Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457 

ACTING SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 22-0448

BARRY BILLCLIFF d/b/a BARRY JAMES 

d/b/a MERRIMACK VALLEY ROOFING 

d/b/a WWW.MERRIMACKVALLEY 

ROOFING.COM d/b/a MERRIMACK 

VALLEY ROOFING & GUTTER d/b/a 

MERRIMACK VALLEY ROOFING & 

GUTTER, LLC d/b/a BILLCO ROOFING 

d/b/a BILLCO ROOFING LLC d/b/a 

MERRIMACK VALLEY ROOFING, INC. 

d/b/a MERRIMACK ROOFING LLC d/b/a 

BAY STATE EXTERIORS d/b/a 

MARRIMACK VALLEY ROOFING d/b/a 

JOHN WOLF(E) d/b/a MERR VALLEY 

R&G LLC d/b/a THE MARRIMACK 

VALLEY ROOFING CO, LLC d/b/a 

MERRIMACK VALLEY ROOFING LLC, 

and any successor(s) of any of the foregoing,

 

 Respondent.

APPEARANCES: 

Nathan E. Henderson, Esquire

Niamh E. Doherty, Esquire

Joseph R. Landry, Esquire
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Department of Labor, Office of the Solicitor, Boston, Massachusetts

For the Acting Secretary

Barry James Billcliff,1 appearing Pro se

496 Main Street

Sandown, New Hampshire 03873

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

BEFORE:

Dennis L. Phillips

 Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 659(c) (the OSH Act or the Act). The case involves allegations by the Occupational Safety and 

Health Administration (OSHA) that Respondent, Barry Billcliff, operating in his individual capacity 

and/or using fifteen “doing business as” [D/B/A or d/b/a]2 names identified in the above case 

caption (Respondent or Mr. Billcliff), was the controlling employer at the Devens SpringHill Suites 

Marriott Hotel (Devens SpringHill Suites or hotel) and Devens Commons Conference Center 

(Conference Center) at 31 Andrews Parkway, Devens, Massachusetts (job site or Devens Project) 

where on October 7, 2021: 1) Respondent did not ensure that frequent and regular inspections were 

performed by a competent person, 2) a worker was not provided a hard hat, 3) roofers were not 

protected from falling during unloading of materials on a roof from the ladder hoist, 4) roofers on a 

steep roof were not protected by fall arrest systems, 5) Respondent did not train its supervisor and 

1 See Transcript (Tr.) 1911. 2 The term “d/b/a” preceding a business name “signals that the business may be licensed or incorporated under a 

different name.” D/b/a, Black’s Law Dictionary (11th ed. 2019). A business entity and its assumed name do not 

constitute two separate legal entities. Siobhan James, et al., v. PRS Partners, LLC, 1:20CV134, 2021 WL 309115, *5 

(M.D.N.C., Jan. 29, 2021); Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499, 503 (2000)(“It appears well settled 

that the use of a fictitious or assumed business name does not create a separate legal entity and that the designation d/b/a 

is merely descriptive of the person or corporation who does business under some other name.”)(Internal quotation marks 

omitted).
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subcontractor employees at the job site in the recognition of fall hazards, and 6) a portable ladder

did not extend at least three feet above the roof’s edge. Mr. Billcliff denies the allegations and 

asserts that he was not the controlling employer because he was never at the job site, did not assign 

or direct any supervisor at the job site, did not have any employee(s) at the job site, did not engage 

any subcontractor to provide roofers, was not involved in any of the work done at the job site, and 

never received or deposited any payment for the roofing work performed at the job site.

An in-person trial was conducted from April 4 through April 6, 2023 and June 13 through 

June 15, 2023 at Boston, Massachusetts producing a 2,363 page transcript. On August 24, 2023, 

Respondent filed its Post Trial Brief (Resp’t PT Br.).

3

 On August 29, 2023, Complainant filed her 

Post Trial Brief (Sec’y PT Br.). 

On September 5, 2023, Respondent filed its Response to Secretary’s Post Trial Brief (Resp’t

Reply Br.). Complainant filed her Acting Secretary’s Reply Brief on the same date. (Sec’y Reply 

Br.) In this Brief, she asserts that Respondent makes two main arguments in its Post-Trial Brief: (1) 

the testimony of virtually every key witness other than himself who testified at trial should be 

disregarded; and (2) the admission of various trial Exhibits should be reconsidered. She argues that 

both of these two arguments should be rejected. She argues that the Court should reject Mr. 

Billcliff’s first argument because: 1) to disregard the testimony of every witness other than himself 

would be to ignore those who had first-hand knowledge of the relevant facts, to include both OSHA 

and non-OSHA witnesses, 2) to disregard their testimony would also mean ignoring the 

overwhelming extent to which the other witnesses provided consistent testimony on the material 

points, such as Mr. Billcliff’s visits to the job site, Mr. Billcliff’s involvement in scheduling and 

3 The Court finds Respondent’s Post Trial Brief to be of little or no value. It cites to no trial transcripts. It attempts to 

cite to a hodgepodge of cases most of which have no precedential effect upon the Court. See J.A. Jones Constr. Co., 15 

BNA OSHC 2201, 2204 (No. 87-2059, 1993) (When submitting post-trial briefs, Commission emphasizes “that it is the 

obligation of a party to present its positions in a logical and discernible fashion.” This Respondent has failed to do.
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coordinating the roofing work, Mr. Billcliff’s directing of Mr. Vaughn to oversee that work, Mr. 

Billcliff’s failure to ensure a safe job site, and Mr. Billcliff’s conversation with Compliance Officer 

(CO) Brett Bussell on October 7, 2021, and 3) Mr. Billcliff’s complete lack of citing to the transcript 

in his Post-Trial Brief appears to show that he is relying on what he contends happened at trial, as 

opposed to what actually happened. The Acting Secretary argues that the Court should not 

reconsider the admission of any Exhibits because Mr. Billcliff complained about messages like those 

in Exhibit 107, which consists of a series of messages between Mike Costa, the Asset Manager for 

the Devens SpringHill Suites, and the foreman05 email account that Mr. Billcliff used. The Court 

only admitted this Exhibit after Mr. Billcliff withdrew his objections so that he himself could use the 

Exhibit with Mr. Costa on cross examination. (Tr. 188-91). Similarly, Mr. Billcliff complained

about Exhibit 142, which is the May 2022 settlement agreement from a previous case in which Mr. 

Billcliff admitted he was an “employer” under the OSH Act and accepted a Serious fall protection 

citation. The Court only admitted this Exhibit after Mr. Billcliff withdrew his objections in 

connection with being warned that the Acting Secretary would otherwise call a witness to show 

there was no basis for Mr. Billcliff’s contentions regarding the Exhibit. (Tr. 1845-48). Further, Mr. 

Billcliff complained about Exhibits 123, 124, and 125, which are the documents submitted by his 

son as part of the permit application for the Devens Project. The Court only admitted each of these 

Exhibits after a non-OSHA witness provided foundation and Mr. Billcliff stated that he had no 

objections. (Tr. 274-88). Lastly, Mr. Billcliff complained about the pages in Exhibit 155 that were 

admitted, which are a subset of the bank records that were obtained via the subpoena from the Court 

after Mr. Billcliff repeatedly failed to provide them himself. The Court only admitted these pages 

after: (1) reviewing the business records certifications provided by the Acting Secretary, (2) hearing 

the live testimony of Stephanie Lee, the Merrimack Valley Credit Union Vice President of 
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Operations, and (3) giving Mr. Billcliff ample opportunity to cross-examine her. The Acting 

Secretary also notes that Mr. Billcliff erroneously complained about an Exhibit that was not actually 

admitted into evidence; i.e., Exhibit 143. (Tr. 227, 259; Sec’y Reply Br.). The Court agrees with the 

Acting Secretary and finds no basis to either disregard the testimony of: 1) CO Aaron Epstein, 2) 

Gregory Phillips, 3) Michael Costa, 4) Louis Byrne, 5) Leonardo Bonicenha, and 6) CO Bussell, or 

reconsider its rulings regarding trial Exhibits, including Exhibits 107-08, 110, 122-26, 128, 130, 

133, 140, 142, 148-57, 158-59, 169-71, that were admitted at trial.

On September 8, 2023, Complainant filed her Acting Secretary’s Request for Attorneys’ Fees 

Incurred As a Result of Respondent’s Failure to Comply with 11/29/2022 Order Regarding Bank 

Records (Sec’y Request for Attorneys’ Fees).

Photographs, documents, and witness testimony presented at trial prove the Acting 

Secretary’s case and contradict Respondent’s version of events. The Willful/Serious citation and the 

five other serious citations are all affirmed and a penalty of $162,274 is assessed by the Court, along 

with the Court assessing an additional $3,215 as sanctions as an award of attorneys’ fees with regard 

to Mr. Billcliff’s failures to comply with his obligations regarding the bank records set forth in the 

Court’s November 29, 2022 Order.

I. CITATIONS AND PLEADINGS

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

Company Name: Barry Billcliff, dba Barry James; d/b/a Andover Roofing; d/b/a 

Barrysroofing INC; d/b/a Billco Roofing; d/b/a Danbar LLC; d/b/a Daniel James Billcliff LLC; 

d/b/a Local Musicians United; d/b/a Merr. Valley Gutters and Roofing Specialist LLC; d/b/a 

Merrimack Valley R & G; d/b/a Merrimack Valley Roofers LLC; d/b/a Merrimack Valley 

Roofing; d/b/a Merrymack Valley Roofing PLLC; d/b/a MVRAG LLC; d/b/a Newburyport 

Roofing; d/b/a The Marrimack Valley Roofing Companies LLC; d/b/a The Marrimack Valley 

Roofing and Gutter Company LLC. [emphasis in original Citations].
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On April 27, 2022, Complainant amended her original Citations and Notification of Penalty 

by deleting about fourteen d/b/a’s identified in the original citation and adding about seven new 

d/b/a’s stating:

The Secretary amends the Citations in Exhibit A under 29 C.F.R. § 2200.34(a)(3) to clarify 

that the Respondent, Barry Billcliff, is being cited is as follows:

BARRY BILLCLIFF d/b/a BARRY JAMES d/b/a 

MERRIMACK VALLEY ROOFING d/b/a 

WWW.MERRIMACKVALLEY ROOFING.COM d/b/a 

MERRIMACK VALLEY ROOFING & GUTTER d/b/a 

MERRIMACK VALLEY ROOFING & GUTTER, LLC 

d/b/a BILLCO ROOFING d/b/a BILLCO ROOFING 

LLC d/b/a MERRIMACK VALLEY ROOFING, INC. 

d/b/a MERRIMACK ROOFING LLC d/b/a BAY 

STATE EXTERIORS d/b/a MARRIMACK VALLEY 

ROOFING, and any successor(s) of any of the 

foregoing. (Original Complaint)

On February 2, 2023, Complainant filed her First Amended Complaint adding four new 

d/b/a’s to the April 27, 2022 case caption as now appears in the above current case caption. CO 

Bussell testified that OSHA identified as Respondent d/b/a’s in the case caption those names that it 

had documentation that showed connections to Mr. Billcliff. (Tr. 1783; First Amended Complaint). 

On February 14, 2023, Respondent filed its “Answers to Amended Complaint” identifying 

only “BARRY BILLCLIFF, D/B/A BARRY/S ROOFING” in its caption. In its Answers to 

Amended Complaint, Respondent asserts a general denial of the citations’ allegations, including 

asserting that Mr. Billcliff was not an employer under the OSH Act, he did not have knowledge of 

any unsafe work conditions, “the occurrence was an unpreventable employee misconduct”, “the 

penalties are not correct”, “the offenses do not qualify as Repeat”, and “the alleged violations do not 

constitute as ‘Willful’ nor ‘Serious’”. (Answers to Amended Complaint).
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II. RELEVANT FACTS 

A. Mr. Billcliff and his Employment at D/B/As

1. Mr. Billcliff said that he Owned and was Employed at Billco Roofing d/b/a Billco 

Roofing LLC at the time of the Devens Project.

At the start of the trial, Mr. Billcliff stated that he represented himself and Billco Roofing 

d/b/a Billco Roofing LLC. He stated that he owned Billco Roofing d/b/a Billco Roofing LLC and 

was employed at Billco during all aspects of the Devens Project. He said that Billco was an active 

company at that time. (Tr. 2245). Mr. Billcliff testified that he and his son, Daniel Grzyboski, do 

the work for Billco. Mr. Grzyboski testified that Mr. Billcliff was his boss at Billco Roofing. (Tr. 

1307, 1325, 2035; Stipulation Number (Stip. No.) 5). He said that there was no Billco email 

address. (Tr. 2035-37). Mr. Billcliff testified that he filled out the abatement form that came with 

the violation notice and sent it right in. (Tr. 2261). He gave [redacted] address at 496 Main Street, 

Sandown, New Hampshire 03873, [redacted].

4

 Mr. Billcliff did not give any business address . (Tr. 

17-19, 1015, 2035, 2276; Stip. Nos. 3, 5). He said that he did not represent any of the other d/b/a 

names that are identified in the case caption. (Tr. 19). 

2. Mr. Billcliff also said that he was employed at: a) Merr Valley R&G LLC, b) Merrimack 

Valley Roofing & Gutter, LLC, c) Merrimack Valley Roofing, and d) Merrimack Valley Roofers, 

during the time of the Devens Project.

Mr. Billcliff testified that he was also an employee of Merr Valley R&G LLC during the time 

of the Devens Project, which he said was the same company as Merrimack Valley Roofers. He said 

that both Merr Valley R&G LLC and Merrimack Valley Roofers were “active” during the Devens 

4 CO Bussell testified that Mr. Billcliff stated in his deposition that [redacted] at 126 Beach Plain Road, Danville, NH 

03819. That address is akin to an address at 126 “Bench” Plain Rd Danville, NH 03819 that was listed on a website 

attributed to Merrimack Valley Roofing & Gutter, LLC. The CO stated that the physical address of 126 “Bench” Plain 

Road, Danville, NH does not exist. (Tr. 1623-24; Ex. 122 at 1). 
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Project. (Tr. 884, 2243-44, 2285-87). Mr. Billcliff testified that Merr Valley R&G was never a 

“d/b/a”. (Tr. 2260).

CO Bussell testified that he did not recall Mr. Billcliff initially stating that he worked for 

Merr Valley R&G LLC or that Jeremy Coito, who Mr. Billcliff alleged owned Merrimack Valley 

Roofing, was his employer. (Tr. 884, 1870, 2169, 2242-43). 

CO Bussell testified that Mr. Billcliff later said that he worked for Merr Valley R&G, LLC. 

(Tr. 1872-73). During his February 11, 2022 deposition in a separate OSHA case, Docket No. 21-

0382, Mr. Billcliff stated that he predominantly did marketing and advertising at Merrimack Valley 

Roofing and that he first started working for Merrimack Valley Roofing in “maybe 2010.”5 (Tr. 

1962, 2006-10). Mr. Billcliff testified that he did not know if there was any Massachusetts 

Commonwealth tax withholding from his Merrimack Valley Roofing paycheck. (Tr. 2324). He also 

testified that Mr. Grzyboski was an employee of Merrimack Valley Roofing. Mr. Grzyboski 

testified at trial that Zachary Haleson, Cameron Tinkham, and Tim Crebase were also Merrimack 

Valley Roofing employees. (Tr. 1037-39; Stip. No. 5). Mr. Billcliff stated that Merrimack Valley 

Roofing was “a semantic term that’s used for Merr Valley R&G LLC, which is also the same 

company as Merrimack Valley Roofing.” (Tr. 2007-08). Mr. Billcliff testified that “during the 

entire duration of this case [he] was employed by Merr Valley R&G LLC which is better known as 

Merrimack Valley Roofing & Gutters, LLC.” (Tr. 2259). 

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

5 The website for Merrimack Valley Roofing also includes separate email addresses for Barry [Billcliff], John [Wolfe] 

and Daniel [Grzyboski] at MerrimackValleyRoofing. (Ex. 122, at 1). During his February 11, 2022 deposition in 

Docket No. 21-0382, Mr. Billcliff stated that Barry@MerrimackValleyRoof.com was his email address at Merrimack 

Valley Roofing. (Tr. 2036).
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At 7:45 AM, August 4, 2021, Mike Costa6 sent a message to Mr. Billcliff at

foreman05merrimackvalleyroofing@yahoo.com,

7 that stated, in part: “Good Morning Barry I 

understand you did some work for Republic at Robert’s house at [redacted] We have a hotel we 

own in Devens that is need of evaluation and estimate for numerous leaks we get during the winter 

months. This is the Springhill Suites.”8 (Tr. 313; Ex. 107, at 6, Ex. 150, Part A, at 32-33). Mr. 

Costa testified that he was referring to Merrimack Valley Roofing as having done roof work for one 

of RA Ventures’ general contractors. He also said that he solicited a bid for the Devens SpringHill 

Suites from Prime Roofing Corporation for the roofing job. He said that he hired Merrimack Valley 

Roofing because Prime Roofing Corporation did not provide pricing for the bid. (Tr. 311-12, 353-

54). He testified that he sent about forty to fifty emails to “Barry James” [Barry Billcliff], all to

foreman05merrimackvalleyroofing@yahoo.com, over the course of six months about the project at 

Devens SpringHill Suites.9 (Tr. 314, 348-49). Mr. Costa testified that he discussed with Barry: 1) 

scope of work, 2) timing, 3) the actual areas that needed to be replaced, 4) roof measurements, 5) 

product specifications, 6) color selection and availability, 7) contract negotiation, 8) pricing, 9) 

payment terms, 10) permitting,10 11) proposals, 12) invoices for the work, material deliveries, and 

13) scheduling. (Tr. 315-18). He said they negotiated payment terms where Barry wanted one-half 

of the payment at the beginning and one-half at the end of the project. (Tr. 317). Mr. Costa testified 

6 Mr. Costa worked for Ryan Development, which sometimes does business as RA Ventures, a commercial real estate 

developer for hotels, industrial real estate, restaurants, and retail. He has worked at Ryan Development for four years as 

an asset manager and property manager. In those roles, he hires contractors to arrange for work, including roof 

replacements, performed at the properties he manages. (Tr. 307-09). 7 Mr. Billcliff testified that he is the only one that had access to and used this email address who has appeared at the trial

as a witness. He admitted that he did email Mr. Costa, “but can’t verify which ones were which.” (Tr. 1981, 2011-12, 

2234). 8 Louis Byrne, an engineer at the Devens SpringHill Suites, testified that a man who worked for the owner of Devens

SpringHill Suites contacted Jonathan Mehlmann, the SpringHill Suites General Manager, and told him a guy was 

coming out to the hotel to give him a price to replace the roof. (Tr. 79-80). 9 The parties stipulated that Mr. Billcliff sometimes uses the name “Barry James”. (Stip. No. 2). CO Bussell testified 

that Barry Billcliff uses Barry James because of legal woes, past issues, and plenty of derogatory information that you 

can find about him online. (Tr. 1797). 10 Mr. Costa said that Barry never showed him or gave him a copy of the permit for the job. (Tr. 342). 
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that the responses that he received from Barry James used a signature block that said: Barry James, 

Foreman, Merrimack Valley Roofing, Inc., with telephone numbers: 978-884-6732 and 978-866-

1860.11 (Tr. 314-15; Ex. 107). Mr. Costa said that Merrimack Valley Roofing was the only 

contractor that he knew of being on the job site. (Tr. 349). He said that he was never told that 

someone other than Barry, including Mike LaChance, was taking over the project at the job site. 

(Tr. 349-50). Mr. Costa said that Barry never mentioned the name Mike LaChance to him and that 

he never had any communication with Mike LaChance about the project. (Tr. 350-52, 470). 

On August 4, 2021, 8:04 AM, Barry James sent a message to Mr. Costa12, Subject Re: 

Devens, that stated: “Good morning Mike, I would be happy to stop by and do an inspection and 

get you a proposal for repair or replace I will start on this today and be in touch. Thank you Barry 

James”.

13 (Ex. 150, Part A, at 29). 

Chief Engineer Louis Byrne testified that he first met Mr. Billcliff at the Devens SpringHill 

Suites around August 4, 2021.

14 Mr. Byrne said that he was asked to meet Mr. Billcliff, “bring him 

up on the roof and show him around.” He said Mr. Billcliff introduced himself as “Barry Billcliff”, 

the owner of Merrimack Roofing, and that he had come out to look at the roof.

15 Mr. Byrne stated 

11 CO Bussell testified that the photograph at Exhibit 148 [sealed] shows Mr. Billcliff pointing to a Clear Channel 

Outdoor, LLC (Clear Channel) billboard that displays a Merrimack Valley Roofing and Gutter LLC logo and a phone 

number ending in 866-1860. (Tr. 405-06, 1626; Ex. 148, at DOL000917[Sealed]). The CO testified that Mr. Billcliff 

was identified to Clear Channel as the point of contact for Merrimack Valley Roofing and Gutter LLC. (Tr. 1639). The 

Clear Channel contract with Merrimack Valley Roofing & Gutter, LLC, 496 Main Street, Sandown, NH 03873-2100, 

dated October 20, 2019, for outdoor advertising identified “Barry James”, 

foreman05.merrimackvalleyroofing@yahoo.com, phone #: 978-884-6732, as the advertiser and contact. (Tr. 403-04; 

Ex. 101). CO Bussell said that the number is on the Merrimack Valley website and the side of the company van. (Tr. 

1640-41). 12 RA Ventures technically owned the Devens SpringHill Suites hotel. (Tr. 93). 13 Mr. Billcliff testified that he never did an on-site visit to the job site as discussed in an email exchange with Mr. Costa. 

(Tr. 2208). The Court finds this testimony to not be credible. 14 Mr. Byrne testified that he has served as the Chief Engineer at the Devens SpringHill Suites for six years. He said that 

he runs the day-to-day maintenance from inside to the outside of the hotel. He has a crew of a couple of guys. He 

reports to Jonathan Mehlmann, the Devens SpringHill Suites Hotel Manager. (Tr. 75). 15 Mr. Byrne testified that Mr. Billcliff gave him a business card, which he tossed in the trash because he thought that 

one of two other roofers, either Revolution Roofing or a company out of Framingham, was going to do the job. (Tr. 141, 

172-73). 
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that Mr. Billcliff had his son, Daniel Grzyboski, with him.16 He said that new roofs were needed for 

two buildings that were connected by a bridge, the SpringHill Suites and the next door Conference 

Center. The roofs were about twenty years old and had a lot of leaks in multiple places. Mr. Byrne

said that the job “was a large, very large roofing job”; “the size of a football field.” He stated that 

“[t]he roof was a very difficult roof to shingle. There was a lot of flat spots, a lot of slopes.” (Tr. 

74-80, 134-35, 150, 168-73, 188, 198-99, 311, 333-34, 1015; Ex. 107, at 6-7). Mr. Byrne testified 

that the hotel roof was three stories above the ground and had no guardrail around it. (Tr. 78). He 

said that he took Mr. Billcliff and his son up to the roof from the inside of the building since Mr. 

Billcliff did not have any ladders with him.17 (Tr. 81-82, 170-71). He said they spent about 20-30 

minutes on the roof. He said Mr. Billcliff told him: “you just need a new roof.” (Tr. 83). Later, Mr. 

Byrne said he learned from his boss, Jonathan Mehlmann, that Merrimack Valley Roofing was going 

to do the job. Mr. Byrne said RA Ventures, the Devens SpringHill Suites property ownership group,

hired Merrimack Valley Roofing to do the job. (Tr. 83, 93, 152-53, 195, 201-03). Mr. Mehlmann

testified that RA Ventures’ Mike Costa hired “Merrimack Valley Roofing” to do the work on the 

project. (Tr. 203). Mr. Mehlmann testified that the SpringHill Suites ultimately paid for the roofing 

work to be done at the hotel.18 (Tr. 202). It was Mr. Mehlmann’s understanding that Merrimack 

16 Mr. Byrne identified Mr. Grzyboski in the courtroom as the man who accompanied Mr. Billcliff during the August 4, 

2021 roof inspection at the Devens SpringHill Suites. (Tr. 198-99). At trial, Mr. Grzyboski testified that he never did a 

walk-through on any job site with his father. (Tr. 1310). Mr. Billcliff testified that his son is an honest person. (Tr. 

2207-08). The Court credits Mr. Byrne’s testimony and finds that Messrs. Billcliff and Grzyboski visited the SpringHill 

Suites’ roof on August 4, 2021. When testifying, the Court found Mr. Byrne’s demeanor was forthright and conveyed 

truthfulness. 

17 At trial, Mr. Billcliff testified that he never walked with Mr. Byrne through the property or across the roof. (Tr. 2206-

07, 2234-35). The Court finds this testimony to not be credible. 18 Mr. Mehlmann testified that on September 10, 2021 the Devens SpringHill Suites issued payment of the initial deposit 

to the contractor, Merrimack Valley Roofing LLC, in the amount of about $45,300 for the hotel portion of the work to be 

performed at Devens SpringHill Suites. He also said that on November 12, 2021 the hotel issued a final payment to 

Merrimack Valley Roofing LLC in the amount of $45,714 for the hotel portion of the work performed at Devens 

SpringHill Suites. These two payments did not include payments for work performed at the adjacent Conference Center. 

(Tr. 209-12, 217-18, 333-34; Exs. 110, 149, at 6, Ex. 155, at 147, 508). Mr. Mehlmann testified that the two checks 

were sent to “Merrimack Valley Roofing LLC, P.O. Box 1214, Newburyport, Massachusetts 01950.” (Tr. 218-19, 1538-

39; Exs. 110, 155, at 147, 508). Check Nos. 015640 and 015777 were deposited into an account at Merrimack Valley 
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Valley Roofing was responsible for: 1) purchasing materials and equipment, 2) coordinating 

deliveries to the project, 3) communicating with the permitting agency, 4) overseeing the work, 5) 

overseeing safety, 6) and setting up the job site. (Tr. 204).

On August 4, 2021, 8:03 PM, Barry James sent a message to Mr. Costa, Subject Re: Fwd: 

EagleView Report 41571777-27 Andrews Pkwy, Devens, MA (Premium, $80.00, 45621 sq ft), that 

attached an EagleView Report on the project that EagleView prepared for: Barry James, Merrimack 

Valley Roofing, P.O. Box 1214, Newburyport, MA 01950, 978-884-6732, that showed the total roof 

area of the Devens SpringHill Suites and Conference Center to be 45,621 sq ft.19 The Report also 

states that the predominant pitch of the roof is 5/12, and that the roof is greater than one story high. 

It also includes photographs of the job site clearly showing the Devens SpringHill Suites hotel to be 

a three-story building. (Tr. 324-25, 332-33, 1636; Ex. 149, at 1, 5-6). 

During the evening, August 4, 2021, “Merrimack Valley Roofing & Gutter” submitted its 

proposal from Barry James at Foreman05.MerrimackValleyRoofing@yahoo.com, (978) 884-6732 

FOREMAN CELL,20 to Mr. Costa, 27 Andrews Parkway, Devens, MA for “FULL STRIP AND REROOF OF HOUSE ROOF” for $117,850, with options to cut in peak and install ridge vent system 

for $2,100 and to install ice and water shield full coverage to entire roof for $29,150 (Proposal). 

The proposal called for 1/3 payment upon scheduling, 1/3 upon material delivery and 1/3 within 30 

days of completion. (Tr. 334-35, 368, 1622; Ex. 126).

Credit Union for which Mr. Billcliff was the only authorized signer. The address for the account was 496 Main Street, 

Sandown, New Hampshire; [redacted]. (Tr. 246, 259-61; Ex. 155, at 147, 508, 4-page Certification of Business 

Records). Mr. Billcliff closed the account on August 12, 2022; a month after receiving the Secretary’s discovery

requests in July 2022. (Tr. 246). 19 Mr. Billcliff testified that he does not recall obtaining this EagleView report. (Tr. 2020-22; Ex. 149). 20 Mr. Billcliff testified that the (978) 884-6732 phone number shown on the proposal was his personal cell phone 

number. (Tr. 2025, 2289; Stip. No. 4). He also said that the MerrimackValleyRoofing.com web address shown on the 

proposal was Merrimack Valley Roofing’s web address. (Tr. 2025-26; Ex. 126). 
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On August 5, 2021, at 7:53 AM, Mr. Costa sent a message to Barry James that stated: “Barry 

were you able to check this out and confirm it’s the shingles that are the probably (sic)?21 Are they 

past their life here? We built this in 2005, so only about16 years old.” (Tr. 319; Ex. 107, at 4).

On August 5, 2021, at 8:19 AM, Barry James, 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “Yes, many of the thermos-seal lines were already broken. They are not completely dead

shingles, but at this age they are unable to withstand any extreme weather. They should last another 

7 to 10 years of normal conditions. They are not able to keep water out during heavy storms.” (Tr. 

320; Ex. 107, at 3). Mr. Costa testified that this exchange of emails indicated that Barry was 

physically on site at the Devens SpringHill Suites. (Tr. 320).

On August 5, 2021, at 2:11 PM, Barry James, 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “Good afternoon Mike, Thank you for inviting us out to handle this roof project. Please 

see your proposal attached to replace the shingled roof of the hotel at 27 Andrews Parkway. Feel 

free to give me a call if i can answer any questions for you. Barry James Foreman Merrimack 

Valley Roofing Inc. (978) 884-673222 c (978) 866-186023” (Tr. 320, 372-73; Ex. 107, at 3, Ex. 

