United States of America 

OCCUPAT ONAL SAFETY AND HEALTH REV EW COMM SS ON 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 17-1173

 OSHRC Docket No. 17-1180 

FAMA CONSTRUCTION, LLC, 

Respondent. 

DEC S ON AND ORDER 

COUNSEL: 

Jonathan Hoffmeister, Attorney, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, 

for Complainant. 

Andrew N. Gross, Attorney, HB NEXT Corporation, Lawrenceville, GA, for Respondent. 

JUDGE: 

John B. Gatto, United States Administrative Law Judge. 

 . NTRODUCT ON 

On December 9, 2016, the Secretary, through the Department of Labor’s Occupational 

Safety and Health Administration (OSHA), conducted inspections of two residential construction 

sites in the Devonshire Park subdivision in Lawrenceville, Georgia. As a result of the 

inspections, OSHA issued1 citations under two different inspection numbers to Fama 

Construction, LLC,2 on June 6, 2017, pursuant to the Occupational Safety and Health Act of 

1970 (the Act), 29 U.S.C. § 651-678, with proposed penalties totaling $199,179.00. The 

1 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his 

authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order 

No. 4–2010 (75 FR 55355). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue 

citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” 

are used interchangeably herein. The bringing of legal proceedings and the determination of whether such 

proceedings are appropriate in a given case are delegated exclusively to the Solicitor of Labor. See Order No. 4– 

2010 (75 FR 55355). 

2 The Court notes that prior to the issuance of the citations, Fama Construction, LLC was administratively dissolved 

by the Georgia Secretary of State, but Fama Construction Group, LLC, which appears to have the same registered 

principal office and owner, is an active entity. (See https://ecorp.sos.ga.gov/BusinessSearch.) However, neither 

party has moved to substitute the named Respondent. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Commission docketed the cases under Docket No. 17-1173 (for Inspection Number 119133, Lot 

63) and Docket No. 17-1180 (for Inspection Number 1197730, Lot 8). After Fama contested the 

citations, the Secretary filed formal complaints with the Commission seeking orders affirming 

the citations and proposed penalties.3 The two cases were subsequently consolidated for trial. 

The parties stipulated jurisdiction of this action is conferred upon the Commission by section 

10(c) of the Act, 29 U.S.C. § 659(c), and that Fama is an employer engaged in a business 

affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Pretri l 

Order, Attach. C, ¶¶ E.1 & 2). The Court held a bench trial in Atlanta, Georgia. 

Inspection Number 1197733 concerns work performed by a two-man work crew on a 

house on Lot 63 in the Devonshire Park subdivision. Inspection Number 1197730 concerns work 

performed by a four-man work crew on a house on Lot 8 in the subdivision. The Secretary issued 

the citations to Fama, whom he considers the employer of the two work crews working on the 

Lot 63 and Lot 8 houses.4 The Secretary cited Fama for violating the same three construction 

standards in each case, but with different characterizations5 and penalties. In both cases, the 

Secretary cites Fama for violations of 29 C.F.R. § 1926.102(a) (eye and face protection); § 

1926.501(b)(13) (duty to have fall protection); and § 1926.1053(b)(1) (ladders).6 

The central issue in this case is whether Fama can be held responsible for the violative 

conditions at the worksites, either as the actual employer of the work crews or as a controlling 

employer under the multi-employer worksite doctrine. Fama contends it only secures roofing 

3 Attached to the complaints and adopted by reference were the citations at issue. Commission Rule 30(d) provides 

that “[s]tatements in a pleading may be adopted by reference in a different part of the same pleading or in another 

pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all 

purposes.” 29 C.F.R § 2200.30(d). 

4 The Pretri l Order, dated November 14, 2018, lists five “legal issues to be tried.” The first issue is “Whether the 

workers at the worksites were Fama employees.” (Pretri l Order, ¶ 11.1.) The Court subsequently granted the 

Secretary’s motion to amend the order to add another issue, “Whether Fama was a controlling employer at the 

worksite and failed to exercise reasonable care to detect and prevent violations at the worksite.” 

5 Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a 

serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§ 666(a), (b), (c). A serious 

violation is defined in the statute; the other two degrees are not. Id. § 666(k). 6 The Lot 8 violations were characterized as willful, while the Lot 63 violations of the same standards were 

characterized as serious and repeat. Greenfield explained the reason for the differing characterizations. 

It wasn't willful on [Lot 63] because I did not get to speak to the supervisor on the other lot. On [Lot 8], I did 

get to speak to the supervisor. Otherwise, on the lot, it most likely would have been classified as a willful on the 

other lot with Mr. Alberto. . . . [I]t's a little difficult to recommend a willful violation if you don't get to speak to 

the supervisor at all because, you know, you have a higher burden – at least I do as a compliance officer -- to 

recommend a violation like that, and not being able to know what the supervisor has to say about it, it has to be 

taken into account. So since I didn't speak to Mr. Martinez, because he left the site and I didn't get to speak to 

him after that, I didn't recommend it on that.

 (Tr. 100-01.) 

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contracts, and the work crews were employees of subcontractors who are responsible for 

compliance with OSHA’s standards. Fama also argues it had no knowledge of the violative 

conduct. It also disputes the willful and repeat characterizations cited by the Secretary. 

After hearing and carefully considering all the evidence and the arguments of counsel, the 

Court issues this Decision and Order, which constitutes its final disposition of the proceedings. 7 

For the reasons indicated infr , the Court concludes Fama was the employer of the work crews at 

the cited worksites on December 9, 2016. In the alternative, the Court concludes Fama was a 

controlling employer of the work crews at the cited worksites and, based on the work crews’ 

extensive history of noncompliance with the same standards at issue here, was required to 

inspect the worksites to satisfy its duty of reasonable care. For the reasons indicated infr , for 

both docket numbers the Court AFF RMS each citation and item therein and the related 

violation characterizations and ASSESSES civil penalties in the amount of $3,984 for the serious 

violation, $55,770 for each repeat violation, and $55,770 for each willful violation. 

 . BACKGROUND 

Compliance Safety and Health Officer8 Marc Greenfield works out of OSHA’s Atlanta 

East Area Office. Prior to the inspections at issue here, he had conducted at least four inspections 

that resulted in citations being issued to Fama for safety violations committed by work crews (Tr. 

27-28). On December 9, 2016, Greenfield was driving through the Devonshire Park subdivision 

where new houses were under construction. He observed workers on the roofs of two houses 

(Lot 8 and Lot 63) who were not tied off. He stopped and took photographs of the worksites 

(Exs. C-1 & C-2; Tr. 34-35, 40). 

Greenfield then approached the house on Lot 63, where two men were working, one on 

the porch roof and one on the ground. The man on the roof came down and identified himself as 

Alberto and stated he worked for Fama, adding, “just like those guys on the other lot,” indicating 

the four-man crew working on the house on Lot 8, diagonally across the street from Lot 63 (Tr. 

46-47). Alberto identified the other man at the site as his supervisor, Daniel Martinez. As 

Greenfield and Alberto were talking, Martinez got in his truck and drove away. Greenfield 

observed the siderails of the portable ladder used to access the porch roof were not extended at 

least three feet above the roof. He also noted Alberto was wearing regular sunglasses and not 

 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be 

deemed so. 

8 “Compliance Safety and Health Officer” means “a person authorized by the Occupational Safety and Health 

Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R § 1903.22(d). 

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safety glasses while using a nail gun. Greenfield took more photographs and measurements of 

the ladder to document the violations (Ex. C-1; Tr. 41-43). 

Greenfield next went to Lot 8, where he met Antonio Cardenas, who identified himself as 

the supervisor of the roofing crew (Tr. 44-45). Greenfield recognized Cardenas from previous 

inspections, during which Cardenas always stated he worked for Fama (Tr. 44-45). Greenfield 

observed fall protection, ladder, and safety glasses violations similar to the ones he noted at Lot 

63 and took photographs to document them (Ex. C-2). 

 . EMPLOYMENT RELAT ONSH P BETWEEN FAMA 

AND AFFECTED WORKERS 

Greenfield has “done a number of inspections in which Fama Construction has been 

involved and has been cited for violations.” (Tr. 27.) During those inspections, he has “run into 

the same workers, one, two, three—at least three or four times. One time . . . I accompanied the 

[Compliance Safety and Health Officer] that conducted the inspection, and it was the same 

crew.” (Tr. 28.) Greenfield has encountered Antonio Cardenas several times (Tr. 28). The day of 

the inspections at issue, Greenfield once more met Cardenas, and noted, 

Mr. Cardenas, every time that I’ve ever dealt with him, states he’s an employee of 

Fama Construction, LLC, and again, he stated he was an employee. And I even 

asked on the other lot if they were subcontractors or employees. And the lot with 

Mr. Alberto—he stated, “I am an employee. I am not a subcontractor.” And Mr. 

Cardenas stated he’s an employee, and when he comes to the office and speaks 

with the [OSHA Area Directors] and the people there, with interpreters, he stated 

he was an employee. But he stated he was an employee, and each time I’ve done 

an inspection, which he’s been the supervisor of the crew, he’s stated he was an 

employee . . [of] Fama Construction. 

(Tr. 45-46.) When interviewing Alberto on Lot 63 the day of the inspections, Greenfield stated 

he “specifically asked him, are you a subcontractor or an employee of Fama, he emphatically 

stated he was an employee. And he said, just like those guys on the other lot. . . Lot 8.” (Tr. 47.) 

Alberto told Greenfield he had worked for Fama for 10 years (Tr. 112). 

F m ’s M n gement Employees 

Francisco Martinez 

Francisco Martinez founded Fama in 1995. He owns and manages the company (Tr. 

256). He testified Fama secures roofing contracts, primarily for new construction, and 

subcontracts the labor. “We are the company in between homeowners, builders, or companies, 

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with the suppliers and laborers.” (Tr. 257.) Fama works primarily with four building companies. 

A builder will supply blueprints for houses in a development to Fama and request a proposal. 

After calculating the costs, based on square footage of the roofs and provision of the shingles and 

labor, Fama responds with a total price for the houses (Tr. 265). “If they agree, we do the job.” 

