NRG Sound & Communications, LLC.

Plain-English summary

NRG Sound & Communications installed speakers on a school football stadium roof using an aerial lift. NRG claimed that the second worker was a silent partner or independent contractor rather than an employee, but both men initially identified him as an employee and described NRG's owner as the boss. Applying the Darden factors, the judge found an employment relationship because NRG controlled the work, supplied the key equipment, paid the worker hourly, and used him in its regular business over a long period. The men used the aerial lift and worked on a roof more than 25 feet high without consistent fall protection, and NRG also lacked a safety program and ran a flexible cord through a doorway without protection. All four items were affirmed, with penalties totaling $6,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.405(a)(2)(ii)(I); 29 C.F.R. § 1926.453(b)(2)(v); 29 C.F.R. § 1926.501(b)(1)
• Outcome: Two serious fall items and two other-than-serious items were affirmed, with total penalties of $6,000.
• Key point: Labels such as partner or independent contractor, and payment on a Form 1099, do not overcome evidence that the business controlled the manner and means of the worker's work.

Full text (OSHRC public release)

                                     United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 10-2576
NRG SOUND AND COMMUNICATIONS, Simplified Proceedings
LLC,
Respondent.

APPEARANCES:

   Patrick L. DePace, Esquire
   U.S. Department of Labor, Cleveland, Ohio
   For the Secretary

   Rodney Connolly, Cleveland, Ohio
   Joseph Rodojev, Cleveland, Ohio
   For the Respondent, pro se

BEFORE: Covette Rooney
Chief Administrative Law Judge

                                DECISION AND ORDER

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

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659(c) (“the Act”). On October 18, 2010, the Occupational Safety and Health
Administration (“OSHA”) inspected a worksite of NRG Sound and Communications, LLC
(“Respondent” or “NRG”) in Uniontown, Ohio. OSHA then cited NRG for two serious and two
other-than-serious violations of the scaffolds, fall protection, electrical, and safety program
standards, with a total proposed penalty of $6,000. NRG filed a timely notice of contest,
bringing this matter before the Commission. In the parties’ joint pretrial statement, NRG
contends that it had no employees at the Uniontown worksite and was not engaged in interstate
commerce. 1 This case was designated for Simplified Proceedings under 29 C.F.R. §
2200.203(a), Subpart M, of the Commission’s Rules. A one-day hearing was held in Cleveland,
Ohio on May 17, 2011. Both parties have submitted post-hearing briefs.
Background
NRG’s primary place of business is in Eastlake, Ohio. NRG is in the business of
installing and repairing audio/visual equipment. NRG became a registered limited liability
company in June 2009. On October 18, 2010, NRG was hired to install speakers at the Lake
Local Schools football stadium in Uniontown, Ohio. (Tr. 6, 9-10; Exhs. 6, 8.)
On October 18, 2010, OSHA’s Cleveland Area Office received a complaint that workers
on the roof at the site were exposed to falls of 35 feet without apparent fall protection. OSHA
Compliance Officer (“CO”) Steve Browning went to the Lake Schools worksite (“the project” or
“the worksite”) that same day. The CO held an opening conference with Mr. Connolly, then
walked around and photographed the worksite. He interviewed Rodney Connolly, who
identified himself as “the boss.” He also interviewed Joseph Rodojev, who told the CO he was
an employee. Mr. Connolly also told the CO that Mr. Rodojev was an employee. The CO was
unable to take photographs of the workers on the roof or in the aerial lift as both Mr. Connolly
and Mr. Rodojev were on the ground when he arrived. The CO obtained photographs showing
the workers’ exposure to fall hazards from Doug Kaple of the Ohio Bureau of Workers’
Compensation.2 (Tr. 45-53; Exh. 1-3.)
Jurisdiction
Based upon the record and the reasons set forth below, I find that at all relevant times
NRG was engaged in a business affecting commerce and was an employer within the meaning of
sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(3) and (5). I also find that the Commission
has jurisdiction over the parties and subject matter in this case.
Whether NRG was Engaged in Commerce at the Worksite
An employer must be engaged in a business affecting commerce to be subject to the
requirements of the Act. Commerce is defined as trade, traffic, commerce, transportation, or

1
NRG also denied that it had a worksite located at Lake Center and Market Avenue, NW in Uniontown, Ohio. I
find that the record clearly shows that NRG was performing work at that site.
2
CO Browning testified that Mr. Kaple had phoned in the complaint to the Cleveland OSHA office. (Tr. 53.)