150, Part A, at 17). CO Bussell testified that “Mr. Costa and the Government believed some” of the 

21 At trial, Mr. Costa testified that he meant to write “problem” and not “probably”. (Tr. 319). 22 Mr. Billcliff admitted that 978-884-6732 was his personal phone number. (Tr. 953, 1545, 1637, 1804, 1820, 2013; 

Stip. No. 4). CO Bussell testified that the same number was on the side of Merrimack Valley Roofing & Gutters’ van. 

(Tr. 1640). Leonardo Bonicenha, co-owner of L&A Property Services (L&A), Respondent’s subcontractor who 

provided roofers at the job site, testified that he had two phone numbers for Mr. Billcliff, 978-884-6732 and a number 

that ended in 1256. (Tr. 594). Mr. Bonicenha also testified that he received a phone call and messages from 978-904-

1254 that he believed originated from a man who he thought was named “Mike”. (Tr. 592, 596-97). 23 CO Bussell testified that he believed Mr. Billcliff answered the telephone when he called 978-866-1860. (Tr. 1833). 

He testified that the person who answered the call said that he did not want anything to do with the case and abruptly 

ended the call. (Tr. 1834). 
- 14 -

emails between Mr. Costa and Mr. Billcliff that Mr. Billcliff produced to the Government were 

fabricated. (Tr. 1831, 1883). 

C. On August 11, 2021, Mr. Costa Proposes that Mr. Billcliff Meet with him at the Devens

SpringHill Suites on August 12, 2021

At 3:00 PM, August 11, 2021, Mike Costa sent a message to Mr. Billcliff that stated, in part: 

“Barry we have a site meeting to discuss this tmo [tomorrow] What does your availability look like 

if we were to proceed....” (Ex. 150, Part A, at 15-16).

At 4:26 PM, August 11, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “need to know what day you need to meet you (sic) there if you feel my presence is 

necessary. It took me almost 2 hours per direction with traffic, so I would need to clear half a day.” 

(Tr. 337-39; Ex. 150, Part A, at 13). Mr. Costa interpreted Barry’s message as confirming that he 

had already been to the job site. (Tr. 338-39). 

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

roofing work

At 3:11 PM, August 19, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Barry 

we are ready to move forward with this. I’m working up a PO for this project.24 What do you need 

from me to get started. Thanks” (Tr. 416-17; Ex. 150, Part A, at 9, Ex. V, at R-306). 

At 3:21 PM, August 19, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “We will need to sign copies of the proposals. Indications on any options, choice of 

shingle color, and deposit. From there we will put it together and send it to the city for permitting. 

24 Mr. Costa testified that from his perspective the parties to a purchase order need the proper scope of work, the 

contract, certificate of insurance, the W9 [W-9], “and the correct entity that it’s coming out of”; in this case Merrimack 

Valley Roofing. He said the purpose of the purchase order is “[t]o hold both parties accountable and agreeable.” (Tr. 

416-17).
- 15 -

Once the permit is released, assuming the availability of materials, we can get it right on the 

schedule” (Ex. 150, Part A, at 8). 

At 2:54 PM, August 30, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “Hi 

Barry We’re ready to move forward. I’d like to add the ridge vent in as well.... (Id., at 6-7). 

At 3:17 PM, August 30, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated, in part: 

Good afternoon Mike. Unfortunately not do those payment terms. I’m not sure if you’ve 

checked product cost recently, but about 1⁄2 of the job is stock because we did not raise our 

price range to match the grossly inflated material costs. We now have only one half of each 

job to handle both labor and profit margin. We can do the 1⁄2 upon scheduling and then the 

other half within 30 days of completion. Or 1/3 upon scheduling, 1/3 upon material delivery, 

and the last third 30 days from completion. If you’re OK with the terms of your current 

proposal, we can get the job ball rolling and get that project done within the next two 

weeks.... (Ex. 150, Part A, at 6-7, Part B Re: Devens.msg). 

At about 3:34 PM, August 30, 2021, Mike Costa sent a message to Mr. Billcliff that stated, in 

part: “OK I’ll go 1⁄2 now and the other half 30 days after completion. Can you get me a deposit 

invoice? We’ll work up a contract in the meantime.” (Tr. 420-22; Ex. 150, Part A, at 6, Ex. V, at R308). 

At 6:24 PM, August 30, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “Good afternoon Mike Please see your deposit invoice attached Feel free to call if you 

have ant (sic) questions Thank you Barry James Foreman Merrimack Valley Roofing Inc. 

(978)884-6732 c (978)866-1860 o (978)296 3448 f”. (Tr. 425-26; Ex. 150, Part A, at 6, Ex. V, at 

R-309). 
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On September 2, 2021, Mike Costa signed and dated the Merrimack Valley Roofing & 

Gutter’s proposal25 and sent it to Barry James. A copy was also sent to the team that manages the 

hotel.

26 (Tr. 337; Ex. 126). The signed proposal has Mike Costa’s name crossed out and “SHS” 

written in. CO Bussell testified that “SHS’ stood for SpringHill Suites. (Tr. 1890; Ex. 126). Mr. 

Costa testified that the scope of work included in the proposal came from Barry James and that 

Barry James learned of the details about the scope of work by visiting the site. (Tr. 336; Ex. 126). 

At 2:19 PM, September 2, 2021, Mike Costa wrote in a message to Mr. Billcliff that stated, 

in part: “Barry just spoke to hotel. They are requesting the deposit be split 2 ways”; one for Devens 

Commons Conference Center at 31 Andrews Parkway with a deposit amount of $14,500 and another 

for Devens Hospitality LLC at 27 Andrews Parkway with the deposit amount of $45,300. (Ex. 150, 

Part A, at 5).

Mr. Costa testified that, based on his negotiations with Barry, Barry James was responsible 

for: 1) scheduling the work, 2) setting the daily schedule, 3) determining how may days of work 

would occur, 4) obtaining permits, 5) determining sequencing of the work on the project stages, 6) 

disposal services, 7) purchasing materials, 8) how many materials to buy, 9) purchasing equipment, 

10) ensuring that the work met contract specifications, 11) supervising the work, 12 ) overseeing 

safety on the project, 13) inspecting the job site for hazards, 14) ensuring that the workers had 

proper safety equipment, and 15) ensuring that the workers on their project received proper safety 

25 CO Bussell testified that “a good majority” of the 400 cases that he has been a part of at OSHA had a permit pulled 

and “a vast majority of permits don’t have a proposal on them.” He said that “the city only uses this proposal for the 

amount they charge you for the permit.” (Tr. 1894). He said that the proposal signed by Mr. Costa could be used to 

receive a permit. (Tr. 1890-91, 1895-96). CO Bussell testified that “there’s a lot of work that is done where there’s no 

signature on a contract, especially for roofing.” (Tr. 1894). He said New Hampshire does not require a permit for 

roofing, but Massachusetts does. (Tr. 1897). 

26 CO Bussell testified that OSHA asked for the contracts in a subpoena to Respondent, but Respondent never submitted 

them to OSHA. (Tr. 1892). Mr. Billcliff testified at trial that Respondent’s Supplemental Response to the Secretary’s 

discovery requests stated that he looked for such contracts, but did not have any. (Tr. 2000-01; Ex. 100, at 18).
- 17 -

training. Mr. Costa stated that Barry told him that Jason Vaughn27 would be Mr. Billcliff’s site 

contact for the project. He said that Barry never told him that he would be subcontracting out any 

work. (Tr. 321-23).

E. Devens SpringHill Suites Owner Pays Mr. Billcliff the first half of the Agreed upon 

Price. 

At 5:33 PM, September 2, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated, in part: “Good afternoon Mike. Please see the separated invoices attached ... Barry 

James Foreman Merrimack Valley Roofing Inc. (978)884-6732 c (978)866-1860 o (978)296 3448 

f”. (Tr. 334; Ex. 150 Part A, at 5). Mr. Costa testified that he received a deposit invoice # 264825A 

tied to proposal # 1012929, from Merrimack Valley Roofing LLC, calling for $45,300.00 to be due 

and paid by September 2, 2021 from Barry from 

“Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 331, 1538-39; Ex. 110, at 1, Ex. 155, at 

9, Ex. 190-B, at 1).

At 11:20 AM, September 13, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “Once the contract and deposit are both recorded, we file for the permit with the town 

and put the supplies on order.28 From there it is usually a 5 to 7 day process depending on the 

city[.]” (Ex. 150, Part A, at 3). 

27 Mr. Billcliff testified that he and Mr. Vaughn are long-term friends. He said that Mr. Vaughn is honest to the extreme 

level. He said that he knew that Mr. Vaughn had no real construction experience. (Tr. 693, 1951-52, 1983, 2207-08). 

Mr. Vaughn testified that he wants Mr. Billcliff to win this case. (Tr. 696). At trial, he testified that Mr. Billcliff told him 

that he [Billcliff] could be facing “a couple hundred thousand dollar fine” when this first happened. He thought Mr. 

Billcliff was “going to be pissed and beat the s__t out of me for it. That’s my opinion because you’re [Billcliff] a tough 

guy. You [Billcliff] could beat me up.” (Tr. 803-04). 28 CO Bussell testified that he did not know why Merrimack Valley Roofing would be talking about a permit that Billco

later pulled. (Tr. 1795).
- 18 -

At 12:32 PM, September 13, 2021, Mike Costa sent a message to Mr. Billcliff that stated: “I 

am told the checks went out on Friday.29 You have the signed contract from me. Once you file with 

Mass Development, please let me know.” (Ex. 150, Part A, at 3).

Mr. Costa testified that he never received a purported email from Barry James, 

foreman05.merrimackvalleyroofing@yahoo.com, on September 13, 2021, at 1:55 PM,

30 that stated 

“Barry will not be available for this project. Mike LaChance31 will contact you soon. Thank you. 

Jon.” (Tr. 351-52, 1977-80). The Court finds that the purported September 13, 2021 email from 

“Jon” and/or Barry James (Mr. Billcliff) to Mr. Costa was not actually sent by “Jon” and/or Barry 

James to Mr. Costa, or received by Mr. Costa, on September 13, 2021. The Court finds that this 

purported email was fabricated sometime thereafter. (Tr. 1977-80).

At 12:45 PM, September 14, 2021, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

that stated: “Correct Were you sending a hard copy of the proposal with the checks?” (Ex. 150,

Part A, at 2). 

At 12:47 PM, September 14, 2021, Mike Costa sent a message to Mr. Billcliff that stated: 

“Signed proposal sent on 9/2. Attached here” (Tr. 430; Ex. 150, Part A, at 2, Ex. V, at R-317).

F. Mr. Billcliff arranges for Subcontractor L&A to Provide Labor to Re-roof the Devens 

SpringHill Suites and Conference Center.

29 CO Bussell testified that the two checks for payment to Merrimack Valley Roofing LLC were sent to Merrimack 

Valley Roofing’s P.O. Box. 1214, Newbury, MA 01950, a post office box that was paid for in 2020 and 2021 by checks 

drawn on an account for Marrimack Valley Roofing Co., LLC, created by Mr. Billcliff on which he is the sole signatory. 

(Tr. 1541, 1623-24). Mr. Billcliff testified that Tim Shanahan owns P.O. Box 1214 in Newburyport, Massachusetts for 

Merrimack Roofing. (Tr. 2257-58). The Court gives little weight to this testimony by Mr. Billcliff and finds that Mr. 

Billcliff had access to this P.O. Box.

30 The Acting Secretary believes that this email was fabricated. (Tr. 1977-80). 31 Mr. Billcliff testified that he did not personally know Mr. LaChance. (Tr. 2253).
- 19 -

CO Bussell testified that a picture on Mr. Bonicenha’s phone showed a September 16, 2021 

message from Mr. Billcliff32 from phone ending in 1254, that stated:

Hi, this is Mike from Baystate exteriors ... I would like to know your availability, we need to 

hire a couple more bruise for this season. We have many job stock and ready to go and not 

enough dollars to do that. Do you have time to do jobs? Baystate exteriors inc, 484 Lowell 

Street Peabody Mass 01960 Please send c o i

33 to Wolfjohnm@aol.com[.]34

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

In response to a leading question by Mr. Billcliff, Mr. Bonicenha said “Yes” that he met Mr. 

Billcliff at the Devens SpringHill Suites’ parking lot on “July 10th” [2021].

35 He testified that Mr. 

Billcliff told him that the roofing materials were going to come from ABC Supply.36 (Tr. 499, 611-

12). At the Devens Project parking lot he talked with Mr. Billcliff about the price, where the 

materials were coming from, and the dumpster. He said, “Barry asked me if you have all of the 

harnesses and the rope; I said yes. That’s the conversation.” (Tr. 517-18, 612, 628). 

On September 20, 2021, at 12:32 PM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject Re: Devens, 

stating: 

Good afternoon Mike,37 We got all the paperwork in order today. We secured the shingles 

and are currently working on finding the rubber ro[unintelligible] now. If we can find a 

source that has enough EPDM rolls, we should be able to get that on the schedule within a 

32 Mr. Bonicenha testified that he believed that a man referred to as “Mike” sent him this message. (Tr. 629; Ex. 128). 33 Mr. Bonicenha testified that “c o i” stood for certificate of insurance. (Tr. 503). 34 CO Bussell testified that Mr. Bonicenha told him that he could not remember ever speaking to a “Mike” and that he 

thought it was “a Brian or a Barry at this number.” (Tr. 1755; Ex. 128). CO Bussell also testified that he believed that 

the Wolfjohnm@aol.com email address actually belonged to Mr. Billcliff. (Tr. 1814). Yahoo’s Gregory Phillips testified 

that the recovery phone number provided by the account user for wolfjohnm@aol.com was 19788846732 [Mr. Billcliff’s 

phone number]. (Tr. 1083-84; Ex. 159, at 12). The Court notes that “Baystate Exteriors” is sometimes referred to in this 

case as “Bay State Exteriors.”

35 The Court finds that Mr. Billcliff improperly framed the leading question using a July 10th date that he said Mr. 

Bonicenha had said before when he actually had not previously testified to that date before. The Court finds that Mr. 

Bonicenha met Mr. Billcliff at the Devens SpringHill Suites’ parking lot sometime after September 16, 2021, but before

October 7, 2021. (Tr. 629; Ex. 128, at 1-2). Mr. Bonicenha also testified that he was “very bad with the dates. I don’t 

remember like the dates.” (Tr. 631). 

36 Mr. Bonicenha testified that Mr. Billcliff bought all of the materials for the roofing project; except for the one material 

where Mr. Bonicenha was told to keep a receipt. (Tr. 499-500, 612). 37 Mr. Bonicenha testified that he never met anyone named “Mike” pertaining to the Devens Project. (Tr. 515-16).
- 20 -

week [] the release of the permit[.] I will update you again when we have an exact date. 

Thank you John Wolfe38 (Tr. 370-71, 379; Ex. 150, Part A, at 2). 

At 12:32 PM, September 20, 2021, Mike Costa sent a message to Mr. Billcliff that stated: 

“Thanks Barry” (Tr. 434, 471; Ex. 150, Part A, at 1-2, Ex. 150, Part B, Ex. V, at R-319).

G. Mr. Billcliff deposited the Initial two partial payment Checks made out to Merrimack 

Valley Roofing LLC into his Merrimack Valley Credit Union, Marrimack Valley Roofing 

Co., LLC Bank Account, on September 20, 2021. 

CO Bussell testified that on September 20, 2021, 1:49 PM, Mr. Billcliff deposited a check 

into an account where Mr. Billcliff was the only person authorized to deposit checks39 into that 

account at the Plaistow branch, Merrimack Valley Credit Union, with an unidentifiable signature on 

behalf of Merrimack Valley Roofing appearing on the back of check number 015640, dated 

September 10, 2021, issued by Devens Hospitality LLC, 27 Newburyport, MA 01950 in the amount 

of $45,300 made out to Merrimack Valley Roofing LLC, PO Box 1214, NewBuryport, MA 01950

and drawn on Unibank.

40 (Tr. 1556-60, 1855, 1861-65, 2079-80, 2259-61; Ex. 155, at 9, 13 

[Sealed], 107-08).

41 CO Bussell testified that telephone number (978) 866-1860 is associated with 

38 Mr. Costa testified that he never met or talked with John Wolfe. (Tr. 470). Mr. Bonicenha also testified that he never 

met anyone named John Wolf before, during, or after working on the project. (Tr. 516). Mr. Grzyboski also admitted 

telling CO Bussell during his March [8], 2022 interview that he never met John Wolfe. (Tr. 1184-86, 1192). At trial, 

Mr. Grzyboski also testified that he never met Messrs. Byrne and Bonicenha. (Tr. 1308-09). 39 Bank official Ms. Lee testified that “Barry Billcliff was the only individual that was authorized to exercise all powers 

that were listed in the resolution, so opening accounts, endorsing checks, obtaining loans, et cetera.” (Tr. 535-36; Ex. 

155, at 472-73). She said that Mr. Billcliff was the only authorized signer; e.g., authorized to sign checks and obtain 

monthly account statements, on the account and the only person authorized to close the account. She said the authorized 

signer is also able to obtain documents relating to the account after it is closed. (Tr. 535-38). 40 The Merrimack Valley Credit Union’s Monthly September 2021 bank statement for The Marrimack Valley Roofing 

Co, LLC d/b/a CO Barry Billcliff, 496 Main Street, Sandown, NH 03873, shows a deposit of $70,315 made on 

September 20, 2021. (Tr. 538-40; Ex. 155, at 326). Ms. Lee said that check 015640 made out to Merrimack Valley 

Roofing LLC could be deposited into the Marrimack Valley Roofing Company’s LLC, d/b/a Andover Roofing account. 

(Tr. 564-65). In its July 11, 2022 responses to the Secretary’s Interrogatory Nos. 4 and 5, Respondent stated respectively 

that “Respondent does not have immediate knowledge of the Account nor signers” and “Respondent has no personal 

knowledge (sic) [of] the Account”[.] The Court finds both these responses to be false. (Tr. 2090; Ex. 100, at 10). 41 Ms. Lee testified that the photographs at Exhibit 155, at 107, show the person depositing check 015640 at the Plaistow 

branch of the Merrimack Valley Credit Union on September 20, 2021. (Tr. 549-50; Ex. 155, at 107). She further said 

that the photographs at Exhibit 155, at 108, show the person depositing check 015777 at the Seabrook location of the 

Merrimack Valley Credit Union on November 16, 2021. (Tr. 549-50; Ex. 155, at 108). Mr. Billcliff testified that, 

although the person does look a lot like a younger version of himself, he is not the person shown in the four “9/20/21” 

photographs at Exhibit 155, at 107, and in the three “11/16/21” photographs at Exhibit 155, at 108. (Tr. 2259-60, 2287; 
- 21 -

this Merrimack Valley Credit Union’s Marrimack Valley Roofing Co., LLC bank account. (Tr. 

1641). Mr. Billcliff testified that he had “no personal knowledge about these” [two checks for 

$45,300 and $45,714].42 On March 8, 2022, Mr. Billcliff told CO Bussell and Assistant Area 

Director (AAD) LeRose that he could not recall43 whether he had seen the two checks from the 

Devens Project before and that he highly doubted that these two checks were deposited into an 

account that was connected to his name.44 (Tr. 2070-71; Ex. 155, at 9, 11). 

CO Michael C. Grover testified that checks written out to Merrimack Valley Roofing, 

Marrimack Valley Roofing and Barry Billcliff valued at $2,019,981.08 were deposited from October 

2019 through July 2022 into the same account at the Merrimack Valley Credit Union into which Mr. 

Billcliff deposited the checks from Devens Commons Conference Center, LLC for $14,500 and 

from Devens SHS Devens Hospitality LLC for $45,300 on September 10, 2021 and from Devens 

Commons Conference Center, LLC for $14,436 and from Devens SHS Devens Hospitality LLC for 

$45,714 on November 12, 2021. (Tr. 1434-42, 2323-24; Exs. 155, at 13-14 (sealed), 169). 

The Court finds that Mr. Billcliff’s trial testimony that he knows that Unibank check 

numbers 015640 and 015777 at Attachment 2 in the Secretary’s discovery request were not true and 

correct copies of the checks that he actually received from Devens Hospitality (Devens SpringHill 

Suites) concerning the roofing work performed at the job site to not be credible. (Tr. 2087; Ex. 155, 

at 9, 11). The Court further finds that Respondent’s July 8, 2022 assertions in its Responses to the 

Secretary’s Requests for Admissions (RFA) Nos. 7 and 8 that it [Mr. Billcliff] has no personal 

knowledge that Unibank check numbers 015640 and 015777 were received by Respondent from 

Ex. 155, at 107-108). The Court finds this testimony by Mr. Billcliff to not be credible and further finds that the 

photographs all show Mr. Billcliff in them. 42 The Court finds this testimony to not be credible. 43 Likewise, Mr. Billcliff stated during his January 12, 2023 deposition that he could not recall ever endorsing or cashing 

checks on behalf of Merrimack Valley Roofing. (Tr. 2116-17). 44 The Court finds that these March 8, 2022 statements by Mr. Billcliff to CO Bussell and AAD LeRose were false.
- 22 -

Devens Hospitality (Devens SpringHill Suites) concerning the roofing work performed at the job 

site and that Mr. Billcliff has no recollection of depositing the checks into the Merrimack Valley 

Credit Union’s Marrimack Valley Roofing Co., LLC bank account to be without any reasonable 

basis and to be false assertions.

45 (Tr. 2088; Ex. 100, at 8, Ex. 155, at 9, 11, 13-14 [sealed]). 

H. Mr. Billcliff directs his son, Daniel Grzyboski, to apply for the Permit to perform the 

Roofing work at the Devens SpringHill Suites and the Conference Center. 

On September 22, 2021, 5:21 PM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated:

Hey Mike, just so you know, all the paperwork is in order, we applied for the permit. We 

ordered the materials.46 The rubber roofing materials are not in stock but have been 

ordered through the manufacturer. As soon as the materials are consolidated and ready for 

delivery. I’ll let you know and we will put that on the schedule. I’m assuming about two 

weeks out[.] (Ex. 150, Part A, at 1).

On September 22, 2021, 12:32 PM, Mike Costa sent a message to Barry saying: “Thanks 

Barry”[.] (Ex. 150 Part A, at 1-2).

Mr. Costa testified that he did not sign as the “Homeowner”47 at either of two places that 

appear on the permit application at Exhibit 123, at 5, that are dated September 23, 2021. He said 

that the signature appearing at both places for the homeowner to sign was illegible to him. (Tr. 345-

47; Ex. 123, at 5). At trial, Mr. Grzyboski testified that he told CO Bussell during his March [8], 

2022 interview that he signed directly below the “John Wolfe” homeowner’s signature48 on the 

permit application at Exhibit 123, at 5, at “F”. (Tr. 1175-77, 1192, 1329, 1336-38; Ex. 123, at 5, at 

45 During his January 12, 2023 deposition, Mr. Billcliff stated that he did not recall depositing check numbers 015640 

and/or 015777 into a bank account. (Tr. 2111-13; Ex. 155, at 13-14 [sealed]). 46 Mr. Billcliff testified that he did not purchase any materials for the Devens Project job site. (Tr. 2219). The Court 

finds this testimony to not be credible. 47 “Homeowner” refers to the owner of the Devens SpringHill Suites and/or Conference Center. 48 The homeowner’s signature is at Exhibit 123, at 5, at “D”. (Tr. 1178; Ex. 123, at 5, at “D”). At trial, Mr. Grzyboski 

testified that he did not know who signed there. At trial, he was evasive as to whether or not John Wolfe was the owner 

of the Devens SpringHill Suites or Conference Center properties. (Tr. 1178-79, 1235, 1340-45; Ex. 125, at 5, at “D”). 

He said that he did not know what properties John Wolfe owned. (Tr. 1349). The Court notes that Mr. Wolfe is also 

sometimes referred to as “Wolf” in the trial transcript and herein. (Tr. 704).
- 23 -

“F”). At trial, Mr. Grzyboski testified that he could not confirm that the signature at the bottom right 

[above “Contractor’s Signature NOTICE”] of page 5, Exhibit 123, or at Exhibit 123, at 5, at “F”, 

was his signature. (Tr. 1256, 1262, 1329, 1338-39; Ex. 123, at 5). 

Acting upon Mr. Billcliff’s order to get the permit for the Devens Project, on September 24, 

2021, Daniel Grzyboski signed, under penalties of perjury, with telephone number [redacted],

49 a 

Department of Industrial Accidents Office of Investigations form that identified Billco Roofing 

LLC,50 496 Main Street, Sandown, NH as the insured and applicant employer with 4 employees to 

do roof repairs at 27 Andrews Parkway, Devens, MA using “Insurance Solutions Corporation” as the 

workers’ compensation insurer. (Tr. 274, 280-81; Ex. 123, at 8, Ex. 124, at 2-3; Stip. No. 6). At 

trial, Mr. Grzyboski testified that Billco Roofing’s business address is 496 Main Street, Sandown, 

New Hampshire 03873. (Tr. 1016, 1030). He said that he was primarily employed as a general 

laborer and has helped with “installs” at Merrimack Valley Roofing and Gutter, LLC for roughly the 

past ten years where he reports to Mr. Billcliff and others, including “John” (last name unknown), 

but also helps out “a handful a year” at Billco Roofing. (Tr. 1020-21, 1033-34, 1119, 1314). He 

testified at trial that his Merrimack Valley Roofing and Gutter, LLC employer’s business address 

was 520 Merrimack Street, Methuen, Massachusetts. (Tr. 1113, 1311).

CO Bussell testified that he contacted Peter Lowitt, Director of the Devens Enterprise 

Commission, as part of his OSHA investigation and asked him for documents used in the permit 

application to do the roofing work at Devens SpringHill Suites, which he provided. (Tr. 1528-30). 

Mr. Lowitt testified that Exhibit 124, at p. 6, appeared to be a copy of the contract between Billco 

Roofing LLC, 496 Main Street, Sandown, NH 03873 (978) 884-6732 and 27 Andrews Parkway, for 

49 At trial, Mr. Grzyboski stated that [redacted] is his cell phone number. (Tr. 1169, 1191-92). 50 CO Bussell testified that Billco LLC was not actively registered as an LLC in either New Hampshire or Massachusetts 

as of October 7, 2021. (Tr. 1532-33). 
- 24 -

a roofing job for $60,000.00.

51 (Tr. 281; Ex. 124, at 6). The “contract” identified “Barry” as the 

“Contact” “c/o John Wolf GC”, “Phone: (978) 866-1860”. It also identified Daniel Grzyboski as 

the Supervisor.52 Mr. Grzyboski testified at trial that he did “not know John’s [Wolf] last name, 

....”, but said he briefly met “John” more than ten times. He described “John” as probably 

somewhere between 67 to 72 inches tall. (Tr. 281-82, 1035-36, 1264, 1530-31; Ex. 124, at 6).

Another picture on Mr. Bonicenha’s phone showed a September 24, 2021 message from Mr. 

Billcliff from his phone ending in 1254 to Mr. Bonicenha, that stated: “I haven’t received a 

Certificate of Insurance from you yet. I have a couple of very big projects coming up in two weeks 

and I need many more guys. Are you able to help?” (Tr. 503-04, 651; Ex. 128, at 1).

 On September 27, 2021, Daniel Grzyboski submitted, at Mr. Billcliff’s request, a permit 

application to the Devens Enterprise Commission for Billco Roofing LLC, 496 Main Street, 

Sandown, NH, telephone number: 978 884-6732 [Mr. Billcliff’s cell phone number],53 to “strip and 

roof of shingled portion of roof (304 sq)” located at the Marriott SpringHill Suites, 27 Andrews 

Parkway, Devens, Massachusetts. (Tr. 273-76, 1055, 1126-27, 1141, 1530-31, Stip. No. 4; Ex. 123). 

At trial, Mr. Grzyboski admitted that he told CO Bussell during his March 2022 interview that he 

51 There is no signature page included in the “contract” and Mr. Costa first saw the “contract” on February 23, 2023. 

(Tr. 300; Ex. 124, at 6). 52 Mr. Vaughn testified at trial that he never saw Mr. Grzyboski, who was a “really close friend” of his, at the Devens

Project job site. (Tr. 786-88). At trial, Mr. Grzyboski admitted telling CO Bussell in March [8], 2022 that he was never 

at the Devens Project job site from when work started to when work finished. He also testified to that effect at trial. (Tr. 

1129-30, 1192, 1307-08). 53 The Workers’ Compensation Insurance Affidavit of the permit application states that “I [company name: Billco 

Roofing LLC] am an employer providing workers’ compensation for my employees working on this job.” At trial, Mr. 

Grzyboski admitted that he told CO Bussell during his March 8, 2022 interview that he filled out and signed the 

Affidavit dated September 24, 2021. (Tr. 1192-94; Ex. 124, at 3). The permit application did not identify any 

subcontractors to Billco Roofing LLC that were going to work at the job site and any such subcontractors should have 

been indicated in the permit application. (Tr. 277-78, 297-98; Ex. 123, at 3). Mr. Vaughn testified at trial that L&A was 

a subcontractor on the project. (Tr. 790, 810, 939).
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used his Massachusetts Construction Supervisor’s license54 to fill out the permit application.55 (Tr. 

