Fama Construction, LLC

Some personal identifiers have been redacted for privacy purposes.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 19-1467
FAMA CONSTRUCTION, LLC,
Respondent.
MEMORANDUM OPINION AND ORDER1
Attorneys and Law firms
Rachel M. Bishop, 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.
I. INTRODUCTION
Pending in the court in the above-styled action (Fama II) is the Secretary of Labor’s
renewed2 motion for summary judgment, which asserts that in light of the Eleventh Circuits3
opinion in Fama Construction, LLC v. U.S. Department of Labor, No. 19-13277, 2022 WL
1 The court issued an Errata Order on January 11, 2023, which amended footnote 1.
2 The court concludes that even if there is a genuine dispute as to whether or not the workers were
Fama’s employees, it will not affect the outcome and is therefore not a genuine material fact in
dispute since the court concludes, infra, that Fama was a controlling employer.
3 Under the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651-678, 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). This case arose in Georgia,
where Fama also has its principal place of business, both in the Eleventh Circuit. In general, where
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.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No.
96-1719, 2000). The court therefore applies the precedent of the Eleventh Circuit in deciding the
case.

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2375708 (11th Cir. June 30, 2022) (Fama I) affirming this court’s decision that Fama was a
controlling employer, the court should grant summary judgment to the Secretary. For the reasons
indicated infra, after having reviewed all arguments and evidence submitted by the parties, and
relevant law, and being otherwise fully informed, the court concludes there is no genuine material
fact in dispute and therefore, the Secretary’s motion for summary judgment is GRANTED.
II. UNDISPUTED FACTS4
Fama is a company that provides roofing services. (Sec’y’s SUMF ¶ 9; Greenfield Decl.
¶13). Fama is owned by Francisco Martinez (Sec’y’s SUMF ¶10; Martinez Dep. 8:16-18.)
Martinez manages the company with [redacted], Cynthia Osorio. (Sec’y’s SUMF ¶ 11; Greenfield
Decl. ¶ 13). Fama held the exclusive roofing contract for townhomes at Riley Place. (Sec’y’s
SUMF ¶ 12; Greenfield Decl. ¶ 13). Fama offered the work on March 20, 2019, to a crew including
Antonio Cardenas and Carlos Galicia. (Sec’y’s SUMF ¶ 13; Greenfield Decl. ¶¶ 13, 15; Ex. C).
Cardenas and Galicia are longtime workers for Fama—their relationship with the company goes
back over ten years (Sec’y’s SUMF ¶ 14; Greenfield Decl. ¶ 11). At the time of the inspection, the
leader of the work crew was Antonio Ortega. (Sec’y’s SUMF ¶ 15; Greenfield Decl. ¶15; Ex. C).
4 The Secretary filed Complainant’s Statement of Material Facts in Support of Its Renewed Motion
for Summary Judgment (Sec’y’s SUMF) ¶¶ 1-80, along with declarations and deposition materials
in support thereof. Fama filed Respondent Fama’s Response to the Secretary’s Statement of
Material Facts (Resp’t’s Resp. to Sec’y’s SUMF), which did not address Sec’y’s SUMF ¶¶ 1-13,
15-21, 23-30, 32-36, 38, 40, 42-46, 51, 54, 56-59, 62-64, and 67-79, which are all deemed
undisputed. As to SUMF ¶¶ 14 and 22, the court deems them undisputed, except as to the
Secretary’s use of the term “worker.” As to SUMF ¶¶ 31, 37, 39, 41, 47, 49, 50, 52, 53, 55, 60, 61,
65, and 66, Fama did not support each of its numbered responses with a citation to evidence in the
record proving such fact is in dispute, as required by the court’s Procedures and Practices in
Conventional Cases, and therefore, the court concludes they too are undisputed. Fama also filed
Respondent Fama’s Material Facts Statement in Response to the Secretary’s Motion for Summary
Judgment, (Resp’t’s SUMF) ¶¶ 1-34. Resp’t’s SUMF ¶¶ 2-8, 10, 11, 13-16, and 18-23 were
supported by citations to evidence from the trial record in Fama I, and therefore, were not
supported by citations “to particular parts of materials in the record” as required by Rule
56(c)(1)(A) of the Federal Rules of Civil Procedure. Therefore, Fama has failed to show Resp’t’s
SUMF ¶¶ 2-8, 10, 11, 13-16, and 18-23 are undisputed. Resp’t’s SUMF ¶¶ 32-33 were not
supported by any citation to the record as required by the court’s Procedures and Practices in
Conventional Cases, and therefore, the court concludes Fama has failed to show they are
undisputed. Fama’s remaining Resp’t’s SUMF were properly supported by citations to the current
record but the court concludes those facts were not material ones.

