tr. 381-82).  Probability was assessed as greater because the ladder was the primary access point to the roof.  (Tr. 382).   No reduction was applied for good faith due to the lack of a safety program.  (Tr. 382).  The penalty was increased by 10% due to the history of prior OSHA citations.  (Tr. 382).  The OSHA Area Director exercised his discretion and allowed no reduction to the penalty assessed for size.  (Tr. 912; JX-38, pp. 1-2, 5, 12-13).  The undersigned agrees with the assessments for gravity, good faith, and history.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above.  See Fed. R. Civ. P. 52(a).  All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

Docket No. 19-1056 (Portland Inspection)

1.         Citation 1, Item 1 alleging a Serious violation of 29 C.F.R. § 1926.451(f)(6) is affirmed for Docket No. 19-1056 with a penalty of $10,210.

2.          Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1926.503(a)(1) is affirmed for Docket No. 19-1056 with a penalty of $10,210.

3.          Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

4.        Citation 2, Item 2, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

5.        Citation 2, Item 3, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

6.        Citation 2, Item 4, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

7.        Citation 2, Item 5, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

8.        Citation 2, Item 6, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

9.        Citation 2, Item 7, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

10. Citation 2, Item 8, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1056 with a penalty of $102,100.

11.        Citation 3, Item 1, alleging a Repeat violation of 29 C.F.R. § 1926.1053(b)(1) is affirmed for Docket No. 19-1056 with a penalty of $51,050.

Docket No.19-1054 (Old Orchard Beach Inspection)

12.        Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.102(a)(1) is affirmed for Docket No. 19-1054 with a penalty of $10,210.

13.        Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1054 with a penalty of $102,100.

14. Citation 2, Item 2, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1054 with a penalty of $102,100.

15.        Citation 2, Item 3, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1054 with a penalty of $102,100.

16.        Citation 2, Item 4, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1054 with a penalty of $102,100.  

17.        Citation 2, Item 5, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1054 with a penalty of $102,100.

Docket 19-1905 (Springvale Inspection)

18.        Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.451(f)(6) is affirmed for Docket No. 19-1905 with a penalty of $10,210.

19.        Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1926.501(b)(13) is affirmed for Docket No. 19-1905 with a penalty of $102,100.  

20.        Citation 3, Item 1, alleging a Repeat violation of 29 C.F.R. § 1926.1053(b)(1) is affirmed for Docket No. 19-1905 with a penalty of $51,050.

SO ORDERED.

                                                                _/s/ Carol A. Baumerich

                                                                Carol A. Baumerich

                                                                Judge, OSHRC

DATE: May 30, 2023

               Washington, D.C.

1 For privacy interests, the deceased worker will be referred to as A.L.

2 By agreement of the parties, the consolidated hearing originally was scheduled to be held in August 2020.  Due to the Covid-19 pandemic restrictions, by agreement of the parties, the in-person hearing was rescheduled to January and February 2021.  By November 2020, it became apparent the unforeseen duration of the pandemic precluded an in-person hearing in January and February 2021.  The Secretary filed a motion to hold the hearing remotely, which Respondent opposed. The undersigned agreed to reschedule the hearing.  By agreement of the parties, the in-person hearing was rescheduled to October and November 2021.

3 In Respondent’s post-hearing brief, Respondent continues its objections to the amended Complaints and Citations. (Resp. Br. 7-9). Respondent’s arguments were addressed and rejected in the September 1, 2021 Order granting the Motion, and will not be reiterated in this Decision. Respondent Shawn Purvis, an individual, and Respondent Purvis Home Improvement Co., Inc., a corporation, filed a joint post-hearing brief and joint reply brief, referenced herein as Respondent’s Brief and Respondent’s Reply Brief.

4 In their amended consolidated Answers, Respondents deny that Shawn D. Purvis d/b/a Purvis Home Improvement Co., Inc., or, in the alternative, Purvis Home Improvement Co., Inc. are employers subject to the OSH Act.  Among other defenses, Respondents contend the OSH Act and OSHA standards do not apply to Respondents, that Respondents at all times alleged complied with the OSHA standards promulgated under the OSH Act, that Respondents believed in good faith that Mr. Purvis and the corporation were in compliance with the law and, therefore, no violations were willful. Respondents also contend the citations are duplicative, the proposed penalties are multiplicative, and the alleged per-employee penalties are not authorized by the OSH Act.  

5 Respondent Shawn D. Purvis d/b/a Purvis Home Improvement Co., Inc. (individual) and Purvis Home Improvement Co., Inc. (corporation), in the alternative, were jointly represented at the hearing. (Tr. 6-7).    