1132-33; Ex. 125, at 2; Stip. No. 7). He also admitted at trial that during his March [8], 2022 

interview he told CO Bussell that he wrote the numbers alongside the “CONST. SUPER. LIC. NO.” 

(Tr. 1145, 1192; Ex. 123, at 2). At trial, he also acknowledged that his address, at “496 Main Street, 

Sandown, NH” appears below “Builder Daniel Grzyboski”. (Tr. 1149; Ex. 123, at 2). At trial, he 

also admitted telling CO Bussell during his March [8], 2022 interview that he filled out the whole 

document at Exhibit 123 and wrote in “Mike Costa, 27 Andrews Parkway, Devens, MA, phone: 978 

866 1860” (a phone number used by Mr. Billcliff) alongside and below the “Owner.”56 (Tr. 1152-

55, 1192, 1833; Ex. 123, at 2, at “A”). The application identified “Mike Costa”, phone number: 

978 866 1860,57 as the owner of the SpringHill Suites.

58 (Tr. 1155-56; Ex. 123, at 2, at “B”). Mr. 

Costa testified that he did not sign the document as the owner and phone number 978-866-1860 was 

not his phone number.59 He also said that he did not give anyone authorization to sign the building 

permit application for him. (Tr. 343-44; Ex. 123, at 2). CO Bussell identified the scribbled 

signature appearing alongside the “Owner Signature” as “John Wolfe”.60 (Tr. 1531; Ex. 123, at 2). 

54 At trial, Mr. Grzyboski was very evasive and would not identify the photograph of him that was on his Massachusetts 

Construction Supervisor License saying that he believed that “you guys [OSHA and Department of Labor personnel] do 

not act in good faith, ...” He also was evasive when he declined to confirm that pages were part of the permit 

application that he submitted to the Devens Enterprise Commission. (Tr. 1135-40, 1237; Exs. 123, 125, at 2). 55 At trial, Mr. Grzyboski testified that he was not a construction supervisor at the Devens job site. (Tr. 1216-17). 56 At trial, Mr. Grzyboski admitted telling CO Bussell during his March [8], 2022 interview that “my father [Mr. 

Billcliff] asked me to fill out the permit, so I filled out the permit” and inserted Billco Roofing, LLC in the permit. (Tr. 

1173, 1192; Ex. 123, at 3). 57 At trial, Mr. Grzyboski also admitted telling CO Bussell during his March [8], 2022 interview that 978 866 1860 was 

the phone number for Merrimack Valley Roofing. (Tr. 1157-58, 1192; Ex. 123, at , at “B”). 58 Director Lowitt testified that Robert Walker is the owner of Devens SpringHill Suites hotel and all of the buildings in 

that complex. (Tr. 273, 278, 1533). 59 Mr. Billcliff testified that he agreed that 978-866-1860 was not Mr. Costa’s phone number. (Tr. 2058). 60 Director Lowitt testified that the scribbled signature appeared to show the signature of Mr. Walker. (Tr. 279; Ex. 123, 

at 2). The Court finds that the first name of the scribbled signatures appears more like “John”, and is definitely not 

“Robert”; so it credits CO Bussell’s testimony that the scribbled signatures purport to be that of John Wolfe on the 

Building Permit Application at pages 2 and 4. (Tr. 1531; Ex. 123, at 2, 4). CO Bussell testified that the owner’s 

signatures on the Building Permit Application are significant in that they show the owner agrees with the permit being 

sought. He said that there is no John Wolfe affiliated with RA Ventures or Robert Walker, the owner of Devens 

SpringHill Suites. (Tr. 1535-36). CO Bussell testified that, in his lay opinion as a compliance officer, the John Wolfe 

signatures that appear in the Building Permit Application are “forged.” (Tr. 1533-37; Ex. 123, at 2, 4). See F.R.E., Rule 
- 26 -

At trial, Mr. Grzyboski admitted telling CO Bussell during his March [8], 2022 interview that 

“John”,61 who he said worked for Merrimack Valley Roofing and Billco, signed alongside the 

“Owner Signature”. (Tr. 1159-61, 1192; Ex. 123, at 2, at “C”). The application shows that the name 

printed below the builder’s signature is “Daniel Grzyboski” with a telephone number: “[redacted]” 

and is dated “9-27-21”. (Tr. 279; Ex. 123, at 3). The permit application showed that the estimated

cost of the construction was written in with $60,000.62 (Ex. 123, at 2). The permit application 

included a required photocopy of Mr. Grzyboski’ s Massachusetts Construction Supervisors License 

along with photo identification.63 (Tr. 1054-55; Ex. 123, at 2, 4). Mr. Grzyboski also certified that 

he was authorized by the owner to make the permit application as his/her authorized agent. (Tr. 282, 

411; Ex. 124, at 7). Mr. Costa testified that he gave Merrimack Valley Roofing permission to pull a 

permit. (Tr. 411). But Mr. Costa testified that neither he, nor anyone in his office, authorized Mr. 

Grzyboski to submit the permit application that contained the permit materials that appear therein. 

(Tr. 347-48; Exs. 123-24). Mr. Costa testified that Mr. Billcliff did not tell him that: 1) his home 

701. The Court agrees with CO Bussell and finds that the signatures purported to be at the Owner Signature at page 2 at 

“C”, and at page 5, at “D” and “E”, Exhibit 123, contained in the building permit application materials are forgeries and 

were not made by the property owner of the Devens Project, or by Robert Walker or John Wolfe. 61At trial, Mr. Grzyboski testified that he did not recall “John’s” last name. (Tr. 1161-63, 1167). 62 Director Lowitt testified that the Devens Enterprise Commission charges $13 per thousand in value based on the 

project value. (Tr. 279). He said that check no. 411, dated September 27, 2021, signed by Mr. Grzyboski from 

“Marrimack Valley Roofing Co, LLC, PH: 978-866-1860” for $780.00 was received by the Devens Enterprise 

Commission for the “Permit”. At trial, Mr. Grzyboski said that he did not know if the signature appearing on check no. 

411 was his. (Tr. 1199; Ex. 133 [filed under seal]). At trial, Mr. Grzyboski testified that he did not recall how the 

$780.00 fee was paid. (Tr. 288-90, 1196-97, 1640-41; Ex. 133 [filed under seal]). At trial, he also admitted saying 

during his February [9], 2023 deposition that he did not recall ever writing a check for the Marrimack Valley Roofing 

Co., LLC. (Tr. 1200-01, 1218). Mr. Costa testified that the $60,000 amount shown on the building permit application as 

the estimated cost of construction was not accurate. (Tr. 344-45; Ex. 123, at 2). At trial, Mr. Grzyboski testified that he 

did not know where the three $20,000 schedule payment amounts totaling $60,000 shown on the permit application atop 

page 5 of Exhibit 123 came from. (Tr. 1176-77; Ex. 123, at 5). 

63 Mr. Grzyboski’ s Massachusetts Construction Supervisors License showed his address at: 496 Main Street, Sandown, 

NH 03873. (Tr. 283-84, 303, 1118; Ex. 123, at 4, Ex. 125; Stip. No. 6). Mr. Billcliff testified that his son, Daniel, could 

apply for a permit. (Tr. 2046). Mr. Grzyboski was trained on OSHA’s fall protection and proper use of ladder 

requirements and discussed these requirements with Mr. Billcliff. He testified that Mr. Billcliff knew about the need to 

use fall protection at or above six feet and to wear hard hats. He said that Mr. Billcliff took an OSHA fall protection 

course. (Tr. 1055-63). 
- 27 -

improvement contractor’s license had been revoked,64 2) he did not have a construction supervisor’s 

license,65 and 3) he, himself, was unable to obtain a permit from the permitting agency for the 

Devens Project. (Tr. 348). Mr. Costa testified that a construction supervisor’s license was needed to 

pull a permit. (Tr. 410). The building permit application documents included a Certificate of 

Liability Insurance dated “6/4/2021” identifying “BILLCLIFF BARRY DBA BILLCO ROOFING 

496 Main St” and another Certificate of Liability Insurance also dated “6/4/2021” identifying 

“Billco Roofing LLC, 496 Main Street” as the insured. (Tr. 274, 280; Ex. 123, at 8; Ex. 124, at 2).

These two Certificates of Liability Insurance identify Merrimack Valley Roofing Inc., 520 

Merrimack Street, Methuen, MA 01844 as the Certificate Holder. (Ex. 123, at 8, Ex. 124, at 2).

 Director Lowitt testified that the Devens Enterprise Commission ultimately issued a permit 

in response to Mr. Grzyboski’ s application, shortly after September 27, 2021.66 (Tr. 288). He 

testified that the permit “must have been picked up.”67 (Tr. 295). Mr. Lowitt said that his office did 

not receive another permit application from anyone other than Billco Roofing, LLC for the October 

2021 roofing job at Devens SpringHill Suites. (Tr. 278). He further testified that the Devens 

Enterprise Commission has yet closed out the permit because it has not yet received a final 

inspection request for the job. (Tr. 296). 

64 During his February 11, 2022 deposition in a separate OSHA case, Docket No. 21-0382, Mr. Billcliff said that he held 

a Massachusetts home improvement contractor’s license in the 2000s. (Tr. 2044-45). Mr. Billcliff also testified that his 

Massachusetts home improvement license was taken away from him. At his February 11, 2022 deposition in Docket 

No. 21-0382, he said that his Massachusetts home improvement license was taken away from him after a court hearing. 

(Tr. 2025, 2042-44). 65 At trial, he testified that he never had a Massachusetts construction supervisor’s license. (Tr. 2045). 

66 Mr. Billcliff initially testified that, to the best of his knowledge, the Devens Enterprise Commission never issued the 

permit for the job site. (Tr. 2231). Shortly thereafter, he testified that a permit was issued long after the job was 

completed. (Tr. 2233).

67 Mr. Billcliff testified that his order to his son to pull a permit “was a temporary order” and when he found out that 

Billco was not doing the job, he told his son “not to sign off and not to go get it [permit] and activate it [the permit].” 

(Tr. 2301). 
- 28 -

I. Mr. Billcliff’s Supervisor and Subcontractor L&A start Roofing work at the Job Site in 

early October 2021. 

In early October 2021, Mr. Billcliff or someone else acting on his behalf, arranged for both a 

dumpster and roofing materials to be delivered for the Devens Project and confirmed same with Mr. 

Costa. (Tr. 205, 339-40; Ex. 108, at 2; Ex. 151). On October 1, 2021, Mr. Billcliff emailed Mr. 

Costa to provide a schedule for the work. (Ex. 108, at 5, Ex. 151).

 Mr. Bonicenha testified that his company, L&A, was hired by Mr. Billcliff to do roofing 

work at the SpringHill Suites and Conference Center.

68 He said that he communicated with Mr. 

Billcliff only through phone calls before starting the Devens Project.

69 He said that the job was 

scheduled to be completed in two weeks. He said that he had about eight or nine workers on the job 

every day. (Tr. 497-98). Mr. Billcliff did not make any effort to determine whether Mr. Bonicenha 

was qualified or competent to supervise the safety conditions at the Devens Project. The only 

conversation Mr. Billcliff had about safety with Mr. Bonicenha was to inquire if he had “all of the 

equipment.” (Tr. 517). Mr. Vaughn did not discuss safety with Mr. Bonicenha prior to when 

OSHA came to the worksite. (Tr. 518). 

 On October 4, 2021, 6:16 AM, Mr. Costa sent a message to “Barry James” that stated: “How 

68 Mr. Bonicenha testified that he had previously done a small flat roofing job at a garage in Lawrence for Mr. Billcliff 

after Mr. Billcliff had seen a L&A van on a highway. (Tr. 506, 604-07). He said that Mr. Vaughn was Mr. Billcliff’s 

supervisor on that job and he sat for the duration of the job in the same black Dodge that he later sat in during the 

Devens Project. (Tr. 604-05). He said that he first met Mr. Billcliff when he [Billcliff] stopped by the job and gave him 

[Bonicenha] a couple of tubes of caulk to apply to the roof. Mr. Bonicenha testified that Mr. Billcliff introduced himself 

as Barry Billcliff, owner of Baystate Exterior. (Tr. 606-07). He said that Mr. Billcliff gave his [Bonicenha’s] “labor 

guy” the contract for the Lawrence job at the end of the job, along with the cash payment called for in the contract. (Tr. 

607-08, 678-79). 69 Mr. Bonicenha said that after he started the Devens Project, he also communicated with a man named “Mike” 

[allegedly from Baystate exteriors inc (sic), 484 Lowell Street Peabody Mass 01960, c/o Wolfjohnm@aol.com] that used 

a number ending in 1254 [978-904-1254] by text messaging. He said that Mr. Billcliff’s number was 978-904-1254. 

(Tr. 500-08, 634; Ex. 128). He said he went to that address one time to look for Mr. Billcliff and Baystate Exteriors Inc. 

and was told by the building owner there that Baystate Exteriors Inc. had left the building eight years before. (Tr. 504). 

Mr. Bonicenha testified that “Mike” sent him a message toward the end of the job and told him to tell his workers to 

listen to Mr. Vaughn when Mr. Vaughn told his workers to wear their harnesses and hard hats. (Tr. 635). 
- 29 -

long do you think this project will take? Also hotel has asked that no work begin before 8am.” (Tr. 

326, 1923; Exs. 152, I).

On October 4, 2021, 6:33 AM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated: “Ok, 6 

days plus rain outs like today.” (Tr. 326; Ex. 152).

On October 5, 2021, 11:08 AM, Mr. Costa sent a message to Barry James that stated: “Barry 

did you guys start today?” (Ex. 108, at 4). 

On October 5, 2021, 11:10 AM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Re: 

Devens, that stated: “No, tomorrow. It’s raining today” (Ex. 108, at 3-4). 

On October 5, 2021, 11:12 AM, Mr. Costa sent a message to Barry James that stated, in part: 

“My only ask is you communicate any delays or issues with me so I can let the hotel know.” (Tr. 

438; Ex. 108, at 3, Ex. V, at R-322). 

On October 5, 2021, 11:33 AM, Mr. Costa sent a message to Barry James that stated, in part: 

“I am the one you should communicate with during this project for any delays, or days when your 

crew isn’t going to be on site.” (Tr. 436; Ex. 108, at 2, Ex. V, at R-321). 

On October 5, 2021, 11:45 AM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa that stated:

OK, my apologies. So we plan on starting tomorrow about 8 o’clock. We will have someone 

on site around seven and the rest of the crew will show up around 730. We know that we 

cannot start making any noise until eight. We will have 12 to 14 guys there with four 

vehicles and will coordinate with you as far as closing and reopening entries or other egress 

issues. Our contact that will be on site the entire time is Jason Vaughn. He is a tall fellow 

with a beard and usually has a blue hoodie. Only your office number is on your email, is 

that the best way to get hold of you or do you have a cell phone to communicate via text?

(Tr. 323, 339-40; Ex. 108, at 1).
- 30 -

J. Jason Vaughn was Mr. Billcliff’s on-site Supervisor at the Devens Project.

One picture taken by CO Bussell on October 7, 2021 of Mr. Bonicenha’s cell phone showed 

an 11:14 AM [no date identified] message from Mr. Billcliff from 978-904-1254 to Mr. Bonicenha 

that stated: “I’m going to have the site manager, Jason, give you a call to set up a big job. He will 

be there for the entire job and get you anything that you need.”70 (Tr. 502-03, 507-09, 1525-26, 

1665-68; Ex. 128, at 2-4). 

When Mr. Bonicenha visited the job site for about three to four hours a day, he spoke with 

Mr. Vaughn, who he understood was Mr. Billcliff’s supervisor at the job site.71 Mr. Bonicenha 

testified that “Jason used to tell me all the time I [Mr. Vaughn] am going to take care of all of these 

guys [L&A workers] and all of the jobs for you [Bonicenha] because I [Bonicenha] have another job 

going – going at the same time. He [Vaughn] said I [Vaughn] take care of those guys and their job is 

going well.” Mr. Bonicenha testified that Mr. Vaughn’s job at the job site was to make it safe for the 

workers; but that he [Vaughn] did “nothing” to do so.72 Mr. Bonicenha testified that he normally 

stayed at his worksites and ensured that his workers wore harnesses; but on the Devens Project he 

was free to be present at his other jobs because Mr. Vaughn was the supervisor at the Devens Project 

job site.73 (Tr. 618). He said that he called Mr. Vaughn “a couple of times in the day” to check on 

the job and Mr. Vaughn said everything is good. (Tr. 627). He said that Mr. Vaughn told him that he 

70 CO Bussell testified that OSHA traced back the messages received by Mr. Bonicenha at Exhibit 128 to Mr. Billcliff. 

(Tr. 1726; Ex. 128).

71 Mr. Bonicenha said that he met only Messrs. Billcliff and Vaughn at the job site. He said that he met Mr. Billcliff 

twice at the job site including once a week before L&A started the roofing job where Mr. Billcliff showed him the scope 

of the roofing project before the materials arrived at the job site, and a second time where Mr. Billcliff reviewed the 

“numbers” the following week. (Tr. 501, 610-11). Mr. Bonicenha said that Mr. Billcliff never came to the job site to 

check on the status of the Devens Project. (Tr. 519). 72 Mr. Bonicenha testified that Mr. Vaughn “confessed to me [Bonicenha] he [Vaughn] don’t know nothing about the 

construction.” (Tr. 522). 

73 At the trial, Mr. Vaughn testified that Mr. Bonicenha was present at the job site “a good majority” of the time; “Eighty, 

90 per cent. I don’t know.” (Tr. 734-35). But, at his February 9, 2023 deposition, Mr. Vaughn said Mr. Bonicenha 

“was never there”, and that he was not there much of the Devens Project. (Tr. 736-37).
- 31 -

told Bonicenha’s workers to wear their harnesses. (Tr. 588). He said that Mr. Vaughn told him that 

he worked for his friend, Mr. Billcliff, and was to be paid around $800 per week.74 (Tr. 498-99, 508, 

518-22, 627-28). 

Near the end of the Devens Project, Mr. Bonicenha asked “Mike” [in reality Mr. Billcliff] 

and/or Mr. Vaughn for some more materials, including two boxes of nails and shingles. He said that 

Mr. Billcliff provided some shingles,75 and he [Bonicenha] bought some of the materials, nails and 

ridge vent, to get the job completed.76 He testified that Mr. Billcliff [who was referring to himself as 

“Mike”] told him that if he saved the receipt, he [Billcliff] was going to pay him at the end of the 

job. (Tr. 499-500, 520, 636-38, 761-62, 901-08). Mr. Bonicenha testified that he and Mr. Billcliff 

agreed that the price for L&A’s roofing work was $47,850. He said that the messages at Exhibit 128 

constituted the whole agreement between Mr. Billcliff and L&A. (Tr. 508-09; Ex. 128).

During the first day of the job; i.e. October 6, 2021, Mr. Byrne testified he first met Jason 

Vaughn and Mr. Vaughn told him that he “was supervising the job” “for Merrimack Roofing.”77 (Tr. 

84-85, 100, 208). Mr. Byrne further testified that he did not really want to talk with Mr. Vaughn 

anymore because it was his understanding that Mr. Vaughn was not going to go up onto the roof 

74 At trial, Mr. Vaughn testified that he was paid “under 500 bucks” for “private phone calls” that he “just did something 

[make the phone calls] to kill time and did them there [at the job site].” (Tr. 968-73). When asked at his February 9, 

2023 deposition, Mr. Vaughn admitted at trial saying then that he did not know or did not recall whether the phone calls 

that he made to Mr. Billcliff were about: 1) the work happening at the hotel, 2) whether the workers were wearing 

harnesses, 3) the use of ladders, 4) purchasing materials, 5) scheduling, 6) subcontracting, and/or 7) OSHA coming to 

the job site. (Tr. 970-71). The Court finds Mr. Vaughn’s testimony regarding his sweeping characterization that the 

phone calls that he made at the job site were “private phone calls” to be incredulous. 75 At trial, Mr. Vaughn said that Mr. Bonicenha would sometimes ask him for things that he needed for the job. (Tr. 

794). Mr. Vaughn confirmed that Mr. Bonicenha indicated that he needed more shingles to complete the job and he

[Vaughn] decided where to put the shingles at the job site when they were delivered. He said that Mr. Billcliff handled 

the procurement of the shingles. (Tr. 738-39, 761-63, 794, 901-08). Mr. Vaughn said that there were two or three 

deliveries throughout the Devens Project and that he told Mr. Billcliff when each arrived at the job site. (Tr. 764). 76 Mr. Vaughn also testified at trial that he [Vaughn] bought some roofing nails from Home Depot for the Devens 

Project. (Tr. 761-62, 899-900). 77 At trial, Respondent objected to the question that solicited this answer based upon hearsay. The Court finds that the 

answer is admissible as an exclusion from hearsay under Federal Rule of Evidence 801(d)(2). (Tr. 85-86).
- 32 - 

because he was afraid of roofs.78 (Tr. 84-86, 175-76, 792-93). During the course of the job, Mr. 

Byrne said that he gave some instructions about the job to Mr. Vaughn. As examples, he said he told 

Mr. Vaughn to: 1) remove a ladder that barely made it up to the roof,79 2) clean up, and remove 

nails at, the Devens Project’s parking lot, and 3) remove plastic paper and shingles from trees 

located in front of the building.80 (Tr. 86-87, 175, 177, 180, 728-29, 734). Mr. Mehlmann also 

testified that Mr. Vaughn was “perfectly fine” with being told by him “to make sure the parking lot’s 

cleared, what time they were starting as to not interrupt, you know, our guests that were staying at 

the hotel, making sure what time they’d be done at night....”81 (Tr. 207-08, 729-30). Mr. Byrne 

stated that Mr. Vaughn “sat in his car for the whole project, mostly. He just – moved his car from 

side to side. He would get out and walk around.”82 (Tr. 87-88, 739). Mr. Mehlmann also testified 

that Mr. Vaughn “was sitting in his car or just watching them work really.” (Tr. 207). Mr. Byrne 

saw Mr. Vaughn try to communicate with the workers using sign language since the workers did not 

78 Mr. Byrne testified that he told Mr. Mehlmann that he was “very concerned” that Mr. Vaughn was supervising the job 

because he was not a roofer and was afraid to go up onto the roof. While waiting for Mr. Mehlmann in the parking lot

and before OSHA arrived at the job site, Mr. Byrne testified that he saw workers on the roof stripping it and shingling 

without wearing any fall protection. Mr. Byrne then introduced Mr. Mehlmann to Mr. Vaughn who confirmed that he 

was not a roofer and was afraid to go up onto the roof. (Tr. 89-91, 109, 115-16, 197-98, 208; Ex. 129, at DOL000324[p. 

3], DOL000334[p. 12] ). Mr. Mehlmann said that Mr. Vaughn “was the supervisor or part of Merrimack Valley, who 

was our point of contact for on-site.” He said that Mr. Vaughn told him that he worked for Merrimack Valley. (Tr. 206, 

209). Mr. Vaughn told Mr. Mehlmann that his role at the job site was to make sure that the workers got “their job done.” 

(Tr. 208). Mr. Mehlmann testified that he saw workers on the roof working without wearing any fall protection. (Tr. 

206, 262). Mr. Billcliff testified near the end of the trial that “everyone that’s testified has said they all know that’s not 

true” that nobody on the roof was wearing a harness. (Tr. 2235). The Court finds that there is no evidence that anyone 

working on the roof, before CO Bussell informed Mr. Vaughn of his presence on October 7, 2021, was wearing a 

harness and properly tied off. 79 Mr. Byrne’s testified that he told Mr. Vaughn that the presence of ladders was “very serious”, and Mr. Vaughn told him 

that “I’ll make sure that they’re taken down tomorrow.” (Tr. 177-78). At trial, Mr. Vaughn confirmed that a hotel 

employee told him on his first day at the job site to ensure that all ladders were not standing against the hotel at the end 

of each day. He said he called Mr. Billcliff about this and after that “the ladders were never left up at the end of the 

night.” (Tr. 731-32). 80 Mr. Byrne testified that to the best of his knowledge Mr. Vaughn complied and also took care of the paper in the trees 

and the nails in the parking lot. (Tr. 177). At the trial, Mr. Vaughn confirmed that he made these things happen. (Tr. 

728-29). 81 At the trial, Mr. Vaughn confirmed that hotel employees told him to make sure work did not start before a certain time 

and that he [Vaughn] told Mr. Bonicenha that his workers could not start work before either 7:00 or 8:00 a m. (Tr. 729-

30). 

82 Mr. Vaughn confirmed this during his trial testimony. (Tr. 739).
- 33 -

speak English.83 Mr. Byrne testified that Mr. Vaughn “was incapable of supervising the job, a 

roofing job of that scope. He was definitely incapable of it.” (Tr. 178-79). He also said that the 

roofers, who were part of Mr. Bonicenha’s crew at the job site, “don’t know how to do roofing.” 

(Tr. 178-79, 183-84). Mr. Byrne said that Mr. Bonicenha told him that he was subcontracted to Mr. 

Billcliff, and it was Mr. Byrne’s understanding that Mr. Bonicenha was a partner with another 

gentleman. (Tr. 184-86). Mr. Byrne testified that before OSHA arrived at the job site, he saw more 

than one person “riding up and down the shingle lift, and they were walking up the other one 

[ladder] that could barely make it to the roof.”84 (Tr. 186, 196-97). He said the ladder “basically 

made it to the gutter.” (Tr. 186). 

K. OSHA’s October 7, 2021 Inspection at the Devens Project Job Site 

On October 6, 2021, OSHA received a complaint of employees working on a roof with no 

fall protection. (Tr. 1488). On October 7, 2021, AAD Joe LeRose assigned the OSHA inspection to 

CO Bussell.85 (Tr. 1488). CO Bussell observed safety hazards at the job site that were in plain view 

of Mr. Vaughn, including workers working in a hoist area at a height above 6 feet without adequate 

fall protection, workers working on a steep roof at a height above 6 feet without adequate fall 

protection, workers not wearing protective hard hats where required, and ladders not extended at 

least three feet above the point at which the ladder contacted the building. (Tr. 1489-1503, 1508-

83 Mr. Vaughn confirmed this at trial. (Tr. 733-34). He also said that “[t]here was a communication barrier ... -- Culture 

barrier.” He said “[t]hese people [the workers] seemed to abide by the rules for a couple of hours or whatever ....” (Tr. 

773-74, 933). 84 Mr. Billcliff testified that he did not believe a lift is “able to bring a person up to the top, physically.” (Tr. 2217). 85 CO Bussell has since been promoted to AAD at either the Andover or North Boston Area Office, Andover, 

Massachusetts. CO Bussell will generally be referred to as CO Bussell herein since that was the position that he held on 

October 7, 2021. (Tr. 1485). From 1999 until 2009, he served as a civil engineering technician for the U.S. Air Force. 

He was a construction inspector and project manager performing duties that included inspecting for job safety in 

accordance with OSHA and the Army Corps of Engineers Engineering Manual for all aspects of job site safety. He has a 

degree in civil engineering technology or construction technology from the Air Force Community College. (Tr. 1486-

87). He has conducted well over 200 OSHA inspections as a CO and has overseen well over 200 OSHA inspections as 

an AAD. He said at least 50 percent of these inspections related to fall hazards. (Tr. 1487-88).
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09; Ex. 129). CO Bussell saw five employees working on the roof without any fall protection. He 

also saw employees on the ground working in a hoisting area. One employee did not have any 

personal protective equipment (PPE) or a hard hat on within that hoisting area.86 (Tr. 1489-90). He 

also saw employees using a ladder to access, and egress from, the roof. (Tr. 1490). He took many 

photographs at the job site on October 7, 2021 that he testified accurately reflected the conditions at 

the Devens SpringHill Suites hotel. (Tr. 585-86, 922, 1491-93; Ex. 129). CO Bussell described the 

job site as a large three-story hotel, several hundred yards long, with a roof greater than 30 feet in 

height. (Tr. 1493). 

CO Bussell testified that the photographs at Exhibit 129, at 26-28, show Jason Vaughn 

walking around the job site observing the workers as they worked. CO Bussell perceived this man 

to be the person in charge of the job site and learned that Mr. Vaughn was the site manager for 

Merrimack Valley Roofing. (Tr. 586, 1503-04, 1506; Ex. 129, at 26, 28). He performed an opening 

conference and opened an inspection with Mr. Vaughn.87 (Tr. 1504-05). Mr. Vaughn told the CO 

that he was there to oversee the Devens Project, and he had been there for two days. (Tr. 1506, 

1511). CO Bussell testified that Mr. Vaughn told him that he had “zero” roofing experience. (Tr. 

2194-95). CO Bussell testified that workers at the job site told him that Mr. Vaughn was responsible 

for telling them when to start and stop their day. (Tr. 2198). He also said that no worker at the job 

site told him that Mr. Billcliff trained them personally. (Tr. 2198). 