3
The inspection was initiated on March 20, 2019, by OSHA Compliance Safety and Health
Officer5 Marc Greenfield after he drove by the residential construction site at Riley Place and
observed a worker moving shingle packets on the roof of a townhome unit approximately 25 feet
above ground without fall protection. (Sec’y’s SUMF ¶¶ 1-2; Greenfield Decl. ¶¶ 4, 5; Ex. B, pp.1,
3, 4, 6, 7). In the course of the resulting inspection, Greenfield observed another worker operating
a shingle elevator from the ground without a hardhat. (Sec’y’s SUMF ¶ 4; Greenfield Decl. ¶ 6,
Ex. B, pp.1-2). Based on his observations, Greenfield believed falling shingles from the workers
on the roof above posed a danger to the worker on the ground. (Sec’y’s SUMF ¶ 5; Greenfield
Decl. ¶ 6). Greenfield also observed the roofers working without fall protection for about 5 minutes
and the shingle elevator operator working without a hardhat for about 5 minutes. (Sec’y’s SUMF
¶ 6; Greenfield Decl. ¶ 9). The workers scattered when Greenfield approached, but he recognized
two of them—Cardenas, the worker on the ground without a hardhat—and Galicia, the worker on
the roof without fall protection. (Sec’y’s SUMF ¶ 7; Greenfield Decl. ¶¶ 10-11). Greenfield also
knew Cardenas and Galicia were associated with Fama. (Sec’y’s SUMF ¶ 8; Greenfield Decl. ¶
11).
Greenfield determined Fama was an employer engaged in residential construction
activities—a fact Fama admits in its Answer to the Secretary’s Complaint. (Sec’y’s SUMF ¶ 44;
Greenfield Decl. ¶ 22; Compl. ¶ 2; Answer ¶ 2). Osorio admitted to Greenfield that Fama did not
conduct any inspections of its worksites. (Sec’y’s SUMF ¶ 45; Greenfield Decl.¶ 16; Ex. C).
Fama’s contract with Ortega required Ortega to conduct safety inspections of worksites. (Sec’y’s
SUMF ¶ 46; Ex. G, p.3). When Greenfield interviewed Ortega, Ortega denied understanding the
English contract he had signed, denied he was present at the worksite the day of the inspection,
and claimed it was Fama’s responsibility to ensure the workers comply with OSHA regulations.
(Sec’y’s SUMF ¶ 47; Greenfield Decl. ¶¶ 18-19; Ex. J). Ortega and Cardenas also separately told
Greenfield that the workers on site cannot tell each other what to do. (Sec’y’s SUMF ¶ 48;
Greenfield Decl. ¶¶ 18-19; Ex. J).
Osorio and Martinez admitted in March 2019 that Fama had the power to stop unsafe
behavior and to take workers down from a roof. (Sec’y’s SUMF ¶ 28; Osorio Dep. 81:2-14, 82:2-
5 “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).

4
8; Martinez Dep. 9:15-10:6, 32:1-11). Fama’s contract with Ortega—the leader of the work crew
that included Cardenas and Galicia— required the crew to comply with OSHA regulations, to
utilize a safety program, and to conduct weekly toolbox safety talks. (Sec’y’s SUMF ¶ 29; Ex. F,
pp.3-5; Greenfield Decl.¶ 15). Fama could discipline workers or crew leaders for failing to comply
with safety requirements, including imposing fines. (Sec’y’s SUMF ¶ 30; Ex. F, pp. 3-6; Osorio
Dep. 126:10-127:2). The safety policies that Fama required its work crews to follow went beyond
OSHA’s regulations, and included things like a prohibition against cell phone use while working
on a roof. (Sec’y’s SUMF ¶ 31; Osorio Dep. 99:14-18). Fama also expected workers to report
safety concerns and injuries to Fama. (Sec’y’s SUMF ¶ 32; Osorio Dep. 102:18-103:10; Ex. G).
Martinez is the one that communicates with the builders on behalf of Fama and the workers.
(Sec’y’s SUMF ¶ 39; Martinez Dep. 8:14–9:14; 32:16–25; Ex. H). Jonathan Hubbard, the builder’s
superintendent on the worksite, indicated he believed the workers sent by Fama were “absolutely”
Fama’s employees and was unaware that Fama used subcontractors. (Sec’y’s SUMF ¶ 40; Ex. H
at 3). Cardenas informed OSHA that he also believed that he, Galicia, and Osorio were employees
of Fama. (Sec’y’s SUMF ¶ 41; Ex. I).
Fama admits it does not conduct safety inspections of its worksites. (Sec’y’s SUMF ¶ 50;
Osorio Dep. 76:13-77:2; Martinez Dep. 29:18-25). Fama was also required to conduct inspections
of its worksites as part of the settlement of Inspection No. 1065667. (Sec’y’s SUMF ¶ 23;
Greenfield Decl. ¶ 16; Ex. E). Additionally, Fama was required to provide third party safety
inspections of its worksites for a year, beginning within 90 days of full execution of that agreement
on June 27, 2016, and was required to submit proof to the area office. (Sec’y’s SUMF ¶ 24;
Greenfield Decl. ¶ 16; Ex. E). As of March 20, 2019, the OSHA Area Office had received no proof
that those inspections were conducted. (Sec’y’s SUMF ¶ 25; Greenfield Decl. ¶ 16).
In their depositions, Osorio and Martinez both confirmed that Fama does not conduct
investigations to make sure workers are working safely. (Sec’y’s SUMF ¶ 27; Osorio Dep. 76:13-
77:2; Martinez Dep. 29:18-25). Fama’s violation of 29 C.F.R. § 1926.20(b)(2) was a serious one
because when Fama fails to inspect jobsites for safety violations, workers are in danger of falling
from high places and being hit by falling objects from above, which can result in death or serious
physical harm. (Sec’y’s SUMF ¶ 53; Greenfield Decl. ¶ 24).
Workers were subject to a possible danger of falling objects. (Sec’y’s SUMF ¶ 58;
Greenfield Decl. ¶¶ 21, 26). Other crew members were engaged in hauling shingles high above