6 On November 22, 2021, the undersigned issued an Order Closing Hearing Record and Supplement to Order Granting Secretary’s Motion in Limine Regarding September 2020 Deposition of Shawn D. Purvis. In this Order, the Shawn Purvis September 2020 Deposition Transcript, Final Designations, was received in evidence as exhibit GX-165.    

7 As discussed below, the undersigned finds that Lennie Dow functioned as Respondent’s crew foreman at all three worksites.

8 The undersigned granted Respondent’s request to virtually present the testimony of its designated expert witness, Tiffany Couch.  As agreed at the close of the in-person hearing on November 5, 2021, the hearing record remained open for receipt of the virtual testimony of Respondent’s expert witness on Tuesday, November 9, 2021.  (Tr. 1851).  Late Monday, November 8, 2021, Respondent Counsel notified the undersigned and Counsel for the Secretary that Ms. Couch would not be called to testify virtually the following day. Respondent rested its defense case.

9 Any defenses not pursued at hearing or in post-hearing briefing are deemed abandoned.  See Ga.-Pac. Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

10 See below for discussion of Respondent’s status as an employer.

11 In general, the testimony of Shawn Purvis and the workers at the hearing appeared to reflect a general desire for Respondent to not be held responsible for employee safety at a worksite.  As discussed below, the workers have a long-term relationship with Mr. Purvis and rely on him for employment.  The undersigned finds this relationship affected the perspective and testimony of these five workers.  Further, as the owner and sole shareholder of Purvis Home Improvement Co., Inc., Mr. Purvis has a vested interest in the outcome of this proceeding, thus his testimony is viewed through this lens.

12 A notebook of entries from January 2019 through May 2019 shows that Mr. Purvis recorded the date of a roofing job with the first name (or nickname) of those working at the site that day.  (Tr.  1447-48, 1455-58; GX-59).  

13 Text messages between Mr. Purvis and worker A.L. reveal A.L. was notified of upcoming work opportunities, for the following day or week.  Text messages also reveal that Respondent’s worksite foreman Lennie Dow was assigned work in advance of the workday morning meeting. (Tr. 1098-99; GX-99, pp. 4-5, 8-9, 11-15, 17, 20-21, 23-30, 32-36. See Tr. 1173-84).

During an OSHA worksite interview, an employee stated, before the OOB job, he received a text from Mr. Purvis regarding that job. “Shawn sent me a text – roof if interested. Meet @ shop in Seco.” (JX-25, p. 4).

14 “It’s always the same guys on the job that [have] my trucks.” (GX-31, p. 3).

15 As discussed below, Lennie Dow was Respondent’s foreman at the three worksites.  Mr. Dow identified himself as the foreman, person-in-charge, or senior person on several occasions. (Tr. 326-30, 553, 755-56; JX-25, p.1; JX-34, pp. 19-22; GX-45, pp. 62-63).  Mr. Dow oversaw the work at a site to ensure it met the customer’s expectations.  (GX-45, pp. 62-63). Mr. Dow directed the workers to wear fall protection at the Portland site (Tr. 553), at the OOB worksite, and the Springvale worksite.  (Tr. 553, 764-65, 972; GX-112, pp. 21-22, 24-26).  The crew at the worksites either directly identified Mr. Dow as directing work at a site or described his role in other ways, such as, kind of like the man in charge or lead guy. (Tr. 159, 163, 326-30, 755-56, 966, 971-72; JX-25, p. 1; JX-34).

16 In the payroll notebook, Michael Happersett is recorded by his nickname “Happy.” (Tr. 1455, 1642, 1751; GX-59).  Anthony Gallant is recorded by this nickname “Turtle.” (Tr. 1456-57; GX-59).

17 Within the OSH Act’s citation framework is the authority to assess a higher penalty to employers that repeatedly violate an OSHA standard.  See OSH Act section 17(a)-(b) (repeated maximum 10 times higher than for a serious violation).  

18 The Commission has stated that for OSHA litigation the federal common law should be recognized (rather than state law).  See generally, Phillips 66 Co., 16 BNA OSHC 1332, 1338 (No. 90-1549, 1993) (“we find that disputes involving settlements of OSHA litigation are to be resolved in accordance with federal common law principles”).    

19 Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Kerns Bros.) (Commission generally applies law of the circuit where it is probable a case will be appealed).  The relevant circuits here are the First Circuit and the D.C. Circuit.