(Tr. 266.) Fama pays the work crews a set amount based on the price Fama charges for a 

particular house (Tr. 267). 

Fama works regularly with a known group of work crews. They “are all the time the 

same ones. They are the same. . . . There's not -- no new ones.” (Tr. 267.) Fama finds work 

crews for particular projects based on informal communications with the crews, with each side 

checking in with the other regarding projects. “Subcontractors, they call us to find out if we 

have work to do, or we're planning a project and we call them and say, ‘Hey, you know what; 

can you help me out. Next month I'm going to have five houses.’ If they agree, yes, we keep 

that in mind with them. Okay. If they say, ‘Oh, I'm sorry; I'm working in Alabama this coming 

month,’ okay, well, we call somebody else.” (Tr. 266.) 

Some projects require the services of brick flashing crews. Francisco Martinez generally 

contacts Daniel Martinez first for those projects. In “the case of Daniel Martinez, he's my 

brother, so he has his own crews working with them, so I prefer to work with him. He's part of 

the family.” (Tr. 258-59.) Francisco Martinez also prefers to contact certain roofing crews first. 

“The first call all the time goes to the most flexible people we can find. . . . Flexible means if 

they can do more faster and on timing what [we’re] expecting. Okay? And usually these guys, 

like Carlos, Carlos [Galicia] and Antonio [Cardenas], they are good. All the time they are 

making good timing. One of the crews will represent the face of Fama. If they do well, you 

know, like a subcontractor, that means we're doing well.” (Tr. 269.) 

Francisco Martinez testified Fama will contact the roofing crew of its choice and explain 

the scope of the job. “So we send the pictures. We send a picture of that project, and we say, ‘I 

have this one in two weeks; if you need it, just call me. If not, I can call somebody else.’” (Tr. 

270.) The work crew decides how many crew members it needs to complete a job (Tr. 269-70). 

Francisco Martinez only visits the worksite before the roofing work begins and after it is 

completed. He does not visit the worksite while the roofing work is in progress (Tr. 270). 

Cynthia Osorio 

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Cynthia Osorio is the daughter of Francisco Martinez and the niece of Danial Martinez. 

She helps manage Fama.9 Her duties include scheduling, ordering material, reviewing invoices, 

and issuing checks. She has worked for the company for 15 years. She stated Fama employs 

three to four employees at any given time, all of whom work in Fama’s office (Tr. 204). Fama 

routinely engages four main roofing crews to perform roofing jobs. The work crews together 

comprise 12 to 15 people (Tr. 206-08). 

Osorio stated Fama orders and pays for the shingles, felts, vents, staples, nails, and 

flashing for the roofing jobs, and arranges for the materials to be delivered to the worksite. On 

occasion Fama pays for a dump truck to be brought to the site for trash. Crews generally work 

Monday through Friday, turning in invoices Thursday afternoon. Fama pays the crews on Friday 

afternoon (Tr. 211-12). Work crews sometimes buy tools or supplies on Fama’s credit. Fama 

then deducts the amount from the crew’s paycheck. Fama has provided cash advances to 

individual roofers (Tr. 213). Fama does not provide paid vacation time, health insurance, or 

retirement plan coverage to members of the roofing crews (Tr. 285). Fama once paid a medical 

bill for Antonio Cardenas when he was injured at the beginning of a roofing job and paid him 

$350.00 that week, even though he did not work due to his injury (Tr. 286). 

Osorio testified Fama “doesn’t really have, like a time frame” for work crews to complete 

a house but, because Fama generally contracts for new construction, a work crew can usually 

complete a house in one day. The workers do not “have to go and take off shingles and clean the 

roof and clean up the trash. It’s all new construction, so it’s laying felt and then the shingles. So 

it’s less work, way less work.” (Tr. 215-16.) Fama prefers to have a work crew arrive at the 

worksite soon after the materials are delivered, to prevent theft of the materials (Tr. 216-17). 

At one time, Fama implemented a rule for work crews wanting to hire another employee: 

“[Y]ou can’t just bring somebody you pick up from the Home Depot or from the street, you 

know. They had to be somebody that knew roofing and had done roofing in the past.” (Tr. 222.) 

The rule, however, “didn’t work. [The roofing crews] didn’t run it through us. . . [N]obody 

really went by it. . . [A work crew] didn’t get in trouble if they had somebody else working 

there.” (Tr. 223-24.) 

Fama provides mandatory safety training every four or five months, with topics chosen 

by Francisco Martinez and Osorio, for the work crews it engages (Tr. 227-28, 230). If a work 

9

 Fama’s website identifies Cynthia Osorio as Fama’s president (Ex. C-4). 

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crew declined to attend safety training, Osorio stated, “[T]hat would be a problem with me like if 

we had to look for crews, they wouldn’t be at the top of my list.” (Tr. 229.) Fama provides work 

crews it engages with a safety program and requires them to use it. If Fama learns a member of a 

work crew was working without fall protection, “We tell them to come to the office , the day 

they come pick up a paycheck. Tell them to watch another [safety] video.” (Tr. 225). Fama has 

a progressive disciplinary system in place, by which an employee can be fined, and the fine 

amount deducted from his paycheck. Osorio stated Fama has never actually fined anyone for a 

safety violation (Tr. 225-26). 

Prior to Georgia’s implementation of a Hands-Free Law, prohibiting the use of handheld 

cell phones while driving, Fama instituted a rule prohibiting members of work crews from using 

their cell phones while driving to a Fama-contracted worksite.10 Fama also instituted a rule 

prohibiting members of the work crews from using cell phones while on the roofs of houses (Tr. 

232). 

Osorio: It's dangerous, you know. So I have told them, no, you cannot use it on 

our job sites, you know. And I've never seen them, so I don't even – I haven't even 

had to go further up and tell them like, well, you're going to get fined. Like, it's 

something that I just tell them that I don't want them to do. . . . If I kept seeing 

somebody on the roof using their [cell phone], I probably -- they wouldn't leave 

me no choice but to do something more, you know. 

Q.: Like fining them? 

Osorio: I've never fined them, but probably that would be the case, if that would 

-- if that's – it would lead up to it. 

Q.: Or let them go? 

Osorio: Uh-huh, probably. It's hard to let somebody go right now, because of the 

labor shortage. There's not a lot of people that want to do roofs. . . . I mean, I 

definitely talk to them. 

(Tr. 234-35.) 

Fama has the authority to stop work on a house for which it secured the roofing contract. 

Although Fama does not routinely check on worksites while work is in progress, there have been 

occasions when one of Fama’s management employees has observed a safety infraction and 

addressed it with the work crew. Osorio observed a member of a roofing crew working without 

his safety harness. She ordered him off the roof and told him to go home and return the next day 

with his safety harness (Tr. 235-36). Osorio was aware of another time when Francisco Martinez 

10 The Court takes judicial notice that Georgia’s Hands-Free Law (HB673) took effect July 1, 2018. It prohibits 

drivers from: “Holding or supporting, with any part of the body, a wireless telecommunications device or standalone electronic device.” 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

was on his way to meet with a builder at a worksite and noticed a roofing crew member on the 

roof without his safety harness. Martinez instructed him to go get his safety harness. As 

Martinez passed the worksite on his way back after the meeting, he saw the crew member back 

on the roof, working without a safety harness. Martinez ordered him he to leave. Fama has not 

worked with that roofing crew again (Tr. 290-91). 

In June of 2016, Fama and the Secretary entered into an agreement in settlement of a 

citation issued to Fama for safety violations committed by a roofing crew. As part of the 

agreement, Fama was required to hire a third-party contractor to conduct monthly safety audits. 

Fama hired HBNEXT to perform the safety audits (Tr. 237-38). 

As Osorio explained it, her communications with the roofing crews regarding rules and 

safety issues were not in furtherance of an employment relationship but were a result of 

longstanding friendships with the crew members. “I give them advice. I talk to them. I mean, 

I've known them for a long time, you know. I don't keep everything so like business instructor. I 

mean, I really do care about them, and as far as they're on a roof, and I want them to be careful. 

So I do tell them like you know, guys, you got to be more careful.” (Tr. 242.)11 

Roofing Crew Workers 

The three roofing crew employee witnesses testified with the assistance of a federallycertified court interpreter (Tr. 117). 

Daniel Martinez 

Daniel Martinez, brother of Fama owner Francisco Martinez, testified he is retired but he 

“occasionally works for them and other private individuals.” (Tr. 151.) When asked, “Them, 

being Fama?,” he responded, “Yes.” (Tr. 151). Before his retirement Daniel Martinez did brick 

flashing work for Fama for 15 to 20 years (Tr. 151). Before he started specializing in flashing 

work, Martinez “had worked for [Fama] as a roofer on a temporary basis.” (Tr. 152.) 

When asked who directs the activity at a worksite for which Martinez is doing the 

flashing, he responded, “Aside from the owner who tells me, ‘You’re going to do this,’ and then 

I decide how we’re going to do it, so I tell my assistant.” (Tr. 161) He has supervisory authority 

over the assistant (Tr. 154-55). Daniel Martinez determines what time to arrive at the worksite, 

how long to work, and which helper he will be working with. Fama generally does not know 

11 Osorio is the only witness, aside from Greenfield, who evinced any concern for compliance with OSHA’s 

construction standards and who expressed a genuine concern for the safety and health of the crew members. She 

appeared to care more about the well-being of the crew members than they did about themselves. 

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which helper Daniel Martinez hires to assist with a given job, but Martinez recalled one occasion 

when Fama supplied him with an assistant (Tr. 151, 162). On December 9, 2016, Alberto was 

Martinez’s assistant (Tr. 155). 

Daniel Martinez initially stated, “It’s Fama who I work for.” (Tr. 153.) He never formed 

a company and does not advertise his services. When he needs work, he texts Fama’s telephone 

number to see if there is a project available (Tr. 153-54). He has attended safety training 

provided by Fama and received a safety program provided by the company. Fama does not send 

anyone to the worksite to check on the flashing work performed by Martinez and his crew. On 

some occasions, Daniel Martinez worked out-of-state jobs for Fama. Fama paid for his crew’s 

hotel accommodations, gasoline expenses, and half the cost of their meals (Tr. 158-59, 165). 