5
Cardenas and created a danger that Cardenas would sustain a head injury if materials fell from the
roof. (Sec’y’s SUMF ¶ 59; Greenfield Decl. ¶¶ 21, 26). Fama failed to require protective helmets.
Osorio testified in her deposition that Cardenas told her he was not wearing a hardhat because the
hat kept falling off when he put material on the elevator, to which Osorio replied to Cardenas that
he needed to wear the hardhat—no excuses. (Sec’y’s SUMF ¶ 75; Osorio Dep. 71:15-24). Fama’s
violation of 29 C.F.R. § 1926.100(a) was a serious one because workers were in danger of being
struck by falling objects from above, which can result in death or serious physical harm. (Sec’y’s
SUMF ¶ 54; Greenfield Decl. ¶ 24).
Workers were also engaged in residential construction activities 6 feet or more above lower
levels. (Sec’y’s SUMF ¶ 2; Greenfield Decl. ¶ 5; Ex. at pp.1, 3, 4, 6 and 7). Fama failed to ensure
each employee engaged in residential construction activities 6 feet or more above lower levels was
protected by guardrail systems, safety net system, or personal fall arrest system. (Id.). The work
crew also admitted to not wearing fall protection harnesses on the day of the accident, because—
they claimed—they did not wish to get tangled up while moving materials on the roof. (Sec’y’s
SUMF ¶ 73; Osorio Dep. 62:19-63:17). Osorio recognized that the crew’s reason for non-
compliance was not acceptable under OSHA’s standards. (Sec’y’s SUMF ¶ 74; Osorio Dep. 67:9-
68:4). Fama’s violation of 29 CFR 1926.50l(b)(l3) was a serious one since workers were in danger
of falling from high places, which can result in death or serious physical harm. (Sec’y’s SUMF ¶
53; Greenfield Decl. ¶ 24). Fama received a citation for the same violation of 29 CFR
1926.50l(b)(l3) in a prior inspection, which became a final order of the Commission on February
19, 2018. (Sec’y’s SUMF ¶ 67; Greenfield Decl. ¶ 32).
Since 2013, OSHA inspected Fama at least 7 separate times and in each inspection, OSHA
issued a fall protection violation. (Sec’y’s SUMF ¶¶ 16, 17; Greenfield Decl. ¶¶ 12, 14). All of
OSHA’s citations were affirmed as final orders. (Sec’y’s SUMF ¶ 18; Greenfield Decl. ¶¶ 14, 20;
Ex. D). Greenfield personally conducted or accompanied OSHA on inspections of Fama six times
prior to March 20, 2019, and he had already met Galicia and Cardenas on Fama worksites at least
three times previously. (Sec’y’s SUMF ¶ 19; Greenfield Decl.¶ 14). Greenfield had previously
spoken with Cardenas about the need to use fall protection and other safety requirements, and
Cardenas indicated he understood the rules. (Sec’y’s SUMF ¶ 20; Greenfield Decl. ¶¶ 12, 14).
Fama was aware it was not conducting inspections and was aware of prior safety violations
by Cardenas and Galicia. (Sec’y’s SUMF ¶ 50; Greenfield Decl. ¶ 23). In addition, Fama did