20 In the D.C. Circuit, veil piercing is an equitable remedy subject to the sound discretion of a trial judge.  U.S. v. Andrews, 146 F.3d 933, 940 (D.C. Cir. 1998). The D.C. Circuit has long held the corporate entity cannot be used as a bar to prevent justice.  Francis O. Day Co. v. Shapiro, 267 F.2d 669, 674 (D.C. Cir. 1959) (“To prevent injustice the concept of separate corporate entity cannot here be permitted to stand as a bar”). The D.C. Circuit’s veil piercing jurisprudence views the corporation as a separate entity, even when owned by a single person, except where the “corporate entity must be disregarded in the interest of public convenience, fairness and equity.”  Quinn v. Butz, 510 F.2d 743, 758 (D.C. Cir. 1975) (showing of fraud unnecessary, it is sufficient that the corporate fiction “visited an injustice” upon him). Veil piercing is justified where the “corporate fiction would enable the circumvention of a statute.”  Id. at n. 95 (citations omitted).  Further, the court acknowledges there is no uniform standard to determine when a corporation is simply an alter ego “given the diversity of corporate structures and the range of factual settings in which unjust or inequitable results are alleged.”  Valley Fin., Inc. v. U.S., 629 F.2d 162, 172 (D.C. Cir. 1980).  

“A court may hold the owner of a corporation responsible for the corporation's conduct when there is a unity of interest between the individual and the entity, and when insulating the owner from liability would lead to inequitable results.”  U.S. v. Dynamic Visions Inc, 971 F.3d 330, 339 (D.C. Cir. 2020) (Dynamic Visions) citing Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir. 1982) (Labadie).  

21 There is no evidence in the record whether this business was adequately capitalized.  As set forth by the Commission in Altor, without evidence of the amount of capital routinely held in a company of this size, in the roofing business, any claim of undercapitalization cannot be assessed.  Altor, 23 BNA OSHC at 1460-63. 

22 Documentation of the corporation’s annual reports to the State of Maine, which are due June 1 of each year, for the years 2006-2019, were placed into evidence and reflect the same officers and director as at the original incorporation.  (JX-6).  Documentation of each year’s “Consent Meeting of Stockholders and Directors of Purvis Home Improvement Co., Inc.” for the years 2006-2008, 2011, 2014-2020 were placed into evidence.  (RX-6, pp. 1, 7-13, 39, 42, and 45).  

23 The 1099 forms issued by Purvis Home Improvement Co., Inc. to many of the individuals who worked at a Purvis worksite for the tax years of 2017, 2018, and 2019 were admitted to the record.  (RX-3, RX-4, RX-27; Tr. 1430, 1529, 1444-45, 1471, 1515, 1529, 1863-64).

24 At the time of the hearing, an action against Purvis Home Improvement and Shawn Purvis filed by the Maine WCB Abuse Investigation Unit alleging lack of payment of compensation for employees under the Maine Workers’ Compensation Act was stayed pending the outcome of a criminal case related to the same facts and circumstances.  (Tr. 1010-11, 1028; GX-149; GX-152).  

25 The application is titled as “Application for predetermination of independent contractor status to establish a rebuttable presumption.”  (GX-173).

26 Mr. Purvis explained that general contractors request a predetermination letter when he subcontracts from them.  (Tr. 1243).  

27 According to Seanna Crasnick, the Deputy General Counsel for the Maine WCB, the purpose of the application process was to provide an entity with a predetermination letter from the Maine WCB that stated the applying entity had a rebuttable presumption that it was an independent contractor with respect to Maine’s workers’ compensation system.  (Tr. 1045; GX-164).  The rebuttable presumption only applies to the applicant, not to anyone working for the applicant.  (Tr. 1052).  Finally, the predetermination was not binding on the MWCB; the determination of whether someone was actually an independent contractor under state statute at a particular worksite was made by a MWCB hearing officer or administrative law judge based on a fact-specific inquiry.  (Tr. 1058-60).  

28 In Labadie, the factors considered by the DC Circuit for veil piercing were:

 (1) is there such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist?; and (2) if the acts are treated as those of the corporation alone, will an inequitable result follow?  Relevant to the first question is the issue of the degree to which formalities have been followed to maintain a separate corporate identity. The second question looks to the basic issue of fairness under the facts.

Labadie, 672 F.2d at 96.

29 Respondent had the opportunity to provide testimony and evidence that Mr. Purvis took some other action, such as transferring the ownership of the van to the corporation, to indicate a separation between himself and the corporation.  To the contrary, Mr. Purvis testified that he purchased the van in 2017 with his personal funds and that he still owned both the van and the dump truck that were used at the worksites. (Tr. 1320-22, 1475-76).  