Martinez testified he is paid a set amount by the linear foot. He takes the measurements 

for each job. Every week, he submits an invoice to Fama “for how much work we did, and they 

pay me, and I in turn pay the person who helped me.” (Ex. R-17; Tr. 156.) He stated he does 

not submit invoices to other companies he does work for “because it’s the type of job that’s from 

person to person,” meaning “it’s a set price, agreed in advance.” (Tr. 165.) In 2016, Fama paid 

Daniel Martinez $51,345.83 for his services (Ex. R-6; Tr. 166). He testified he made “[p]ossibly 

around $30,000” from other sources, but he gave one-third of that amount to his helper (Tr. 168). 

His accountant subtracts the cost of expenses, equipment, and the money Martinez pays his 

assistant from the total paid to him by Fama (Tr. 167-68). 

Antonio Cardenas 

Cardenas testified he has worked for Fama for approximately 15 years, but he does not 

consider himself an employee of Fama (Tr.118-19). When he does jobs for Fama, Cardenas is 

always partnered with Carlos Galicia, who has worked for Fama for approximately 14 years. 

Cardenas does not own his own business or work as an independent contractor. When Fama 

needs work done, it contacts Cardenas and tells him there is a house project available (Tr. 119-

20). Cardenas sometimes does “temporary work” for someone named Raymundo, but otherwise 

works only for Fama (Tr. 137-38). He stated Galicia does not have contacts aside from Fama to 

find work (Tr. 138). 

In earlier years, Fama issued separate paychecks each week to Cardenas and Galicia. 

Around 2013, Fama changed to issuing only one paycheck to each work crew (Tr. 130). For 

2014, Fama issued Cardenas a 1099 form for $58,502.00. He split it evenly with Galicia (Ex. R9
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7; Tr. 143). In 2016, Cardenas earned approximately $45,000.00 from Fama, after taking his 

share of the money issued to Galicia (Tr. 127). Other contractors do not issue him a 1099. 

“[T]hey don’t issue them because I work very little for them.” (Tr. 144.) 

Fama pays Cardenas a non-negotiable fixed price for each roofing job (Tr. 121). Fama 

has raised the price per linear foot at least twice since Cardenas began working with the company 

(Tr. 122). Galicia prepares the invoices they turn in to Fama for the work week (Ex. R-15; Tr. 

142). Cardenas has at times turned down a roofing job with Fama because he and Carlos 

consider the house too large or the roof too steep (Tr. 124). He estimated he turns down Fama 

jobs “maybe five times” a year (Tr. 125). Cardenas stated he worked approximately 8 months in 

2016, preferring not to work “when it gets very cold.” (Tr. 126.) He also stated, however, that he 

and Galicia usually complete five houses in a week, and the complete an average of 50 houses a 

year (Tr. 125-26). That estimate would result in approximately 10 weeks of work, not 8 months. 

The discrepancy is unexplained. 

Cardenas confirmed Fama paid his medical bill when he was hurt at the start of a roofing 

job for Fama and stated Fama provided him with an additional $350.00 the week he was unable 

to work (Tr. 128). Fama provided Cardenas with safety glasses and a fire extinguisher and safety 

kit for his truck (Tr. 129, 146). He has attended mandatory safety training and received a written 

safety program from Fama (Tr. 131, 147). Cardenas testified no one from Fama or HBNEXT 

had ever inspected a Fama worksite on which he was working (Tr. 133). Cardenas and Galicia do 

not hold morning safety meetings at worksites (Tr. 133). 

Cardenas testified that neither he nor Galicia supervise each other. They decide together 

what the arrival and departure times to and from the worksite should be (Tr. 138). They 

purchase needed equipment together, sometimes using Fama’s credit, which they pay back in 

installments (Tr. 140). 

Cardenas gave contradictory and misleading testimony regarding the two workers who 

were on the roof with him and Galicia the day of the OSHA inspections. He initially stated he 

and Galicia never worked with another crew on the same house (Tr. 133). When asked if anyone 

besides Galicia worked was working with him on the Lot 8 house on December 9, 2016, 

Cardenas replied, “No. I don’t remember.” (Tr. 134.) When shown the photographs of a worker 

wearing a blue hoodie on the roof (Ex. C-2, pp. 3, 4, 6, 7), Cardenas stated, “I know him, but he 

only worked there for a day,” and said he was not part of a Fama crew, but was “[a] friend who 

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only worked there for a day . . . I called him on that day to come help me, and he came to help, 

and when we finished the house and we were paid, that’s when I paid him.” (Tr. 135). He had a 

similar story for the other person on the roof (Ex. C-2, p. 6), stating, “That’s a friend that I ride 

with this other person. They didn’t have anything—any job elsewhere that day, so they came to 

help me.” (Tr. 136.) Cardenas said the two men “came to help me a couple of more times” and 

they had attended safety training provided by Fama (Tr. 136). The obfuscation and 

disinformation regarding the two men working on the Lot 8 house roof with Cardenas and 

Galicia continued with Galicia. 

Carlos Galicia 

Carlos Galicia testified he has worked for Fama for 12 years, and his boss is Cynthia 

Osorio. He considers himself to be an employee of Fama. He and Antonio Cardenas work 

together on a crew, as they were doing the day of the inspections at issue. Galicia also considers 

Cardenas also to be an employee of Fama. Galicia does not own his own business, work as an 

independent contractor, or have employees. Francisco Martinez contacts him and Cardenas each 

week to tell them the location of the roofing jobs. Francisco Martinez sets the amount to be paid 

to Galicia and Cardenas in advance for each roofing job. Martinez raised the price per linear foot 

at least twice during the time Galicia worked for Fama (Tr. 170-72). Galicia differentiated the 

work he does with Fama from contract work. “Well, I was asked if we were doing a contract, 

but [Fama] just tells us if there is a job. A contract is like if I were to negotiate with you, but we 

only do the work that [Fama] tells us to do.” (Tr. 183.) 

Galicia stated he does not work for other roofing contractors (Tr. 174). On crossexamination, when reminded of his deposition testimony, he admitted he had worked with other 

roofing employers, stating, “Yes, but it’s not a large job. It’s small work.” (Tr. 185.) He 

sometimes earned money doing yard work or painting, “but only for two or three hours. It’s for 

a short time. It's not like jobs for a full day. . . . These are jobs for other people, but not for 

companies or anything. These are just for people that ask to have the grass cut.” (Tr. 181-82.) 

Fama required Galicia to attend safety training and follow the safety program it provided (Tr. 

175). 

Galicia testified he and Cardenas had no employees and evenly split money they earned 

from Fama. He initially stated that in 2016, he earned approximately $30,000.00 from all his 

sources of income (Tr. 173). He later amended his estimate to $45,000.00, which accords with 

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Cardenas’s testimony for that year (Tr. 196). Galicia testified that between him and Cardenas, 

“There is no supervisor, because we both know to do the job. So I cannot be his supervisor and 

he cannot be my supervisor. We both know what the job is.” (Tr. 185.) Cardenas determines 

what time to arrive at a worksite and when to leave because Galicia rides with him the truck they 

own together. Galicia stated he and Cardenas purchase their own equipment, including ladders 

and nail and staple guns (Tr. 185-86). 

As with Cardenas, Galicia’s testimony regarding the two other men on the roof with them 

the day of the inspections changed during questioning. Initially he stated he did not know their 

names and said of the man in the blue hoodie, “I don’t work with him, and neither does he work 

with me.” (Tr. 177). He also posited the man was not actually working on the Lot 8 house that 

day. “It’s likely that he was working in the subdivision, but not the same house.” (Tr. 178.) The 

photographs comprising Exhibit C-2 show this is clearly not the case. He then stated that, at 

times, friends of Cardenas work with them and they all split the money earned from the job (Tr. 

189). 

The relationship between Cardenas and Galicia and the two men came into focus with the 

introduction into the record of Exhibit R-4, the 1099 form for 2016 issued by Fama to Galicia. It 

is for $220,667.00. Galicia testified, “Part of this went to other people.” (Tr. 190) He clarified 

that, after expenses, he and Cardenas split the money four ways with two other people (Tr. 196). 

Finally he conceded the two other workers with whom they split the money were the two men 

working with them on the Lot 8 house on December 9, 2016. Galicia estimated the two men had 

been working for Fama for “probably” 10 years (Tr. 197). Galicia’s testimony thus evolved 

from not recognizing the two workers (even denying one of them was working on the same 

house) to conceding they may be friends of Cardenas who helped out that day, to acknowledging 

the two men performed an equal amount of work for Fama as Cardenas and Galicia did in 2016, 

and the four of them split the money earned from Fama evenly amongst themselves.12 

Credibility Determin tions 

Any discrepancy between the testimony of Greenfield and the testimony of the 

management and employee witnesses is resolved in favor of Greenfield. His demeanor was 

12 Fama’s Counsel includes a jocular footnote in Resp’t’s Br., stating, “Note that the amount of non-employee 

compensation paid to Carlos Galicia in 2016 was $220,667. Any suggestion that this should have been W-2 regular 

employee compensation on Fama’s payroll strains credibility. If true, the undersigned Employer’s counsel would be 

inclined to turn in his word processor for a nail gun.” (Resp’t’s Br., p. 18.) Galicia’s testimony makes clear, 

however, that he received only $45,000.00 of the total amount stated in the 1099 form for 2016. 

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confident and straightforward. He showed no hesitation or evasiveness during his testimony. 

His statements regarding his observations at the Lot 63 and Lot 8 worksites are backed up by the 

numerous photos he took of the worksites, including the measurements of the fall distance and 

the portable ladders. The Court credits his statement that Alberto and Cardenas informed him 

they were employees of Fama and Cardenas told him he was the supervisor.13 

Each of the remaining witnesses stumbled somewhat in their testimony when confronted 

with contradictory statements in their deposition testimony. Some confusion may be attributed 

to language difficulties of the three employees testifying with the assistance of the interpreter. 