CO Bussell told Mr. Vaughn that the workers on the roof were not protected from falls and 

asked him to remove the employees from the hazard, which he did. (Tr. 1505). Mr. Vaughn called

86 In its Answers to Amended Complaint, Respondent admitted “an employee moving into position did not properly 

retrieve his hard hat in time for the [OSHA] inspection.” It also admitted that a “female employee took her hard hat off 

when Jason Vaughn went to the bathroom” and that “[s]he kept it off while in the vicinity of the hoist.” (Answers to 

Amended Complaint, at 6). 87 At trial, Mr. Vaughn said that he did not think that OSHA is “out for safety. I think they’re out for money. That’s it.” 

(Tr. 923). He said at trial, “in my opinion I think this whole thing is obnoxious”, “[t]his to me is absurd” and “[i]t’s 

insane. It’s a total waste of money by them.” (Tr. 930, 932). 
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his supervisor, Mr. Billcliff, so that he could provide the CO with a phone number for the business 

that he worked for.88 He told the CO that if he had any issues with changes or the quality of the 

work that he would call Mr. Billcliff. (Tr. 1506-07, 1511). Mr. Vaughn asked the CO if he would 

talk directly to Mr. Billcliff, which he did after Mr. Vaughn handed him his phone. The CO saw 

“Barry” on Mr. Vaughn’s cell phone’s screen. CO Bussell told Mr. Billcliff who he was, and that he 

was there to open an OSHA inspection.

89 Mr. Billcliff provided a phone number for the company 

that ended with 1860. Mr. Billcliff told the CO that he worked for Merrimack Valley Roofing, but 

that Merrimack Valley Roofing was not doing the job.

90 He said that the job was being done by Bay 

State Exteriors and Mike LaChance and gave the CO the phone number ending in 1254 to reach Mr. 

LaChance.

91 Mr. Billcliff told the CO that he was not the owner of Merrimack Valley Roofing, 

which he said was owned by John Wolfe, who had a phone number ending in 1860.92 Mr. Billcliff 

88 Mr. Vaughn confirmed that he called his boss, Mr. Billcliff, during his trial testimony. (Tr. 744-46). Mr. Billcliff 

testified that he normally did not work on job sites during the past five years. (Tr. 2276). 

89 During the trial, Mr. Billcliff denied that he spoke with CO Bussell, while the CO was using Mr. Vaughn’s cell phone, 

on October 7, 2021. (Tr. 1951-52). The Court finds that Mr. Billcliff’s denial is without any basis and not credible. 90 CO Bussell testified that there were at least three to four other OSHA inspections of Merrimack Valley Roofing; many 

of which were later dropped by OSHA. (Tr. 1663-64). 91 CO Bussell was unable to verify that Bay State Exteriors ever had employees working at the job site or that a Mike 

LaChance ever worked for it. (Tr. 1512). The Court finds that Mr. Billcliff’s October 7, 2021 statements to CO Bussell 

that Merrimack Valley Roofing was not doing the job and that the job was being done instead by Bay State Exteriors and 

Mike LaChance were false. The Court finds that Mr. Billcliff was doing the Devens Project Roofing job individually 

and/or using d/b/a names identified in the case caption, including Merrimack Valley Roofing. 92 CO Bussell was unable to make contact with John Wolfe after “exhaustive”, repeated attempts to do so at the 

telephone number ending with 1860 and at a condominium address where Mr. Billcliff and Merrimack Valley Roofing 

had done eight roofing jobs that Mr. Billcliff later gave to the Complainant. The property management company that 

managed the condominium complex told the CO that he had dealt directly with Mr. Billcliff on these jobs and that no 

John Wolfe lived there. (Tr. 1513-15). CO Bussell testified that he also tried to contact JohnWolfe at cell phone number 

603-331-5351 that Mr. Billcliff later gave to Complainant’s counsel and the person who answered the call appeared to be 

trying to disguise his voice. The CO said that cell phone had been purchased in December 2021 and was registered to a 

John Wolfe at 496 “Maine” Street, Sandown, New Hampshire. That is Mr. Billcliff’s address except with a different 

spelling of Main Street. (Tr. 1641-42, 1653; Ex. 156, at 17). TracFone Wireless (TracFone) is a prepaid cell phone 

company. TracFone’s Subpoena Compliance Manager, Winston Chambers, testified that TracFone’s subscriber 

information records for 603-331-5351 showed that the credit card holder for the purchase of the phone with number

603-331-5351 that occurred on December 9, 2022 was John Wolfe, 496 Maine Street, Sandown, New Hampshire 

[03873, email: wolfjohnm@aol.com]. He said that there were no TracFone records that showed another person, or 

another address associated with 603-331-5351 from December 20, 2019 through January 6, 2023 (Tr. 480-81, 487; Ex. 

156, at 17). Mr. Chambers said that TracFone has “lots of customers that purchase” their phones to avoid being located. 

(Tr. 492-93). CO Bussell testified that he perceived that the person trying to disguise his voice was Mr. Billcliff. (Tr. 

1515-1522, 1641-42). Mr. Billcliff denied that he pretended to be John Wolfe during that call. (Tr. 1963-64). Although 
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testified that “a lot of times I’ll call him [John Wolfe] at” 978-866-1860 “three or four times in a 

day.” He also testified that the email address for John Wolfe shown on his phone is 

“John@Merrimack Valley, the WolfJohn”. (Tr. 2253-54). Mr. Billcliff testified that he made John 

Wolfe aware of this case and Mr. Wolfe “said he was going to take care of it.” (Tr. 2255). Mr. 

Billcliff testified that “[t]here’s still questionability about his [John Wolfe’s] full name.” 93 (Tr. 704, 

1931, 2170). CO Bussell said that Mr. Billcliff gave him Mr. Wolfe’s email address and told him 

Mr. Wolfe lived at a condominium with over 80 units.94 (Tr. 2170). During one of his interviews, 

Mr. Vaughn told CO Bussell that he had never heard of, or met, John Wolfe.95 (Tr. 745, 1506-07, 

2195-97). CO Bussell testified that Mr. Vaughn told him that he was speaking to Mr. Billcliff on 

October 7, 2021. Mr. Vaughn testified that CO Bussell and Mr. Billcliff talked for about 45 minutes 

or so on October 7, 2021. CO Bussell testified that the only place he got the name “LaChance” was 

from Mr. Billcliff during his discussion conducted on Mr. Vaughn’s cell phone that showed “Barry” 

on October 7, 2021.96 (Tr. 747, 1723, 1827-28, 1837). The Court finds that Mr. Billcliff’s October 

given the opportunity to call John Wolfe to testify and make an offer of proof at the trial, Respondent never presented 

John Wolfe at the trial. (Tr. 1520-21, 2061). 93 CO Bussell testified that this phone number, 978-866-1860, belonged to and was registered to Mr. Billcliff [redacted]

at 496 Main Street, Sandown, New Hampshire. (Tr. 1530-31, 1541-42, 1613, 1623-24, 1640, 1652-53). Verizon 

Wireless employee Melissa L. Sandoval also testified that Verizon Wireless’ records show that phone number (978) 866-

1860 was registered to Barry Billcliff and he was the only name associated with that phone number from December 20, 

2019 through December 21, 2022. She also said that he is the account holder. (Tr. 978-81, 1006; Ex. 158, at 14, 29, 

45). Mr. Billcliff testified that he did not purchase or register a phone ending in “1860”. (Tr. 2225-26, 2278). The 

Court finds Mr. Billcliff’s testimony that phone number (978) 866-1860 was not registered to him to be incredulous and, 

instead, credits the testimony of Ms. Sandoval. 94 Mr. Billcliff did not give CO Bussell the unit number where Mr. Wolfe lived. (Tr. 2171). CO Bussell testified that 

AOL/Yahoo records showed that the account recovery number for email address: WolfeJohnM@aol.com was Mr. 

Billcliff’s personal cell phone number. (Tr. 1613, 1652). 

95 At trial, Mr. Vaughn also testified that he saw “John Wolf” very briefly at the job site on the first day of the job. He 

said that he had a very brief conversation with John Wolf that he does not remember. He said, “I don’t remember the 

conversation to be honest with you.” He said that he only knew it to be John Wolf now at trial. (Tr. 917-18). The 

Court finds Mr. Vaughn’s trial testimony that he saw and spoke with John Wolf at the job site on October 6, 2021 to be 

incredulous.

96 CO Bussell called “Mike LaChance” at telephone number 978-904-1254 on multiple occasions and left a message. 

No one answered his calls. (Tr. 1639, 1803-04). CO Bussell testified that subpoenas confirmed that Mr. Billcliff owned 

that telephone number and that it was registered to “Barry James” at 496 “Maine” Street, Sandown, New Hampshire. 

(Tr. 1639-40, 1653, 1804). CO Bussell also testified that Mr. Bonicenha told him that he had talked to Barry at that 

number. (Tr. 1639). The CO testified that there was no evidence that a person named Mike LaChance went to the job 
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7, 2021 statement to CO Bussell that Mr. Wolfe owned Merrimack Valley Roofing was false. (Tr. 

745-46, 798-800, 1507, 1511-13). 

CO Bussell determined that Mr. Vaughn was not competent to recognize and address any 

safety hazards or perform regular job site inspections because he did not know why the roofers were 

not tied off, at what height they were required to be tied off, or how far the ladder needed to be 

above the roof’s edge.97 Mr. Vaughn had not received any OSHA fall protection training, and told 

the CO that he did not “know s_ _ _ about construction.” (Tr. 782-83, 922, 1508-11). CO Bussell 

found that there was no safety plan for the work site.98 (Tr. 1508-09, 1526). He also learned that the 

employees at the job site were not trained in safety. Mr. Bonicenha told the CO that his employees 

had not been trained.99 (Tr. 1509, 1526). The CO saw that, although there were a couple of 

harnesses in L&A’s van, there were not enough harnesses for all of the employees up on the roof. 

He also saw that there were no hard hats100 at the job site. (Tr. 1510, 1526). CO Bussell testified 

site. (Tr. 1522). The Court finds that Mike LaChance was a fictional character made up by Mr. Billcliff. Mr. Billcliff 

testified that the phone ending in 1254 was not registered to him, but admitted that “it’s possibly, vaguely linked to my 

home address, or to a name of – I know somebody else named Barry James that I’m associated with, that other people in 

the company are associated with.” (Tr. 2278). Mr. Chambers testified that the name on the credit card that was used to 

purchase the TracFone with telephone number 978-904-1254 was Barry James, 496 Main Street, Sandown, New 

Hampshire 03873 on August 11, 2021. He also said that TracFone had no records that showed any other purchase for a 

phone with phone number 978-904-1254 from December 20, 2019 through January 6, 2023. (Tr. 479; Ex. 156, at 16). 

Mr. Billcliff testified that he believed that a credit card exists that says Barry James on it that “I don’t have that links to 

an account that’s only used for company stuff.” He further said that “I don’t own that card, I don’t have that card, it’s 

not a card that I have or use.” (Tr. 2225).

97 Mr. Vaughn testified that he did not have a Massachusetts construction supervisor license. (Tr. 788). He said that he 

thought that the job site was safe until CO Bussell informed him on October 7, 2021 that it was not. (Tr. 948). 98 Mr. Billcliff testified that he made “them” aware at some point of “Merrimack Valley’s Safety plan.” But no written 

safety plan is in the record. (Tr. 2316-17). 99 Mr. Bonicenha testified that he never had a conversation with Mr. Billcliff about ladder safety or whether L&A 

employees had received any safety training. He also testified that he never had a conversation with Mr. Vaughn about 

ladder safety, whether L&A employees had received any safety training, or fall protection. (Tr. 517-18). Mr. Bonicenha 

testified that some of his employees do not know how to set up a ladder. He also said that he did not show some of his 

workers how to wear hard hats. (Tr. 625-26, 675). Mr. Bonicenha testified that he sometimes does not have time to 

train his workers, especially because of worker turnover. He said he did not talk with his employees, other than “Avon”

- a worker who has worked for him off and on for about three to four years, about safety protocols. (Tr. 619-23). He 

said that he and Messrs. Vaughn and Avon were responsible for setting up a ladder correctly and ensuring that the 

workers wore hard hats and harnesses. (Tr. 625-26). 100 Mr. Billcliff testified that hard hats are “a real pain in the butt to be able to size.” (Tr. 2218).
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that there was no evidence that showed that Mr. Vaughn told the L&A workers at the job site to wear 

fall protection or hard hats before the CO arrived.101 He also said that there was no evidence to 

show that Mr. Vaughn did anything to ensure that the job site was safe for the workers who were 

there. (Tr. 1527-28). 

When Mr. Bonicenha showed up at the job site, CO Bussell opened a second inspection of 

L&A, who had employees on the roof and ladder. He presented his credentials to him and went 

through all of the hazards that the CO had observed from his camera, and went over the ways to 

mitigate those hazards. He also interviewed Mr. Bonicenha and workers at the job site. (Tr. 520, 

586-88, 773, 1524-28; Ex. 129). CO Bussell testified that he took pictures of Mr. Bonicenha’s cell 

phone during his October 7, 2021 inspection.102 CO Bussell asked Mr. Bonicenha how he knew 

about the Devens Project and Mr. Bonicenha told him that he “received text messages from Barry 

and then he showed me the chain.” (Tr. 1675). 

CO Bussell testified that Wolfjohnm@aol.com was “the email address for that employer 

[L&A] to email documents to.” (Tr. 1665-66, 1752; Ex. 128, at 1). CO Bussell testified the first 

part of the September 16, 2021 message from Mr. Billcliff to Mr. Bonicenha was inaccurate 

because: 1) Bay State Exteriors was not involved with the Devens Project, 2) the CO believed that 

Mr. Billcliff never intended to pay L&A, 3) the 484 Lowell Street address was fictitious, and 4) the 

Wolfjohnm@aol.com email address was actually tied to Mr. Billcliff. (Tr. 1722-23; Ex. 128). CO 

Bussell testified that Mr. Bonicenha thought he had a contract with Bay State Exteriors. (Tr. 1753). 

CO Bussell testified that the messages between Messrs. Bonicenha and Billcliff at Exhibit 

128 constituted the “contract” between L&A and Mr. Billcliff to do the work at the job site. (Tr. 

101 Mr. Vaughn testified at trial that he did not wear a hard hat while he was at the job site unless he was really close to 

the building whereupon he took a hard hat from a L&A worker’s truck. (Tr. 918).

102 Mr. Bonicenha testified that he showed CO Bussell the messages that he had received from Mr. Billcliff and all of 

Mr. Billcliff’s companies regarding the project. (Tr. 502, 594).
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1726; Ex. 128). CO Bussell testified that the four photographs that he took of Mr. Bonicenha’s cell 

phone were taken in the context of identifying the employer and to prove the contract. (Tr. 1754-

55). Mr. Billcliff testified at trial that he knew “nothing” about L&A before the Devens Project 

began. (Tr. 1984-85). The Court finds this statement to not be credible.

CO Bussell testified that OSHA issued a citation to L&A, co-owned by Mr. Bonicenha,

assessing the same fines as Respondent, except for that relating to frequent regular inspections by a 

competent person.103 He said L&A had zero OSHA history and was fined about $25,000. (Tr. 1528, 

1662-63, 1718, 1721; Ex. 128, at 4). CO Bussell testified that Mr. Bonicenha was not actively 

supervising his employees working at the job site on October 7, 2021. CO Bussell testified that 

October 7, 2021 was the second day of roofing work at the job site. (Tr. 1757). Mr. Bonicenha had 

not been at the job site on October 7, 2021 prior to the OSHA inspection. CO Bussell testified that 

Mr. Bonicenha told him later that day on October 7, 2021 that L&A was only providing labor at the 

job site and that the “quality control, the supervisor, all that at the site was being performed by 

Merrimack Valley Roofing.”104 He said that Mr. Vaughn managed the project when he [Bonicenha] 

was not there. (Tr. 593, 1734-35, 1522, 1525-27). 

CO Bussell said that “Jason was there to oversee the job site” and Mr. Vaughn was 

“identified several places as being manager of the job site.” (Tr. 1742). CO Bussell testified that 

Mr. Vaughn “told the hotel manager he was there to supervise the site. He [Vaughn] told me [CO 

Bussell] he was there to oversee the site, grab materials and water.”105 (Tr. 1743, 1827). CO 

Bussell also testified that there were messages that stated Mr. Vaughn was the manager or supervisor 

and that there were emails to Mike Costa that said that Mr. Vaughn was either the supervisor or 

103 L&A was located at 126 Nichols Street, Everett [no state identified]. (Ex. 128, at 4). 104 Mr. Billcliff testified that Mr. Bonicenha, and not himself, was in control of the job site. (Tr. 2221-22, 2279). 105 Mr. Billcliff testified that, to his knowledge, Mr. Vaughn did not purchase any materials for the job site. (Tr. 2219). 
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manager. (Tr. 1743). He also said that Mr. Billcliff sent a message to Mr. Bonicenha that identified

Mr. Vaughn as the site manager.106 (Tr. 1743-44; Ex. 128, at 2). CO Bussell also testified that Mr. 

Vaughn introduced himself to Jonathan Mehlmann as the site supervisor and told him that if there 

were any issues with the job he should come directly to him. (Tr. 1744). After CO Bussell left the 

job site on October 7, 2021, Mr. Vaughn testified that he informed the hotel manager, Jonathan

[Mehlmann], that there were harness, hard hat and ladder infractions. (Tr. 940). 

CO Bussell testified that Mr. Vaughn told him that he had been in contact with Mr. Billcliff 

about issues with the job, including trying to obtain Mr. Billcliff’s approval for a possible change 

order because Mr. Billcliff had to approve all change orders. (Tr. 791, 1747). CO Bussell testified 

that he felt that the job site:

was Mr. Vaughn’s site. He dictated the quality. ... he purchased the materials. He was 

there to do the quality. He was the only one that was authorized to interact with the 

property owner. He was responsible, like I said, for procuring additional materials. It 

really appeared to me that Mr. Vaughn was the site manager or in control of that site.... I 

asked Mr. Bonicenha are you going to be staying here this entire time, and he said no, 

and I said, well then you need to understand – have an understanding between you and 

Mr. Vaughn that, like, the frequent regular inspections need to be performed by a competent 

person. You need to have an inspection program. You need to be out there observing these 

employees to make sure they’re being tied off. As a manager, that knowledge is imputed

back to the company owner, and I explained some of that to them, to Mr. Bonicenha for sure. 

(Tr. 1527, 1759-60). 

106 CO Bussell testified that Mr. Vaughn was the only Jason at the job site. (Tr. 1744). At trial, Mr. Vaughn testified that 

he spoke with someone, whose name he did not know, at Merrimack Valley about the project schedule and identified 

that man at trial as John Wolf. He said that he assumed that he was Mr. Billcliff’s boss and the owner of Merrimack 

Valley Roofing. He admitted that he said that he did not remember the name of the man he spoke with when deposed on 

February 9, 2023. (Tr. 823-26, 893; Ex. 128, at 2). Mr. Vaughn testified that he spoke with “John” briefly to coordinate 

things. He said he met John in brief passing at the shop and once he spoke with “John” when “John” called him by 

phone while he [Vaughn] was at the Devens Project job site. (Tr. 703-04, 707). He also said that he was “not very good 

with names.” (Tr. 706-07). Mr. Vaughn testified that he later learned from the CO or Government counsel that “John’s” 

last name was “Wolf”. (Tr. 704). But, on March 8, 2022, Mr. Vaughn told CO Bussell that he did not correspond with 

anyone other than Mr. Billcliff from Merrimack Valley Roofing during his time working on the Devens Project. (Tr. 

706). Mr. Vaughn testified that he did not know how tall or how old Mr. Wolf was, and that he did not look or sound 

like Mr. Billcliff. (Tr. 827-28). The Court puts no weight upon Mr. Vaughn’s trial testimony that he spoke with a John 

Wolf about scheduling or anything else relating to the Devens Project. 
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CO Bussell testified that Mr. Vaughn gave him Mr. Billcliff’s name when he first walked 

onto the job site on October 7, 2021. (Tr. 1675). Mr. Vaughn told him that he [Vaughn] was the site 

supervisor. (Tr. 1676). The SpringHill Suites hotel manager, Jonathan Mehlmann, also told CO 

Bussell that Mr. Vaughn had introduced himself as the “Site manager, site supervisor” and told him 

to contact him if there were any issues.107 Mr. Vaughn also told Mr. Mehlmann that the proposal for 

the job was from Merrimack Valley Roofing. (Tr. 1522-23, 1676). Mr. Byrne also testified that he 

told CO Bussell when the CO came to the job site that Mr. Vaughn was the supervisor and running 

the job. (Tr. 174-75). 

CO Bussell testified that there were five workers atop the roof and four workers on the 

ground. These nine workers were all L&A employees. (Tr. 1525, 1826; Ex. 129, at 3, 6-12, 16-18, 

20-21, 23). CO Bussell testified that the photograph at Exhibit 129, at 18, shows an employee 

wearing a bright yellow shirt with a hood right at the roof’s edge without any fall protection or 

guardrails.

108 (Tr. 1500; Ex. 129, at 9, 16-18). CO Bussell testified that the photographs at Exhibit

129, at 3, 6-7, show that there were also no harnesses being worn by a second employee wearing a 

pale yellow shirt and hood.

109 He said that “employee has no harness, no rope, no lanyard, nothing 

connected to his person for fall protection.” He said that the photograph at Exhibit 129, at 8, shows 

the same employee carrying a 50 to 70 pound roll of material on his shoulder while walking across a 

pitched roof that “really further increase[s] the likelihood of a fall....”110 He said the employee was 

107 Mr. Vaughn testified that he gave Mr. Mehlmann his phone number at the beginning of the Devens Project and told 

him to call him [Vaughn] if there were any questions. Mr. Vaughn said that he spoke with the Devens SpringHill Suites 

hotel manager throughout the Devens Project. (Tr. 728). 108 At trial, Mr. Vaughn agreed that CO Bussell pointed out to him that workers on the roof were not wearing harnesses, 

and he could see what CO Bussell was referring to. (Tr. 751). He said that when the CO “saw them [the workers on the 

roof] “they [the harnesses] were off.” (Tr. 926-27). 109 Mr. Billcliff testified that harnesses are not easy to put on and take off. (Tr. 2215-16). 110 Mr. Bonicenha identified the worker in the photograph who was walking atop the 34 to 35 foot roof as being one of 

his employees. (Tr. 586-87; Ex. 129, at 8).
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also not wearing a hard hat.111 (Tr. 1494-95, 1822-23; Ex. 129, at 3, 6-8). CO Bussell testified that 

the photograph at Exhibit 129, at 11, shows a third employee, who is wearing a bright neon yellow 

shirt, “talking on his cell phone and traversing the roof without any fall protection.” Mr. Bonicenha 

agreed that the roofer was not wearing any fall protection. (Tr. 587, 1495; Ex. 129, at 1, 11). In its 

Answers to Amended Complaint, Respondent admitted “one employee removed his harness lanyard 

and did not re-install it in time [for the OSHA inspection].” (Answers to Amended Complaint, at 7). 

CO Bussell said that the photograph at Exhibit 129, at 12, shows a fourth employee, who is wearing 

a black shirt and baseball cap, removing the previous shingles while not wearing any fall protection. 

Mr. Bonicenha agreed that the roofer was one of his workers and that he was not wearing any fall 

protection.112 (Tr. 587, 618, 1495; Ex. 129, at 12). The CO said that the photograph at Exhibit 129, 

at 23, shows a fifth employee, who is wearing a gray shirt and black hat, bringing materials around 

the roof with tripping hazards at his feet within feet of the roof’s edge while “not wearing any 

harness or other means of fall protection.” (Tr. 1495-96; Ex. 129, at 23). CO Bussell said that the 

same employee who was shown earlier kneeling atop the roof with a red-pad on his mid-back in the 

photograph at page 18, Exhibit 129, was also not wearing a harness at that time.

113 (Tr. 587-88, 

1497, 1762; Ex. 129, at 17-18, 23). CO Bussell further testified during cross examination that the 

person shown on the roof in the photograph at page 23, Exhibit 129, was “absolutely not wearing a 

harness.” (Tr. 1761-62; Ex. 129, at 23). CO Bussell also testified that harnesses “just weren’t being 

worn” by the workers at the job site. (Tr. 1781). 

111 At trial, Mr. Vaughn admitted that “one worker on the ground may not have had their hard hat on .... I know there 

was a hard hat infraction.... (Tr. 751). At trial, he also said that “a couple [of] people [were] not wearing a harness and 

a hard hat.” (Tr. 926).

112 Mr. Bonicenha testified that before OSHA arrived at the job site on October 7, 2021, “maybe someone is not doing it 

safe,” i.e., using harnesses and tying off, and wearing hard hats. (Tr. 684). 113 CO Bussell said that the person shown kneeling in the photograph at page 18, Exhibit 129 is the same person shown 

not wearing a harness later walking along the roof at page 23, Exhibit 129. (Tr. 1762; Ex. 129, at 18, 23). Mr. 

Bonicenha testified that he knew the two workers shown at the ladder in the photograph at Exhibit 129, at 17. (Tr. 587-

88; Ex. 129, at 17-18).
- 43 -

CO Bussell testified that the photograph at page 22, Exhibit 129, shows that the laddervator 

was not affixed to the roof and there was nothing affixed to the edge of the roof that goes three feet 

above for the workers to grab onto. (Tr. 1763-64; Ex. 129, at 22). He further said that the 

photograph at Exhibit 129, at 20, shows that:

There’s also no guardrails in and around that hoisting area, so as you’re reaching off the 

roof’s edge to then take materials off of that hoist, those guardrails would be there or that fall 

protection would be there to help prevent you from falling off the roof as you’re off balance 

grabbing bundles of, you know, anywhere from 50 to 70 pounds of material from that and 

then trying to bring it up onto the roof, so – (Tr. 1497-1500; Ex. 129, at 20). 

He said that he saw employees taking rolls of underlayment114 and ice and water shield115 off of the 

roof. (Tr. 1501-02; Ex. 129, at 22).

CO Bussell testified that the photographs at pages 20-21, Exhibit 129, show an employee 

coming down a ladder that’s not three feet above the roof, so the employee has nothing to grab onto 

as he transitions from the roof around onto the ladder. (Tr. 1498-99, 1502, 1763-64, 1770-77; Ex. 

129, at 20-21). CO Bussell said that “[t]he violation was to prove the ladder wasn’t three feet 

above.” Mr. Bonicenha admitted that the ladder probably extended only one foot and a half beyond 

the roof surface. He identified “Flaco” as one of his workers who is shown using the ladder in the 

photograph at Exhibit 129, at 21. He also identified the worker [wearing a red vest] standing on the 

roof by the ladder to the left as being one of his workers. (Tr. 590, 682, 1773-74, 1780; Ex. 129, at 

19-21). CO Bussell saw five employees using the ladder to come down from the roof. (Tr. 1499).

CO Bussell testified that when he left the job site following his inspection on October 7, 

2021 there were no hazards because nobody was working on the roof, on ladders or within the 

hoisting zone. (Tr. 1741-42). He said he explained to Messrs. Vaughn and Bonicenha every hazard 

114 Underlayment is a felt-type material that comes in rolls and goes on the roof below the shingles to add another layer 

of protection should the shingles leak. (Tr. 1501).

115 Ice and water shield is a mastic or asphalt type material that goes on the first three to six feet of the roof where ice 

dams may occur to provide a stronger barrier. (Tr. 1501). 
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and what they had to do to mitigate those hazards and if they did so the employees could go back to 

work.116 (Tr. 750-51, 923-24, 1522-23, 1742, 1745, 1758-59, 1801-02). Mr. Vaughn testified at trial 

that CO Bussell said to him: “put the harness – put harnesses on, the hard hats, the ropes, get all that 

done, adjust the height of the ladder to the three feet, and you’re good to go.” Mr. Vaughn said that 

he told the L&A workers to put their harnesses and hard hats on. He said, “in a way I feel 

responsible for this, but I don’t.” (Tr. 935-36). 

Mr. Vaughn testified that when he first arrived at the job site, he “didn’t have the confidence 

to instruct” the workers to wear harnesses and hard hats. (Tr. 765, 810). Mr. Vaughn testified that 

after CO Bussell departed the job site on October 7, 2021, he [Vaughn] changed his role at the job 

site and he laid “down the law per se” and told the workers to wear hard hats and harnesses “at all 

times and essentially be more than what Leo [Bonicenha] was,....” He said he “was never letting 

that happen again, no way.” He also told the workers to make sure that the ladder extended at least 

three feet over the edge of the roof.117 He said that he “kept an eye on the hard hat, harness and 

ladder.” (Tr. 752-53, 756, 772). He said that he “was very militaristic in the way that I spoke and 

handled things ...”, or “I guess you could say” “more stern.” (Tr. 764-65, 890-91). He also said 

that he spoke with Mr. Billcliff about doing this. (Tr. 766). Mr. Vaughn testified that after CO 

Bussell came to the job site it was his [Vaughn’s] obligation to tell the workers to wear harnesses 

and hard hats. (Tr. 807-08). 

116 CO Bussell testified that there were no hard hats available at the job site when he departed the job site on October 7, 

2021. (Tr. 1744-45). CO Bussell testified that when he left the job site on October 7, 2021, he left the job site in the 

hands of both Messrs. Vaughn and Bonicenha since it was a multi-employer site. (Tr. 1759). 117 Mr. Vaughn testified at trial that before CO Bussell showed up at the job site on October 7, 2021 “he had no clue” 

about “the ladder situation.” He said, “I didn’t know the ladder thing was such a big deal.” (Tr. 774-75). 
- 45 -

Mr. Billcliff testified at trial that during his January 12, 2023 deposition he said that he did 

not do anything to ensure that inspections of the project were performed by a competent person, or 

that he conducted any safety-related inspection of the job site. (Tr. 1986-89).