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communications among the several States or between a State and any place outside thereof. See
section 3(4)-(5) of the Act, 29 U.S.C. § 652(4)-(5). The Commission has found that construction
activity, even a small project, affects interstate commerce. Clarence M. Jones, 11 BNA OSHC
1529, 1531 (No. 77-3676, 1983). Additionally, the Commission has found that “use of goods
produced out of state . . . affect[s] interstate commerce under the Act.” Avalotis Painting Co., 9
BNA OSHC 1226, 1227 (No. 76-4774, 1981) (citing to U.S. v. Dye Constr. Co., 510 F.2d 78
(10th Cir. 1975)). Here, NRG was engaged in a construction activity at the worksite, and it
purchased the speakers for the project from a Pennsylvania company. (Tr. 9-11; Exh. 8.) I find
that NRG was an employer engaged in a business affecting commerce under the Act.
Whether NRG was an Employer at the Worksite
The Act requires each employer to provide a workplace “free from recognized hazards”
and to comply with “occupational safety and health standards.” See section 5(a) of the Act, 29
U.S.C. § 654(a). An employment relationship must be established as only an “employer” may be
cited for a violation. See section 9(a) of the Act, 29 U.S.C. § 650; Don Davis, 19 BNA OSHC
1477, 1479 (No. 96-1378, 2001); Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 2158
(No. 87-214, 1989)(consolidated).
NRG contends that it was not an employer under the Act because it had no employees at
the project. It posits that Mr. Rodojev was an owner and/or partner of NRG, not an employee.
(R. Br. 1-2.) The Secretary contends that Mr. Rodojev was an NRG employee. (S. Br. 6.) For
the reasons that follow, I find that Mr. Rodojev was an employee of NRG at the site.
NRG has described Mr. Rodojev in several ways: employee, silent partner, independent
contractor, and team member. During the OSHA inspection, both Mr. Rodojev and Mr.
Connolly initially told the CO that Mr. Rodojev was an employee. (Tr. 48, 51.) However, at the
end of the CO’s interview, Mr. Rodojev indicated he was a 30 percent “silent partner.” (Tr. 51.)
In a client solicitation letter dated June 11, 2009, Mr. Connolly referred to Mr. Rodojev as a part
of the NRG “team.” (Exh. 11.) Both Mr. Connolly and Mr. Rodojev testified that, at one time,
Mr. Rodojev had an independent contractor agreement with NRG. 3 (Tr. 15-17, 83-84; Exh. 7.)
Mr. Connolly further testified that Mr. Rodojev became a silent partner in June 2010. (Tr. 39.)
These varied descriptions of Mr. Rodojev would seem to be contrived to avoid liability

3
According to testimony, the independent contract agreement was not in effect at the time of the OSHA inspection.
Instead, Mr. Rodojev became a silent partner through an informal agreement in June 2010. (Tr. 15-18, 31, 34-35.)

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under the Act. As noted above, when the CO initially spoke with Mr. Rodojev and Mr.
Connolly, both said that Mr. Rodojev was an employee. The subsequent descriptions are simply
not credible, especially in view of NRG’s defense that it was not an employer at the worksite.
Further, I observed the CO’s demeanor as he testified, including his facial expressions and body
language, and I found him to be a straightforward, credible, and convincing witness. I also
observed Mr. Connolly and Mr. Rodojev as they testified. While some of their testimony
appeared to be reliable, some of their testimony was not. Therefore, where their testimony
conflicts with that of the CO, the CO’s testimony will be credited.
To determine whether the Secretary has established the existence of an employment
relationship, the Commission relies upon the “Darden factors.” Sharon & Walter Constr., Inc.,
23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) (“S&W”). In Darden, the Court set forth
several factors to consider when evaluating the existence of an employment relationship.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (“Darden”). In following
Darden, the Commission has noted that the critical factor in the analysis is the “right to control
the manner and means by which the product [was] accomplished.” S&W, 23 BNA OSHC at
1289 (quoting Darden, 503 U.S. at 323). In addition, the following factors are considered:
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
in business; the provision of employee benefits and the tax treatment of the hired
party.
Analysis under Darden4
Hiring Party’s Right to Control the Manner and Means by which the Product is Accomplished
NRG was hired to install speakers at the worksite. Mr. Connolly testified that Mr.
Rodojev had no role in acquiring the project. During the inspection, both Mr. Connolly and Mr.
Rodojev told the CO that Mr. Connolly was “the boss.” Mr. Rodojev told the CO that Mr.
Connolly directed the work and that work was not done until Mr. Connolly came to the worksite.
(Tr. 10-12, 47, 51, 58-59; Exh. 8.)