But other inconsistencies were the result of deliberate deceptions. It is clear Cardenas and 

Galicia deliberately misled the Court when they at first disavowed knowledge of the two men 

working with them on December 9, 2016, and later minimized their work relationship with them. 

Their willingness to deceive the Court under oath weakens the credibility of their testimony as a 

whole. 

The D rden Test 

As the Commission notes, 

the Secretary has the burden of proving that a cited respondent is the employer of 

the affected workers at the site. . . . In determining whether the Secretary has 

satisfied that burden, the Commission relies upon the test set forth in N tionwide 

Mutu l Insur nce Comp ny v. D rden, 503 U.S. 316 (1992) (“D rden”). 

Allst te P inting & Contr cting Co., 21 BNA OSHC 1033, 1035 (Nos. 97-1631 & 97-1727, 

2005) (consolidated)). To determine whether the party in question was an employer under 

common law, the D rden Court looked primarily to “the hiring party’s right to control the 

manner and means by which the product [was] accomplished.” D rden, 503 U.S. at 323. Factors 

pertinent to that issue include: 

the skill required for the job, the source of the instrumentalities and tools, the 

location of the work, the duration of the relationship between the parties, whether 

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

extent of the hired party’s discretion over when and how long to work, the method 

of payment, the hired party’s role in hiring and paying assistants, whether the 

work is part of the regular business of the hiring party, whether the hiring party is 

13 Alberto’s statement to Greenfield that he is an employee of Fama is corroborated by his signed witness statement 

(Ex. C-3). Cardenas did not deny he told Greenfield during the inspection that Fama was his employer or that he 

was the supervisor of the four-man crew. Fama did not challenge Greenfield’s testimony that Cardenas had 

represented Fama at settlement conferences at OSHA’s office or that he recognized Cardenas and other crew 

members from previous inspections resulting the Secretary issuing citations to Fama. 

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in business, the provision of employee benefits and the tax treatment of the hired 

party. 

Id. at 323-24 (citing Cmty. for Cre tive Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989)). 

The Commission has addressed the relative weight of the D rden factors: 

[T]he [Supreme] Court has emphasized that all of these factors must be 

considered, and no one factor is decisive. [D rden] at 324. Yet, as reflected in the 

Supreme Court’s most recent analysis of the common law meaning of “employee” 

in the context of a federal labor statute, the control exercised over a worker 

remains a “principal guidepost.” Cl ck m s G stroenterology Assocs., P.C. v. 

Wells, 123 S.Ct. 1673, 1679 (2003) (issue of whether physician-shareholders of 

an employer could be counted as “employees” for purposes of small employer 

exemption of the Americans With Disabilities Act, 42 U.C.S. §12101 et seq.). 

Further, Cl ck m s teaches that the relational context in which the issue arises 

has a bearing on how the multiple factors derived from the common law are to be 

applied and weighed. 

Froedtert Memori l Luther n Hospit l, Inc., 20 BNA OSHC 1500, 1508 (No. 97-1839, 2004). 

The Eleventh Circuit has also noted it has not explicitly affirmed the application of the 

D rden test to cases involving OSHA violations but has applied the test when the parties have 

not disputed its application: 

Three other circuits have affirmed the application of the D rden test to OSHA 

violations. See Slingluff v. Occup tion l S fety & He lth Review Comm'n, 425 

F.3d 861, 867–69 (10th Cir.2005); IBP, Inc. v. Herm n, 144 F.3d 861, 865 

(D.C.Cir.1998); Loomis C binet Co. v. Occup tion l S fety nd He lth Review 

Comm'n, 20 F.3d 938, 941–42 (9th Cir.1994). One circuit has ruled 

that D rden's reasoning is not directly applicable to the Act. See Sec'y of L bor v. 

Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir.2007) (“[D rden ] was decided 

under ERISA and has no impact on the question of whether the scope of the OSH 

Act is broad enough to cover workers who are not employees under the common 

law definition.”). The parties here assume in their briefs that the D rden test 

applies. Therefore, we apply the D rden test here without deciding explicitly 

whether the Commission's interpretation of 29 U.S.C. § 652(6) is permissible. 

Quinl n v. Sec'y, U.S. Dep't of L bor, 812 F.3d 832, 837 (11th Cir. 2016). Here, both the 

Secretary and Fama assume the D rden test applies. 

An lysis of Employment Rel tionship Under D rden Test 

The issue is whether the two work crews present on Lot 63 and Lot 8 the day of the 

inspections were subcontractors or employees of Fama. The evidence relating to some of the 

factors set out in D rden does not weigh in favor of either option—for example, the skill 

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required for the job (Cardenas and Galicia both testified they had no specialized training or 

schooling to become roofers (Tr. 131, 175)) and the location of the work (determined by the 

contracts between the builder and Fama) are just as likely to be true for a subcontractor as for 

employees of Fama. The factor of the “extent of the hired party’s discretion over when and how 

long to work” is also neutral. The work crew determines what time of day to arrive at the 

worksite and how long to work there (Tr. 151, 185-86). However, Fama expects the crew to 

complete the roofing job within a day or two of delivery of the roofing materials. This 

scheduling is as likely to apply to subcontractors as to employees. 

Three f ctors weigh in f vor of finding contr ctor-subcontr ctor rel tionship between F m 

 nd the roofing crews 

The hired p rty’s role in hiring nd p ying ssist nts: Francisco Martinez testified each 

roofing crew determines how many crew members it needs to complete a job (Tr. 269-70). 

Daniel Martinez stated he decides who his helper will be on a given project (Tr. 151). At one 

time Fama tried to implement a rule prohibiting roofing crews from hiring workers without 

getting approval first from Fama, but “it didn’t work.” (Tr. 223-24.) The record establishes the 

roofing crews had discretion to hire their own assistants. 

The provision of employee benefits: Fama provided no benefits relating to vacation time, 

health insurance, or retirement programs (Tr. 285). 

The t x tre tment of the hired p rty: Fama issued 1099 tax forms, not W-2 forms, to 

Daniel Martinez, Cardenas, and Galicia (Exs. R-5, R-6, R-7). This is evidence they worked as 

independent contractors and not employees. 

The rem ining f ctors weigh in f vor of finding n employer-employee rel tionship between 

F m nd the roofing crews 

The source of the instrument lities nd tools: Fama pays for and provides the materials 

needed to complete a roofing job, including shingles, felt, staples, nails, and flashing. Fama has 

provided a dump truck when needed on some worksites (Tr. 211-12). Fama has provided 

roofing crews with fire extinguishers, safety kits, hard hats, and safety glasses (Tr. 128-29, 146, 

275-76). Providing workers with safety equipment is an act more likely done by an employer 

than a contractor. 

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-

The roofing crews generally buy their own tools and equipment, sometimes on Fama’s 

credit. Fama then deducts the amount owed for the tools from the crews’ paychecks (Tr. 148-49, 

213). Cardenas explained the circumstances in which Fama would pay for equipment: 

Q.: Does Fama provide any of those pieces of equipment for you? 

Cardenas: Yes, sometimes. 

Q.: Such as? 

Cardenas: When something expensive that we are unable to buy ourselves and it 

breaks down, that's when. 

Q.: In that situation, do you have to repay Fama for the piece of equipment? 

Cardenas: Yes. 

(Tr. 140.) 

Extending credit to purchase needed equipment is more indicative of an employeremployee relationship than a contractor-subcontractor relationship. The work crews would not 

be able to purchase needed equipment without Fama’s credit, which is not characteristic of an 

independent contractor prepared to subcontract for work in which it specializes. 

The dur tion of the rel tionship between the p rties: This factor weighs heavily in favor 

of finding an employer-employee relationship. Daniel Martinez and Alberto, working on Lot 63, 

had been doing roofing and flashing work for Fama for 15 to 20 years and 10 years, respectively 

(Ex. C-3; Tr. 151). For the crew working on Lot 8, Cardenas had done roofing work for Fama 

for 15 years and Galicia for 12 years (Tr. 118-19, 170). Galicia stated the two men working with 

him and Cardenas the day of the inspections had been working for Fama for “probably” 10 years 

(Tr. 197). 

Whether the hiring p rty h s the right to ssign ddition l projects to the hired p rty: 

Generally, Fama assigns several houses a week to a roofing crew and pays the crew one check on 

Friday. The crew completes the work as scheduled (Exs. R-15, R-16, R-17; Tr. 128). Francisco 

Martinez acknowledged, however, that he had directed a roofing crew to stop working on a 

project and go to another location if an emergency arose (Tr. 260-262). Though rarely exercised, 

Martinez’s ability to relocate a roofing crew indicates Fama has the right to assign additional 

projects to the crews. In applying the D rden test, the Eleventh Circuit has emphasized, “[I]t is 

the right to control, not the actual exercise of control, that is significant.” N.L.R.B. v. Associ ted 

Di mond C bs, Inc., 702 F.2d 912, 920 (11th Cir. 1983) (emphasis in original). 

The method of p yment: It is undisputed Fama sets a non-negotiable fixed price for each 

roofing job. Fama issues paychecks each Friday afternoon and a member of each roofing crew 

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must come to Fama’s office to pick up the crew’s paycheck (Tr. 122, 128, 212). This method of 

payment is indicative of an employer-employee relationship. 

Whether the work is p rt of the regul r business of the hiring p rty nd whether the 

hiring p rty is in business: Fama is a roofing contractor and its business depends on roofing 

crews completing its contracts. Fama consistently uses the same workers to perform roofing 

work. Regarding the two work crews at issue in this case, Francisco Martinez testified he 

contacts Daniel Martinez first to perform flashing work because “I prefer to work with him. 

He’s part of the family,” (Tr. 258-859), and that his “first call goes to the most flexible people 

we can find. . . And usually these guys, like Carlos [Galicia] and Antonio [Cardenas], they are 

good.” (Tr. 269.) 

Addition l F ctors 

The “principal guidepost” of the employer-employee relationship is the “control 

exercised over a worker.” Cl ck m s, 123 S.Ct. at 1679. The Commission has held the 

“relational context in which the [control] issue arises has a bearing on how the multiple factors 

derived from the common law are to be applied and weighed.” Froedtert Memori l Luther n 

Hospit l, Inc., 20 BNA OSHC at 1508. 