On about October 7, 2021, CO Bussell performed research that he used to prepare the 

“Summary Exhibit of Business Names Respondent Used in Connection with the Project” (Summary 

of Business Names) that appears at Exhibit 170. (Tr. 1872-73; Ex. 170). He said that he found that 

Merrimack Valley Roofing118, www.merrimackvalley roofing.com, Merrimack Valley Roofing & 

Gutter,119 Merrimack Valley Roofing & Gutter, LLC, Billco Roofing,120 Billco Roofing LLC, 

Merrimack Valley Roofing, Inc121, Merrimack Valley Roofing, Merr Valley R&G LLC, The 

Marrimack Valley Roofing Co, LLC, and Merrimack Valley Roofing LLC were not registered as 

Corporations in New Hampshire or Massachusetts as of October 7, 2021. (Tr. 1538-39, 1542, 1563-

69, 1623; Ex. 170).

On October 19, 2021, 11:12 AM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Devens, 

that stated, in part: “For the most part, we should be complete with the roof by Wednesday, and 

back on Thursday to do the final inspections and any small items that came up on the punchlist.” 

(Tr. 327, 340-41; Ex. 153, at 2).

L. Mr. Billcliff sends Devens SpringHill Suites and Conference Center final Invoices 

seeking Payment for the roofing work done there.

118 Mr. Billcliff testified that Merrimack Valley Roofing “was always a valid LLC” and that he “traced it back to the 

‘80s.” (Tr. 2241-42). The Court credits CO Bussell’s testimony and finds that Merrimack Valley Roofing was not 

registered as a corporation or LLC in New Hampshire or Massachusetts as of October 7, 2021. (Tr. 1564-65). 119 CO Bussell testified that “Merrimack Valley Roofing & Gutter is not a registered corporation or Inc.” (Tr. 1887). 120 CO Bussell testified that Billco Roofing is a trade name owned and registered by Mr. Billcliff. It is not a corporation. 

(Tr. 1573-77, 1881-82; Ex. 170, at 2). 121 In Respondent’s December 6, 2022 Supplemental Response to the Secretary’s written discovery, Mr. Billcliff stated 

that he also checked the Secretary of State website and found that the name Merrimack Valley Roofing, Inc. did not exist 

on the Secretary of State website. (Tr. 2038).
- 46 -

On October 20, 2021, 9:44 PM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mike Costa, Subject: Re: 

Devens, that stated, in part: “Good afternoon Mike, Thank you for inviting us out to handle this 

roof project[.] Please see your final invoice attached....” (Tr. 327; Ex. 153, at 1). 

Mr. Costa testified that on about October 20, 2021, he received a purported “final invoice” # 

264825 tied to proposal # 1012929, from Merrimack Valley Roofing LLC, calling for $59,975.00 to 

be due and paid by October 20, 2021. The purported “final invoice” was sent to Mr. Costa from 

Barry from “Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 341; Ex. 153, at 3). Mr. 

Costa testified that this was not the final invoice because it reflected “an incorrect final amount.” 

(Tr. 341).

Mr. Costa testified that on about October 20, 2021, he received a final corrected invoice # 

264825B tied to proposal# 1012929, from Merrimack Valley Roofing LLC, calling for $45,714.00 

to be due and paid by October 20, 2021. The final corrected invoice was sent to Mr. Costa from 

Barry from “Foreman05@MerrimackValleyRoofing@yahoo.com.” (Tr. 331, 341, 1538-39; Exs. 

110, at 3, 190-B, at 3). 

On October 21, 2021, Mr. Bonicenha testified that he received a message from 978-904-

1254 from someone he thought was named “Mike”122 that stated: “Just so you know, we just got an 

email from Brett Bussell from OSHA. He needs me to go meet with him tomorrow morning in 

North Andover (sic) discuss the violations[.]” Mr. Bonicenha said that he never met “Mike.” (Tr. 

596-97, 633; Ex. 130, at 1).

On October 22, 2021 at 6:06 PM, Mr. Billcliff sent a message to Mr. Bonicenha from phone 

number 978-904-1254 that stated:

122 The Court finds that someone allegedly named “Mike” that communicated with Mr. Bonicenha was actually Mr. 

Billcliff. (Tr. 597). 
- 47 -

Where is a punch list for the hotel. We have a couple other issues some of the guys not listed 

on the workman’s comp, the liability is for siding, not for roofing, and they want to assess us 

$42,000 in fines call the violations. There (sic) are also very upset that the fire department 

reported that the guys were still not wearing harnesses and lanyards even after OSHA stop 

by. I [Billcliff] had to make the guys put on harnesses many times and Jason had to make the 

guys put on harnesses and follow OSHA guidelines over and over and over again. We need 

to see if the guys can go to an OSHA training course and then they will bring the fines down 

and abate some of them[.] 

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

On October 22, 2021, at 6:13 PM, Mr. Bonicenha sent a message to Mr. Billcliff at 978-904-

1254 that stated: “Look, I’ll tell you something I also got a fine at work. Each one of you is at risk. 

Let’s see what has to be done at work and you pay me[.]” (Tr. 598; Ex. 130, at 5). Mr. Bonicenha 

testified that his OSHA citation and fine that he received was for a lack of fall protection because his 

workers were not wearing harnesses on the roof. (Tr. 598). 

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

904-1254 that stated: 

They came back out on Wednesday, but there was nobody left on the roof because the project 

was pretty much done, there was only people cleaning up. But even those people were not 

wearing the right Footwear, guess, or hard hats for the construction site being that there was 

still a trust issues and debris on the ground and that was even more fine[.]

(Ex. 130, at 8). 

Shortly thereafter at 7:36 AM, October 25, 2021, Mr. Bonicenha received a message from 

978-904-1254 from Mr. Billcliff that stated:

Define everybody. New Management Company, the general contractor, the company that 

pull the permits, the company that bought the materials, the contractor, and the 

subcontractor. The GC [general contractor] pays the most by far because we are the ones that

are responsible for the job. (Tr. 598-600; Ex. 130, at 11).

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

600). 

Mr. Bonicenha testified at trial as follows:

Q. And what is your opinion as to Mr. Billcliff’s truthfulness?
- 48 -

A. I have my opinion about Mr. Billcliff is a fake guy. He is a very liar to us you know? He 

lies all the time. That’s my opinion. 

(Tr. 603).

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

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

my notes below.

1) Final invoice has remainder amount of $59,975. We supplied 1⁄2 down ($59,800), 

shouldn’t the remainder be the same?

2) Assuming the above is correct, can you please split them up again as we did for the 

deposit? Breakdown below.

Devens Commons Conference Center

31 Andrews Parkway

Deposit Amount: $14,500

Devens Hospitality LLC

27 Andrews Parkway

Deposit Amount: $45,300

I am waiting to hear back from them on anything that may have come up after last week’s 

storm. Will let you know shortly.

Thanks again.

(Tr. 440; Ex. V, at R-328).

On November 12, 2021, the Devens SpringHill Suites issued a final payment to Merrimack 

Valley Roofing LLC in the amount of $45,714 for the hotel portion of the work performed at the 

Devens Springhill Suites. This payment did not include payment for work performed at the adjacent 

Conference Center. (Tr. 209-12, 217-18, 333-34, 341; Exs. 110, at 4, 149, at 6). Mr. Costa said that 

he regrets hiring Mr. Billcliff to do the Devens Project. (Tr. 352).

CO Bussell testified that on November 16, 2021, 10:58 AM, Mr. Billcliff deposited check 

number 015777 into an account where Mr. Billcliff is the sole person authorized to deposit checks 

into that account at Merrimack Valley Credit Union. The check had an unidentifiable signature on 

behalf of Merrimack Valley Roofing appearing on the back of the check. Check number 015777, 

dated November 12, 2021, was drawn on Unibank, issued by Devens Hospitality LLC, 27 
- 49 -

Newburyport, MA 01950, in the amount of $45,714 to Merrimack Valley Roofing LLC, PO Box 

1214, NewBuryport, MA 01950.123 (Tr. 1556-60, 1855, 1861-65, 2080-81; Ex. 155, at 11, 14 

[Sealed], 107-08). 

CO Bussell testified that he confirmed that the two checks at Exhibit 155, at 13-14 [sealed], 

were deposited at Merrimack Valley Credit Union in an account named “Marrimack” Valley 

Roofing/Barry Billcliff.124 (Tr. 1553-54, 2118-19; Ex. 155, at 13-14 [sealed]). CO Bussell 

identified Mr. Billcliff in a photograph taken on November 16, 2021 at the Merrimack Valley Credit 

Union. (Tr. 1866-68; Ex. 108). During his March 8, 2022 interview with CO Bussell, Mr. Billcliff 

told him that he could not recall receiving or depositing checks that were payment for the Devens 

Project roofing job, or that he had been paid well over $100,000 for the work at the job site. (Tr. 

1551-52). At trial, Mr. Billcliff admitted saying during his January 12, 2023 deposition that he 

could not recall receiving any payment at all related to the Devens Project. (Tr. 2110). Vice 

President of Operations Lee also testified that both check numbers 015640 and 015777 were 

deposited into the account where Barry Billcliff, 496 Main Street, Sandown, New Hampshire 03873, 

123 The Merrimack Valley Credit Union’s Monthly November 2021 bank statement for The Marrimack Valley Roofing 

Co, LLC d/b/a CO Barry Billcliff, 496 Main Street, Sandown, NH 03873 account, shows a deposit of $60,325 made on 

November 16, 2021. (Tr. 541-42; Ex. 155, at 231). 124 At trial, Mr. Billcliff admitted that he opened a bank account for the “Marrimack Valley Roofing Company, or 

something similar to that”, where the two checks from the Devens Project were deposited. He also testified that he 

could not recall being an authorized signer for that account in September, October, and November 2021 and August 

2022. He agreed that the bank statements for these months showed his name, and no other name, and his home address. 

(Tr. 2118-24; Ex. 155, at 37, 229, 323). Ms. Lee testified that her credit union verifies the identification of the person, 

including home address or phone number, who opens an account by using a government issued identification. (Tr. 558-

59, 566). The Court finds that Mr. Billcliff was the only authorized signer for this bank account through August 2022. 

(Tr. 1444, 2120-24; Ex. 155, at 37, 229, 323). Mr. Billcliff testified that he agreed that he controlled the money in the 

account and $2 million was deposited into the account in a two-and-a-half-year period and that “equaled the amount of 

money out.” He said that he did not know who prepared or filed federal or state tax returns related to the money in this 

account. (Tr. 1434-42, 2320-25; Ex. 169. At trial, Mr. Billcliff testified that on August 12, 2022 he withdrew $12,000 in 

cash from the account and closed the account. (Tr. 2124-25; Ex. 155, at 511-13). He said “that the total amount in profit 

in that at the end was under $12,000. All the money in was the money out. There was no profit. You don’t see me 

taking anything from that account. You don’t see me profiting off of that account. ...” (Tr. 2339). The Court gives little 

or no weight to Mr. Billcliff’s testimony in this regard. Ms. Lee testified that on August 12, 2022, Mr. Billcliff withdrew 

$12,879.72 which was everything remaining in the Marrimack Valley Roofing Co. account and closed the account. She 

said the money was transferred to an account in the name of Barry Billcliff. (Tr. 542-46; Ex. 155 at 512). 
- 50 -

tele: 978-884-6732, email: barry@merrimackvalleyroofing.com,

125 is the owner/signer on that 

account. (Tr. 532; Ex. 155, at 9, 11, 469-71).

Mr. Billcliff testified at trial that he “wouldn’t know” if he ever paid Mr. Bonicenha the more 

than $47,000 he was owed in the fall of 2021 for work L&A did on the Devens Project. He said 

neither he nor Merrimack Valley Roofing was responsible for paying him. He said it was his 

understanding that Mike LaChance would have paid him. But, although he heard Mr. Bonicenha’s 

testimony in Court saying that he was not paid, Mr. Billcliff said that he had also heard that 

Merrimack Valley paid him. He said, “I don’t have any personal knowledge either way.” (Tr. 2327-

29). Mr. Bonicenha testified that no one has paid L&A the $47,000 that it is owed for the work that 

it did at the Devens Project in October 2021. He said that Mr. Billcliff owes him “$47,000 and 

something.” (Tr. 594-95, 614). 

M. The Devens SpringHill Suites requests Mr. Billcliff resolve leaks that Continue after 

Mr. Billcliff and L&A installed the new roof. 

Mr. Byrne testified that after Respondent and L&A finished working at the job site there 

were “more leaks” than existed before the roof was redone. (Tr. 92-93). He said “I had 20 leaks 

before the roof got re-roofed and then I had a hundred leaks. It was a disaster. All I could do was 

put buckets underneath them, the leaks.” (Tr. 93). Mr. Byrne testified that Mr. Mehlmann contacted 

RA Ventures about the leaks. (Tr. 93). Mr. Costa testified that the SpringHill Suites hotel was still 

having issues with leaks, so he asked Barry to revisit those issues. On December 20, 2021, Mr. 

Costa sent a message to Mr. Billcliff and stated: “Barry I am told someone from our team at the 

125 The Limited Liability Company Authorization Resolution for the account, dated March 9, 2016, states:

I, Barry Billcliff, certify that I am a Manager or Designated Member of the above named [The Merrimack 

Valley Roofing Co., LLC w/ DBA Andover Roofing] Limited Liability Company organized under the laws of 

New Hampshire, Federal Employer I.D Number ... engaged in business under the trade name of The 

Merrimack Valley Roofing Co., LLC. w/ DBA Andover roofing .... Signed “Barry Billcliff/manager” (Tr. 

532-33, 885; Ex. 155, at 472-73). The Secretary’s position at trial was that Merrimack Valley Roofing and 

Gutter was not a registered corporation as of October 7, 2021. (Tr. 885).
- 51 -

Springhill Suites that there was a leak over the weekend. Can you have someone check it out?” (Ex. 

154, at 2). Later in the day on December 20, 2021, Mr. Billcliff then replied by sending a message:

“Sure, I can swing over there in a little bit, do you have any information as to around where it came 

in.” (Ex. 154, at 1-2).

On December 21, 2021, Mr. Costa sent a message to Mr. Billcliff that stated: “Not sure, the 

GM, Jon, pinged me. If you swing through, can you check in with him?” (Tr. 442-46, 468; Ex. V, at 

R-331). 

On December 22, 2021, at 11:18 AM, Mr. Costa sent a message to Barry James that stated: 

“Barry can you let me know when you plan on swing over?” (Tr. 341-42, 354-55, 357; Ex. 154, at 

1).

Mr. Byrne testified that the leaks continued, and Mr. Billcliff came out to the hotel to see 

some photographs Mr. Byrne had taken of the leaks.126 Mr. Byrne said that he was not giving Mr. 

Billcliff the photographs because he already had them. Mr. Byrne testified that Mr. Billcliff was 

“yelling at me and screaming at me” in the hotel lobby.127 Overhearing Mr. Billcliff’s yelling and 

screaming, Mr. Mehlmann came running over and told Mr. Billcliff to leave.128 (Tr. 94-95, 150-52, 

154-55, 228). Mr. Byrne testified that Mr. Billcliff had repeatedly failed to show up to do repairs of 

the roof. (Tr. 143-46). He said two men eventually went back up to the roof for about half an hour 

126 Mr. Billcliff testified that it was his understanding that there was “one small leak ... that was never part of the 

original contract anyway, and was fixed ....” (Tr. 2236, 2241). The Court credits Mr. Byrne’s testimony as to the extent 

of the leaks. The Court found Mr. Byrne’s testimony to be credible based upon observing his demeanor when testifying. 

He was candid, confident and recalled events convincingly. 

127CO Bussell testified that Louis Byrne was very disgusted with the quality of Respondent’s work, Mr. Billcliff coming 

back to the SpringHill Suites hotel yelling, hooting, hollering and screaming at him, and that he hired Mr. Billcliff to 

perform roof repairs and they were still having leaks upon leaks, more leaks than they had before the roof was repaired. 

(Tr. 1798-99). 

128 Mr. Billcliff testified that Mr. Mehlmann mistakenly testified that it was Mr. Billcliff who was arguing with Mr. 

Byrne. The Court credits Mr. Mehlmann’s testimony based upon observations of his demeanor. His testimony was 

direct and persuasive. The Court finds that it was Mr. Billcliff who Messrs. Byrne and Mehlmann interacted with at the 

SpringHill Suites hotel about the leaks after work was ended in October 2021. 
- 52 -

and put silicone on a few spots. He said that Merrimack Roofing was scheduled to come out to the 

SpringHill Suites hotel to do some roof repairs on December 24, 2021. But, he said it did not show 

up on that date. Mr. Byrne also testified that he doubted that any Merrimack Roofing roofers 

showed up at the Devens SpringHill Suites on December 25, 2021. He said that was the last that 

Merrimack Roofing had to do with the job. (Tr. 95, 143-44, 149-50, 155). Mr. Byrne said that he 

regretted that the SpringHill Suites hotel hired Barry Billcliff and Merrimack Valley to do the job 

because it was “one of the worst roofing jobs I ever saw done in my life.” (Tr. 97, 163, 195-96). 

Mr. Byrne testified: “There were holes that you could stick your hand in. There were holes that 

animals could go through. There were holes that the rain could go through. There were parts that 

were missing shingles. There were parts that weren’t shingled correctly.” (Tr. 196). 

On Monday, December 27, 2021, 3:23 PM, Barry James 

foreman05.merrimackvalleyroofing@yahoo.com, sent a message to Mr. Costa, Subject: Re: Devens 

Hotel, that stated, in part: 

We had a crew over there on Friday [December 24, 2021]. There was nothing seen out of 

place or any smoking guns. We put some silicone on some of the flashing in other areas that 

are susceptible being as none of the shingles have had a chance to stick down yet. The 

thermos-seal lines have not had enough time in heat to set 100%. Our speculation is that 

wind driven rain got underneath shingles and were able to ride down the nail holes. (Tr. 

357; Ex. 154, at 1).

Messrs. Byrne and Costa testified that eventually, another company, Prime Roofing 

Corporation, did all the roof repairs over the period of about a month. (Tr. 96, 194-95, 312). 

N. CO Bussell’s first in-person December 21, 2021 Administrative Interview of Mr. 

Billcliff.

On December 21, 2021, CO Bussell conducted an administrative interview of Mr. Billcliff at 

the OSHA Andover area office for which he issued an administrative subpoena for Mr. Billcliff to 
- 53 -

also bring 37 document items to the interview.129 Mr. Billcliff brought no documents to the 

interview. (Tr. 1542-44). CO Bussell testified that during Mr. Billcliff’s December 21, 2021 

interview, he told him that he had no knowledge of the job or that his son Daniel had pulled the 

permit for the Devens Project. CO Bussell also said that Mr. Billcliff told him that he had never 

been to the job site.130 He told the CO that he uses Barry James (James being his middle name) 

commonly in correspondence due to past legal woes. (Tr. 1544-46, 1841-43, 1888-89, 2016-17). 

CO Bussell also testified that Mr. Billcliff told him during the interview that the messages between 

Messrs. Costa and James were not from him and “that somebody else had signed the emails Barry 

James and used his personal cell phone number in the signature or it said Barry James with a cell 

phone number right below it, that somebody else was using that email and sending those emails.”131 

(Tr. 1544-45, 1929). CO Bussell also testified that Mr. Billcliff told him during the December 21, 

2021 interview that the CO had spoken with someone else when using Mr. Vaughn’s cell phone on 

October 7, 2021, and that it was not him [Billcliff] who he had talked to that day.132 (Tr. 1546). CO 

Bussell testified that he determined that Mr. Billcliff was being “evasive and untruthful” during his 

December 21, 2021 interview. (Tr. 1546-47). 

O. OSHA’s January 12, 2022 Administrative Interview of Mr. Vaughn 

129 AAD LeRose also attended the interview. (Tr. 1543). 130 The Court finds that these three statements given by Mr. Billcliff to the CO on December 21, 2021 were all false. 131 The Court finds that the communications between Messrs. Costa and Billcliff [aka James] were all actually between 

Messrs. Costa and Billcliff and that Mr. Billcliff’s December 21, 2021 statement to CO Bussell that these 

communications did not involve him was false. 132 Mr. Billcliff also denied speaking to CO Bussell by cell phone on October 7, 2021 in its “Respondents (sic) Response 

to First Set of Requests for Admissions,” RFA No. 11, dated July 8, 2022. (Tr. 1950-51; Ex. 182, at 2). The Court finds 

that the CO had spoken with Mr. Billcliff on October 7, 2021 when using Mr. Vaughn’s cell phone and further finds that 

Mr. Billcliff’s December 21, 2021 statement and Respondent’s Response to RFA No. 11, First Set of RFAs, to the 

contrary to be false.
- 54 -

CO Bussell testified at trial that during an OSHA administrative interview of Mr. Vaughn 

that he conducted on January 12, 2022,133 Mr. Vaughn stated that he was paid for his time at the 

work site.134 (Tr. 1699-1701). Mr. Vaughn also told the CO on January 12, 2022 that he never 

received any “paycheck” for his work at the job site. He told the CO that he received only small 

cash payments for the work that he did at the job site for two days. (Tr. 720, 1645-46). He told the 

CO that “I’m there trying to earn a paycheck. I’m there trying to see to [too] if I actually like the 

job and if it was something I can actually do, so I go there and I give it a few-day trial, and I go –

I’m in trouble with OSHA because I don’t know a f---ing ting about what I’m doing.”135 (Tr. 1646). 

At trial, Mr. Vaughn admitted that he told CO Bussell on January 12, 2022 that he received cash 

payments for the work that he did for two days, just for the hours he put in.136 (Tr. 726). 

At trial, Mr. Billcliff testified that he paid Mr. Vaughn “[z]ero for being at the work site.” 

(Tr. 2334). He said he paid him “small amounts that do not pertain to this, anything about this case 

whatsoever in any way, manner, form.” He said that “this was him helping me out with some 

personal stuff that has nothing to do with construction whatsoever....” He said Mr. Vaughn “was 

133 Mr. Vaughn had legal counsel present during the interview. (Tr. 724). 134 CO Bussell testified that Mr. Vaughn changed the story he initially told to him and later made statements that he 

received money for making personal phone calls, which were not work related. (Tr. 2191-93). CO Bussell testified that 

during his February 9, 2023 deposition Mr. Vaughn gave a different answer and said he was only paid to make personal 

phone calls when he was at the job site. CO Bussell testified that it was “completely unbelievable” that Mr. Vaughn

received “zero payment” after having spent two weeks at the job site since his car was being repossessed, he was not 

able to pay his bills, and he needed money. (Tr. 1699). CO Bussell said, “you can’t unring the bell” and what Mr. 

Vaughn said “closest to the inspection”; i.e. on January 12, 2022, was more credible. (Tr. 2191-93).

135 Mr. Billcliff testified that he had a conversation with Mr. Vaughn “about harnesses and all that” before Mr. Vaughn 

went to the job site and added “he [Vaughn] doesn’t like heights, he doesn’t know anything about roofing, he does know 

a lot about roofing safety.” (Tr. 2282). Mr. Billcliff testified that, “even before OSHA showed up” he called and spoke 

with Mr. Vaughn numerous times while he was on the job site and was told that workers kept taking harnesses and hard 

hats off while being yelled at by Messrs. Bonicenha and Vaughn to put them back on. Mr. Billcliff said: “And in this 

case Vaughn [Mr. Billcliff was actually referring to Mr. Bonicenha], like I say, wasn’t on site, he was 40 minutes away 

from what I understand, and Vaughn went in to go to the bathroom when Mr. Bussell pulled up. So he pulled up at the 

time when they weren’t being yelled at to put it right back on.” (Tr. 2282-84). The Court finds this testimony relating to 

the time before OSHA arrived at the job site on October 7, 2021 to be incredulous. 

136 Mr. Vaughn testified that he was at the job site “[g]ive or take eight” hours per day. (Tr. 955). He said that his 

commute from his home at Hampton to the job site was “maybe 45 minutes” each way. (Tr. 956, 966-67).
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there working for free, ....” Mr. Billcliff testified that he quite likely paid Mr. Vaughn less than 

$1,000. (Tr. 2334-37). In his Answers to Amended Complaint, Mr. Billcliff stated Mr. Vaughn “did 

attest that the job under Merrimack Valley Roofing as a supervisor, which is uncontested to be the 

reason he was on site to observe, consists of enforcing OSHA compliance and doing regular 

inspections of the jobsite, materials, and equipment.” (Answers to Amended Complaint, at 5). At 

trial, Mr. Vaughn testified that while interacting with subcontractors or others at the job site he 

wanted “it to be representative of” Mr. Billcliff. (Tr. 814-15). The Court finds any trial testimony 

by Messrs. Billcliff and Vaughn that he did not receive any payment for his being at the job site as a 

supervisor for two weeks to not be credible. (Tr. 814). 

P. OSHA March 8, 2022 Interviews of Messrs. Billcliff, Grzyboski, and Vaughn

1. OSHA March 8, 2022 Interview of Mr. Billcliff

On March 8, 2022, CO Bussell again interviewed Mr. Billcliff during which Mr. Billcliff told 

him that he told Merrimack Valley Roofing that he was going to originally take on the Devens 

roofing project and he had a contract to do so. (Tr. 1916-18, 1936). The CO said Billcliff told him 

that he did marketing and advertising137 for Merrimack Valley Roofing & Gutters.138 (Tr. 1548). 

This time, Mr. Billcliff told CO Bussell that he had instructed his son Daniel to pull the permit for 

the roofing job under his [Billcliff’s] Billco company, but used a Merrimack Valley check to pay for 

the permit.139 Mr. Billcliff told CO Bussell that he “was originally going to sub that job for 

137 During the trial, Mr. Billcliff denied having taken multiple OSHA courses. (Tr. 1967). The Court finds this statement 

to not be credible because during his February 11, 2022 deposition in Docket No. 21-0382 he stated that he had done 

health or safety training, including OSHA courses, OSHA-10, and fall protection training. (Tr. 1968-70). 138 At trial, Mr. Billcliff said that he was a salaried employee who interacted with “a bunch of different people.” (Tr. 

2306). He said that Jeremy Coito was his boss. (Tr. 2307-08). The Court gives little weight to this trial testimony 

because during his February 11, 2022 and January 12, 2023 depositions Mr. Billcliff stated that he did not recall if Mr. 

Coito was his supervisor. (Tr. 1955-56, 2331-32). 139 At trial, Mr. Billcliff also testified that he instructed his son, Daniel, to obtain the permit for the Devens Project. (Tr. 

1015, 2046).
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Merrimack Valley through my Billco company. It was going to be our first big job, and as I said, I 

was very upset that they140 wound up subbing it to somebody else instead, ....”141 (Tr. 1548-50, 

1843, 2047). Mr. Billcliff told CO Bussell that he did not perform a site visit at the Devens 

SpringHill Suites on August 4, 2021, or meet with Mr. Byrne there. (Tr. 1945-47).142 

2. OSHA March 8, 2022 Interview of Mr. Grzyboski.

On March 8, 2022, CO Bussell interviewed Mr. Grzyboski, then allegedly an employee of 

Merrimack Valley Roofing. He told CO Bussell that he did not know the name, Mike LaChance. 

(Tr. 1115-16). Mr. Grzyboski said that he understood that the information that he provided during 

the March 8, 2022 interview must be true, accurate, and correct to the best of his knowledge and 

memory. (Tr. 1333-36). 

3. OSHA March 8, 2022 Interview of Mr. Vaughn

On March 8, 2022, CO Bussell conducted another interview of Mr. Vaughn where Mr. 

Vaughn told him that he had “zero” roofing experience. At trial, Mr. Vaughn admitted telling the CO 

on March 8, 2022 that he called Mr. Billcliff while the CO was at the job site. (Tr. 1647-48). He 

further told the CO that while he was at the job site he only communicated with Mr. Billcliff, and he 

did not know of anyone else who worked at Merrimack Valley Roofing. Mr. Vaughn also told the 

CO that Mr. Billcliff told him to make sure that the guys on the roof are tied off and that he had “no 

140 On March 8, 2022, Mr. Billcliff told CO Bussell that he could not recall who he dealt with at Merrimack Valley 

Roofing about the contract for the Devens Project and subbing the work. He also told the CO he did not know who was 

in charge of Merrimack Valley Roofing when he [Billcliff] was involved with the Devens Project. He also told the CO 

that he did not particularly report to anybody at Merrimack Valley Roofing. (Tr. 1939-42, 1957-59). During his 

February 11, 2022 deposition in another OSHA case, OSHRC Docket No. 21-0382, Mr. Billcliff said that he did not 

know the name of person in charge of the business at Merrimack Valley Roofing and that he did not recall the name of 

his supervisor or anyone that tracked his hours at Merrimack Valley Roofing. (Tr. 1955-56). He also said that he did not 

recall if Merrimack Valley Roofing had a written safety program, a person responsible for safety, or someone who trains 

workers. (Tr. 1971-72, 1991). 141 The Court finds that this statement by Mr. Billcliff during his March 8, 2022 interview with the CO to be false. 142 The Court finds this statement by Mr. Billcliff made to CO Bussell on March 8, 2022 to be false.
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clue” who the roofers worked for. (Tr. 1648-50). Mr. Vaughn also told the CO that he had never 

heard of “Bay State Exteriors” or “John Wolfe”.143 (Tr. 747-48, 1651).