30 Also noteworthy is Mr. Purvis’s failure to maintain ordinary business records.  For more than one year, Respondent retained no corporate records of work performed or equipment or materials purchased.  After filing the corporate taxes, Mr. Purvis did not retain receipts. (GX-165, pp. 133-34).  When Respondent worked as the subcontractor for general contractor Risbara, the agreement was oral, with no written subcontract agreement. (GX-40; GX-148; GX-165, pp. 103-04, 110; JX-22, p. 2).

Mr. Purvis claimed the 2015 Pine Point OSHA Inspection incorrectly cited Purvis Home Improvement Co., Inc. simply because Purvis vehicles were at the inspection worksite.  Mr. Purvis testified he rented the Purvis trucks to Joe Dalton of Su Casa Home Improvement for $200 a day, per truck. (Tr. 1267-68).  There was no written contract to rent the vehicles.  Mr. Purvis received cash. Id.  In Mr. Purvis’s Motion to dismiss the debt collection action in U.S. District Court, Mr. Purvis claimed he “loaned two of my trucks to my friend Joe Dalton D.B.A. Su Casa Home Improvement” who was working at the site.  (Tr.  GX-148).  No evidence documenting this loan was produced.

31 The residence at the Saco location was rented from Mr. Purvis by workers at Respondent worksites, Thomas Christopher Sargent, and previously, Lennie Dow.  (Tr. 1607-08; GX-59; GX-165, pp. 157-58, 211-12; GX-183, pp. 8-9; GX-184, pp. 14-15)).

32 The invoices were a February 26, 2018 invoice for work that Shawn Purvis had subcontracted with general contractor, Risbara Brothers (Tr. 1489; GX-40); a November 28, 2018 invoice for a roofing job in Springvale, Maine (Springvale worksite) (Tr. 359-60; JX-39); an October 10, 2018 invoice for roofing work at a Birch Lane address (JX-27); and an October 9, 2018 invoice for the Portland worksite.  (RX-25; GX-165B(1)).  

33 Notebook pages related to worksites from January 2019 through May 2019 were placed in evidence.  (Tr. 1447, 1526; GX-59).  

34 GB Roofing was hired to provide the labor to strip the roof, pick up the materials, install the roof, and take the old roof to the dump.  (Tr. 1452). Entries in the handwritten payroll notebook for GB Roofing are referenced as “[Ecuadorians].” (Tr. 1448-55; GX-59). Mr. Purvis claimed to have used this crew for several jobs since 2016; however, the IRS 1099 forms in evidence only include payments to GB Roofing in 2019.  (Tr. 1454, 1530; RX-3; RX-4; RX-27).

35 For example, there is no IRS form 1099 for “Griff” because he only worked a couple of days. (Tr. 1467-1468, 1516-17; GX-59).

36 “Without necessarily accepting that specific formulation of the requirement, there is no question that a manipulation of the corporate form to circumvent a federal regulatory scheme is sufficiently blameworthy to [to constitute fraudulent intent].  See First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 630, (1983) (“[T]he Court has consistently refused to give effect to the corporate form where it is interposed to defeat legislative policies.”).”  Springfield Terminal, 210 F.3d at 32, n.7.

37 In the D.C. Circuit a showing of fraud is not necessary to disregard the corporate form. “[F]raud is not a prerequisite in a suit to disregard a corporate fiction. . .. a case must only ‘present an element of injustice or fundamental unfairness’ to justify the court’s piercing the veil.” Labadie, 672 F.2d at 99, quoting DeWitt Truck Brokers v. W. Ray Flemming Fruit Co., 540 F.2d 681, 687 (4th Cir. 1976).

38 Respondent has an OSHA citation history.  (GX-161).  The Citation and Notification of Penalty, in each case, stated Mr. Purvis’s right to contest the Citation and Notification of Penalty, by “inform[ing] the Area Director in writing that you intend to contest the citation(s) and / or proposed penalty(ies) within 15 working days after receipt” of the citation and penalty notification. (JX-7, p. 3 (Westbrook, Maine); GX-7, p. 3 (Fieldings Oil Co.); JX-16, p. 3 (Pine Point, Maine); JX-20, p. 2 (Mussey Road).    

The OSH Act states the procedure for enforcement of OSHA citations, including the procedure for an employer who wishes to contest an OSHA citation issued or proposed assessment of penalty. Section 10(a). If an employer notifies the Secretary that he intends to contest a citation issued or proposed assessment of penalty, “the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing. . ..” Section 10(c).  

The Commission is an independent adjudicatory agency and is not part of the Department of Labor or OSHA.  29 U.S.C. § 661.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the OSH Act and has no regulatory functions.  29 U.S.C. § 659(c).