In addition to the enumerated factors of the D rden test, Fama exercised other forms of 

control over the roofing crews. Fama provided mandatory safety training and a written safety 

program to the roofing crews. If a crew had declined to attend, Fama would no longer hire it (Tr. 

229). Fama implemented work rules prohibiting the use of cell phones by crew members driving 

to a Fama worksite and when working on roofs. Fama backed up the rules with the threat of 

fines for noncompliance (Tr. 232-35). Fama had the right to discipline and fire members of the 

roofing crews. Fama had the authority to stop work on a house for which it had secured a 

roofing contract. If Fama learned of a safety infraction on one of its houses, it would instruct the 

offending employee to watch a safety video at its office before he could pick up his paycheck 

(Tr. 225) Cynthia Osorio sent a worker home when she was at a Fama-contracted house and saw 

he was not wearing a safety harness (Tr. 235-36). Francisco Martinez fired a worker who got 

back on a roof without his safety harness after Martinez had ordered him to go get it (Tr. 290-

91). 

Francisco Martinez testified he founded Fama in 1995. Fama has a website, which 

Francisco Martinez testified was created “15 years ago maybe” and has never been updated 

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unless Osorio had done so without his knowledge (Tr. 271). She apparently had, because it 

states, ”Fama Construction has been serving homeowners for the past 23 years.” (Ex. C-4). At 

the time of the trial, Fama had existed for 23 years. The website goes on to state, “We are a 

family owned and operating roofing contractor, employing over 50 people, who all share in the 

pride of providing top quality materials, profession l inst ll tions, and dependable warranties to 

both residential and commercial roofing customers.” (Ex. C-4) (emphasis added.) 

In a similar case where the central issue was whether the roofing contractor was an 

employer of the roofing crew or if the crew’s supervisor was a subcontractor, the Court of 

Appeals for the First Circuit found the contractor’s representations to the public could be 

considered as a factor in determining the nature of the relationship. A.C. C stle Construction 

Co. v. Acost , 882 F.3d 34, 41 (1st Cir. 2018) (“A.C. Castle’s representations were, in substance, 

representations he controlled [the roofing crew’s supervisor] as an employee, not as an 

independent contractor. . . . [W]ith those representations, added to the other facts in the record 

elucidating their distinctive relationship, there is enough to provide substantial evidence for the 

ALJ’s conclusion.”). Here, Osorio testified she and her father worked in Fama’s office, along 

with two other employees, leaving 46 employees (according to the website) unaccounted for 

unless they are members of the work crews. The inclusion of “professional installations” in 

Fama’s list of services advances the appearance the roofing crews are employed by Fama. The 

Court finds Fama represented that the work crews were its employees, and not subcontractors. 

Overall, the Court’s analysis of the D rden factors, in light of the relational context of 

Fama and the cited work crews, indicates the relationship between Fama and the two work crews 

at the Devonshire Park worksites on December 9, 2016, was more akin to a traditional employeremployee relationship than that of a contractor-subcontractor. Fama and the two work crews had 

recurring relationships for over a decade, during which Fama exercised control not usually found 

in a contractor-subcontractor relationship. Specifically, Fama provided the crews with mandatory 

safety training, a written safety program, and safety equipment, which does not comport with the 

typical actions of a contractor. Fama did not permit work crews to negotiate the price of a 

particular job but set a fixed price. Fama implemented rules governing the use of cell phones 

and set a disciplinary policy for safety infractions. These actions are more typical of an 

employer-employee relationship than a contractor-subcontractor. 

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Fama argues its signed contracts with the work crews are evidence the crews worked as 

subcontractors. These boilerplate forms were not, however, for specific roofing projects and, 

with one exception, were not dated (Exs. R-8, R-9, R-10, R-11). More persuasive are the 

statements made by members of the work crews to Greenfield during the inspections at issue and 

in previous inspections. Greenfield asked Alberto if he was a subcontractor or an employee. As 

evidenced in his signed witness statement, Alberto responded, “I am an employee. So are the 

men on that other house.” (Ex. C-3.) On several previous inspections, Greenfield had 

encountered Cardenas, who always identified himself as an employee of Fama (Tr. 45-46). At 

trial, Galicia testified he and Cardenas worked for Fama (170-72). In contradiction to what he 

had previously told Greenfield, at trial Cardenas stated he does not consider himself to be an 

employee of Fama, yet he does not own his own business or work as an independent contractor 

(Tr. 119-20). Cardenas also represented Fama during settlement conferences for previous 

citations issued to Fama at OSHA’s office (Tr. 45). 

Based on the foregoing analysis, the Court finds Fama was the employer of the two work 

crews working on Lots 63 and 8 on December 9, 2016, at the Devonshire Park subdivision. 

Therefore, the Secretary correctly cited Fama for the alleged violations. 

 V. FAMA AS CONTROLL NG EMPLOYER 

The Court also finds, under the Secretary’s alternative theory, that Fama is a controlling 

employer with regard to the cited worksites under the multi-employer worksite doctrine. As the 

Commission has noted, “an employer owes a duty under § 5(a)(2) of the Act not only to its own 

employees but to other employees at the worksite when the employer creates and/or controls the 

cited condition.” Summit Contr ctors, Inc., 23 BNA OSHC 1196, 1205 (No. 05-0839, 2010). 

“[A]n employer's duty to exercise reasonable care where its own employees are not exposed to 

the hazard ‘is less than what is required of an employer with respect to protecting its own 

employees,’ such that a general contractor need not inspect the worksite as frequently as an 

employer whose own employees are exposed to the hazard.” Evergreen Constr. Co., 26 BNA 

OSHC 1615, 1618 (No. 12-2385, 2017). 

As established supr , Fama had the power to correct safety violations and exercised 

considerable control over the work crews. The Court concludes that even if the work crews at 

issue were subcontractors, Fama was a controlling employer. See Suncor Energy (U.S.A.) Inc., 

2019 WL 654129, at *3 (No. 13-0900, 2019) (quoting OSHA Instruction CPL 02-00-124, Multi19
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Employer Citation Policy § X.E.1 (Dec. 10, 1999) (MEP) (defining controlling employer as 

“[a]n employer who has general supervisory authority over the worksite, including the power to 

correct safety and health violations itself or require others to correct them”)); see also, Summit 

Contr ctors Inc., 22 BNA OSHC 1777, 1780-81 (No. 03-1622, 2009) (agreeing with and quoting 

the MEP's definition of a controlling employer); McDevitt Street Bovis Inc., 19 BNA OSHC 

1108, 1109 (No. 97-1918, 2000) (finding general contractor to be controlling employer where 

supervisor had “authority to demand a subcontractor's compliance with safety requirements, to 

stop a subcontractor's work if safety violations were observed, and to remove a subcontractor 

from the worksite”). 

“On a multi-employer worksite, a controlling employer is liable for a contractor's 

violations if the Secretary shows that it has not taken reasonable measures to ‘prevent or detect 

and abate the violations due to its supervisory authority and control over the worksite.’” Suncor, 

2019 WL 654129, at *4 (quoting Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 

92-0851, 1994); see Am. Wrecking Corp., 19 BNA OSHC 1703, 1709 (No. 96-1330, 2001) 

(consolidated) (noting that general contractor at multi-employer worksite “was responsible for 

taking reasonable steps to protect the exposed employees of subcontractors”); Grossm n Steel & 

Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 12775, 1976) (holding general contractor 

“responsible for violations it could reasonably have been expected to prevent or abate by reason 

of its supervisory capacity”). 

“Determining whether a controlling employer has met its duty to exercise reasonable care 

involves analyzing several factors: those that relate to the alleged violative condition itself and 

those that relate to the employer's duty to monitor or inspect.” Suncor, 2019 WL 654129, at *5. 

“Whether a controlling employer should have known of the conditions giving rise to the 

violations of another employer depends in part on the ‘nature, location, and duration of th[e] 

conditions.’” Id. (quoting D vid Weekley Homes, 19 BNA OSHC 1116, 1119 (No. 96-0898, 

2000). 

Greenfield testified Fama was on notice that to meet the standard of reasonable care, 

more frequent inspections of the usual work crews hired to complete its roofing jobs were 

required. “This particular employer has been in the [OSHA] office several times, and entered 

into different informal settlement agreements, stating they're aware of what these violations are, 

what the hazards are, what the -- what is required of them, and come into agreements that we'll 

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train these employees, or we'll fix this, or we're ensure that they're doing what they're supposed 

to. And so they have a heightened knowledge of what these hazards are and the continuing 

problem, but [they] haven't been doing anything . . . in any of the prior agreements.” (Tr. 82.) 

Fama was also a party to a settlement agreement for a previous citation issued by the Secretary 

where it agreed “they would hire a third-party safety consultant that would train these people for 

these ladder and fall protection, these other violations, and also that they would do periodic 

inspections, and up to the point of the day of this inspection, they had not done that. . . .” (Tr. 

68.) 

Although “the extent of measures a controlling employer must implement to satisfy the 

duty of reasonable care ‘is less than what is required of an employer with respect to protecting its 

own employees[,]”’ Suncor, 2019 WL 654129, at *7 (quoting MEP § X.E.2), there is no 

evidence Fama conducted any inspections. Rather, Fama admitted it “does not perform random 

inspections of its worksites” and “rarely goes to a work site while its subcontractors are working 

on a roof.” (Resp’t’s Br. at 25) (citing Tr. 133, 176, 270). Given the extensive history of OSHA 

violations by Fama work crews installing roofs, reasonable care required Fama to increase its 

inspections. Therefore, Fama did not meet its duty to exercise reasonable care. 