Q. CO Bussell’s March 23, 2022 Interview of Mr. Bonicenha

CO Bussell testified that Mr. Bonicenha told him on March 23, 2022 that Mr. Billcliff saw 

the telephone numbers on the side of a L&A’s van going down the road and called and spoke with 

Mr. Bonicenha or his partner Alex; and that is how Mr. Billcliff originally contacted L&A. (Tr. 

1717-18, 1725). CO Bussell testified that he saw one of L&A’s vans on highway 495 that had 

“L&A Property” displayed on it. (Tr. 1729). Mr. Billcliff denied calling Mr. Bonicenha when 

testifying. (Tr. 2239). The Court credits Mr. Bonicenha’s testimony in this regard over the denial by 

Mr. Billcliff. 

CO Bussell testified that he showed Mr. Bonicenha photographs of Mr. Billcliff on March 

23, 2022 that were taken off of Mr. Billcliff’s Facebook page. (Tr. 1715).

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

CO Bussell testified that OSHA issued citations to Mr. Billcliff and various other d/b/a 

names. Three citations were issued on April 4, 2022 to Respondent; all recommended by CO 

Bussell. (Tr. 1653-55). 

S. Discovery and Trial Testimony after OSHA issued its Citations

1. Respondent’s December 6, 2022 Supplemental Response to the Acting Secretary’s 

Discovery Request. 

In his December 6, 2022 Supplemental Response to the Acting Secretary’s Discovery request 

nos. 9 and 16, Mr. Billcliff claimed that Merrimack Valley Roofing gave the Devens Project job to 

143 At trial, Mr. Vaughn testified that he did not know the name Bay State Exteriors, and he was not working for it. He 

also initially said that he did not remember ever hearing the name, John Wolf, but equivocated later saying he did not 

“recollect” the name. (Tr. 747-48). But he admitted at trial telling CO Bussell on March 8, 2022 that he never heard the 

name John Wolf before. (Tr. 750).
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Leo Bonicenha and Mike LaChance, who was responsible for the job.144 (Tr. 1973-76; Ex. 185, at 

5). Respondent did not include any information in Respondent’s December 6, 2022 Supplemental 

Response to the Secretary’s written discovery that: 1) Mr. Billcliff closed the Marrimack Valley 

Roofing account at the Merrimack Valley Credit Union on August 12, 2022, 2) Mr. Billcliff was the 

only authorized user on that account from September, 2021 through August, 2022, 3) Mr. Billcliff’s 

name was the only name associated with the account, 4) the name and address of Mr. Billcliff was 

the name and address on each monthly bank statement for the account,145 and 5) Mr. Billcliff 

deposited the Devens Project checks into the account. (Tr. 2110-32; Ex. 185).

At trial, Mr. Billcliff testified that he agreed that his response to Request No. 36, at page 17 

of Respondent’s December 6, 2022 Supplemental Response to the Secretary’s written Discovery 

requests stated that he could not remember any instance where he may have given any discipline to 

any subcontractor as pertains to this case in the last two years. (Tr. 1999-2000; Ex. 185, at 17). 

2. Mr. Billcliff’s January 12, 2023 Deposition

On January 12, 2023, Mr. Billcliff was deposed in this case. (Tr. 1941, 2007). At trial, Mr. 

Billcliff admitted saying during his January 12, 2023 deposition that he did not know if John Wolfe 

is his “actual name or not; not sure.” He also said that he was “Unsure” if a person named John 

Wolfe worked at Merrimack Valley Roofing. He further said that he did not have any relationship at 

all with John Wolfe. He said that he did not recall ever seeing John Wolfe working at Merrimack 

Valley Roofing or on a Merrimack Valley Roofing job site, meeting John Wolfe in person, speaking 

to him on the phone, or emailing him. He stated that he could not recall when asked to describe the 

physical characteristics of John Wolfe. (Tr. 2062-68). At trial, Complainant stated her position that 

144 The Court finds this assertion regarding Mr. LaChance to be false. 145 Mr. Billcliff testified that he never received a monthly statement from Merrimack Valley Federal Credit Union. (Tr. 

2321-22). The Court places no weight on this testimony.
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“John Wolf is an extremely mysterious identity here that connects back to Mr. Billcliff, ...” (Tr. 

863). The Court finds that John Wolfe is a fictional character made up by Mr. Billcliff. 

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

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

A. We would have had to have. 

Q. Who did you have that contract with?

A. I don’t recall.

Q. Was the contract with Merrimack Valley Roofing?

A. Most likely.

(Tr. 1941-42).

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

Q. Do you work with Jeremy Coito?

A. Not today.

Q. Does Jeremy Coito work at Merrimack Valley Roofing?

A. Possibly.

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

A. Possibly.

Later in the deposition, Mr. Billcliff stated:

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

A. I do not recall.

Q. Is he your supervisor?

A. I do not recall.

(Tr. 2331-32).

At trial, Mr. Billcliff further admitted saying during his January 12, 2023 deposition that he 

denied ever working with Mr. Bonicenha on a job prior to the Devens project. (Tr. 1943). At trial, 

Mr. Billcliff testified that he never met with Mr. Bonicenha in person regarding the Devens Project 

in the fall of 2021. Mr. Billcliff admitted that he had represented to the Court in a prior filing that “it 

was a straight out lie that [he] had ever met with Leo Bonicenha,” that he “had never even heard of 

Leo prior to this case,” and that he had “never had any form of contact with Leo in [his] life.” (Tr. 

1944-45, 1984-88). The Court finds Mr. Billcliff’s assertions that he never heard of Mr. Bonicenha 

before work on the Devens Project started to not be credible. 
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3. Mr. Vaughn’s February 9, 2023 Deposition

On February 9, 2023, Mr. Vaughn was deposed by Government counsel in this case. (Tr. 

694-96). During his deposition, Mr. Vaughn, upon advice of his legal counsel, refused to answer a 

question as to whether he had had “any discussion with Barry Billcliff in preparation for your 

deposition today?” based upon the Fifth Amendment.146 (Tr. 694-96). 

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

Mr. Grzyboski stated that he said during his February 9, 2023 deposition that a construction 

supervisor was “someone who is on the site ... to make sure both the job goes smoothly and the 

process overall goes safe and there’s no sort of any issues as far as anything from the OSHA 

regulations to state requirements....” (Tr. 1121). At trial, Mr. Grzyboski admitted saying during 

his February [9], 2023 deposition that Mr. Billcliff was one of the people who told him what to do 

at Merrimack Valley Roofing. (Tr. 1117-18, 1218). 

5. Mr. Vaughn’s testimony at trial. 

Mr. Vaughn testified that he has a degree in criminal justice with a minor in sociology from 

Salem State College. (Tr. 698). At the time of trial, he said that he was the owner of a ceramic 

coating and window cleaning company that has no employees. (Tr. 698-99). At trial, Mr. Vaughn 

testified that the cash payments that he received at the time of the Devens Project from Mr. Billcliff 

146 See Juan G. Quevedo-Garcia, No. 20-1029, 2022 WL 1218613, at *28 (OSHRCALJ, Mar. 8, 2022)(consolidated). 

An adverse inference may be drawn based upon an invocation of Fifth Amendment privileges in an OSHA case in 

certain circumstances. The Acting Secretary did not request any adverse inference be drawn based upon Mr. Vaughn’s

refusal to answer the question during his February 9, 2023 deposition as to whether he had had “any discussion with 

Barry Billcliff in preparation for your deposition today?” and Respondent made no issue of it. No adverse inference is 

made by the Court. See Woolston Constr. Co., Inc., No. 88-1877, 1989 WL 406362, at *10, n. 12 (OSHRCALJ, Nov. 22, 

1989)(“It is noted that the case law on the propriety of drawing adverse inferences from the assertion of a Fifth 

Amendment privilege is not totally uniform.”), aff’d, 1991 WL 133666 (OSHRC, June 28, 1991), aff’d, No. 91-1413, 

1992 WL 117669 (D.C. Cir. May 22, 1992). 
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were “[n]ot for the time on the project,” because he was “never employed”. (Tr. 720, 892). Mr. 

Vaughn testified “I wasn’t going to be paid” and Mr. Billcliff’s cash payment to him was “[n]ot for 

this job.” (Tr. 811-14, 831, 957, 961). But he also testified that he was on the Devens Project to 

help pay his bills. (Tr. 956). He also admitted at trial saying at his February 9, 2023 deposition that 

“I needed the money to pay my bills, and that’s it.” (Tr. 962). The Court finds Mr. Vaughn’s 

testimony that he was at the job site not as an employee, but on his own volition, free will and 

without pay, to not be credible. 

Mr. Vaughn testified that he had “pretty much zero” construction experience and “never 

really had a construction job.” He also said that Mr. Billcliff knew this. (Tr. 699-701, 770). He said 

that Mr. Billcliff knew that he was out of work and was looking to earn a paycheck before he started 

his job with Mr. Billcliff at the Devens Project. (Tr. 702-03). He said that initially Mr. Billcliff 

talked with him about setting up the job, watching for the work on the project, to see whether the 

workers were working, taking long lunch breaks, and ensuring that the L&A workers were not 

stealing things. He said he was to report on these things to Mr. Billcliff, which he did. Mr. Vaughn 

testified that he typically called Mr. Billcliff at the end of every day and told him how things went 

for the day. He said he reported the progress made on the roof of the SpringHill Suites hotel and 

Conference Center buildings every day to Mr. Billcliff. Mr. Vaughn said that these conversations 

were work related “for the most part.” (Tr. 708-11, 737, 756-60, 889, 894). 

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

testified:

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

A. Just overseeing the job as far as, you know, he told me to make sure that everyone’s 

wearing their hard hats and their harnesses, make sure they’re not stealing as you stated, just 

make sure everything’s kind of in order and there’s nothing really, you know, it’s not a 

circus. It’s a construction site. It’s looking clean and stuff like that. That’s about it.
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(Tr. 711-12).

Mr. Vaughn testified at trial that, although he had no specific memory of it or the date it 

occurred, Mr. Billcliff told him before OSHA showed up at the job site to “make sure everyone has 

their hard hats and harnesses on at all times and that’s what I did.” (Tr. 715, 785, 795-96, 835-37). 

Mr. Vaughn’s vague recollection at the trial being told by Mr. Billcliff, before OSHA showed up at 

the job site, to make sure the workers wore hard hats and harnesses on at all times was impeached 

by his prior February 9, 2023 deposition testimony where he said “I don’t exactly know [when Mr. 

Billcliff told him]. I would assume it was prior to, but you’re – you’re asking me to give a specific 

date. I don’t know, sir, I couldn’t tell you.” He further said: “I couldn’t tell you if you told me 

before or after. You’re trying to make me recollect something that was almost two years ago. This 

is – that’s absurd.” (Tr. 716). He also said during his deposition that he had “no clue” before 

OSHA’s CO showed up at the job site about the need for the workers to wear harnesses. (Tr. 719). 

At trial, Mr. Vaughn also admitted saying at his deposition that: “If I had known that s__t [the 

OSHA rules about harnesses], sir, don’t you think that I would have f__king told them to put it [a 

harness] on. Honestly, if I had known that this had to be done and this had to be done, I would have 

made sure it was done.” (Tr. 775-76). The Court finds that Mr. Billcliff did not tell Mr. Vaughn to 

make sure that the workers wore hard hats and harnesses at all times before Mr. Bussell appeared at 

the job site on October 7, 2021. The Court finds any testimony at trial by Mr. Vaughn that is 

contrary to the Court’s finding to not be credible. (Tr. 778-80). 

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

Q. And before Mr. Bussell showed up, what did you do, if anything, to detect OSHA 

violations on the job site?

A. If I had known there was OSHA violations, they wouldn’t have f__king done that. I have 

no idea. Listen, I’m somebody that I’m not going to put up with crap. If you’re supposed to 

do something, do it, and I’m going to make you do it. I’m a pretty intimidating guy when I 

want to be, so if I knew the rules, I would have made them abide by it. If I had known they 
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had to wear a harness and be tethered like you told me and the ladder was supposed to be a 

certain height over, I would have made sure they did it every freaking time, but I didn’t 

know, sir. That’s what I don’t get. You can ask me 700 questions. There’s the answer. It’s in 

a nutshell. 

(Tr. 777).

He also testified at trial that Mr. Billcliff told him to “learn the OSHA rules as the job went along, 

but as soon as I dealt with this, I wanted – I didn’t even care. I wasn’t even going to look because I 

didn’t give a s__t. Sorry....” He said that he “never” studied the OSHA guidelines. (Tr. 717, 913). 

At trial, Mr. Vaughn testified that no one told him before OSHA arrived at the job site about any 

safety plan, safety policies, safety disciplinary policies, fall protection plan, or job hazard analysis. 

(Tr. 718). He further said that it was not his job to supervise the workers at the job site, because it 

was Mr. Bonicenha’s job to do so. The Court finds the testimony that Mr. Vaughn was not at the job 

site to supervise the workers to not be credible. (Tr. 712-14). 

6. Mr. Billcliff’s Trial Testimony

Mr. Billcliff testified that he was not an employer, had no employees and did not hire 

employees, including any employees on the job site.

147 (Tr. 1928-29, 2202-04, 2278). He said that 

he did not pay, or set wages for, any employees working on the job site. He said that he paid only 

Billco and Relocation employees who were not connected to this case. (Tr. 2202-04, 2278). He said 

that he did not schedule or assign work to, or determine the hours of, any employee involved in this 

case. He said that he did not train or discipline any employees involved in this case. Mr. Billcliff 

testified that he did not establish employee benefits for any employees involved in this case. (Tr. 

147 The Court finds these statements to be false. On May 4, 2022, Mr. Billcliff agreed in a Stipulated Settlement 

Agreement between Barry Billcliff, d/b/a Barry’s Roofing and the U.S. Department of Labor that he was an employer 

under section 3(5) of the OSH Act pertaining to OSHRC Docket No. 21-0382 and Inspection No. 1498677. At trial, Mr. 

Billcliff said that he voiced his disagreement with this stipulation with the Acting Secretary, but signed the Stipulated 

Agreement nonetheless and ultimately did not object to the admissibility of the Stipulated Agreement as evidence in this 

case. (Tr. 2297-98). The Workers’ Compensation Insurance Affidavit of the permit application signed by Mr. Grzyboski

also states that “I [company name: Billco Roofing LLC] am an employer providing workers’ compensation for my 

employees working on this job.” (Tr. 1192-94; Ex. 124, at 3).
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2204). He said that he had not worn a hard hat or been in a situation that required wearing a hard 

hat in ten years. (Tr. 2204).

During cross examination by Mr. Billcliff at trial, CO Bussell characterized Mr. Billcliff as 

“[e]vasive, dishonest, untruthful, all along the lines of that. Uncooperative” and “lacking integrity.” 

(Tr. 1677-78). He said Mr. Billcliff “cooperated zero with the investigation process. I didn’t know 

what companies you were doing business as. I didn’t know how many employees.... I couldn’t find 

any legitimate companies, so I don’t know what things you do business as, what entities you do 

business as, ....” (Tr. 1783). 

7. Mr. Grzyboski’s Trial Testimony

Mr. Grzyboski testified at trial that on March 27, 2023 he [Grzyboski] filed a document with 

the New Hampshire Secretary of State’s website registering a newly formed limited liability 

company called Merrimack Valley Roofing and Gutter, LLC. He said that he did so because he 

wanted to get into a management position sometime in the future. Before this filing he said that he 

did not know if there was any Merrimack Valley Roofing and Gutter, LLC. (Tr. 1021-23, 1027-28). 

At trial, Mr. Grzyboski invoked his Fifth Amendment right and refused to answer the Secretary 

counsel’s question as to what is the street address of the principal office of Merrimack Valley 

Roofing and Gutter, LLC.148 (Tr. 1032-33). 

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

OSHA Compliance Officer Aaron D. Epstein testified that on October 15, 2020 he 

conducted an inspection of a worksite at 77 Bradford Avenue, Bradford, Massachusetts 01835 of 

Barry Billcliff, d/b/a Barry’s Roofing, 496 Main Street, Sandown, NH 03873, where its employees 

148 The Acting Secretary did not request any adverse inference be drawn based upon Mr. Grzyboski’s refusal to answer 

the question at trial to identify the street address of the principal office of Merrimack Valley Roofing and Gutter, LLC, 

and Respondent made no issue of it. No adverse inference is made by the Court. See fn. 146, above.
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were stripping a roof atop a garage. (Tr. 1360-1415; Ex. 140, Ex 141, at 3). He further said that on 

January 4, 2021 OSHA issued a 1 item Repeat-Serious citation to Barry Billcliff, d/b/a Barry’s 

Roofing for a violation of 29 C.F.R. § 1926.501(b)(13) because “employees were working at heights 

greater than 6 feet without personal fall protection exposing them to a fall hazard.” The foreman at 

the Bradford job site told CO Epstein that he worked for Mr. Billcliff, and the foreman identified 

Mr. Billcliff as the owner of the company doing the work on the garage’s roof.149 The foreman told 

the CO that he and his sons, who at the time were atop the garage’s roof, worked for Merrimack 

Valley Roofing and Gutter.150 He told the CO that they knew that they were required to have fall 

protection since they were working above six feet, but that the fall protection was in the van. (Tr. 

1368-80; Exs. 140-41). CO Epstein also stated that the foreman told him that a white van at the job 

site was owned by Merrimack Valley Roofing and Gutter and registered to Mr. Billcliff at 496 Main 

Street, Sandown, NH 03873. The CO said that the van had the same telephone numbers, 978-866-

1860 and 978-884-6732, showing on its side that were the phone numbers of the foreman’s 

employer, Mr. Billcliff.151 The CO testified that the van’s license plate number was [redacted]. (Tr. 

1368-78, 1416-17; Ex. 140, Ex. 41, at 5-6, Ex. 145). CO Epstein said that he hand-delivered the 

January 4, 2021 citation to Mr. Billcliff’s home on March 23, 2021. (Tr. 1381, 1421). On May 4, 

2022, Mr. Billcliff signed a “Stipulated Settlement Agreement” that resolved the January 4, 2021 

citation and stated that “Respondent [Barry Billcliff, d/b/a Barry’s Roofing] is an employer under 

section 3(5) of the [OSH Act of 1970] Act.” (Ex. 142). 

U. Even though Ordered by the Court to do so, Mr. Billcliff did not Produce many

relevant documents.

149 CO Epstein testified that the foreman called Mr. Billcliff from the job site while the CO was there. (Tr. 1372-73, 

1417-18) 150 CO Epstein testified that the homeowners of the garage told him that Mr. Billcliff bid the Bradford garage roofing job 

and that they paid Merrimack Valley Roofing and Gutter to do the work. (Tr. 1411-12). 151 The van also displayed “Merrimack Vally Roofing & Gutter” on its side. (Tr. 1416-18; Ex. 141, at 6).
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Mr. Billcliff said at trial that he did not recall if Merrimack Valley Roofing had a written 

safety program, a person responsible for safety, or someone who trains workers. (Tr. 1971-72, 

1991). Mr. Billcliff testified at trial that he searched for, but found no, documents that described 

the qualifications, work experience, hazard or safety assessments, written fall protection plans, and 

training, including safety training, of any of the workers present at the Devens Project on October 

7, 2021, including copies of job applications, resumes, and training certificates. He also testified 

that he searched for, but found no, documents that showed the extent to which the workers at the 

Devens Project had been provided with fall protection as of October 7, 2021. (Tr. 1992-98; Ex. 

100, at 19, 25, 27-28). Mr. Billcliff also testified at trial that he searched for, but found no,

documents concerning safety and health policies, including employee handbooks and safety 

manuals. (Tr. 1993-95; Ex. 100, at 8-9). 

Mr. Billcliff also did not produce documents concerning: 1) any hazard or safety 

assessment(s) which Respondent or any subcontractor, Parent, or Affiliates of Respondent 

conducted prior to the issuance of the Citations concerning the hazards that workers may encounter 

while working at the job site, 2) any discipline given to a worker or supervisor at a roofing job by 

Respondent or any subcontractors, Parent, or Affiliates of Respondent for failing to follow any 

safety rule at any worksite other than the job site for the two years preceding the date of the OSHA 

inspection, October 7, 2021, and/or 3) contracts, subcontracts, agreements, or other documents 

concerning any work performed by any of Respondent’s subcontractors, Parent or Affiliates at the 

job site. (Tr. 1989-2001; Ex. 100, at 8-9, 12, 16, 18-19, 24-25, 27-29, 52-53).
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III. STIPULATIONS OF FACT

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

17).

1. Prior to the time of the underlying inspection, Barry James Billcliff 

(“Mr. Billcliff”) had already been working in the roofing & construction industry for 

more than 15 years. 

2. Mr. Billcliff sometimes uses the name “Barry James.”

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

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

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

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

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

8. [redacted]. [FN omitted]

(Tr. 67; Sec’y PT Br., at 3-4).

During the trial, the parties also stipulated that Mr. Grzyboski “can give a long 

list of instances where he contends his father was truthful.” (Tr. 1306).

IV. ALL OF THE VIOLATIONS ARE AFFIRMED.

The evidence at trial established the following: 

A. Mr. Billcliff was an employer. 

Under the OSH Act, an employer is “a person engaged in a business affecting commerce who 

has employees.” 29 U.S.C. § 652(5). Both Messrs. Billcliff and Grzyboski admitted that Mr. 

Grzyboski is an employee of Merrimack Valley Roofing, one of the d/b/a names. (Tr. 1037, 1115, 

1117-18, 2007-08, 2118). And as Mr. Grzyboski further testified, Mr. Billcliff was his supervisor and 
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told him what to do as an employee, to include applying for the permit for the Devens Project. (Tr. 

1034, 1118, 1126-28). There were also multiple other employees of Merrimack Valley Roofing other 

than Mr. Grzyboski. (Tr. 1037-39, 2007-08). Still further confirmation that Mr. Billcliff is an 

employer is provided by the fact that he paid Mr. Vaughn to be onsite at the Devens Project and 

supervise the roofing work being done there on Mr. Billcliff’s behalf. (Tr. 321, 552, 702-03, 726; Ex. 

108, at 1). On September 24, 2021, Daniel Grzyboski also signed, under penalties of perjury, a 

Department of Industrial Accidents Office of Investigations form that identified Billco Roofing 

LLC, a company Mr. Billcliff said he owned and was employed at during all aspects of the Devens 

Project, as the applicant employer with 4 employees to do roof repairs at 27 Andrews Parkway, 

Devens, MA. (Tr. 280-81, 2245; Ex. 124, at 3). On May 4, 2022, Mr. Billcliff also admitted that he 

was an employer under section 3(5) of the OSH Act pertaining to OSHRC Docket No. 21-0382 and 

Inspection No. 1498677 when he signed the settlement agreement in that prior case. (Ex. 142, at 1, ¶ 

1(d)).

B. Mr. Billcliff was a controlling employer. 

The Commission’s application of the multi-employer worksite doctrine is well established. 

See, e.g., McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000). Under this 

doctrine, a controlling employer is liable if “it could reasonably be expected to prevent or detect 

and abate the violations due to its supervisory authority and control over the worksite.” Stormforce 

of Jacksonville, LLC, No. 19-0593, 2021 WL 2582530, at *6 (OSHRC, March 8, 2021). An 

employer that is a controlling employer is liable for violations of the OSH Act.152 The multi152 Under the current OSHA multi-employer policy directive, an employer having control over a worksite who could 

have prevented and detected a violation through the reasonable exercise of its supervisory authority may be citable for a 

hazardous condition that violates an OSHA standard as a controlling employer, whether or not its own employees were 

exposed. OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy (Dec. 10, 1999).
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employer citation policy addresses “the peculiar needs of preventing hazards at construction sites, 

which ‘often entail different employees being exposed to hazards created by more than one 

employer.”’ Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1724 (No. 95-1449, 1999) quoting U.S. 

v. Pitt-Des Moines, Inc., 168 F.3d 976, 985 (7th Cir. 1999). A controlling employer may be held 

responsible for the violations of other employers where it could reasonably be expected to prevent 

or detect and abate violations due to its supervisory authority and control over a worksite. See 

Summit Contractors, Inc., 22 BNA OSHC 1777, 1781 (No. 03- 1622, 2009) (stating “[t]he 

Secretary’s multi-employer citation policy is to the same effect” as Commission precedent), aff’d, 

442 F. App’x 570 (D.C. Cir. 2011); Centex-Rooney Constr. Co., No. 92-0851, 1994 WL 682931, at 

*2 (OSHRC, Dec. 2, 1994). A controlling employer at a multi-employer worksite is responsible 

for taking reasonable steps to protect the exposed employees of subcontractors. Am. Wrecking 

Corp., No. 96-1330, 2001 WL 1668964, at *8 (OSHRC, Dec. 20, 2001)(consolidated), aff’d in 

relevant part, 351 F.3d 1254 (D.C. Cir. 2003). 

The evidence shows that Mr. Billcliff was a controlling employer given the role that Mr.

Vaughn had onsite and Mr. Billcliff’s actions. Mr. Billcliff ensured that his supervisor, Jason 

Vaughn, would be onsite during the entire Devens Project. As Mr. Vaughn described it, he was to be 

“Barry’s eyes on the Project.” (Tr. 711). Mr. Vaughn testified that his job was to get the workers 

what they needed, watch them work, and ensure they were working. (Tr. 709-10). 

Mr. Billcliff informed Mr. Costa that Mr. Vaughn would be onsite. (Ex. 108, at 1). Mr. 

Costa testified that his understanding, based on his discussions with Mr. Billcliff, was that Mr. 

Billcliff would be responsible for all aspects of the Devens Project, including the fifteen matters 

identified at Section II, D, above. (Tr. 321-23). 
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Mr. Billcliff also expressly informed subcontractor Leo Bonicenha that “Jason,” the “site 

manager,” would “be there for the entire job and get [him] anything that [he] need[s].” (Tr. 1506-08, 

1527; Ex. 128, at 4). Mr. Vaughn told Mr. Bonicenha he would be responsible for the job site when 

Mr. Bonicenha could not be there because of another job. (Tr. 518-19). CO Bussell observed Mr. 

Vaughn walking around at the Devens Project, overseeing the roofing work. (Tr. 1503-04). Mr. 

Vaughn told CO Bussell that Merrimack Valley Roofing was responsible for the Devens Project, and 

that he was the supervisor onsite to oversee the work. (Tr. 1506). When CO Bussell indicated that 

the roofers were exposed to fall hazards, Mr. Vaughn yelled to them to remove them from the roof, 

and they followed his instruction. (Tr. 518-19, 591,1505). Mr. Vaughn testified that, after OSHA 

came onsite, he instructed the workers to wear harnesses and hard hats and they complied. (Tr. 752-

56, 806-07). Mr. Vaughn also testified that, after OSHA came onsite, he then spoke daily with Mr. 

Billcliff about the Devens Project, to include reporting on progress and whether the workers were 

wearing harnesses and hard hats and complying with the OSHA fall protection and hard hat 

requirements. (Tr. 522, 756, 702-03, 726, 761-66).

Mr. Billcliff controlled every aspect of the Devens Project, from initially obtaining the job, 

to arranging permitting, materials, and labor, and receiving all payments for the work as provided by 

the documents admitted into evidence, including Mr. Billcliff’s messages with Mr. Costa about 

subjects such as the scope and specifications of the Devens Project, payment terms, color selections, 

the permit application and related documents, and the relevant bank records. (Tr. 312-17, 332, 1115-

17, 2008; Exs. 107-08, 123-25, 149, 151-54).

As a controlling employer under the OSH Act, Mr. Billcliff was required to ensure that 

reasonable steps were taken to comply with the requirements of the cited standards. But, as detailed 

below, he did not do so. 
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C. Complainant has Shown d/b/a’s were Properly Named in the Case. 

“Barry James” is listed as a d/b/a because Mr. Billcliff admitted that is the name he often 

uses and that name was used multiple times in connection with the Devens Project e.g., in the 

messages to Mike Costa in which the name “Barry James” appeared with Mr. Billcliff’s personal 

telephone number ending in 6732. (Tr. 2016-17; e.g., Ex. 107 at 3, Ex. 149) 

“John Wolf(e)” is listed as a d/b/a because Mr. Billcliff told CO Bussell on October 7, 2021 

that John Wolf was the owner of Merrimack Valley Roofing153 and could be reached at the telephone 

number ending in 1860. (Tr. 1507). CO Bussell testified that he was never able to speak with the 

alleged Mr. Wolf in person, despite his best efforts. (Tr. 1513-15). When CO Bussell tried to speak 

with the alleged Mr. Wolf by telephone, he believed the person on the other end was Mr. Billcliff 

pretending to be the alleged Mr. Wolf. (Tr. 1515-22). The evidence at trial showed that: (a) the 

only demonstrably real person connected to the telephone numbers and email address that Mr. 