6
nothing to ensure that workers were complying with the safety requirements of Ortega’s contract
beyond verbally reminding crews that safety was their responsibility. (Sec’y’s SUMF ¶ 51; Osorio
Dep.123:18-125:63). Discipline was a remote risk to workers because by not inspecting, Fama was
not witnessing unsafe activity. (Sec’y’s SUMF ¶ 52; Osorio Dep.125:7-125:17).
III. DISCUSSION
Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure6 “[a] party may move for
summary judgment, identifying each claim or defense — or the part of each claim or defense —
on which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Id. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(e).
Thus, “the purpose of Rule 56 is to enable a party who believes there is no genuine dispute
as to a specific fact essential to the other side's case to demand at least one sworn averment of that
fact before the lengthy process of litigation continues.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888–89 (1990). “[R]egardless of whether the moving party accompanies its summary judgment
motion with affidavits, the motion may, and should, be granted so long as whatever is before the [
] court demonstrates that the standard for the entry of summary judgment, as set forth in Rule
56(c), is satisfied.” Id., U.S. at 885 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
6 Rule 56 is made applicable to Commission proceedings through section 12(g) of the Act, which
mandates that “[u]nless the Commission has adopted a different rule, its proceedings shall be in
accordance with the Federal Rules of Civil Procedure.” 29 U.S.C. § 661(g). Commission Rule
40(j) provides that “[t]he provisions of Federal Rule of Civil Procedure 56 apply to motions for
summary judgment.” 29 C.F.R § 2200.40(j). Thus, Rule 56 of the Federal Rule of Civil Procedure
governs the disposition of this motion.

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“[A] party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing
that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)). Thus, “the
plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden
of proof at trial.” Lujan, U.S. at 884 (quoting Celotex, 477 U.S. at 322). “Where no such showing
is made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving
party has failed to make a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Id. (quoting id., at 323).
“Of course, a party seeking summary judgment always bears the initial responsibility” of
informing the Court “of the basis for its motion, and identifying those portions of” the depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other materials,
“which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S.
at 323 (internal quotation marks omitted). In making that determination, a court must view the
evidence “in the light most favorable to the opposing party.” Tolan v. Cotton, 572 U.S. 650, 657
(2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)); see also Anderson, 477
U.S. at 255. “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position
[is] insufficient.” Ogwo v. Miami Dade County School Board, 702 F. App'x 809, 810 (11th Cir.
2017) (quoting Anderson, supra).
Thus, “in ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in his favor.”’ Tolan, 572 U.S. at 651
(citing Anderson, supra). However, a Court must resolve any factual issues of controversy in favor
of the non-moving party “only in the sense that, where the facts specifically averred by that party
contradict facts specifically averred by the movant, the motion must be denied.” Lujan, 497 U.S.
at 888.
A “judge's function” at summary judgment is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S.
at 249. If there is any evidence in the record from which a reasonable inference in favor of the

8
nonmoving party can be drawn, summary judgment is improper. Celotex, 477 U.S. 317.
Conversely, if a review of the entire record could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial and summary judgment is appropriate.
Matsushita Elec. Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“As to materiality, the substantive law will identify which facts are material. Only disputes
over facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id., at 244. “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Id., at 248. Further, “the
issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is
not required to be resolved conclusively in favor of the party asserting its existence; rather, all that
is required is that sufficient evidence supporting the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions of the truth at trial.” Id., at 248 (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)).
Multi-Employer Citation Policy
As the Eleventh Circuit noted in Fama I, the Secretary's multi-employer citation policy,
with its controlling employer rule, “provides that ‘[a]n employer who has general supervisory
authority over [a] worksite,’ must ‘exercise reasonable care to prevent and detect violations on the
site.’” Fama I, 2022 WL 2375708 at *4 (quoting OSHA Instruction CPL 02-00-124, Multi-
Employer Citation Policy § X.E.1–2 (Decl. 10, 1999)). Under longstanding Commission
precedent, “an employer may be held responsible for the violations of other employers where it
could reasonably be expected to prevent or detect and abate the violations due to its supervisory
authority and control over the worksite.” StormForce of Jacksonville, LLC, 2021 WL 2582530 at
*3 (No. 19-0593, 2021) (internal quotation marks and brackets omitted).
Fama argues the Fama I is not controlling because “the Eleventh Circuit’s decision in
Fama I expressly noted that it did not consider a challenge to validity of OSHA’s multi-employer
citation policy because Fama did not challenge it in Fama I.” (Resp’t’s Mem. in Resp. to Sec’y’s
Mot. for Summ. J. at 1.) However, in the present case, “Fama does challenge OSHA's interpretation
of §654(a)(2), and the procedural validity of OSHA's multi-employer citation policy.” (Id.)
While it is true Fama did not challenge the validity of the multi-employer policy in Fama
I at trial or on appeal before the Commission and was therefore precluded from raising it on appeal,