V. THE C TAT ONS 

The Court of Appeals for the Eleventh Circuit, where this case arose,14 has held “[t]o 

establish a prima facie case under the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et 

seq., the Secretary must show ‘(1) that the regulation applied; (2) that it was violated; (3) that an 

employee was exposed to the hazard that was created; and importantly, (4) that the employer 

‘knowingly disregarded’ the Act's requirements.’” S msson Constr., Incorp. v. Sec'y, U.S. Dep't 

of L bor, 723 F. App'x 695, 697 (11th Cir. 2018) (quoting ComTr n Group, Inc. v. U.S. Dep't of 

L bor, 722 F.3d 1304, 1307 (11th Cir. 2013). For the reasons indicated infr , the Court 

14 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, 

the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 

660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its 

principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here it is highly probable that a Commission decision would 

be appealed to a particular circuit, the Commission has ... applied the precedent of that circuit in deciding the case— 

even though it may differ from the Commission's precedent.’” D n Cont iner, Inc., 25 BNA OSHC 1776, 1792 

n.10 (No. 09- 1184, 2015), ff’d, 847 F.3d 495 (7th Cir. 2017) (citation omitted). The alleged violations occurred in 

Georgia, which is also where Fama’s principal office is located (Tr. 168). Therefore, the Court applies the precedent 

of the Eleventh Circuit in deciding the case, where it is highly probable that a Commission decision would be 

appealed to. 

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concludes the Secretary has also established a prima facie case for the knowledge element for 

each cited violation. 

A. LOT 63 

(Docket No. 17-1173) 

Citation Number 1 

 tem 1: Alleged Serious Violation of 29 C.F.R. § 1926.1053(b)(1) 

In Item 1 of citation 1, the Secretary alleges Fama violated 29 C.F.R. § 1926.1053(b)(1), 

the ladders standard, since “[t]wo employees performing roofing work were exposed to a fall 

hazard of approximately 11.1-feet when they used an aluminum extension ladder that was not 

extended three feet above the roof landing.” The cited standard mandates in relevant part 

“[w]hen portable ladders are used for access to an upper landing surface, the ladder side rails 

shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to 

gain access[.]” 29 C.F.R. § 1926.1053(b)(1). 

1. The Cited St nd rd Applied 

The cited standard is found in Subp rt X—St irw ys nd L dders of the construction 

standards, which “applies to all stairways and ladders used in construction, alteration, repair 

(including painting and decorating), and demolition workplaces covered under 29 C.F.R. § part 

1926[.]” 29 C.F.R. § 1926.1050(a). Fama was under contract to install roofs on houses, a 

construction activity. The Secretary has established the cited standard applied to the cited 

conditions. 

2. The Cited St nd rd W s Viol ted 

Greenfield observed a blue portable extension ladder extended “[a]pproximately a foot, 

maybe a foot and a half” above the porch roof where Alberto was working. He based the 

estimate on the standard one-foot distance between ladder rungs (Ex. C-1, pp. 1-3, 8; Tr. 51). 

The portable ladder “could have been extended another 3 or 4 feet” according to Greenfield. 

Martinez and Alberto had been using it for approximately 20 minutes (Tr. 66). Page 7 of 

Exhibit C-1 provides the best angle showing the blue ladder extends well short of three feet 

above the porch roof. The Secretary has established the cited standard was violated. 

3. F m ’s Employees Were Exposed to the Viol tive Condition 

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Both Alberto and Martinez used the ladder to access the porch roof (Tr. 57-58). The 

Secretary has established employee exposure. 

4. Employer Knowledge 

“The Secretary may prove that an employer had knowledge of a violation in one of two 

ways—(1) by imputing the actual or constructive knowledge of a supervisor or (2) by 

demonstrating constructive knowledge based on the employer’s failure to implement an adequate 

safety program.” S msson, 723 F. App'x 697 (quoting ComTr n, 722 F.3d at 1311). An example 

of actual knowledge is where a supervisor directly sees a subordinate's misconduct.” ComTr n, 

722 F.3d at 1307–08. “An example of constructive knowledge is where the supervisor may not 

have directly seen the subordinate's misconduct, but he was in close enough proximity that he 

should have.” ComTr n, 722 F.3d at 1308. A supervisor’s knowledge of a subordinate 

employee’s violative conduct may be imputed to the employer even when the supervisor himself 

is simultaneously involved in the same violative conduct. Quinl n v. U.S, Dept. of L bor, 812 

F.3d 832 (11th Cir. 2016). 

Here, Alberto admitted to Greenfield that Daniel Martinez was his supervisor (Tr. 41). 

Martinez corroborated this statement in his testimony (Tr. 160-61). The Court concludes 

Martinez was Fama’s supervisor. Both Martinez and Alberto used the portable ladder to access 

the porch roof. At the time of the inspection, Martinez was working on the ground in the 

immediate vicinity of ladder, with Alberto in plain view on the porch roof. (Ex. C-1, pp. 1-2; Tr. 

42). The Court concludes Martinez had both actual and constructive knowledge that the portable 

ladder was not in compliance with the terms of the cited standard and his knowledge is imputed 

to Fama. 

Characterization of the Violation 

The Secretary characterized the violations as “serious.” A “serious” violation is 

established when there is “a substantial probability that death or serious physical harm could 

result [from a violative condition] . . . unless the employer did not, and could not with the 

exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). 

“That provision does not mean that the occurrence of an accident must be a substantially 

probable result of the violative condition but, rather, that a serious injury is the likely result 

should an accident occur.” Mini ture Nut & Screw Corp., 17 BNA OSHC 1557, 1558 (No. 93-

2535, 1996). 

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Greenfield explained the serious characterization of the violation. 

It's a serious violation because of the injuries that could occur if they fall, which 

would be lacerations, fractures and possibly death. . . . If [the portable ladder is] 

three feet above the eaves, they can use the side rails. The -- whoever is using the 

ladder can use the side rails as something to grab onto when they're going up or 

getting down. If it's not set that high, then the person would have to -- like, getting 

down from the roof, would have to blindly try to lean over the edge and step 

down. And I'm aware of people falling where they've mis-stepped. 

(Tr. 84.) The Court concludes the Secretary properly characterized Item 1 as a serious violation. 

Citation Number 2 

 tem 1: Alleged Repeated Violation of 29 C.F.R. § 1926.102(a)(1) 

In Item 1 of citation 2, the Secretary alleges a repeated violation of 29 C.F.R. § 

1926.102(a)(1), the eye and face protection standard, when “[t]wo employees performing roofing 

work were exposed to struck-by hazards from wood chips and nails while operating nail guns 

without wearing eye protection.” The cited standard provides “[t]he employer shall ensure that 

each affected employee uses appropriate eye or face protection when exposed to eye or face 

hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical 

gases or vapors, or potentially injurious light radiation.” 29 C.F.R. § 1926.102(a)(1). 

Related to the “repeated” characterization of the alleged violation, the Secretary asserts 

“Fama Construction, LLC was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 1926.102(a)(1), which was contained in OSHA 

inspection number 1043716, citation number 2, item number 1, and was affirmed as a final order 

on April 17, 2015, with respect to a workplace located at 426 Devon Brook Ct., Lawrenceville, 

Georgia.” 

1. The Cited St nd rd Applied 

Generally, an OSHA standard presumes a hazard and the Secretary is not required to 

establish one exists as part of his burden of proof. When, however, a standard specifies it applies 

only when a hazard is present, such as a personal protective equipment (“PPE”) standard like § 

1926.102(a)(1), the Secretary must meet the additional requirement. 

To establish the applicability of a PPE standard that, by its terms, applies only 

where a hazard is present, the Secretary's burden includes demonstrating that there 

is a significant risk of harm and that the employer had actual knowledge of a need 

for protective equipment, or that a reasonable person familiar with the 

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circumstances surrounding the hazardous condition, including any facts unique to 

the particular industry, would recognize a hazard requiring the use of PPE. 

W l-M rt Distribution Ctr. # 6016, 25 BNA OSHC 1396, 1400-1401 (No. 08-1292, 2015), ff’d 

in pertinent p rt, rev’d in p rt on other grounds, 819 F.3d 200 (5th Cir. 2016). 

Greenfield testified use of a nail gun presents a significant risk of harm to the employee 

using it, as well as to other employees in the vicinity. Hazards include “a nail ricocheting and 

striking [an employee] in the eye, a piece of wood from the roof being -- popping back up, 

possibly particles from the asphalt shingles popping up and striking the person in the eye. . . . 

I've been on a construction site before in which someone was operating a nail gun, and they --

the nail went through the decking and struck two floors, the foundation two floors 

below. . . .That’s about 20 feet.” (Tr. 87-88.) 

The Commission has recognized “the eye is an especially delicate organ and ... any 

foreign material in the eye presents the potential for injury.” V nco Constr. Inc., 11 BNA OSHC 

1058, 1060 (No. 79-4945, 1982) (citing Sterns– Roger, Inc., 7 BNA OSHC 1919, 1921 (No. 76-

2326, 1979)), ff’d, 723 F.2d 410 (5th Cir. 1984). A reasonable person familiar with the 

construction industry would recognize a hazard to an employee using a nail gun requiring the use 

of protective eyewear. The cited standard applied to the cited condition. 

2. The Cited St nd rd W s Viol ted 

Greenfield observed Alberto operating a nail gun while not wearing safety glasses (Tr. 

87). Instead, he was wearing ordinary plastic sunglasses. Greenfield explained why sunglasses 

were inadequate to comply with the cited standard. “Those glasses don't have the ANSI stamp 

on them, which would state that they are safety glasses, which would mean that they're shatterproof, impact resistant. . . . [A]ll safety glasses have to have some kind of ANSI stamp or logo on 

there, saying that they comply.” (Tr. 53.) The Secretary has established Fama violated the cited 

standard. 

3. F m ’s Employee W s Exposed to the Viol tive Condition 

Alberto was using a nail gun to install asphalt shingles while not wearing safety glasses 

(Tr. 49-50). He was exposed to the hazard of being struck in the eye. The Secretary has 

established employee exposure to the hazard. 

4. Employer Knowledge 

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Alberto was working in plain sight of or in the immediate vicinity of Martinez and 

Martinez’s actual and constructive knowledge of the violative conduct is imputed to Fama. The 

Secretary has established employer knowledge. 

Characterization of the Violation 

The Secretary characterized the violation as a “repeated” one. “A violation is properly 

characterized as repeated under section 17(a) of the Act, 29 U.S.C. § 666(a), ‘if, at the time of 

the alleged repeated violation, there was a Commission final order against the same employer for 

a substantially similar violation.’ ” Angelic Textile Servs., Inc., 2018 WL 3655794, at *11 (No. 