39During Mr. Purvis’s June 1, 2018, OSHA interview, he frankly told the Compliance Officers:

Can I be honest with you?  If you go to like a big company, like Glidden Roofing or Risbara’s or some of these companies that make their guys follow the [OSHA fall protection] guidelines. . .. They’re charging double what I’m charging and that’s why they can hire me, you know what I mean?  Because I’m hiring subs and they’re doing it the way they want. But if you were to sit there and run a roofing crew and have employees and do it day to day to day, every day like by the books legit, you wouldn’t ever get hired.  And you wouldn’t make no money.  You’d pay [the workers] double.  You know what I mean.  

I’d love to have guys on the books and all that.  I’d love to be a big company.  But it can’t happen, because nobody wants to work like that.  They’re [the workers are] going to get paid a quarter of what they’re getting paid now, you know what I mean?  They don’t want that.  I haven’t found anybody that can hire like that.”  

(GX-31, p. 28).

40United States v. Purvis Home Improvement Co., Inc., Case No. 2:19-cv-00225-GZS (D. Me. 2020) (complaint seeking administrative enforcement and collection of civil penalties arising from OSHA citations and notifications of penalty following the Pine Point and Mussey Road inspections). On August 5, 2019, Mr. Purvis filed a Motion to dismiss the complaint in this proceeding. (GX-148).  (Tr. 1269-72, 1278-80, 1284-85,1493-94, 1496-97; GX-148).

41 See cf, Mass. Carpenters Cent. Collection Agency v. Belmont Concrete Corp., 139 F.3d 304, 308 (1st Cir. 1998) (finding the 163 Pleasant St. case fundamentally about personal jurisdiction rather than corporate veil-piercing under federal ERISA and the LMRA).  

42 Mr. Purvis told Anthony Gallant not to come in for a few days after Mr. Gallant and Mr. Campos had a disagreement at a worksite the prior day.  (Tr. 1486; GX-45, pp. 58-59).

43 Mr. Purvis said, “I send people home.  I’ve had guys with face tattoos show up and stuff.  Time to go home.”  (GX-46, p. 61).

44 Respondent asserts that workers were paid “per job” not per day. (Resp. Br. 45). However, a careful reading of the transcript pages relied upon by the Respondent show that sometimes workers disagreed on the number of days a job would take and then the pace of work would be negotiated.  (Tr. 1309).  Further, this point was clarified in Mr. Purvis’s deposition testimony where he stated that daily pay was the norm, unless there were cash flow issues that necessitated waiting until the homeowner’s check was cashed for a completed job.  (GX-165, pp. 189-90).  

45 In addition to the deposition testimony of Flavio Campos, the payment log kept by Mr. Purvis confirms the half-day rate.  (Tr. 1447-48; GX-59, p. 1).  For example, his notation next to the names for January 5, 2019, and January 11, 2019, is “1/2”. Id. Further, text messages between A.L. and Shawn Purvis corroborate job assignments and payment for a half-day of work. (GX-99, pp. 3, 4, 11, 29).

46 Text messages between Shawn Purvis and A.L. were received in evidence. (Tr. 1173-84, 1867; GX-99).   Mr. Purvis confirmed that the phone number listed in the messages was his phone number. (Tr. 1178, 1497-98; GX-100, pp. 15-16; GX-165, p. 213). Mr. Purvis exchanged text messages with A.L. daily. (Tr. 1497-98). A.L.’s fiancé [redacted] testified that before she provided A.L.’s cell phone to the Portland Police Department, she had custody of the phone, and she did not send text messages.  (Tr. 1089-90). A.L.’s phone had not been altered. (Tr.  1176). Respondent’s suggestion that Ms. [redacted] may have altered the text messages in A.L.’s cell phone before the phone was delivered to the Portland Police Department is rejected.  (Resp. Br. 14-16). I observed Ms. [redacted] testify. Ms. [redacted] was a credible witness, who testified candidly, without exaggeration.  Detective Tully testified that he took custody of A.L.’s cell phone in evidence at the Portland Police Department.  He prepared a search warrant to have A.L.’s cell phone forensically examined, the data extracted, and placed on a flash drive.  Detective Tully testified that the extraction and maintenance of text message extracted data is a regular practice of the Portland Police Department’s law enforcement activity.  The flash drive with the text message extracted data was maintained in Portland Police Department custody.  (Tr. 62-67, 87-88, 91-93, 108-10, 1176). As it was A.L.’s cell phone, A.L.’s text messages appear as Local User. (Tr. 87). Detective Tully’s detailed testimony is credited. The text messages were received in evidence as authenticated, relevant, non-hearsay admissions, probative of issues before the Commission. (Tr. 1173-84). Shawn Purvis was present at the hearing as Respondent’s representative.  Shawn Purvis testified on two hearing days.  Mr. Purvis had a full opportunity to challenge the accuracy of the text messages he exchanged with A.L. (GX-99).  He did not.