9
the Eleventh Circuit nonetheless held that even if Fama was not barred “from arguing that it could
not be held liable as a controlling employer for safety violations by another company's employees,
we would not be persuaded by its argument, which relies on Southeast Contractors, Inc. v. Dunlop,
512 F.2d 675 (5th Cir. 1975).”7 Fama I, 2022 WL 2375708 at *4. “That decision preceded OSHA's
adoption in 1976 of the multi-employer citation policy, which provides for liability based on
supervisory authority over a jobsite.” Id. “As a result, the Southeast Contractors decision could
not, and did not, hold the yet-to-be-adopted policy invalid.” Id. (citing e.g., Watts v. Bell-South
Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial
decisions cannot make law beyond the facts of the cases in which those decisions are
announced.”)). Thus, the Eleventh Circuit found “[s]ubstantial evidence supports the conclusion
that Fama was the roofers’ controlling employer.” Fama I, 2022 WL 2375708 at *1.
Even assuming, arguendo, Fama is correct that Fama I is not controlling, the court is bound
by longstanding Commission precedent. In 1976, the Commission first announced its multi-
employer worksite doctrine. See Anning–Johnson Co., 4 BNA OSHC 1193 (No. 3694, 1976) and
Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976). As the Commission
has noted, the “grounding of the multi-employer citation policy in § 5(a)(2) of the Act has long
been recognized by both the courts and the Commission.” Summit Contractors, Inc., 23 BNA
OSHC 1196, 1203 (No. 05-0839, 2010), aff'd, 442 F. App'x 570 (D.C. Cir. 2011) (unpublished).
In McDevitt Street Bovis., Inc., 19 BNA OSHC 1108, 1110 (No. 97-1918, 2000), the
Commission also addressed whether Eleventh Circuit precedent precluded the Commission from
applying its own multi-employer precedent on controlling employer liability and roundly rejected
the notion. Id. at 1110-12. Likewise, recently in Summit Contracting Grp., Inc., 2022 WL 1572848,
at *2 (No. 18-1451, 2022), the Commission noted that “the Eleventh Circuit has neither decided
nor directly addressed the issue of multi-employer liability.” Id.
This court is compelled to follow Commission precedent since a Commission judge is not
free to decide cases in ways that directly conflict with Commission precedent. See Gulf & W.
7 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. See Fifth
Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. The Eleventh
Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30,
1981, as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981). This body of precedent is binding unless and until overruled by the Eleventh Circuit
en banc. Id.

10
Food Prods. Co., 4 BNA OSHC 1436, 1439 (No. 6804, 1976) (consolidated) (orderly
administration of Act requires that administrative law judges follow Commission precedent). See
also Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 4409, 1976)
(Commission requires its judges to follow precedents established by the Commission, unless
reversed by the Supreme Court); Maxwell Well Serv. Inc., d/b/a Circle M Well Servicing, 13 BNA
OSHC 2109, 2110 (No. 87-1534, 1989) (“Commission’s judges are bound by Commission
precedent.”). Accord Accu-Namics, Inc. v. Occupational Safety & Health Review Comm'n, 515
F.2d 828, 834 (5th Cir. 1975) (the statutory scheme contemplates that the Commission is the
factfinder, and the judge is an arm of the Commission for that purpose).
As indicated supra, Osorio and Martinez admitted Fama had the power to stop unsafe
behavior and to take workers down from a roof. And Fama’s contract with Ortega required the
crew to comply with OSHA regulations, to utilize a safety program, and to conduct weekly toolbox
safety talks. Fama also had the ability to discipline workers or crew leaders for failing to comply
with safety requirements, including imposing fines. The safety policies that Fama required its work
crews to follow went beyond OSHA’s regulations, and included things like a prohibition against
cell phone use while working on a roof. And Fama also expected workers to report safety concerns
and injuries to Fama. Martinez is also the one that communicates with the builders on behalf of
Fama and the workers. The builder’s superintendent on the worksite also believed the workers sent
by Fama were “absolutely” Fama’s employees. Cardenas also believed that he, Galicia, and Osorio
were employees of Fama.
These provisions conferred sufficient authority on Fama to qualify as a controlling
employer under the Multi-Employer Citation Policy. Further, even without the authority conferred
by the Ortega contract, Fama’s admission of actual control over safety, along with the (rare)
examples of Fama exercising that authority, clearly establishes that Fama is a controlling
employer. (See Osorio Dep. 81:2–14) (Fama employees will stop workers from engaging in unsafe
activity they witness, including removing them from a roof for not wearing fall protection); id.
82:2–8 (Fama expects workers to follow instructions of Martinez); id. 94:7–95:7 (calling/texting
roof crew leader reminders to wear harnesses and hard hats on a monthly basis)). As such, there is
no genuine dispute of material fact that Fama was a controlling employer with an obligation to
protect the roofing workers even if they were not Fama’s employees.