08-1774, 2018) (quoting Potl tch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979)). “The 

Secretary establishes ‘a prima facie case of [[substantial] similarity by showing that the prior and 

present violations are for failure to comply with the same standard. ” Id. (quoting id.). The 

parties stipulated to the existence of three violations of the cited standard by Fama that became 

Final Orders of the Commission on April 19, 2015, January 21, 2015, and February 14, 2014. 

(Pretri l Order, Attachment C, ¶ 5.) The Court concludes they were substantially similar 

violations. “This prima facie showing of substantial similarity may be rebutted ‘by evidence of 

the disparate conditions and hazards associated with these violations of the same standard.’ ” 

Angelic , 2018 WL 3655794, at *11 (quoting Potl tch, 7 BNA OSHC at 1063). Fama offered no 

evidence to rebut the Secretary’s prima facie showing of substantial similarity. Therefore, the 

Court concludes the Secretary properly characterized the violation as a repeated one 

 tem 2: Alleged Repeated Violation of 29 C.F.R. § 1926.501(b)(13) 

In Item 2 the Secretary alleges a repeated violation of 29 C.F.R. § 1926.501(b)(13), the 

fall protection standard, when “[a]n employee performing roofing work was exposed to a fall 

hazard of approximately 11.1-feet to 12-feet when he worked from an approximately 4/12 slope 

porch roof without using fall protection.” The cited standard provides in relevant part that 

“[e]ach employee engaged in residential construction activities 6 feet (1.8 m) or more above 

lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest 

system[.]” 29 C.F.R. § 1926.501(b)(13). 

Related to the repeated characterization of the alleged violation, the Secretary asserts 

“Fama Construction, LLC was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 1926.501(b)(13), which was contained in OSHA 

inspection number 1007529, citation number1, item number 2, and was affirmed as a final order 

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on January 21, 2015, with respect to a workplace located at Lot 182, 308 Brittany Cove, 

Loganville, Georgia.” 

1. The Cited St nd rd Applied 

Fama’s work crews were engaged in residential construction activities in the Devonshire 

Park subdivision on December 9, 2016. The cited standard applied to the cited conditions. 

2. The Cited St nd rd W s Viol ted 

Alberto was not tied off while working on the porch roof, nor was he using any other 

form of fall protection (Ex. C-1, pp. 1-3, 7-8). Greenfield measured the distance between the 

ground and the porch roof to be 11.2 feet (Ex. C-1, pp. 4-5; Tr. 54). The Secretary has 

established a violation of the cited standard. 

3. F m ’s Employee W s Exposed to the Viol tive Condition 

The Secretary has established Alberto was exposed to a fall hazard of 11.2 feet. 

4. Employer Knowledge 

Alberto was working without fall protection in plain view of Martinez. Martinez’s actual 

and constructive knowledge of the violative conduct is imputed to Fama. The Secretary has 

established employer knowledge. 

Characterization of the Violation 

The Secretary characterized the violation as a repeated one. The parties stipulated to the 

existence of five violations of the cited standard by Fama that became Final Orders of the 

Commission on February 19, 2018, two on January 21, 2015, February 14, 2014, and December 

13, 2011. (Pretri l Order, Attachment C, ¶ 5.) The Court concludes they were substantially 

similar violations and Fama offered no evidence to rebut the Secretary’s prima facie showing of 

substantial similarity. Therefore, the Court concludes the Secretary properly characterized the 

violation as a repeated one. 

B. LOT 8

 (Docket No. 17-1180) 

Citation Number 1 

 tem 1: Alleged Willful Violation of 29 C.F.R. § 1926.102(a)(1) 

In Item 1 of citation 1, the Secretary alleges a willful violation of 29 C.F.R. § 

1926.102(a)(1), the eye and face protection standard, when “[e]mployees using nail guns while 

performing roofing work are not being protected from struck by hazards to their eyes through the 

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use of eye protection[.]” Related to the willful characterization of the alleged violation, the 

Secretary asserts Fama was previously cited for a violation of this standard on three occasions, 

which were affirmed as a final orders of the Commission on April 19, 2015, January 21, 2015, 

February 14, 2014. 

1. The Cited St nd rd Applied 

For the same reasons indicated supr , the cited standard applied to the cited condition. 

2. The Cited St nd rd W s Viol ted 

None of the four employees working on the roof of the house under construction on Lot 8 

was wearing safety glasses. They were using nail guns to attach the asphalt shingles to the roof 

(Ex. C-2, pp. 4-5, 7-9, 13; Tr. 55-56, 60, 63-64, 96-97). Galicia conceded he was not wearing eye 

protection that day. “Because that day, it was very cloudy, and the glass would fog up real 

quickly. . . . [I]t was foggy that day, and if I were to wear those glasses, they would have clouded 

up quick, would not -- they would not have allowed me to see. I would have fallen. So it was 

better to have them off.” (Tr. 194-95.) As several photographs of the brilliant blue sky in Exhibit 

C-2 show (pp. 1-3, 7-10, 12-13), it was neither cloudy nor foggy that day. The Secretary has 

established a violation of the cited standard. 

3. F m ’s Employee W s Exposed to the Viol tive Condition 

All four employees working on the roof of the Lot 8 house were exposed to the hazard of 

flying particles striking their eyes. Employee exposure is established. 

4. Employer Knowledge 

Actual knowledge is established due to the presence of Cardenas at the worksite. 

Greenfield testified Cardenas identified himself as the supervisor of the crew at the time of the 

inspection. As noted earlier, this testimony is credited over the assertions of Cardenas and 

Galicia that there was no supervisor between the two of them. Contrary to the initial testimony 

of the two partners, there were two other crew members working with them on the Lot 8 house. 

Both Cardenas and Galicia eventually identified them as friends of Cardenas. Cardenas was, 

therefore, the supervisor of the other three men on the worksite. Cardenas participated in the 

same violative conduct engaged in by the other crew members. 

Constructive knowledge is also established due to the close proximity of Cardenas to the 

violative conduct of the other crew members, which was in plain sight. Furthermore, under the 

multi-employer worksite doctrine, as the controlling employer, Fama was required to exercise 

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reasonable care to prevent and detect violations on the worksite. “More frequent inspections are 

normally needed if the controlling employer knows that the other employer has a history of noncompliance.” (Ex. C-5, ¶ X.E.3.d.) Fama was well aware, due to the its extensive recent history 

of citations for violations of the standards at issue here, that the worksites supervised by 

Cardenas required inspection. Fama had not performed any inspections prior to December 9, 

2016. “In the alternative, the Secretary can show knowledge based upon the employer's failure 

to implement an adequate safety program.” ComTr n, 722 F.3d at 1308. Fama’s failure to 

inspect despite Cardenas’s history of non-compliance also establishes constructive knowledge. 

The Secretary has established employer knowledge. 

 tem 2: Alleged Willful Violation of 29 C.F.R. § 1926.501(b)(13) 

In Item 2 the Secretary alleges a willful violation 29 C.F.R. § 1926.501(b)(13) “when 

four employees installing asphalt shingles on a 10/12 slope roof failed to attach a lifeline to their 

harnesses and were exposed to a fall hazard of approximately 11.1 feet or greater.” Related to 

the willful characterization of the alleged violation, the Secretary asserts Fama was previously 

cited for a violation of this standard on three occasions, which were affirmed as final orders of 

the Commission on January 21, 2015, January 21, 2015, and on December 13, 2011. 

1. The Cited St nd rd Applied 

For the same reasons indicated supr , the cited standard applied to the cited condition. 

2. The Cited St nd rd W s Viol ted 

None of the four employees on the roof of the Lot 8 house was using fall protection 

(Cardenas attached a lifeline briefly to his rock-climbing harness when he observed Greenfield 

speaking with Alberto on Lot 63) (Ex. C-2; Tr. 105-06). The Secretary has established a 

violation of the cited standard. 

3. F m ’s Employee W s Exposed to the Viol tive Condition 

The four employees were exposed to a fall of 11.1 feet, as shown in the photographs 

Greenfield took of a measuring tape extended from the ground to the roof edge (Ex. C-2, pp. 10-

11). Employee exposure is established. 

4. Employer Knowledge 

Actual knowledge is established due to the presence of Cardenas at the worksite. As 

noted earlier, Cardenas was the supervisor of the other three men on the worksite and he 

participated in the same violative conduct engaged in by the other crew members. As noted 

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earlier, constructive knowledge is also established due to the close proximity of Cardenas to the 

violative conduct of the other crew members, which was in plain sight. Furthermore, Fama’s 

failure to inspect despite Cardenas’s history of non-compliance also establishes constructive 

knowledge. The Secretary has established employer knowledge. 

 tem 3: Alleged Willful Violation of 29 C.F.R. § 1926.1053(b)(1) 

In Item 3 the Secretary alleges a willful violation of 29 C.F.R. § 1926.1053(b)(1) when 

“[f]our employees performing roofing work were exposed to a fall hazard of approximately 11.1-

feet when they used an aluminum extension ladder that was not extended three feet above the 

roof landing.” 

1. The Cited St nd rd Applied 

For the same reasons indicated supr , the cited standard applied to the cited condition. 

2. The Cited St nd rd W s Viol ted 

The four crew members used a portable extension ladder to access the roof of the Lot 8 

house. The side rails of the roof extended only 1.5 to 2 feet above the roof, instead of the 

required 3 feet (Ex. C-2, pp. 10-11; Tr. 63, 109). The Secretary has established a violation of the 

cited standard. 

3. F m ’s Employee W s Exposed to the Viol tive Condition 

The four crew members were exposed to a fall hazard of 11.1 feet due to the improperly 

placed ladder. Employee exposure is established. 