47 The results of the Darden analysis would be the same if the undersigned had determined the Corporation was the properly named Respondent.

48 The Compliance Officers at these five prior inspections were Kathy Simmons and David McGuan (now OSHA Area Director).  (GX-161).

49 At the time, CO Wilson was the Acting Area Director.  

50 United States v. Purvis Home Improvement Co., Inc., Case No. 2:19-cv-00225-GZS (D. Me. 2020) (complaint seeking administrative enforcement and collection of civil penalties arising from OSHA citations and notifications of penalty following the Pine Point and Mussey Road Inspections). On August 5, 2019, Mr. Purvis filed a Motion to dismiss the complaint in this proceeding. (GX-148).

51 Mr. Shawn Purvis and A.L. are half-brothers. (Tr. 1088, 1192).  

52 Shayne McDonald, Anthony Purvis, and Kevin Hilsinger were working on the ground that day.  (Tr. 1620-21; GX-184, p. 9).  

53 References are from the perspective of standing on Congress Street facing the front of the residence.  (Tr. 134; GX-101, pp. 3, 19; GX-102, p. 2).  

54 Mr. Campos stated that on the first day, December 12, 2018, he had worn fall arrest equipment, which had taken him about 10 minutes to set up.  (GX-47, pp. 79-81).  Mr. Campos stated he did not know why he chose to not wear fall protection on December 13, 2018.  (GX-47, p. 70).  

55 Mr. Campos typically drove by himself to a worksite.  (GX-47, pp. 25, 43).

56 Measurements were taken by the Portland Police Department’s evidence technician on December 13, 2018, and CO Wilson took measurements on December 14, 2018, and February 20, 2019.  (GX-106).

57 CO Wilson stated that a 10:12 pitch roof is considered a steep pitched roof.  (Tr. 272).  

58 The photographs show that the ladder extended less than one rung above the surface; the distance between rungs is approximately 12 inches.  (Tr. 134, 137; GX-100, pp. 3, 5-7).

59 The names on five signed statements in the record were redacted based on government informant’s privilege.  (Tr. 160-75; JX-34; JX-186)

60 Lennie Dow was named as the person directing work in a variety of ways: one worker stated that Dow directs work, kind of like the man in charge (JX-34, pp. 3, 5), a second simply stated it was Dow (JX-34, pp. 11, 13), a third said it was Dow,  after saying he was his own boss doing his own thing (JX-34, pp. 15, 17), a fourth simply stated it was Dow (JX-34, pp. 23, 25), and the fifth worker said it was Shawn Purvis when he was at a site, or Dow (JX-34, pp. 27, 29).   Employee Michael Happersett stated it was the lead guy with experience, Dow.  (JX-34, pp. 7, 9; GX-186).

61 Mr. Dow’s transcribed interview was conducted on February 18, 2019.  (GX-45).  Mr. Purvis’s transcribed interview was conducted on February 18, 2019.  (GX-46).  Mr. Campos’s transcribed interview was conducted on March 22, 2019.  (GX-47).  

62 There is no evidence in the record whether the lines were insulated or uninsulated where they attached to the house.  As set forth above, the minimum clearance distance for an insulated line is three feet; for an uninsulated line, the minimum distance is ten feet.

63 However, the most telling response was from Lennie Dow during his December 14, 2018 interview, when asked, “Is there a replacement person for you?  Will the work proceed that day in your absence?”  (JX-34, p. 2).  He responded there were a “Couple other guys / can overview crew / They are not here now.”  (JX-34, p. 22).

64 For two of the workers, they identified “myself” as their employer at the site, but “Lennie Dow” as the supervisor.  (JX-25, pp. 3, 6).  

65 The citations for the Portland inspection were issued June 11, 2019.  For a serious penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $13,260 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).

66 CO Wilson testified that telling workers to wear a harness was not a fall protection training program.  (Tr. 267-68, 273).  

67 Section 29 C.F.R. § 1926.501(b)(13) includes an exception, “[w]hen the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of § 1926.502.” In post hearing briefing, Respondent did not assert either infeasibility or greater hazard. Respondent does not contend compliance was infeasible. (GX-184, pp. 23-24).