4
Two factors noted above are not addressed in this analysis, that is, whether the hiring party has the right to assign
additional projects to the hired party and whether the hired party has a role in hiring and paying assistants. There
was no evidence in the record concerning these factors, so they are not addressed.

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These facts support a finding that NRG, through Mr. Connolly, controlled the means by
which the work was accomplished. Mr. Connolly prepared the bid for the project and submitted
it to Lake Schools. He also paid for the rental of the aerial lift used to access the roof, and he
provided and transported the speakers to the site. (Tr. 10-11, 21-23.) Furthermore, both Mr.
Rodojev and Mr. Connolly told the CO that Mr. Connolly was the boss. Mr. Rodojev also said
that Mr. Connolly directed the work. I find that the manner and means to complete the project
rested with NRG, through Mr. Connolly. This factor weighs heavily in favor of finding an
employment relationship between Mr. Rodojev and NRG. As discussed supra, this factor is the
most significant factor of the Darden test.
Skill Required
The record shows that Mr. Connolly and Mr. Rodojev worked together on the project and
that they had similar skills and work histories. (Tr. 7, 13-15, 28-30, 78-79). Mr. Rodojev,
however, did not work independently and worked at the site only when Mr. Connolly was
present. In view of this evidence, I conclude that this factor supports the finding of an
employment relationship.
Source of the Instrumentalities and Tools
NRG supplied the speakers that were installed at the stadium, and Mr. Connolly delivered
the speakers to the worksite. NRG also provided the aerial lift used to access the roof, and, in
addition, it provided the general liability insurance. Mr. Rodojev told the CO that he supplied
his own tools for work on the project. Yet, Mr. Rodojev also told the CO that some of the
equipment was NRG’s. (Tr. 10-12, 21-23, 51, 58-59, 64-65.) I find that NRG supplied the
critical instrumentalities and tools required to complete the project. This factor supports the
finding of an employment relationship.
Location of the Work
NRG’s business is the installation and repair of audio/visual systems. The nature of this
work requires a different location for each NRG job. Mr. Rodojev worked with Mr. Connolly at
the worksite. (Tr. 13.) As indicated above, however, Mr. Connolly is the individual who
acquires the projects NRG works on. Mr. Rodojev has no role in this regard. On this basis, I
conclude that this factor supports the finding of an employment relationship.
Duration of the Relationship between the Parties
NRG was organized as an LLC in June 2009. Mr. Connolly testified that he offered Mr.

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Rodojev a position with NRG in 2009. In a letter to potential clients dated June 11, 2009, NRG
promoted the addition of Mr. Rodojev to the NRG team. Mr. Rodojev signed an independent
contractor agreement with NRG in January 2010. In June 2010, there was an informal verbal
agreement for Mr. Rodojev to become a “silent partner.” Mr. Rodojev told the CO that most of
his work (25 to 30 hours per week) was for NRG. At the May 2011 hearing, Mr. Connolly
testified that he and Mr. Rodojev still work together. Mr. Connolly further testified that he and
Mr. Rodojev work as a team; they are “a small company and basically, Joe [Mr. Rodojev] and I
are it.” (Tr. 13-16, 26-34, 52, 79; Exhs. 6-7, 11.)
The record shows that the business relationship between NRG and Mr. Rodojev began in
2009 and two years later, at the time of the hearing, the relationship was still in place. I find that
the relationship between Mr. Rodojev and NRG is of long duration, which supports the finding
of an employment relationship.
Extent of the Hired Party's Discretion over When and How Long to Work
CO Browning testified that Mr. Rodojev was able to set his own schedule -- “to come and
go as he sees fit.” However, Mr. Rodojev also told CO Browning that he did no work on the
project until Mr. Connolly arrived. (Tr. 58-59, 65.) Because he did not work unless Mr.
Connolly was present, I find it of minimal importance that Mr. Rodojev set his own schedule.
Therefore, this factor supports the finding of an employment relationship.
Method of Payment
Payment on an hourly, daily, or other regular interval can be a strong indicator of an
employment relationship. Payment on a per-job basis, on the other hand, can be an indicator of
an independent contractor relationship. Mr. Rodojev was paid at an hourly rate of $25.5 Mr.
Connolly testified that Mr. Rodojev received payment after the completion of a project. In
addition, Mr. Rodojev testified that payment was based on the number of hours estimated in the
project bid, which could be more or less than the hours actually worked. (Tr. 18, 26, 82, 85-87.)
For this project, Mr. Rodojev was paid on an hourly basis. I find the hourly basis for payment
supports the finding of an employment relationship.