Billcliff provided for the alleged Mr. Wolf was Mr. Billcliff himself,154 and (b) Mr. Billcliff did not 

call anyone named John Wolf to testify, even though the Court repeatedly stated to Mr. Billcliff that 

153 Mr. Billcliff sometimes also claimed that the alleged Mr. Wolf was a supervisor. (Tr. 1518).

154 In his December 6, 2022 supplemental written discovery responses that he filed on the case docket, Mr. Billcliff again 

stated on page 28 that 978-886-1860 was the telephone number to use for the alleged Mr. Wolf. On page 29 of same, 

Mr. Billcliff further stated that the alleged Mr. Wolf could also be reached by email at wolfjohnm@aol.com, which was 

the same email address given to subcontractor Leo Bonicenha by text. (Ex. 128, at 1). On page 16 of the J. Pre-Hr’g

Statement, Mr. Billcliff gave a second telephone number for the alleged Mr. Wolf, 603-331-5351. The evidence at trial 

showed that: 

• the 1860 telephone number was registered to “Barry Billcliff” during the time of the OSHA investigation. (Tr. 

978-80; Ex. 158, at 10, 14, 29, 48).

• the 603-331-5351 number was associated with Mr. Billcliff’s home address. (Tr. 480-81; Ex. 156, at 17).

• the wolfjohnm@aol.com email address was associated with Mr. Billcliff’s personal telephone number ending in 

6732. (Tr. 1082-84; Ex. 159, at 12).

• Mr. Bonicenha never met anyone named “John Wolf” in person. (Tr. 515-16). 

• the 978-904-1254 number, from which Mr. Bonicenha received the relevant messages, was purchased by Mr. 

Billcliff using his home address. (Tr. 477-79; Ex. 156, at 11, 16).

(Sec’y PT Br., at 18-19).




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inspection. (Tr. 1870-71, 2167-68). He said that neither Merrimack Valley Roofing LLC nor 

Merrimack Valley Roofing Inc. were registered in New Hampshire in October 2021. (Tr. 1531-32). 

CO Bussell testified that Merrimack Valley Roofers, LLC “was not a consideration at 10/7/2021” 

and “does not pertain to this job site.”158 (Tr. 1590, 1595, 1612-13). CO Bussell testified that Mr. 

Billcliff “changed a different company to match a different Business ID 711562 to match that name 

–”. (Tr. 1588-90, 1872-73). That differently named company was changed to Merr Valley R&G, 

LLC, Business ID: 711562, on January 27, 2023. (Tr. 885, 1578, 1588-96, 1617, 1876, 2162-66; 

Ex. 175, at 1). At trial, Respondent stated its position that Merrimack Valley Roofers and Merr 

Valley R&G, LLC were merged then. (Tr. 885). 

E. Respondent Knew, or with Reasonable Diligence, Could Have Known that: 1) frequent 

and regular inspections were not performed at the job site as of the time of CO Bussell’s 

arrival, 2) at least one employee was not provided with a hard hat on October 7, 2021, 3) 

employees were not protected from falling during the unloading of materials onto a roof on 

October 7, 2021, 4) employees working on the roof were not protected from falling on 

October 7, 2021, 5) it did not ensure the workers at the job site, including Mr. Vaughn, 

were properly trained in the recognition of fall hazards, and 6) a portable ladder was used 

to access an upper landing surface that did not extend at least 3 feet above the upper 

landing surface. 

It is well-established Commission law that an employer will be charged with knowledge of a 

hazard if it knew, or with the exercise of reasonable diligence could have known, of the presence of 

the violative condition. Astra Pharm. Prods., No. 78-6247, 1981 WL 18810, at *4 (OSHRC, July 

30, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). Reasonable diligence involves 

consideration of several factors, including the employer’s obligation to have adequate work rules 

and training programs, to adequately supervise employees, to anticipate hazards, and to take 

measures to prevent the occurrence of violations. Danis Shook Joint Venture XXV, No. 98-1192, 

2001 WL 881247, at *5 (OSHRC, Aug. 2, 2001) (citing Pride Oil Well Serv., No. 87-692, 1992 WL 

158 The Court notes that Merrimack Valley Roofers LLC does not appear in the Summary Chart of Business Names 

Respondent Used in Connection with the Project at Exhibit 170. (Tr. 1594-95; Ex. 170). 
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215112, at *6 (OSHRC, Aug. 17, 1992), aff’d, 319 F.3d 805 (6th Cir. 2003)). The actual or 

constructive knowledge of the employer’s foreman or supervisor can be imputed to the employer. 

(Id.). Respondent had no written rules on inspections, hard hats, unloading of materials onto a roof, 

fall protection, hazard recognition training, and ladders. Respondent did not: 1) maintain programs 

that provided for frequent and regular inspections at the job site, 2) perform any such inspections, 

and 3) Mr. Vaughn was not competent to perform these inspections, at or before CO Bussell’s arrival 

onto the job site. (Tr. 782-83, 922, 1508-11). N. Y. State Elec. & Gas Corp., 88 F.3d 98, 105-06 (2nd

Cir. 1996) (“constructive knowledge may be predicated on an employer’s failure to establish an 

adequate program to promote compliance with safety standards.”). Mr. Billcliff’s supervisor at the 

Devens Project, Mr. Vaughn, observed the workers without hard hats over at least a 20-minute 

period on October 7, 2021 that were exposed to the hazard of possible falling materials. (Tr. 1490, 

1502-04; Ex. 129, at 26-28). Mr. Billcliff’s supervisor at the Devens Project, Mr. Vaughn, observed 

the employees using the materials hoist to transfer roofing materials from the ground to the roof. 

Mr. Vaughn observed the employees at the roof’s edge unloading materials from the hoist to the roof 

without fall protection. (Tr. 1502-05, 1763-64; Ex. 129, at 26-28). On October 6 and October 7, 

2021, Mr. Billcliff’s supervisor Mr. Vaughn was at the Devens Project and observed employees 

exposed to fall hazards over 11⁄2 days from a roof height of approximately 30 feet. Mr. Vaughn took 

no action to eliminate the hazards. (Tr. 587, 618. 1491-1504, 1510-11, 1527-28; Ex. 129, at 1-12, 

16-23, 26-28). 

Mr. Billcliff did not train Mr. Vaughn or the roofers at the Devens Project, and Mr. Billcliff 

knew that Mr. Vaughn was not trained. (Tr. 1491-1504, 1502-03, 1510-11, 1526, 2198; Ex. 129, at 

2-12, 16-23, 26-28). Mr. Billcliff did not claim that he or anyone else from Merrimack Valley 

Roofing had trained either Mr. Vaughn or any of the workers at the job site. Mr. Billcliff did not 
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produce any documents or other evidence showing that any workers, including Mr. Vaughn, had 

been trained in hazard recognition. The fact that Respondent failed to train Mr. Vaughn and the 

rooftop workers at the job site on or before October 7, 2021 “establishes that [Respondent] had at 

least constructive knowledge of the inadequacy of its training program.” Pressure Concrete Constr. 

Co., No. 90-2668, 1992 WL 381670, at *8 (OSHRC, Dec. 7, 1992). Mr. Vaughn “could not be 

reasonably expected to instruct” the workers “on matters or hazards about which [he himself] had 

not been taught, ...”. (Id.). Where, as here, the alleged violative condition is inadequate training of 

employees, employer knowledge of the violative condition “will almost invariably be present.” 

Compass Env’tl, 663 F.3d 1164, 1168 (10th Cir. 2011). On October 7, 2021, CO Bussell observed 

operations at the Devens Project for approximately 20-25 minutes, during which time Mr. Billcliff’s 

supervisor, Mr. Vaughn, was watching the employees on the roof, with the violative ladder in plain 

view in the same position the entire time. (Tr. 1489-90, 1499-1500, 1502-04; Ex. 129, at 19-22, 26-

28). Mr. Vaughn instructed the employees to come off the roof, using the same ladder. (Tr. 1490, 

1499). Mr. Vaughn knew of the hazardous condition. He could see that the ladder did not extend at 

least three feet above the roof edge. 

Mr. Vaughn’s supervisory knowledge of his own actions or inactions are imputed here to 

Respondent. Pride Oil, 1992 WL 215112, at *6. 

F. The Secretary Has Proven Each of the Cited Serious Violations and that Mr. Billcliff 

committed the Serious violations tried. 

Section 5(a)(2) of the OSH Act requires an employer to “comply with occupational safety 

and health standards promulgated under this Act.” 29 U.S.C. § 654(a)(2). To prove a violation, the 

Acting Secretary must prove by a preponderance of the evidence that: (1) the standard applies to the 

facts; (2) the employer failed to comply with its terms; (3) that employee(s) had access to the 

hazard(s); and (4) the employer could have known of the hazards in the exercise of reasonable 
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diligence. Astra Pharm. Prods., Inc., 1981 WL 18810, at *4; Atl. Battery Co., No. 90-1747, 1994 

WL 682922, at *6 (OSHRC Dec. 5, 1994). The Commission defines a preponderance of the 

evidence as enough to convince the trier of fact that the facts asserted are “more probably true than 

false.” Astra Pharm. Prods. Inc., 1981 WL 18810, at *5. To prove a Serious violation, the Acting 

Secretary must further show that the hazard posed the risk of serious bodily harm or death. (Sec’y 

PT Br., at 25-26).

For the Acting Secretary to establish employee exposure to a hazard, she must show that it is 

reasonably predictable by operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger. Fabricated Metal Prods., No. 93-1853,

1997 WL 694096, at *3 (OSHRC, November 7, 1997). The zone of danger is “that area surrounding 

the violative condition that presents the danger to employees which the standard is intended to 

prevent.” RGM Constr. Co., No. 91-2107, 1995 WL 242609 at *5 (OSHRC, April 24, 1995). It is 

sufficient for the Acting Secretary to prove access to the zone of danger, rather than actual exposure 

to the immediate risk of injury or death. Am. Wrecking Corp., 364 F.3d 321, 327 (D.C. Cir. 2004). 

(Sec’y PT Br., at 26).

The Acting Secretary proves employer knowledge with evidence that the employer knew or 

with the exercise of reasonable diligence could have known of the violative condition. Revoli 

Constr. Co., No. 00-0315, 2001 WL 1568807, at *3 (OSHRC, December 7, 2001). The employer’s 

knowledge is directed to the physical condition that constitutes a violation. Phoenix Roofing, Inc., 

No. 90-2148, 1995 WL 82313, at *3 (OSHRC, February 24, 1995) aff’d, 79 F.3d 1146 (5th Cir. 

1996). It is not necessary to show that the employer knew or understood the condition was 

hazardous. Id.; see also Min. Indus. & Heavy Constr. Grp. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 











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809 F.2d 161, 164 (1st Cir. 1987); Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 

2012); Kaspar Wire Works, Inc., No. 90-2775, 2000 WL 1182904, at *3 (OSHRC, July 3, 2000) 

(internal citations omitted)), aff’d, 268 F.3d 1123 (D.C. Cir. 2001); see also Propellex Corp., No. 

96-0265, 1999 WL 183564, at *8 (OSHRC, Mar. 30, 1999) (explaining that the Commission will, 

for example, find “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); Birdsboro Kosher Farms Corp., No. 16-1575, 2019 WL 

5656486, at *14 (OSHRCALJ, Sep. 23, 2019) (consolidated) (noting that “Respondent’s conscious 

actions were part of an on-going failure to prioritize safety.”), aff’d, 831 F. App’x 516 (D.C. Cir. 

2020) (unpublished). The Secretary need not, however, show that an employer acted with evil or 

malicious intent. See Kaspar, 2000 WL 1182904 at *3. Here, the Court finds that Mr. Billcliff acted 

with plain indifference to and intentional disregard of the cited OSHA standards.

Willfulness may also be shown where the Secretary proves that the violator’s “state of mind 

is such that, if he were informed of the rule, he would not care.” AJP Constr., Inc. v. Sec'y of Labor, 

357 F.3d 70, 74 (D.C. Cir. 2004). To prove this careless state of mind, courts may consider “the 

employer’s general attitude towards safety and good faith efforts made to comply” with the OSH 

Act’s requirements. Timberline Hardwood Floors, LLC, Nos. 18-1211, 2020 WL 4965237, at *17 

(OSHRCALJ, July 20, 2020) (consolidated). When evaluating willfulness, the Court may also 

consider the extent to which the Respondent failed to cooperate with OSHA during the investigation 

and/or made false statements concerning the alleged violation(s). E.g., Tony Watson, D/b/a 

Countryside Tree Serv., No. 16-2022, 2019 WL 5704681, at *30 (OSHRCALJ, Sept. 27, 2019) 

(“Watson’s false statement to the police in the immediate aftermath of the fatality ... evinces a 

consciousness of wrongdoing”); Hern Iron Works, Inc., No. 89-433, 1990 WL 122699, at *21
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(OSHRCALJ, May 7, 1990) (“It appears to this Judge the summary was completed in a fashion 

deliberately designed to mislead OSHA inspectors into believing this was not a lost time 

accident....”), aff’d as modified, 1993 WL 132975 (OSHRC, Apr. 27, 1993).

Here, Citation 2, Item 1, was Willful for the following reasons:

First, Mr. Billcliff plainly knew what was required. He admitted that he had years of 

experience in the roofing industry, that he had done a “ton” of OSHA courses, and that he had been 

specifically trained in fall protection well before the inspection began. (Stip. No. 1; Tr. 1063, 1968, 

1970).

Second, on January 4, 2021 OSHA issued a 1 item Repeat-Serious citation to Barry Billcliff, 

d/b/a Barry’s Roofing, for a violation of 29 C.F.R. § 1926.501(b)(13) because “employees were 

working at heights greater than 6 feet without personal fall protection exposing them to a fall 

hazard[.]” The January 4, 2021 violation alleged a violation of 29 C.F.R. § 1926.501(b)(13) that 

was closely related to a standard in this case; i.e. 29 C.F.R. § 1926.501(b)(11). (Tr. 1361-62, 1368-

80; Ex. 140, at 1, 6, Ex. 141). Relevant here is that, because the citation herein specifically alleged 

that Mr. Billcliff had violated the standard by allowing workers to work at heights above 6 feet 

without personal fall protection, Mr. Billcliff knew on October 7, 2021 that fall protection was 

required above such heights. 

Third, despite having received clear notice before October 7, 2021 of what was required, Mr. 

Billcliff did not make any effort to ensure that Mr. Vaughn and the subcontractor L&A’s employees

at the Devens Project had been trained on fall protection and/or knew what was required. (Tr. 516-

19). Nor did Mr. Billcliff put in place any measures that would have at least potentially mitigated 

the fall protection hazard; such as a fall protection program, a general safety plan, any hazard 

analyses at the job site, or any plan for inspections of the job site by a competent person. (Tr. 522, 
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715-18). Mr. Billcliff chose as his Devens Project supervisor his friend Mr. Vaughn, knowing that 

Mr. Vaughn had “no real construction experience” and had never “swung a hammer before.” (Tr. 

1983). At trial, Mr. Vaughn admitted saying at his February 9, 2023 deposition that Mr. Billcliff did 

nothing to prepare him for the responsibility of being the on-site supervisor at the Devens Project. 

(Tr. 777).

Fourth, Mr. Billcliff repeatedly lied during the inspection, litigation, and at trial; and these 

falsehoods are additional evidence of willfulness. As detailed in the Section II above, this included 

his falsehoods about whether: 1) as of December 21, 2021 he had any knowledge of the Devens 

Project, 2) as of December 21, 2021 he knew his son, Daniel Grzyboski pulled the permit for the 

Devens Project, 3) records of communications between him and Mr. Costa did not actually involve 

him, 4) he was an employer or not, 5) he ever visited the job site, 6) he spoke with CO Bussell by 

means of Mr. Vaughn’s cell phone on October 7, 2021, 7) he deposited the payment checks for the 

roofing work at the SpringHill Suites hotel and Conference Center into his Marrimack Valley 

Roofing Company account at the Merrimack Valley Credit Union on September 20, 2021 and 

November 16, 2021, 8) he hired Mr. Vaughn to be his on-site supervisor, 9) he was responsible for

virtually every aspect of the Devens Project as the controlling employer, 10) the Devens Project was 

being done by Bay State Exteriors and Mr. LaChance, 11) Mr. Wolfe, a fictional character, owned 

Merrimack Valley Roofing, and 12) he purchased any materials for the Devens Project; as well as 

his evasiveness regarding the bank account that he controlled at the Merrimack Valley Credit Union. 

(Section II, above and Section VII, below).

As the court in Hern Iron Works, Inc. explained, a willful finding is appropriate where a 

defendant deliberately designed a story to mislead OSHA during its investigation, and this was 

compounded by the defendant’s trial demeanor, “internal inconsistency of his testimony, and 
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contradictory extrinsic evidence.” Hern Iron Works, Inc., 1990 WL 122699, at *21. Such was the 

case herein.

V. PENALTIES

The Commission has authority to assess civil penalties for violations of the OSH Act. In 

doing so, the Commission looks to four statutory factors: the employer’s size, the violation’s 

gravity, the employer’s good faith, and the employer’s history of previous violations. 29 U.S.C. § 

666(j); accord Revoli Constr. Co., Inc., 2001 WL 1568807, at *11. Among these factors, gravity is 

the “primary element.” See Contour Erection & Siding Sys. Inc., No. 06-0792, 2007 WL 4463127, 

at *4 (OSHRC, Dec. 13, 2007). 

A. Calculation of the Penalties Originally proposed by OSHA.

CO Bussell testified that the OSHA fine was to Barry Billcliff and his doing business on 

October 7, 2021 as Merrimack Valley Roofing, Billco and other d/b/a names that were not actually 

then corporations, LLCs, or Inc.’s. (Tr. 1528, 1712). As CO Bussell testified, at the time the 

citations were issued, OSHA considered the size of the employer’s business, the gravity of the 

violation, the good faith efforts of the employer and the employer’s history of previous violations. 

(Tr. 1655-61). He said that OSHA was not able to discount the serious violation fines by more than 

30 percent based on size because Mr. Billcliff never told OSHA how many people he or any of his 

named d/b/a’s, including Merrimack Valley Roofing, actually employed. (Tr. 1655, 1658, 1926-28). 

The CO testified that the severity was high because the items involved fall hazards from a height of 

30-plus feet. He said that the most likely injury arising from these fall hazards would be injury,

death, or permanent disability, such as a broken back or paralysis. He also said that 70-pound rolls 

of felt could roll off the roof and fall 30 feet below onto the head of workers hoisting material from 

the ground, causing serious injury. (Tr. 1656-58). He said that the probability factor that OSHA 
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determined was “greater” because employees were seen working in and around the roof’s edge 

without any fall protection. CO Bussell testified that gravity was “high” because it is a combination 

of severity and probability. (Tr. 1658). He said that there was no good faith adjustment because 

Respondent had shown “zero good faith through this whole process.” (Tr. 1658). He further said 

that there was a history adjustment increase of 10 per cent because Mr. Billcliff had a prior history 

with OSHA. (Tr. 1658-59). Accordingly, CO Bussell’s testimony shows OSHA’s maximum fine for 

a serious violation as of April 4, 2022 of $14,502 was reduced by a size reduction of 30% [$4,351] = 

$10,151, with a 10% increase for history adding $1,016 (rounded up) resulting in a fine proposed by 

OSHA for each of the serious violations amounting to $11,167. 

As to the Willful-Serious Citation 2, Item 1, CO Bussell said that the Area Director elected to 

give a 50 percent reduction for size from the maximum amount that could have been assessed by 

OSHA against Respondent.163 (Tr. 1659). CO Bussell’s testimony shows OSHA’s maximum fine 

for a willful violation as of April 4, 2022 of $145,027 was reduced by a size reduction of 50% 

[$72,514] = $72,513, with a 10% increase for history adding $7,252 (rounded up) resulting in a fine 

proposed by OSHA for the willful violation amounting to $79,765. 

CO Bussell testified that had he known of Respondent’s lack of cooperation during the 

discovery process he would recommend no reductions in the fines whatsoever because: 1) applying 

any size reduction would not advance the deterrence goals of the OSH Act; 2) Mr. Billcliff’s 

behavior “has been extremely evasive throughout this whole process”, 3) Mr. Billcliff has taken 

“zero responsibility” for the job site and workers at the job site, 4) Mr. Billcliff “lied about ever 

being at the job site”, 5) Mr. Billcliff refused to admit that he was paid over $100,000 to perform the 

work at the job site and went to great lengths to prevent OSHA from obtaining bank records relevant 

163 CO Bussell did not offer any rationale for the disparity of the two different size reductions used by OSHA.
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to the payments, 6) Respondent never paid L&A the $47,000 that it owed for the workers at the job 

site, 7) Respondent used a litany of business names to confuse issues, 8) Mr. Billcliff always 

redirected responsibility away from himself and onto a Mike LaChance, John Wolfe or “someone 

named Jeremy”,164 and 9) Mr. Billcliff misled, deceived, and denied basic facts. (Tr. 1660-61). 

B. The Secretary Now Asserts that Mr. Billcliff Should not be Given any Size Reduction by 

the Commission.

The Acting Secretary asserts in her Post Trial Brief that the evidence is more than sufficient 

for the Court to assess the penalties consistent with the factors considered by OSHA at the time the 

citations were issued. (Sec’y PT Br., at 54). Now, however, the Acting Secretary asserts that the

Court should not grant any size reduction in its penalty calculation for two reasons. First, neither 

Mr. Billcliff nor his son, Mr. Grzyboski, would state, or estimate, how many employees Respondent 

had. (Tr. 1034-35, 1038-42, 1927-28). Even though Mr. Billcliff was involved with Merrimack 

Valley Roofing for more than 15 years, he declined to state or estimate at trial how many employees 

worked there.165 Mr. Billcliff testified as follows:

Q. Mr. Billcliff, your son Daniel Grzyboski could not, or would not, estimate the 

number of employees that work at Merrimack Valley Roofing. Would you do that, 

please? As of today how many employees at Merrimack Valley Roofing?

A. I can’t give you a hundred percent either.

Q. I’m not asking for a hundred percent answer. How many people do you think 

work there?

164 Mr. Billcliff testified that what occurred at the job site was “not my actions. So I’m not going to take responsibility 

for it.” (Tr. 1934). Mr. Billcliff testified that upon a date that he could not recall he started claiming that he was not 

involved in the Devens Project and should not have been cited by OSHA for anything to do with it. (Tr. 1935-37).

165 In its Reply Brief, Respondent asserts that “Barry had no employees during the job depicted and his side company 

had two employees in total.” (Resp’t Reply Br., at 20). The Court gives no weight to this post trial assertion. On 

September 24, 2021, Mr. Grzyboski stated in the Billco Roofing permit application that it had 4 employees. The Court 

also puts no weight on this assertion due to the many fabrications contained within the permit application materials. 

(Exs. 123-24). The fact that more than $2 million dollars passed through Mr. Billcliff’s Marrimack Valley Roofing 

Company account at the Merrimack Valley Credit Union from November 2019 through about July 2022 provided ample 

resources to pay at least 26 employees working at any one time within the twelve months preceding October 7, 2021. 

(Ex. 169; FOM, Table 6-2: Size Reduction, at 6-10).

 
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A. I wouldn’t venture to guess. If I don’t understand a hundred percent, I’m not going 

to give you anything under a hundred percent for an answer. You have five attorneys, 

and a whole class working all of you against me. If I say one wrong word, you’re 

going to wind up sticking me to the wall. So if I’m not a hundred percent sure, I don’t 

feel comfortable giving you an answer.

Q. Is it more than 50?

A. That’s a possibility.

Q. Is it more than a hundred?

A. Anything is a possibility. I’m not going to venture to guess.

(Tr. 1926; Stip. No. 8).

The Acting Secretary asserts that Respondent should not benefit by having the resulting ambiguity 

construed in its favor when considering what size reduction in the penalties is appropriate. (Sec’y 

PT Br., at 53-56).

Second, the Acting Secretary argues that this is the relatively rare case where the greatest 

penalty possible is needed to accomplish the purpose of the OSH Act. CO Bussell testified that, had 

he known at the time of his inspection what he learned about Mr. Billcliff by the time of trial, he 

would have “vehemently recommended” no penalty reduction. (Tr. 1660). The CO testified that 

applying any reduction factor would not advance the deterrence goals of the OSH Act. Id. CO 

Bussell said that Mr. Billcliff’s behavior throughout the investigative and litigation process was 

“extremely evasive”, he has “never taken responsibility” for the job site or the workers there, and he

lied to OSHA about ever being at the job site. Id.

C. The Court allows a Size Reduction of 30 Percent in its Penalty Calculation for each 

 Citation.

The OSHA Field Operations Manual (FOM) allows a penalty size reduction of 30% for each 

of the serous citations. (FOM, Table 6-2, at 6-10). The Court agrees with the Acting Secretary that 

an adjustment to the size reduction for the willful violation of Citation 2, Item 1 is appropriate. 

However, a 50% reduction, as made by the Area Director, is not appropriate for the following 
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reasons. There was no 50% size reduction identified and authorized in the OSHA FOM Size 

Reduction Table at Table 6-2 for citations issued on April 4, 2022. (FOM, Table 6-2, at 6-10). The 

FOM states:

Size Reduction

a. A maximum penalty reduction of 70 percent is permitted for small employers. 

“Size” of an employer shall be calculated on the basis of the maximum number of 

employees for an employer at all workplaces nationwide, including State Plan 

states, at any one time during the previous 12 months. 

b. The rates of reduction to be applied are as follows.

Table 6-2 Size Reduction

Employees Percent Reduction

... ...

26-100 30

FOM, Table 6-2: Size Reduction, at 6-10.

A 30 % size reduction is appropriate where an employer has between 26 to 100 employees. 

(Id.). Mr. Billcliff testified that Merrimack Valley Roofing possibly had more than 50 employees. 

D. The Court finds that no Percent Increase for History by OSHA for the Citations was 

Appropriate. 

The Court finds that no allowable percent increase for history is appropriate here. The FOM 

states:

B. Penalty Adjustment Factors ...

2. History Adjustment ...

b. Allowable Percent Increase.

An increase of 10 percent shall be applied to employers who have been issued serious high 

gravity citations that have become a final order by the Commission ... within the past five 

years. [emphasis in original].

OSHA INSTRUCTION Directive Number: CPL 02-00-163, Effective Date: 09/13/2019, 

Subject: FOM, at 6-7.

On January 4, 2021 OSHA issued a 1 item Repeat-Serious citation to Barry Billcliff, d/b/a 

Barry’s Roofing, for a violation of 29 C.F.R. § 1926.501(b)(13) under Inspection No. 1498677 

because “employees were working at heights greater than 6 feet without personal fall protection 
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exposing them to a fall hazard” at 77 Bradford Avenue, Bradford, Massachusetts 01835. That

citation was settled on May 4, 2022 and became a final order of the Commission on June 8, 2022. 

(Ex. 142). A 10 percent price increase for history is not called for by the FOM because the citation

issued to Mr. Billcliff on January 4, 2021 did not become a final order of the Commission until 

after April 4, 2022, the date OSHA issued the Citations here.

E. Court Assessed Penalties for Each Citation

OSHA’s maximum fine for a serious violation as of April 4, 2022 of $14,502 reduced by the 

appropriate size reduction of 30% [$4,351] = $10,151, results in the Court assessing a fine of 

$10,151 for each of the five serious violations at Citation 1, Items 1-3, and Citation 3, Items 1-2. 

OSHA’s maximum fine for a willful violation as of April 4, 2022 of $145,027 reduced by the 

appropriate size reduction of 30% [$43,508] results in a fine for the willful violation assessed by the 

Court amounting to $101,519. In addition, taking into consideration the deterrence goals of the 

OSH Act and the falsehoods made by Messrs. Billcliff, Grzyboski and Vaughn during the OSHA 

investigation, ensuring litigation, and trial justify the Court assessing an additional $10,000 to be 

added to the above $101,519 resulting in the Court assessing an overall penalty for the willful 

violation of Citation 2, Item 1, in the amount of $111,519.

166 The Court is not bound by the FOM 

and has broad discretion when assessing penalties. The Court acknowledges that employers are 

entitled to mount a spirited defense to any and all citations issued by OSHA; but false statements

made by Messrs. Billcliff, Grzyboski and Vaughn to the OSHA compliance officer, Acting 

Secretary’s counsel, and/or to the Court throughout the disposition of these matters is neither

permitted nor tolerated. 

166 This total penalty awarded by the Court for the willful violation of Citation 2, Item 1, is less than the statutory penalty 

maximum for a willful violation as of April 4, 2022 of $145,027. 
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VI. RESPONDENT DID NOT ESTABLISH ANY DEFENSE TO THE CITATIONS. 

Respondent did not introduce sufficient evidence at trial to establish any defense to the 

citations. In its Answers to Amended Complaint, Respondent asserted a general denial of the 

citation allegations, including asserting that Mr. Billcliff was not an employer under the OSH Act, 

he did not have knowledge of any unsafe work conditions, “the occurrence was an unpreventable 

employee misconduct (UEM)”, “the penalties are not correct”, “the offenses do not qualify as 

Repeat”, and “the alleged violations do not constitute as ‘Willful’ nor ‘Serious’”. The Court has 

already found here that Mr. Billcliff was an employer under the OSH Act, he did have knowledge of 

the unsafe work conditions, the alleged violations constituted a Willful/Serious violation and five 

other “Serious” violations. The Court has also made adjustments to OSHA’s proposed penalties and 

Complainant has withdrawn its original characterization of Citation 3, Item 1, as a Repeat. (Tr. 22). 