68 Lower level is defined as “those areas or surfaces to which an employee can fall. Such areas or surfaces include, but are not limited to, ground levels, floors, platforms, ramps, runways, excavations, pits, tanks, material, water, equipment, structures, or portions thereof.”  29 C.F.R. § 1926.500(b).  

69 Later, at his February 2019 deposition, Mr. Purvis stated that he could not recall if he had seen anyone using fall protection harnesses.  (GX-165, p. 116).  The undersigned credits Mr. Purvis’s December 17, 2018 statement to CO Wilson as it was closer in time to the event.

70 The willful citations are serious as well.  A violation is classified as serious under section 17(k) of the Act if “there is a substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k).  “The Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.”  Home Rubber, 2021 WL 3929735, at *5 (emphasis in original).  Here, the serious harm is a fall that could result in broken bones or death, as happened when A.L. experienced a fatal fall.  

71 The OSHA Compliance Officers at the prior inspections were Kathy Simmons and David McGuan (now OSHA Area Director).  (GX-161).

72 Mr. Purvis claimed he told “them [the workers] before I leave [the worksite] to put [safety equipment] on and [he] assume[s] they’re going to listen to me.” (GX-165, p. 50).  Mr. Purvis said Respondent’s verbal safety and health program was: “wear your harness on the roof.”  (GX-165, p. 61)

73 If Mr. Purvis timely notified the OSHA Area Director, in writing, that he intended to contest the disputed citations issued and penalties proposed, he would have been afforded an opportunity for a hearing before the Occupational Safety and Health Review Commission. See OSH Act, sections 10(a), (c).  The Commission Rules of Procedure permit any party to appear self-represented in Commission proceedings. The Commission Rules of Procedure state, in part, that in proceedings before the Commission “[a]ny party . . . may appear in person [self-represented], through an attorney, or through any non-attorney representative.” 29 C.F.R. § 2200.22(a)

74OSHA CPL 02-00-080 (CPL 2.80), Handling of Cases to Be Proposed for Violation-By-Violation Penalties (Oct. 21, 1990) at https://www.osha.gov/enforcement/directives/cpl-02-00-080 (accessed Jan. 30, 2023).  

75 In Smalis, the Commission specifically overruled its prior position on per-employee policies set forth in Eric K. Ho, 20 BNA OSHC 1361 (No. 98-1645, 2003) (consolidated), aff'd 401 F.3d 355 (5th Cir. 2005). Smalis, 2009 WL 1067815, at *31-35.

76 The standard says:

Personal fall arrest system means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. As of January 1, 1998, the use of a body belt for fall arrest is prohibited.

29 C.F.R. § 1926.500.

77 Respondent also mentions that with respect to the OSH Act’s penalty framework, “if there is any doubt as to the meaning of willfully here, the rule of lenity requires that [] the term be construed narrowly.”  (Resp. Br. 83-84).  “To invoke the rule [of lenity], the Court must conclude that there is a “grievous ambiguity or uncertainty” in the statute.”  Muscarello v. U.S., 524 U.S. 125, 138-39 (1998).  Among other cases, the Respondent cites to a recent concurrence written by Justice Gorsuch to support its argument that the rule of lenity applies to civil penalties in addition to criminal statutes.  (Resp. Br. 83-84).  The applicability of the rule of lenity in the non-criminal context was discussed in Justice Gorsuch’s concurring opinion and Justice Kavanaugh’s concurring opinion.  The Justices disagreed on when it is proper to apply the rule of lenity during the process of statutory construction for an ambiguous statute.  Wooden v. U. S., 142 S.Ct. 1063, 1075 and 1086, n.5 (2022).  Here there is no such ambiguity.  Respondent’s argument the rule of lenity is relevant here is rejected.

78 CO Wilson had been a compliance officer since 2016 and received training at OSHA’s Chicago training facility and conducted approximately 140 inspections related to fall protection hazards.  (Tr. 124, 126, 397).

79 The citations for the Portland inspection were issued June 11, 2019.  For a willful penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $132,598 and statutory minimum of $9,472 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).

80 The Commission is not bound to follow the Secretary’s penalty and owes no deference to the Secretary’s proposed penalty.  Hern Iron Works, Inc., 16 BNA OSHC 1619, 1621-23 (No. 88-1962, 1994).

81 The citations for the Portland inspection were issued June 11, 2019.  For a repeated penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $132,598 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).

82 Other workers at the site were Shayne McDonald, Anthony Purvis, and Kevin Hilsinger.  (GX-184, p. 9).

83 CO Wilson stated that he knew it was a pneumatic nail gun based on seeing them at prior worksites and his personal use.  (Tr. 341).  

