April 24, 2017 BOS 2017-033

OSHA administrative law judge rules that Massachusetts companies
operated as single employer at worksite where 3 workers fell

BOSTON - An administrative law judge with the independent Occupational Safety and Health Review Commission has ruled that two Massachusetts contractors - A.C. Castle Construction Co. Inc. and Daryl Provencher, doing business as Provencher Home Improvements - were operating as a single employer at a Wenham worksite when three employees were injured in October 2014.

The employees were performing residential roofing work on a ladder jack scaffold when the wooden plank on which they were standing snapped, causing them to fall 20 feet to the ground. An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration found that the wooden plank was not graded for scaffold use and its invoice made clear it was not for scaffold use. Other hazards included deficiencies with the scaffold's components and structure and lack of fall protection for the employees.

OSHA cited A.C. Castle and Provencher as a single employer in April 2015 due to the highly integrated nature of their work operations, including common worksites and common management and supervision. A.C. Castle and Provencher contested their citations and penalties to the review commission. A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the jobsite, asserting that they were employed by Provencher. A trial was held before Administrative Law Judge Sharon D. Calhoun in June 2016. Judge Calhoun ruled on Feb. 28, 2017, that A.C. Castle and Provencher were operating as a single employer at the time of the inspection. A.C. Castle sought review of the decision, which the commission declined. On April 17, 2017, Judge Calhoun's decision became a final order. A.C. Castle has 60 days from the date of that order to seek review in the 1st Circuit Court of Appeals.

The decision cited a number of factors including A.C. Castle's checking to ensure that workers were tied off, its responsibility for safety on its worksites, its ability to fire or discipline workers, its directions to Provencher concerning the size of the crew, the presence of A.C. Castle signs and the lack of Provencher signage at worksites, and A.C. Castle's representing that it had no subcontractors when applying for building permits. Judge Calhoun's decision upheld the bulk of the citations and determined that A.C. Castle is responsible for paying $173,500 in penalties. The claims against Provencher were extinguished due to his death in December 2016.

"The judge's decision, now a final order of the commission, upholds OSHA's findings that A.C. Castle exercised a degree of control and oversight over Provencher's operations sufficient to render the two a single employer under the Occupational Safety and Health Act, making them responsible as one entity for their employees' safety," said Michael Felsen, regional solicitor of labor for New England.

The full decision can be viewed here.

OSHA's Andover Area Office conducted the original inspection. Senior Trial Attorney James Glickman of the Boston regional solicitor's office litigated the case for OSHA.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the nearest OSHA area office.

Under the OSH Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

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Secretary of Labor v. AC. Castle Construction Co., Inc./Daryl J. Provencher, d/b/a Provencher Home Improvement.

OSHRC Docket Number: 15-0706.

Media Contacts:

Ted Fitzgerald, 617-565-2075, fitzgerald.edmund@dol.gov
James C. Lally, 617-565-2074, lally.james.c@dol.gov

Release Number: 17-399-BOS

U.S. Department of Labor news materials are accessible at http://www.dol.gov. The department's Reasonable Accommodation Resource Center converts departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).