11
“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”); Grossman 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”). Based upon the undisputed facts infra, the court concludes the Secretary has established
there is no genuine issue of material fact in dispute that Fama is a controlling employer with regard
to the cited worksite under the multi-employer worksite doctrine.
The Act
The Eleventh Circuit has held the Act sought to assure that “‘every working man and
woman in the Nation [had] safe and healthful working conditions.’” Reich v. Trinity Indus., Inc.,
16 F.3d 1149, 1151 (11th Cir.1994) (quoting 29 U.S.C. § 651(b)). “To implement its statutory
purpose, Congress imposed dual obligations on employers. They must first comply with the
‘general duty’ to free the workplace of all recognized hazards.” ComTran Grp., Inc. v. U.S. Dep't
of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013) (citing 29 U.S.C. § 654(a)(1)). “They also have a
‘special duty’ to comply with all mandatory health and safety standards.” Id. (citing id. at §
654(a)(2)).
In the Eleventh Circuit, the Secretary will make out a prima facie case for the violation of
an OSHA standard by showing “(1) that the regulation applied; (2) that it was violated; (3) that an
employee was exposed to the hazard that was created; and ... (4) that the employer knowingly
disregarded the Act's requirements.” Fama I, 2022 WL 2375708, at *3 (citation omitted). To
satisfy the third element, the Secretary bears the burden of showing that the cited respondent is the
employer of the exposed workers at the site.” Quinlan v. Sec'y, U.S. Dep't of Labor, 812 F.3d 832,
836 (11th Cir. 2016). However, an employment relationship “is not the only basis for liability
when a company fails to take reasonable steps to protect worker safety. ”Fama I, 2022 WL
2375708, at *3. The court notes that when the Secretary asked Fama in an Interrogatory to state,
“all facts…upon which Respondent relies in support of its position that it did not commit the

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violations contained in this docket,” Fama listed no facts disputing the allegations of violations.
(Sec’y’s SUMF ¶ 71; Ex. K).
Citation 1, Item, 1
Citation 1, Item, 1 asserts Fama violated 29 CFR 1926.20(b)(2) when it “did not initiate
and maintain programs which provided for frequent and regular inspections of the job site,
materials and equipment to be made by a competent :person(s):” (Compl. Ex. A.) 29 C.F.R. §
1926.20(b)(2) appear in Part 1926 of 29 C.F.R., entitled “Safety and Health Regulations for
Construction.” 29 C.F.R. § 1910.12(a) provides that “[t]he standards prescribed in Part 1926 of
this chapter ... shall apply ... to every employment and place of employment of every employee
engaged in construction work.” “Construction work” is defined to be “work for construction,
alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b). The court
concludes there is no genuine material fact in dispute that Fama is engaged in construction work,
and therefore, that 29 C.F.R. § 1926.20(b)(2) applies.
That standard requires Fama to initiate and maintain a program to “provide for frequent
and regular inspections of the job sites, materials, and equipment to be made by competent persons
designated by the employers.” 29 C.F.R. § 1926.20(b)(2). As the undisputed facts recounted supra
indicate, Fama did not have a program providing for frequent and regular inspections of the
worksite, materials, and equipment. And Fama admits it does not conduct safety inspections of its
worksites. Fama was also required to conduct inspections of its worksites as part of the settlement
of Inspection No. 1065667. Additionally, Fama was required to provide third party safety
inspections of its worksites for a year, beginning within 90 days of full execution of that agreement
on June 27, 2016, and was required to submit proof to the area office, and as of March 20, 2019,
OSHA had not received any proof that those inspections had been conducted.
In their depositions, Osorio and Martinez both confirmed that Fama does not conduct
investigations to make sure workers are working safely. Therefore, the court concludes there is no
genuine material fact in dispute that Fama violated 29 C.F.R. § 1926.20(b)(2). There is also no
genuine material fact in dispute that Fama’s violation of 29 C.F.R. § 1926.20(b)(2) was a serious8
8 A “serious violation shall be deemed to exist in a place of employment if there is a substantial
probability that death or serious physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which have been adopted or are
in use, in such place of employment 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).

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one because when Fama failed to inspect jobsites for safety violations, workers were in danger of
falling from high places and being hit by falling objects from above, which could result in death
or serious physical harm.
Citation 1, Item, 2
Citation 1, Item, 2 asserts Fama violated 29 CFR 1926.lO0(a) when “[e]mployees working
in areas where there was a possible danger of head injury from impact, or falling or flying objects,
or from electrical shock and burns, were not protected by protective helmets[.]” (Id.) The court
concludes there is no genuine material fact in dispute that 29 C.F.R. § 1926.100(a) applies since
workers were subject to a possible danger of falling objects. As indicated supra, other crew
members were engaged in hauling shingles above Cardenas and created a danger that Cardenas
would sustain a head injury if the shingles fell from the roof. The court also concludes there is no
genuine material fact in dispute that Fama violated 29 C.F.R. § 1926.100(a) when it failed to
require protective helmets. Osorio testified in her deposition that Cardenas told her he was not
wearing a hardhat and Osorio replied back to Cardenas that he needed to wear the hardhat—no
excuses. There is also no genuine material fact in dispute that Fama’s violation of 29 C.F.R. §
1926.100(a) was a serious one because workers were in danger of being struck by falling objects
from above, which can result in death or serious physical harm.
Citation 2, Item, 1
Citation 2, Item, 1 asserts Fama committed a Repeat violation of 29 CFR 1926.50l(b)(l3)
when “[e]ach employee(s) engaged in residential construction activities 6 feet (1.8 m) or more
above lower levels were not protected by guardrail systems, safety net system, or personal fall
arrest system, nor were employee(s) provided with an alternative fall protection measure under
another provision of paragraph 1926.501 (b)[.]” (Id.) There is no genuine material fact in dispute
that 29 CFR 1926.50l(b)(l3) applies since workers were engaged in residential construction
activities 6 feet or more above lower levels. There is also no genuine material fact in dispute that
Fama violated 29 CFR 1926.50l(b)(l3) when it failed to ensure each employee engaged in
residential construction activities 6 feet or more above lower levels was protected by guardrail
systems, safety net system, or personal fall arrest system.
The work crew also admitted to not wearing fall protection harnesses on the day of the
accident. Osorio recognized that the crew’s reason for non-compliance was not acceptable under
OSHA’s standards. There is no genuine material fact in dispute that Fama’s violation of 29 CFR