Respondent’s affirmative “unpreventable employee misconduct” defense was not raised further in its

Post-Trial Brief. Affirmative defenses not raised in Respondent’s Post Trial or Respondents (sic) 

Response to Secretary’s Post Trial Brief may be deemed waived and abandoned by Respondent. 

Corbesco, Inc. v. Dole, 926 F.2d 422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived);

Ga.-Pac. Corp., No. 89-2713, 1991 WL 132732, at *3 (OSHRC, Jun. 28, 1991) (“Commission 

declines to reach issues on which the aggrieved party indicates no interest.”). However, Respondent 

did briefly discuss its alleged “unpreventable employee misconduct” affirmative defense in its 

Resp’t Reply Br.; giving the Acting Secretary no opportunity to address UEM in her Reply Brief 

filed the same day. (Resp’t Reply Br., at 7 (at ¶¶66-67), 16, 21). 

Respondent has not met its burden as to this affirmative defense. Respondent had no 

purported rules designed to prevent the hazards identified in the citations. There is insufficient 

evidence to show that on-site supervisors yelled at workers to put their harnesses and hard hats on
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before CO Bussell arrived at the job site. Even had the yelling occurred, it is not enough to show 

that Respondent had adequate rules in place designed to prevent the hazards. Danis Shook, 2001 

WL 881247, at *5-6 (rejecting defense despite “general rule requiring employees to wear PPE ‘as 

needed[]’”); Superior Custom Cabinet Co., Inc., No. 94-200, 1997 WL 603024, at *5 (OSHRC, 

Sept. 26, 1997)(denying defense despite unwritten rule to call the office if delivering to the second 

floor was “unsafe” because it “gave employees too much discretion in identifying unsafe 

conditions....”), aff’d, 158 F.3d 583 (5th Cir. 1998); Automatic Sprinkler Corp. of Am., No. 76-5089, 

1980 WL 10595, at *7 (OSHRC, May 9, 1980)(“the formulation and communication of a general 

work rule is not enough”). Moreover, there is insufficient evidence showing that fall protection, 

hazard recognition, ladder use and PPE training was provided to the workers at the job site, 

including Mr. Vaughn. Because Respondent took inadequate steps to prevent the hazards identified 

in the citations, it cannot prove that the violations were unpreventable. 

To establish unpreventable employee misconduct, an employer is required to prove: “(1) 

that the employer has established work rules designed to prevent the violation; (2) that it has 

adequately communicated those rules to its employees; (3) that it has taken steps to discover 

violations; and (4) that it has effectively enforced the rules when violations have been discovered.” 

Precast Servs., Inc., No. 93-2971, 1995 WL 693954, at *1 (OSHRC, Nov. 14, 1995) (quoting 

Nooter Constr. Co., No. 91-0237, 1994 WL 27750, at *6 (OSHRC, Jan. 31, 1994)), aff’d, 106 F.3d 

401 (6th Cir. 1997); see also, Capform, Inc., No. 91-1613, 1994 WL 530815, at *3 (OSHRC, Sept. 

29, 1994). In order to prevail on its UEM defense, Respondent must prove each of the elements of 

the defense. On this record, Respondent is unable to do so and thus, its UEM defense fails. Prior 

to CO Bussell’s arrival at the job site, Respondent: 1) had no established work rules designed to 

prevent the violations; (2) did not adequately communicate any relevant rules to its employees; (3) 
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took no steps to discover violations; and (4) did not effectively enforce any rules when violations 

have been discovered. Respondent did not produce any documents concerning any discipline 

given to any worker, supervisor or subcontractor for failing to follow any safety rule at the job site 

or any worksite other than the Devens Project job site for the two years preceding the date of the 

Inspection, October 7, 2021. (Tr. 1989-2001; Ex. 100, at 8-9, 12, 16, 18-19, 24-25, 27-29, 52-53). 

See, e.g., Davis H. Elliot Co., Inc., No. 15-0799, 2017 WL 3217818, at *45 (OSHRCALJ, June 19, 

2017) (Rejecting UEM because “[w]ith no established rule and only on-the-job training, there was 

no consistency of the procedures or methods that were conveyed to employees....”); Superior 

Custom Cabinet, 1997 WL 603024, at *3. An employer “cannot fail to properly train and 

supervise its employees and then hide behind its lack of knowledge of their dangerous working 

practices.” Pride Oil, 1992 WL 215112, at *8 (quoting Danco Constr. Co. v. OSHRC, 586 F.2d 

1243, 1247 (8th Cir. 1978)). “An employer who has failed to address a hazard by implementing 

and enforcing an effective work rule cannot shift to its employees the responsibility for assuring 

safe working procedures.” Pride Oil, 1992 WL 215112, at *8 (citing Stuttgart Mach. Works, Inc., 

No. 77-3021, 1981 WL 18841, at *4 (OSHRC, Feb. 24, 1981)); Davis H. Elliot Co., 2017 WL 

3217818, at *45; Pressure Concrete Constr., 1992 WL 381670 at *6 (rejecting argument that 

dangerous conditions at issue were “obvious and a reasonable employee would be aware of” them 

and “act accordingly” because it “erroneously places the burden on employees to be more aware 

and alert than their employer....”). 

On this evidence, Respondent’s effort to raise UEM as a defense to liability to any of the 

citations fails. The Court finds that all of Respondent’s defenses are rejected because they either 

lack merit or have been abandoned, or both. Accordingly, all of the citations are affirmed. 
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VII. RESPONDENT IS SANCTIONED FOR MR. BILLCLIFF’S EVASIVE CONDUCT 

REGARDING COMPLAINANT’S REQUEST FOR BANK RECORDS, DONE WITH 

THE DELIBERATE INTENT OF OBSCURING THE EXTENT OF HIS 

INVOLVEMENT IN THE DEVENS PROJECT ROOFING WORK, AND IN 

CONTEMPT OF THE COURT’S NOVEMBER 29, 2022 ORDER. 

As the Acting Secretary asserts, each time prior to trial that Mr. Billcliff was asked about the 

Devens Project payments and the bank account to which they were deposited, he should have 

answered truthfully, summarized his role, and admitted that the Devens Project payments were 

deposited to the bank account that he alone controlled. Mr. Billcliff, however, did none of those 

things. Instead, he repeatedly failed to admit or otherwise acknowledge his role, including after he 

was ordered to do so by the Court. Consequently, the Acting Secretary had to spend considerable 

additional time obtaining the bank records directly from Merrimack Valley Credit Union and then 

proving at trial both that Mr. Billcliff alone controlled the account and that he received/controlled 

the payments for the Devens Project. Mr. Billcliff knew exactly what the Court ordered him to do,

but deliberately chose not to comply. (Sec’y PT Br., at 45-46).

A. Facts Regarding Bank Records.

Mr. Billcliff refused to admit or otherwise acknowledge his role regarding the bank account 

and the Devens Project payments until after the Acting Secretary obtained the bank records directly 

from the Merrimack Valley Credit Union. During his February 11, 2022 deposition, Mr. Billcliff 

claimed he could not recall the name of the bank where Merrimack Valley Roofing did its banking. 

(Tr. 2070-71). During his March 8, 2022 interview, CO Bussell showed him the checks for the 

Devens Project roofing work, but Mr. Billcliff claimed he could not recall whether he had ever seen 

the checks before. (Tr. 2071). When he was asked during the interview about whether the checks 

from the Devens Project had been deposited into an account connected to his name, Mr. Billcliff 

stated that he “highly doubt[ed] that.” (Tr. 2071). 
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On July 8, 2022, the Acting Secretary served requests for production of documents

(Document Request), request for interrogatories (Interrogatory), and RFA on Mr. Billcliff. (Ex. 100,

at 2-7). The Acting Secretary requests included:

1. Document Request 1 asked for monthly statements for the Account167;

2. Document Request 2 asked for copies of checks deposited to the Account;

3. Document Request 4 asked for documents sufficient to show who was authorized to 

take various actions regarding the Account, to include closing it;

4. Document Request 5 asked for documents sufficient to show who was receiving 

monthly statements for the Account;

5. Interrogatory 1 asked Mr. Billcliff to describe all roles he had concerning the 

Account;

6. Interrogatory 2 asked Mr. Billcliff to describe deposits to the Account;

7. Interrogatory 4 asked Mr. Billcliff to describe who was authorized to take various 

actions regarding the Account, to include closing it;

8. Interrogatory 5 asked Mr. Billcliff to identify the persons to whom monthly 

statements were sent or made available;

9. RFA 7 asked Mr. Billcliff to admit that the attached checks were true and correct 

copies of checks received by him from Devens Hospitality regarding the Devens 

Project; and

 10. RFA 8 asked Mr. Billcliff to admit that he deposited the attached checks into the 

Account.

(Tr. 2074-82, 2087-89; Ex. 100, at 2-7).

On July 8, 2022, Mr. Billcliff filed responses to the Secretary’s RFAs. (Ex. 100, at 7-8). On 

July 11, 2022, Mr. Billcliff filed responses to the Secretary’s interrogatories and document requests. 

(Ex. 100, at 8-12). Mr. Billcliff did not produce any documents in response to the above document 

requests. (Tr. 2086). He did not provide any substantive information in response to the above 

interrogatories. (Tr. 2088-89; Ex. 100, at 11). He denied the above RFAs. (Tr. 2089-90; Ex. 100 at 

8). Mr. Billcliff falsely claimed in response to each of the above document requests that he did not 

167 Each of these discovery requests defined the relevant account — the “Account” — as the account to which the 

checks for the Devens Project had been deposited. (Tr. 2074-87). At trial, Mr. Billcliff admitted that the definition of 

“Account” was clearly set forth in the Secretary’s written requests, and that he understood that the same definition was 

used in the subpoena to the Merrimack Valley Credit Union that the Court issued. (Tr. 2082, 2086-87, 2119, 2132).
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believe he owned or controlled any account under Merrimack Valley Roofing, and that he did not 

have immediate access to any account as defined in the definition of “Account.” (Tr. 2085-86; Ex. 

100, at 8). He also falsely claimed in response to Interrogatory 4 that he had no immediate 

knowledge of the Account nor any of its signers. (Tr. 2090; Ex. 100, at 11). He further falsely 

claimed in response to Interrogatory 5 that he had no personal knowledge of the Account.168 (Tr. 

2090; Ex. 100 at 11). On August 12, 2022, Mr. Billcliff closed the Account. (Tr. 2124-25; Ex. 155,

at 512). He did not, however, inform the Secretary of that in any supplement to his July 2022 

written discovery responses. (Tr. 2124-27). (Sec’y PT Br., at 47-48). 

On October 18, 2022, the Secretary moved to compel, including as regards to the above 

written requests. (Ex. 100, at 12). On November 29, 2022, the Court granted the relevant portions 

of the Secretary’s motion to compel. (Ex. 100). The Court ordered Mr. Billcliff to supplement his 

written discovery responses, including to Document Requests Nos. 1-2, 4, and 5; to Interrogatories

Nos. 1-2, 4, and 5; and to RFAs 7 and 8. (Ex. 100, at 53-54). The Court also found that Mr. 

Billcliff’s attempt to limit his discovery responses to just his immediate personal knowledge was 

both unreasonable and a failure to answer, and ordered him to conduct a reasonable inquiry of the 

information and documents in his possession, custody, or control before he responded to each 

request. (Id., at 52). The Court further directed that this reasonable inquiry had to include searching 

for information and documents in the possession, custody, or control of the named d/b/a’s. (Id.).

The Court further ordered that, if Mr. Billcliff did not produce the bank records and information the 

Secretary had requested within 15 days, he was both: (a) required to inform Merrimack Valley 

Credit Union in writing that he did not object to the bank producing those records to the Secretary 

168 At trial, Mr. Billcliff admitted that he understood in July 2022 that his responses to both the document requests and 

the interrogatories were required to be accurate. (Tr. 2090).
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directly, and (b) provide a copy of that notice to the Secretary. (Id., at 53-54). Mr. Billcliff admitted 

that he read the Court’s Order. (Tr. 2093-94). (Sec’y PT Br., at 48).

Mr. Billcliff did not comply with the Court’s November 29, 2022 Order. Instead, on 

December 6, 2022, Mr. Billcliff filed supplemental written discovery responses, including to the 

above discovery requests. (Tr. 2095). At trial, Mr. Billcliff admitted that he did not produce any of 

the bank records that the Secretary had requested, nor did he provide any of the information about 

the Account that the Secretary had requested. (Tr. 2095-98). Further, when Mr. Billcliff was given 

the opportunity at trial to identify where in his supplemental responses he admitted or acknowledged 

in any way his role regarding the Account, Mr. Billcliff was not able to point to any such 

information. Specifically, Mr. Billcliff could not identify any place in his supplemental responses 

where he stated that: (a) he was the only Authorized Signer on the Account from at least September 

2021 through August 12, 2022, when the Account was closed; (b) that the only name associated with 

the Account at Merrimack Valley Credit Union was his; (c) that it was his name and home address 

on each monthly statement for the Account; (d) that he had deposited the checks regarding the 

Devens Project into the Account; and/or (e) that he had closed the Account in August 2022. (Tr. 

2127-32). (Sec’y PT Br., at 48-49). Mr. Billcliff did not produce the bank records to the Secretary.

Mr. Billcliff also did not inform Merrimack Valley Credit Union in writing that he did not object to 

the bank producing the records to the Secretary directly and provide a copy of same to the Secretary, 

as he was ordered to do by the Court. (Tr. 2104-07). Instead, Mr. Billcliff provided a letter from the

Merrimack Valley Credit Union dated December 1, 2022 stating that Mr. Billcliff had no business 

account there as of that date. (Tr. 2107-09; Ex. P, at R-259). The Credit Union’s letter did not 

include any discussion of the account(s) that existed prior to that date, including the Account, which 
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Mr. Billcliff knew he had closed in August 2022, but had not disclosed to the Secretary. (Tr. 2108,

2124-27; Ex. P, at R-259). (Sec’y PT Br., at 48-49).

Since Mr. Billcliff did not comply with the Court’s November 29, 2022 Order, the Acting 

Secretary asserts that she had no choice but to ask the Court to issue a document subpoena to 

Merrimack Valley Credit Union. The Court issued the subpoena, and the Acting Secretary then 

served the subpoena on Merrimack Valley Credit Union. (Ex. 155, at 1-12). (Sec’y PT Br., at 49).

When the Acting Secretary tried to obtain information about the bank records from Mr. 

Billcliff during his January 12, 2023 deposition, Mr. Billcliff claimed that he could not recall 

whether: (a) he ever received any payment at all related to the Devens Project; (b) whether he 

deposited the checks received for the roofing work; (c) whether he ever signed checks for 

Merrimack Valley Roofing; (d) whether he had ever cashed checks for Merrimack Valley Roofing; 

and/or (e) whether he had ever accessed online banking at Merrimack Valley Credit Union. (Tr. 

2110-17). (Sec’y PT Br., at 49).

On January 23, 2023, the Acting Secretary moved for sanctions against Mr. Billcliff, 

including in regard to his failures to comply with his obligations regarding the bank records set forth 

in the Court’s November 29, 2022 Order. (Sec’y PT Br., at 49).

On January 26, 2023, Merrimack Valley Credit Union produced the requested bank records 

to the Acting Secretary. Later that same day, the Acting Secretary filed a further supplement to the 

Motion for Sanctions titled “Second Supplement to 1/23/2023 Motion for Sanctions Regarding 

1/26/2023 Credit Union Production Showing Mr. Billcliff Deposited the Checks Used to Pay for the 

Project into the Account.” This filing summarized what the bank records showed and included 

various records as Exhibits. (Sec’y Br., at 49-50).
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Later in the day on January 26, 2023, Mr. Billcliff filed a response to the Acting Secretary’s 

Second Supplement to the Motion for Sanctions in which Mr. Billcliff dealt with the fact that the 

Acting Secretary had obtained the bank records directly from the Merrimack Valley Credit Union 

and she had provided that information to the Court. It was only at this point that Mr. Billcliff 

changed his story from what he had previously claimed. For the first time, Mr. Billcliff admitted 

that he had been in control of the money in the Account and that he had “oversight” of the Account.

(Tr. 2320-21). He further claimed that he closed the account long before any information from the 

account was requested. This assertion was false, given that he had responded to the Secretary’s 

requests in July 2022, but not closed the Account until August 12, 2022. (Tr. 2126-27; Ex. 100, at 7-

12). (Sec’y PT Br., at 50).

At trial, Mr. Billcliff objected to the Acting Secretary introducing any of the bank records 

into evidence at trial. Because of his objection, the Acting Secretary had to present live testimony 

from a records custodian. At trial, CO Michael Grover testified that he had reviewed the bank 

records and helped prepare Trial Exhibit 169, which showed that more than $2 million had been 

deposited into the bank account in an approximately 2.5 year period. (Tr. 1435-44; Ex. 169). CO 

Grover also testified that the only name he saw associated with the Account in the bank records was 

Mr. Billcliff’s name. (Tr. 1444). At trial, CO Bussell testified that the person shown in the 

photographs depositing the checks from the Devens Project at Merrimack Valley Credit Union was 

Mr. Billcliff. (Tr. 1558-60). The Court admitted into evidence the key bank records over Mr. 

Billcliff’s objections, including the screenshots that CO Bussell testified showed Mr. Billcliff 

depositing the checks for the Devens Project. (Tr. 1560-61; Ex. 155, at 107-08). (Sec’y PT Br., at 

50).
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B. Legal standard for Sanctions

Commission Rule 52(f)(2) states that “[i]f a party fails to comply with an order compelling 

discovery, the Judge may enter an order to redress the failure” and issue “any sanction stated in 

Federal Rule of Civil Procedure 37.” (Id.). Federal Rule of Civil Procedure 37, in turn, states that if 

a party fails to obey an order to provide or permit discovery, the Court may issue further orders:

(i) directing that the matters embraced in the order or other designated 

facts be taken as established for purposes of the action, as the 

prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing 

designated claims or defenses, or from introducing designated matters 

in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except 

an order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A). Rule 37 goes on to state that the Court “must order the disobedient 

party to pay the reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. 

P. 37(b)(2)(C) (explaining that an award of expenses, including attorney’s fees, is required unless 

the failure was substantially justified or such an award would be unjust); see also Roy’s Constr., 

Inc., No. 11-0892, 2012 WL 4872800, at *9 n.26 (OSHRCALJ, June 29, 2012) (outlining law on 

attorneys’ fees and expenses in connection with motions to compel and motions for sanctions); 

Exterior Insulation & Stucco, Inc., No. 99-0710, 1999 WL 34813136, at *1 (OSHRCALJ, Nov. 1, 

1999) (Judge may order sanctions for failure to comply with order compelling discovery); Sealtite 

Corp., No. 88-1431, 1991 WL 132733, at *6 (OSHRC, June 28, 1991) (explaining that 
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administrative law judges have “very broad discretion in imposing sanctions for noncompliance 

with [their] orders”).169

C. Sanctions are Appropriate here.

As described above, Mr. Billcliff repeatedly failed to provide the information and documents 

requested by the Acting Secretary concerning the Account, even after the Court ordered him to do 

so. Mr. Billcliff had ample opportunity to provide information readily available to him but he did 

not do so; not in his responses to the Acting Secretary’s requests for production of documents, not in 

his interrogatory responses, not in his RFA responses, and not at his January 12, 2023 deposition. 

The Court has found that the $90,000+ that Mr. Billcliff received in payment for the Devens Project 

roofing work was deposited into an account controlled by Mr. Billcliff at the Merrimack Valley 

Credit Union. The Court also finds that: (a) Mr. Billcliff opened the Account, (b) he was the only 

169 Since Mr. Billcliff failed to admit RFAs 7 and 8 and the Acting Secretary later proved the document that was the 

subject of RFA No. 7 to be genuine and the matter that was the subject of RFA No. 8 to be true, Rule 37 provides a still 

further basis for requiring Mr. Billcliff to pay the Secretary’s reasonable expenses, including attorney’s fees. See Fed. R. 

Civ. P. 37(c)(2):

Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party 

later proves a document to be genuine or the matter true, the requesting party may move that the party 

who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that 

proof. The court must so order unless:

(A) the request was held objectionable under Rule 36(a);

(B) the admission sought was of no substantial importance;

(C) the party failing to admit had a reasonable ground to believe that it might prevail on the 

matter; or

(D) there was other good reason for the failure to admit.

See also, e.g., Iron Workers Local No. 60 Annuity Pension Fund v. Solvay Iron Works, Inc., No. 5:15-CV-0054 

(BKS/DEP), 2017 WL 1458772, at *3-4 (N.D.N.Y. Apr. 24, 2017) (expressly confirming that the authenticity of 

documents is an appropriate subject for RFAs, noting that a party serving RFAs is under no obligation to use 

deposition time to authenticate documents that could be authenticated via RFA, and observing that the 

responding party is not allowed to simply respond to such requests by stating that the document “speaks for 

itself”); LeMond Cycling, Inc. v. Trek Bicycle Corp., No. 08-1010 (RHK/JSM), 2009 WL 10678176, at *4-6 (D. 

Minn., Nov. 30, 2009) (imposing sanctions because the responding party failed to conduct the reasonable 

inquiry required in response to a request to admit the authenticity of a document).
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Authorized Signer, (c) his name was the only name the Merrimack Valley Credit Union ever had 

associated with the account; (d) each monthly statement was addressed to Mr. Billcliff at his home 

address, and (e) he closed the Account on August 12, 2022 after receiving the Secretary’s written 

discovery requests. There is no excuse for Mr. Billcliff failing to provide that information and the 

associated documents following the Court’s November 29, 2022 Order. 

Consequently, the Court orders that Mr. Billcliff is sanctioned because his conduct 

regarding the requested bank records was evasive, done with the deliberate intent of obscuring the 

extent of his involvement in the Devens Project roofing work, and in contempt of the Court’s 

November 29, 2022 Order. The Court therefore awards the Acting Secretary reasonably incurred 

attorneys’ fees that she incurred because of Mr. Billcliff’s failure to comply with the Court’s 

November 29, 2022 Order regarding the requested bank records and related information. 

On September 8, 2023, as directed by the Court’s Order, dated September 6, 2023, the 

Acting Secretary submitted documentation requesting that Respondent Barry Billcliff d/b/a 

various names be ordered to pay a total of at least $3,215 in attorneys’ fees because of his failure 

to comply with the Court’s November 29, 2022 Order regarding the requested bank records and 

related information. (Sec’y Request for Attorneys’ Fees).170

Many courts, including the First Circuit, typically follow the “lodestar” method for 

calculating reasonable fees. Tenn. Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st 

Cir. 1994). The lodestar method involves “multiplying the number of hours productively spent by 

a reasonable hourly rate to calculate a base figure.” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 

331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The first step in 

calculating the lodestar is to determine the number of hours the attorneys reasonably expended for 

170 Respondent’s response to the Acting Secretary’s Request for Legal fees was due by October 4, 2023. Respondent did 

not file any response to the Acting Secretary’s Request for Legal Fees. 
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the prevailing party, excluding those hours that are “excessive, redundant, or otherwise 

unnecessary.” Hensley, 461 U.S. at 434; see also Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 

(1st Cir. 1984) (explaining that a court should subtract “hours which [are] duplicative, 

unproductive, excessive, or otherwise unnecessary”); see also Gay Officers Action League v. 

Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001) (explaining that the court may reduce the hours 

claimed if there is insufficient evidence/documentation of same). (Sec’y Request for Attorneys’ 

Fees, at 2).

The second step in calculating the lodestar requires the determination of a reasonable 

hourly rate which is benchmarked to the “prevailing rates in the community” for lawyers of like 

“qualifications, experience, and specialized competence.” Gay Officers Action League, 247 F.3d at 

295. In determining a reasonable hourly rate, a court must consider “the type of work performed, 

who performed it, the expertise that it required, and when it was undertaken.” Grendel’s Den, 749 

F.2d at 951. The party requesting fees bears the burden of establishing an appropriate level of skill 

and experience. See, e.g., Martinez v. Hodgson, 265 F. Supp. 2d 135, 142 (D. Mass. 2003). 

Finally, the court multiplies the reasonable number of hours and hourly rate to arrive at the 

“lodestar,” which the court may adjust upward or downward for other factors. Spooner v. EEN, 

Inc., 644 F.3d 62, 68 (1st Cir. 2011).171

171 Examples of other factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill 

requisite to perform the legal service properly; (4) the preclusion of employment by the attorney 

due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) 

time limitations imposed by the client or the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 

‘undesirability’ of the case; (11) the nature and length of the professional relationship with the 

client; and (12) awards in similar cases.

Diaz v. Jiten Hotel Mgmt., Inc., 741 F.3d 170, 177 n.7 (1st Cir. 2013) (citing Hensley, 461 U.S. 424, 430 n.3).
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The Acting Secretary asserts that her attorneys Senior Trial Attorney (STA) Joseph 

Landry and OSHA Counsel (OC) Henderson reasonably expended 13 hours of time because Mr. 

Billcliff failed to comply with the Court’s November 29, 2022 Order regarding the bank records; 

including the time associated with actions such as: (a) attempting to get Mr. Billcliff to comply 

with the Order; (b) obtaining a subpoena to the bank directly from the Court after Mr. Billcliff did 

not comply; (c) serving the subpoena on the bank; (d) moving for sanctions regarding the bank 

records and related information; (e) providing copies of the records received from the bank to Mr. 

Billcliff; (f) having to call a live witness at trial after Mr. Billcliff objected to the business records 

certification included with the bank records; (g) examining Mr. Billcliff at trial regarding his 

failure to comply with the Court Order in regard to the bank records and related information, and 

(h) preparing the section in the Acting Secretary’s Post-Trial Brief regarding sanctions directed 

solely to the bank records and related issues. 

 Here, the Court finds that $275/hour and $375/hour are reasonable rates for STA Landry 

and OC Henderson, respectively, for the reasons stated in the Acting Secretary’s Request For 

Attorneys’ Fees, at 7-9. Since some of the time STA Landry spent arguably involved work such as 

emailing Mr. Billcliff copies of things and filing/serving the briefs and Exhibits involved, the Acting 

Secretary voluntarily treated 3 hours of STA Landry’s time as paralegal time and only seek $75/hour 

for that time, for a subtotal of $225, leaving 7.6 hours for STA Landry at $275/hour, for a subtotal of 

$2,090. As regards the 2.4 hours for OC Henderson, at $375/hour that is a subtotal of $900. 

Together, $225, plus $2,090, plus $900 is $3,215. The Acting Secretary therefore seeks at least 

$3,215 in fees here. The Court finds that the amount of attorneys’ fees that the Acting Secretary 

now seeks to be reasonable. The Court awards and assesses Respondent Mr. Billcliff $3,215 to be 

paid by him to the Acting Secretary within forty days of the date of this order at an address and in 
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accordance with procedures to be provided by the Acting Secretary to him.172

VIII. 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.

IX. CONCLUSION

As discussed above, the elements of applicability, employee exposure, violation and 

knowledge of the cited conditions are proved as to all items. The Court finds that Mr. Billcliff is 

individually and personally responsible and liable for the violations alleged in all of the underlying 

citations and the corresponding penalties assessed herein by the Court in the amount of $162,274; as 

well as $3,215 as sanctions and an award of attorneys’ fees described above.

X. ORDER

Based upon the foregoing findings of fact and conclusions of law, IT IS ORDERED that: 

Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.20(b)(2), is AFFIRMED and the 

Court assesses a penalty in the amount of $10,151; 

IT IS FURTHER ORDERED that: Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. 

§ 1926.100(a), is AFFIRMED and the Court assesses a penalty in the amount of $10,151; 

IT IS FURTHER ORDERED that: Citation 1, Item 3, alleging a Serious violation of 29 C.F.R. 

§ 1926.501(b)(3), is AFFIRMED and the Court assesses a penalty in the amount of $10,151; 

172 By filing no response to the Acting Secretary’s Request for Attorneys’ Fees, Mr. Billcliff does not dispute the amount 

or reasonableness of the attorneys’ fees sought by the Acting Secretary. 
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IT IS FURTHER ORDERED that: Citation 2, Item 1 alleging a Willful-Serious violation of 29 

C.F.R. § 1926.501(b)(11), is AFFIRMED as both a Willful and Serious violation and the Court 

assesses a penalty in the amount of $111,519;

IT IS FURTHER ORDERED that: Citation 3, Item 1, alleging a Serious violation of 29 C.F.R. 

§ 1926.503(a)(1), is AFFIRMED and the Court assesses a penalty in the amount of $10,151;

IT IS FURTHER ORDERED that: Citation 3, Item 2, alleging a Serious violation of 29 C.F.R. 

§ 1926.1053(b)(1), is AFFIRMED and the Court assesses a penalty in the amount of $10,151; and 

IT IS FURTHER ORDERED that Mr. Billcliff pay $3,215 as sanctions and an award of attorneys’ 

fees described above to the Acting Secretary within forty days of the date of this order at an address 

and in accordance with procedures to be provided by the Acting Secretary to him.

SO ORDERED.

 __/s/ Dennis L. Phillips________

 The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Dated: November 13, 2023

 Washington, D.C.