5
Testimony about Mr. Rodojev’s payment terms was inconsistent. There was testimony referring to the payment
terms in the independent contractor agreement, but there was also testimony that this agreement was no longer valid
at the time of the project. The signed agreement shows payment at 30 percent of profit; however, Mr. Rodojev was
actually paid on an hourly basis. Both Mr. Rodojev and Mr. Connolly testified that Mr. Rodojev could receive an
additional 30 percent of net profit. Yet, Mr. Rodojev did not receive that amount for the project. Much was made of
the possible 30 percent net profit, but, as it was never paid, this testimony is given little weight. (Tr. 19, 81-82.)

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Whether the Work is Part of the Regular Business of the Hiring Party
When the work done by the hired party is the same as that of the hiring party, it weighs in
favor of an employment relationship. NRG’s primary business is the installation and repair of
audio, video, and communications equipment. The record shows that Mr. Rodojev’s role at the
worksite was the installation of stadium speakers. Additionally, Mr. Connolly, who formed
NRG, performed the same work alongside Mr. Rodojev. (Tr. 6, 9, 13; Exhs. 6-8.) Because the
work Mr. Rodojev performed at the worksite was the same as NRG’s primary work, this factor
supports the finding of an employment relationship.
Whether the Hiring Party is in Business
NRG is a registered limited liability company in the State of Ohio. (Exh. 6.) This factor
supports the finding of an employment relationship.
Provision of Employee Benefits and the Tax Treatment of the Hired Party
The provision of employee benefits to a hired party can indicate an employment
relationship. Mr. Connolly testified that NRG did not provide benefits to Mr. Rodojev. (Tr. 79.)
Here, I find that the lack of employee benefits has little weight because small businesses often
provide no benefits to employees.
The tax treatment of wages can also be an indicator of the nature of the employment
relationship. Here, Mr. Rodojev received a 1099 form instead of a W-2 and was responsible for
paying his own taxes. Further, Mr. Rodojev testified that he received a 1099 at the end of the
year, not after each project. (Tr. 37, 79, 81-82.)
While the provision of employee benefits and withholding of taxes from a paycheck is
usually indicative of an employment relationship, the converse is not as telling.6 In light of the
other evidence of an employment relationship, I find that the tax treatment and lack of benefits
are not dispositive in determining whether Mr. Rodojev was an employee under the Act.
Conclusions Based on the Darden Test
Based on the foregoing, and in particular, the critical factor -- the control of the
workplace -- I conclude that Mr. Rodojev was an employee of NRG at the worksite. In reaching
this conclusion, I have considered NRG’s assertion that Mr. Rodojev was a partner or owner of
NRG and therefore not an employee. I am not persuaded. Both Mr. Rodojev and Mr. Connolly

6
See S&W, 23 BNA OSHC at 1290. (Commission found the “failure to withhold federal income and social security
taxes was . . . not a bona fide reflection of an authentic independent contractor relationship.”)

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initially told the CO that Mr. Rodojev was an employee. I find these statements, made at the
beginning of the inspection, to be more credible than those made months later, when NRG was
attempting to defend against the alleged violations.
Citations
NRG does not dispute the validity and characterization of the citation items in this matter.
(Tr. 78.) For completeness of the record, the citation items will be addressed briefly.
The Secretary’s Burden of Proof
To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited
standard applies; (2) the terms of the standard were violated; (3) one or more employees had
access to the cited condition; and (4) the employer knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Astra Pharm. Prod., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
A violation is classified as serious under section 17(k) of the Act if “there is substantial
probability that death or serious physical harm could result.” Commission precedent requires a
finding that “a serious injury is the likely result should an accident occur.” Pete Miller, Inc., 19
BNA OSHC 1257, 1258 (No. 99-0947, 2000).
Citation 1, Item 1
This item alleges a serious violation of 29 C.F.R. § 1926.453(b)(2)(v), which states that:
A body belt shall be worn and a lanyard attached to the boom or basket when
working from an aerial lift.