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1926.50l(b)(l3) was a serious one since workers were in danger of falling from high places, which
can result in death or serious physical harm. There is also no genuine material fact in dispute this
violation was a Repeated one since there is no dispute Fama received a citation for the same
violation in a prior inspection, which became a final order of the Commission on February 19,
2018. “A violation is repeated if, at the time it occurred, ‘there was a Commission final order
against the same employer for a substantially similar violation.’” Bunge Corp. v. Sec'y of Labor,
638 F.2d 831, 837 (5th Cir.1981) (quotation marks and citation omitted).
Since 2013, OSHA inspected Fama at least 7 separate times and in each inspection, OSHA
issued a fall protection violation. All of OSHA’s citations were affirmed as final orders. Greenfield
personally conducted or accompanied OSHA on inspections of Fama six times prior to March 20,
2019, and he had already met Galicia and Cardenas on Fama worksites at least three times
previously. Greenfield had previously spoken with Cardenas about the need to use fall protection
and other safety requirements, and Cardenas indicated he understood the rules.
Knowledge of Violations
There is no genuine material fact in dispute that Fama had knowledge of these three
violations because the company was aware it was not conducting inspections and was aware of
prior safety violations by Cardenas and Galicia. Fama did nothing to ensure that workers were
complying with the safety requirements of Ortega’s contract beyond verbally reminding crews that
safety was their responsibility. And discipline was a remote risk to workers because by not
inspecting, Fama was not witnessing unsafe activity.
Economic Infeasibility Claim
As to Fama’s economic infeasibility claim in its amended Answer, Fama asserts that
enforcing OSHA regulations would require the hiring of additional supervisory personnel that
Fama asserts it cannot afford. (Sec’y’s SUMF ¶ 77; Fama’s Am. Answer; Ex. L). Martinez
asserted, without any support, that the cost of hiring a competent supervisor to oversee the work
of labor subcontractors would be at least $50,000. (Sec’y’s SUMF ¶ 78; Ex. L, ¶ 6). Based on that
$50,000 estimation and three years of tax returns, Fama asserts that it could not afford hiring a
supervisor and doing so would affect its ability to win contract bids, causing it to go out of business.
(Sec’y’s SUMF ¶79; Ex. J, ¶¶ 7-10; Fama Redacted Tax Returns from 2017-2019, Ex. M).
Martinez did not address the reason he believes Fama would have to hire new personnel to be
compliant with the cited OSHA regulations. (Sec’y’s SUMF ¶ 80; Ex. L). The court concludes that

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for summary judgment purposes, Fama did not properly support its economic infeasibility claim,
and therefore, has not established a genuine issue of material fact exists regarding economic
infeasibility.
IV. PENALTY ASSESSMENTS
The Act provides that an employer who commits a “serious” violation may be assessed a
civil penalty in an amount up to $7,000 and an employer who commits a “repeated” violation may
be assessed a civil penalty in an amount not to exceed $70,000. See 29 U.S.C. §§ 666(a), (b).
However, the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015, requires the Department of
Labor to annually adjust its civil money penalty levels for inflation no later than January 15 of
each year. Therefore, at the time of the issuance of the citations on August 28, 2019, the maximum
penalty for a serious violation was $13,260 and the maximum penalty for a repeated violation was
$132,598. See 29 CFR §§ 1903.15(d)(2), (3) (2019); see also 84 FR 219, Jan. 23, 2019.
The Commission is empowered to “assess all civil penalties” provided in the Act, “giving
due consideration to the appropriateness of the penalty with respect to the size of the business of
the employer being charged, the gravity of the violation, the good faith of the employer, and the
history of previous violations.” 29 U.S.C. § 666(j). The Commission has held that “generally
speaking, the gravity of a violation is the primary element in the penalty assessment.” J.A. Jones
Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA
OSHC 1481, 1483 (No. 88-2691, 1992)). “Moreover, while gravity is normally the primary factor
in assessing appropriate penalties, an employer's substantial history of prior violations may skew
the importance of gravity in the final penalty determination.” Quality Stamping Prods. Co., 16
BNA OSHC 1927, 1929 (No. 91-414, 1994).
As to the size of the company, in Fama I, the company employed fourteen to nineteen
people, including office employees and work crews. Fama Constr., LLC, 2019 WL 3210613, at
*27 (Nos. 17-1173, 17-1180, 2019).9 The court concludes the same number of employees worked
9 On the issue of whether the workers were employed by Fama, Fama stipulates “the relevant legal
arguments and supporting evidence were adequately advanced in the filings in Fama I, both before
the Commission [OSHRC Docket No. 17-1173 and 17-1180] and the Eleventh Circuit [2022 WL
2375708 (11th Cir. June 30, 2022)], and ]were] incorporated by reference [into Fama’s
Memorandum in Response to the Secretary’s Motion for Summary Judgment] so as not to
unnecessarily clutter the record with extensive repetitive testimony and repeated argument.”