4. Employer Knowledge 

Actual knowledge is established due to the presence of Cardenas at the worksite. As 

noted earlier, Cardenas was the supervisor of the other three men on the worksite and he 

participated in the same violative conduct engaged in by the other crew members. As noted 

earlier, constructive knowledge is also established due to the close proximity of Cardenas to the 

violative conduct of the other crew members, which was in plain sight. Furthermore, Fama’s 

failure to inspect despite Cardenas’s history of non-compliance also establishes constructive 

knowledge. The Secretary has established employer knowledge. 

Characterization of the Violations 

The Secretary characterized the cited violations as “willful” ones. Although the Act does 

not define the terms “willful” or “willfully,” the Eleventh Circuit has held that “[t]he definition 

of ‘willful’ in this circuit is, in its simplest form, ‘an intentional disregard of, or plain 

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indifference to, OSHA requirements.’ ” Fluor D niel v. Occup tion l S fety & He lth Review 

Comm'n, 295 F.3d 1232, 1239–40 (11th Cir. 2002) (internal citation and quotation omitted). In 

the Eleventh Circuit, in order to establish a willful violation, the Secretary must prove either “(1) 

[that the] employer knew of an applicable standard or provision prohibiting the conduct or 

condition and consciously disregarded the standard or (2) that, if the employer did not know of 

an applicable standard of provision’s requirements, it exhibited such reckless disregard for 

employee safety or the requirements of the law generally that one can infer that . . . the employer 

would not have cared that the conduct or conditions violated [the standard].” Id., 295 F. 3d at 

1240 (internal citation and quotation omitted). 

Here, the record provides abundant evidence Fama (through Cardenas) knew of the three 

cited standards and consciously disregarded them. Fama provided mandatory safety training and 

a written safety program to its work crews. Cardenas testified he attended the safety training and 

Fama required him to follow the written safety program. He admitted he knew OSHA required 

him and his crew members to wear fall protection “[b]ecause they were demanding it. . . Because 

there were other framing workers who reported that they had already been visited, and so from 

then, we started carrying it.” (Tr. 131.) When asked if he knew he and his crew members were 

supposed to wear safety glasses when using nail guns, he stated, “Yes, we had been told. . . . 

Fama told us and also the workers that were working next door have already told us that OSHA 

was demanding that they wear that.” (Tr. 132.) He also knew the OSHA standards required the 

siderails of portable ladders to extend 3 feet or more beyond the upper landing surface (Tr. 132). 

Cardenas had represented Fama during settlement negotiations for previous citations. 

Cardenas had spoken with OSHA representatives several times before the inspection at issue, 

and they had “talked about the requirements for fall protection, eye protection, and ladder 

placement.” (Tr. 133.) As Greenfield was talking with Alberto on Lot 63, he observed that 

Cardenas “went and attached a lifeline to a rock-climbing harness at the front of his waist, and 

this was just before I identified myself, but this is when he saw me standing right in front of the 

lot.” (Tr. 47.) This behavior indicates an awareness on the part of Cardenas that OSHA 

regulations required him to use fall protection when working on the roof. 

The previous citations also establish Fama, as the controlling employer, “knew of [the] 

applicable standard[s] . . . prohibiting the conduct or condition[s] and consciously disregarded 

the standard[s],” in accordance with the formulation established in Fluor D niel. The parties 

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stipulate there was one prior citation for a violation of § 1926.1053(b)(1), three for § 1926.102(a) 

(1), and five for § 1926.501(b)(13). Fama knew of the applicable standards because the 

Secretary had cited the company for violating them numerous times, and it consciously 

disregarded the standards with each new worksite. Fama ignored the flagrant safety record of 

Cardenas and Galicia and continued to give them preference over other crews because they were 

the most “flexible,” meaning they performed the jobs “faster and on timing what [we’re] 

expecting.” (Tr. 269) Fama prioritized speed (and profit) above safety. 

The Secretary states, “Despite its poor safety record, Fama refused to undertake any 

effort to discover violations, even when it promised OSHA it would do so (Tr. 100:21-25). 

Without any effort to monitor work crew compliance, Fama’s safety training and disciplinary 

program predictably made no correction to its work crew’s lax attitude towards OSHA’s safety 

requirements.” (Secretary’s brief, pp. 27-28.) The Court agrees with the Secretary’s analysis. 

The existence of the previous citations weighs heavily in the Court’s determination of Fama’s 

state of mind regarding its duty to ensure compliance with OSHA’s construction standards. 

Cardenas and Fama’s management manifested a heightened awareness that the work 

crew members were violating the cited standards when they failed to use fall protection, wear 

safety glasses while using a nail gun, or used an improperly placed ladder. The Court concludes 

the Secretary’s characterization of Fama’s violations of §§ 1926.1053(b)(1), 102(a)(1), and 

501(b)(13) as willful was appropriate. 

V . PENALTY DETERM NAT ON 

“In assessing penalties, section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the 

Commission to give due consideration to the gravity of the violation and the employer's size, 

history of violation, and good faith.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-

0475, 2007). “Gravity is a principal factor in the penalty determination and is based on the 

number of employees exposed, duration of exposure, likelihood of injury, and precautions taken 

against injury.” Siemens Energy & Autom tion, Inc., 20 BNA OSHC 2196, 2201 (No. 00- 1052, 

2005) (citation omitted). “The other factors are concerned with the employer generally and are 

considered as modifying factors.”' N tkin & Co. Mech. Contr ctors, 1 BNA OSHC 1204, 1205 

n.3 (No. 401, 1973). 

At the time of the violations, Fama employed fourteen to nineteen people, including 

office employees and work crews (Tr. 206-08). Therefore, a 60% reduction for size is 

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appropriate. As to its history of violations, the Court finds an increase of 10% is appropriate 

given Fama’s previous violations within the last five years, and its repeated, blatant disregard of 

the most basic construction standards. The gravity of the violations of the three cited standards 

discovered during the December 9, 2016, inspections of Lot 63 and Lot 8 is high. On Lot 63, 

one employee was exposed to the cited hazards for approximately 20 minutes. On Lot 8, four 

employees were exposed to the cited hazards for approximately 40 minutes. The likelihood of 

injury for the violation of each standard was high. No precautions were taken against injury. 

At the time of the inspections, Fama was subject to a maximum penalty of $9,054 for the 

serious violation, and up to $126,749 for each willful and repeated violation. (See 82 FR 5382.) 

Docket No. 17-1173 had two citations, one with an alleged serious violation and a proposed 

penalty of $3,984, and the second with two alleged repeat violations, the first with a proposed 

penalty of $15,935 and the second with a proposed penalty of $19,919. Docket No. 17-1180 had 

one citation with three alleged willful violations, the first with a proposed penalty of $47,801, the 

second and third each with a proposed penalty of $55,770. The Court does not agree with the 

Secretary’s proposed penalties for the two repeat violations in Docket No. 17-1173 or the first 

willful violation in Docket No. 17-1180. 

“The OSHA scheme allows the Commission to increase the proposed penalty imposed by 

the Secretary if, after the hearing provided by the statute, the Commission determines that such 

an increase is warranted.” D n J. Sheeh n Co. v. Occup tion l S fety & He lth Review Comm'n, 

520 F.2d 1036, 1041 (5th Cir. 1975). Thus, the Commission may, where appropriate, assess a 

penalty higher than that proposed by the Secretary. R.G. Frid y M sonry, Inc., 17 BNA OSHC 

1070, 1075 (Nos. 91–1873 & 91–2027, 1995) (consolidated). Although gravity normally is the 

most significant consideration, each factor can be accorded the weight that is reasonable in the 

circumstances. Merch nt's M sonry, Inc., 17 BNA OSHC 1005, 1006 (No. 92-424, 1994). 

There is ample authority to establish that in situations of this nature, a substantial penalty 

is warranted under section 17(j) to accomplish the civil, remedial purpose of inducing the cited 

employer to satisfy its statutory obligation to provide a safe workplace. For example, in V ld k 

Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995), the Commission doubled the $14,000 penalty 

assessed by the judge in view of the employer's blatant disregard for the safety of its employees 

and the high gravity of the violations. See also, Hern Iron Works, Inc., 16 BNA OSHC 1619, 

1625 (No. 88-1962) (lack of good faith as a significant factor in penalty assessment). Penalties 

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must be assessed in an amount sufficient to preclude their being assumed by the employer as 

“simply another cost of doing business.” Qu lity St mping Prods. Co., 16 BNA OSHC 1927, 

1929 (No. 91-414, 1994). See E.L. D vis Contr c. Co., 16 BNA OSHC 2046, 2053 (No. 92-35, 

1994) (where Commission assessed a penalty of $60,000 to cause the company to appreciate “the 

vital importance of complying with OSHA regulations”). Therefore, the Court concludes the 

appropriate penalties in light of Fama’s continued disregard for OSHA’s safety standards, 

despite repeated citations, is $3,984 for the serious violation, $55,770 for each repeat violation, 

and $55,770 for each willful violation. Accordingly, 

V . ORDER 

 T S HEREBY ORDERED THAT: 

1. Docket No. 17-1173: Item 1 of Citation Number1, alleging a serious violation of § 

1926.1053(b)(1), is AFF RMED, and a penalty of $3,984 is ASSESSED; 

2. Docket No. 17-1173: Item 1 of Citation Number 2, alleging a repeat violation of § 

1926.102(a)(1), is AFF RMED, and a penalty of $55,770 is ASSESSED; 

3. Docket No. 17-1173: Item 2 of Citation Number 2, alleging a repeat violation of § 

1926.501(b)(13), is AFF RMED, and a penalty of $55,770 is ASSESSED; 

4. Docket No. 17-1180: Item 1 of Citation Number 1, alleging a willful violation of § 

1926.102(a)(1), is AFF RMED, and a penalty of $55,770 is ASSESSED; 

5. Docket No. 17-1180: Item 2 of Citation Number 1, alleging a willful violation of § 

1926.501(b)(13), is AFF RMED, and a penalty of $55,770 is ASSESSED; and 

6. Docket No. 17-1180: Item 3 of Citation Number 1, alleging a willful violation of § 

1926.1053(b)(1), is AFF RMED, and a penalty of $55,770 is ASSESSED. 

SO ORDERED. 

/s/ John B. G tto 

First Judge John B. Gatto 

June 5, 2019 

Atlanta, GA 

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