84 Judge Phillips’ finding that an employee was exposed to eye hazards while using a pneumatic nail gun to install shingles on a roof is informative.  Sandy Woodmansee, 24 BNA OSHC 1422, 1425 (No. 11-1851, 2012) (ALJ).

85 CO Wilson holds bachelor’s and associate’s degrees in occupational safety and health from Columbia Southern University.  (Tr. 123).  Prior to 2016, CO Wilson had been the safety director for a concrete construction company and a safety manager for Harbor Technologies.  (Tr. 119-21).

86 The identities in the written interview statements, other than Lennie Dow, were redacted for government informant’s privilege.  (JX-25).  

87  29 C.F.R. § 1926.501(b)(10) sets forth the following:

(10) Roofing work on Low-slope roofs. Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50–feet (15.25 m) or less in width (see appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e., without the warning line system] is permitted.

88 The requirements for a safety monitoring system are set forth at 29 C.F.R. § 1926.502(h).

(h) Safety monitoring systems. Safety monitoring systems [See § 1926.501(b)(10) and § 1926.502(k)] and their use shall comply with the following provisions: (1) The employer shall designate a competent person to monitor the safety of other employees and the employer shall ensure that the safety monitor complies with the following requirements:

(i) The safety monitor shall be competent to recognize fall hazards;

(ii) The safety monitor shall warn the employee when it appears that the employee is unaware of a fall hazard or is acting in an unsafe manner;

(iii) The safety monitor shall be on the same walking/working surface and within visual sighting distance of the employee being monitored;

(iv) The safety monitor shall be close enough to communicate orally with the employee; and

(v) The safety monitor shall not have other responsibilities which could take the monitor's attention from the monitoring function.

89 In addition, in two photos Anthony Gallant does not appear to be the safety monitor.  In one, he is bent over and not looking at the roofers and in the other he does not appear to be on the roof.  (GX-112, pp. 13-14).

90 Respondent does not dispute that training was not provided.  (Resp. Br. 65).  

91 CO Simmons stated that at the 2012 Westbrook inspection, she asked Shawn Purvis whether he was using a safety monitoring system on the flat roof and that he referred to it as having a “spotter.”  (Tr. 654).  

92 The willful citations are also considered serious.  A violation is classified as serious under section 17(k) of the Act if “there is a substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k).   See Home Rubber, 2021 WL 3929735 at *5.  Here, the serious harm is a fall that could result in broken bones or death.  

93 The citations for the OOB inspection were issued June 11, 2019.  For a willful penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $132,598 and statutory minimum of $9,472 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).

94 On April 5, 2019, approximately six weeks before the Springvale inspection, Shawn D. Purvis was indicted on two counts of manslaughter under Maine’s criminal code concerning the December 13, 2018 death of A.L. at the Portland worksite.  After delays due to the COVID-19 pandemic, the criminal case in Cumberland County Unified Criminal Docket Court, Portland, Maine, State of Maine v. Shawn D. Purvis, Docket No. CR-19-1824, was set for trial beginning November 29, 2021. According to Respondent, Mr. Purvis was subsequently acquitted by a jury of all charges. Resp. Br. 26 n.8.

95 As discussed above, Lennie Dow was the foreman at this worksite.

96 A few weeks later, on June 28, 2019, CO Wilson returned to the Springvale residence for additional photographs and measurements.  (Tr. 354-55; GX-138).  CO Wilson took over the investigation after CO Ferguson no longer worked for OSHA. (Tr. 353).   

97 A ladder jack scaffold is defined as a “supported scaffold consisting of a platform resting on brackets attached to ladders.”  29 C.F.R. § 1926.450.

98 The worker was not identified in the record.

99 CO Ferguson, who was at the worksite on May 23, 2019, did not testify. At the time of the hearing, CO Ferguson no longer worked for OSHA. (Tr. 353).

100 A roof bracket scaffold is defined as “a rooftop supported scaffold consisting of a platform resting on angular-shaped supports.”  29 C.F.R. § 1926.450.

101 No evidence was adduced as to whether the lines that attached to the home were insulated or uninsulated.

102 The willful citation is also serious.  A violation is classified as serious under section 17(k) of the Act if “there is a substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k).  

103 The citations for the Springvale inspection were issued November 19, 2019.  For a willful penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $132,598 and statutory minimum of $9,472 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).

104 The citations for the Springvale Inspection were issued November 19, 2019.  For a repeated penalty assessed after January 23, 2019, but on or before January 15, 2020, the statutory maximum of $132,598 applies.  84 Fed. Reg. 213, 219 (Jan. 23, 2019).