16
for Fama in the present case. Although OSHA’s proposed penalty assessments did not include a
reduction for size, the court concludes based upon size, a 60% reduction is appropriate.
Fama is not entitled to a good faith reduction since it has not implement an effective
workplace safety and health management system. As to its history of violations, the court finds an
increase of 10% is appropriate for each violation given Fama’s previous violations within the last
five years, and its repeated, blatant disregard of the most basic construction standards, which is
necessary to cause Fama to appreciate the vital importance of complying with OSHA regulations,
E.L. Davis Contrac. Co., 16 BNA OSHC 2046, 2053 (No. 92-35, 1994), and hopefully, to preclude
their being assumed by Fama as simply another cost of doing business. Quality Stamping Prods.
Co., 16 BNA OSHC 1927, 1929 (No. 91-414, 1994).The gravity and final penalty assessments
will be addressed separately for each violation infra.
In Citation 1, Item 1 OSAH assessed the violation of 29 C.F.R. § 1926.20(b)(2) as high
gravity based upon a high severity and greater probability, given the considerable danger inherent
in roofing work and Fama’s total abdication of its inspection duties. (Sec’y’s SUMF ¶ 55;
Greenfield Decl. ¶ 25). The court agrees with that assessment. OSHA proposed a fine of $13,127
for the violation. (Sec’y’s SUMF ¶ 57; Greenfield Decl. ¶ 25). Giving due consideration to the
appropriateness of the penalty with respect to the size, the gravity of the violation, lack of good
faith, and history of repeat and willful violations, the court concludes a penalty of $5,8347 is
appropriate.
In Citation 1, Item 2 OSAH assessed the violation of 29 C.F.R. § 1926.100(a) as moderate
gravity based upon a high severity but moderate probability. (Sec’y’s SUMF ¶ 63; Greenfield Decl.
¶ 29). The court agrees with that assessment. OSHA proposed a penalty of $9,377 for this violation.
(Sec’y’s SUMF ¶ 64; Greenfield Decl. ¶ 29). Giving due consideration to the appropriateness of
the penalty with respect to the size, the gravity of the violation, lack of good faith, and history of
repeat and willful violations, the court concludes a penalty of $4,167 is appropriate.
In Citation 2, Item 1 OSAH assessed the violation of 29 CFR 1926.50l(b)(l3) as high
gravity based upon a high severity and greater probability. (Sec’y’s SUMF ¶ 68; Greenfield Decl.
¶ 33). Considering the height of the roof, its apparent steepness, and the activity of hauling shingle
packages which could distract or unbalance a worker from his footing, the court agrees with that
(Resp’t’s Mem. In Resp. to Sec’y’s Mot. Summ. J. at 17).

17
assessment. OSHA proposed a fine of $131,274 for the violation of 29 CFR 1926.50l(b)(l3).
(Sec’y’s SUMF ¶ 70; Greenfield Decl. ¶ 33). Giving due consideration to the appropriateness of
the penalty with respect to the size, the gravity of the violation, lack of good faith and history of
repeat and willful violations, the court concludes a penalty of $58,343 is appropriate. Accordingly,
V. ORDER
IT IS HEREBY ORDERD THAT considering the evidence in the light most favorable to Fama,
and believing such evidence put forth by Fama, and drawing all justifiable inferences in its favor,
as required when deciding a summary judgment motion, the court concludes there is no genuine
material fact in dispute and therefore, the Secretary’s motion for summary judgment is
GRANTED, the trial is cancelled, Citation 1, Items 1 and 2 and Citation 2 Item 1 are AFFIRMED,
and the court assesses penalties of $5,8347, $4,167, and $58,343 for Citation 1, Item 1, Citation 1,
Item 2, and Citation 2 Item 1 respectively.
SO ORDERED.
/s/
JOHN B. GATTO, Judge
Dated: January 11, 2023
Nunc Pro Tunc to
January 10, 2023
Atlanta, GA