   Note to paragraph (b)(2)(v): As of January 1, 1998, subpart M of this part (§
   1926.502(d)) provides that body belts are not acceptable as part of a personal fall
   arrest system. The use of a body belt in a tethering system or in a restraint system
   is acceptable and is regulated under § 1926.502(e).

   Mr. Connolly testified that NRG rented an aerial lift to access the roof and that both he

and Mr. Rodojev rode in the basket of the lift to access the roof. Mr. Connolly told the CO that
one harness and lanyard was provided by the aerial lift company and that he (Mr. Connolly) was
told that he should wear it while in the lift. Mr. Rodojev told the CO that he and Mr. Connolly
stopped using the fall protection when they were in the lift. The CO testified that Exhibit 2, one
of the photographs obtained from Mr. Kaple, showed Mr. Rodojev in the aerial lift. The CO’s
measurement at the lower edge of the roof was over 25 feet above the ground. In addition, Mr.

                                              8

Connolly testified that the height of the roof on the football stadium was between 25 and 40 feet
above the ground. (Tr. 19-24, 49-54; Exhs. 2, 4.)
Based on the record, the Secretary has met her burden of proof regarding this item. She
has also shown that the violation was serious. Mr. Connolly and Mr. Rodojev both used the
aerial lift without utilizing the necessary fall protection, and both were exposed to falls of up to
25 feet. A fall of this distance could have resulted in serious injury or death. This item is
affirmed as a serious violation.
Citation 1, Item 2
This item alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), which provides:
Unprotected sides and edges. Each employee on a walking/working surface
(horizontal and vertical surface) with an unprotected side or edge which is 6 feet
(1.8 m) or more above a lower level shall be protected from falling by the use of
guardrail systems, safety net systems, or personal fall arrest systems.

    Mr. Connolly testified that both he and Mr. Rodojev installed speakers on the stadium

roof at the worksite. He identified himself and Mr. Rodojev on the roof in Exhibits 2 and 3. He
admitted that he was not tied off and that Mr. Rodojev was not always tied off while on the roof.
Mr. Rodojev also admitted that he was on the roof without fall protection. The lower edge of the
roof was over 25 feet above the ground, and the height of the roof on the football stadium was
between 25 and 40 feet above the ground. (Tr. 13-14, 19-21, 24-26, 52-54; Exhs. 2-4)
The Secretary has met her burden of proof regarding this item. As found above, a fall of
over 25 feet could have resulted in serious injury or death. This item is affirmed as serious.
Citation 2, Item 1
This item alleges an other-than-serious violation of 29 C.F.R. § 1926.20(b)(1), which
states that:
Accident prevention responsibilities. (1) It shall be the responsibility of the
employer to initiate and maintain such programs as may be necessary to comply
with this part.

    CO Browning testified that Mr. Connolly told him that there was no safety and health

program for the worksite. (Tr. 50.) The Secretary has met her burden regarding this item. This
item is affirmed as an other-than-serious violation.

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Citation 2, Item 2
This item alleges an other-than-serious violation of 29 C.F.R. § 1926.405(a)(2)(ii)(I),
which provides as follows:
Flexible cords and cables shall be protected from damage. Sharp corners and
projections shall be avoided. Flexible cords and cables may pass through
doorways or other pinch points, if protection is provided to avoid damage.

    CO Browning testified that a photograph he took at the worksite shows an electrical cord

going under a doorway at the worksite. Mr. Rodojev and Mr. Connolly used the cord, and Mr.
Connolly told the CO that he knew the cord was under the door. (Tr. 55-57; Exh. 5.) The
Secretary has established her burden of proof regarding this item. This item is affirmed as an
other-than-serious violation.
Penalty Assessment
Section 17(j) of the Act (29 U.S.C. § 666(j)) requires the Commission to give due
consideration to four criteria in assessing penalties: the size of the employer’s business, the
gravity of the violation, the employer’s good faith, and its prior history of violations. In J. A.
Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993), the Commission stated:
These factors are not necessarily accorded equal weight; generally speaking, the
gravity of a violation is the primary element in the penalty assessment. Trinity
Indus., Inc., 15 BNA OSHC 1481, 1483 [citation omitted] (No. 88-2691, 1992);
Astra Pharmaceutical Prods., Inc., 10 BNA OSHC 2070 (No. 78-6247, 1982).
The gravity of a particular violation, moreover, depends upon such matters as the
number of employees exposed, the duration of the exposure, the precautions taken
against injury, and the likelihood that any injury would result. Kus-Tum Builders,
Inc., 10 BNA OSHC 1128, 1132 [citation omitted] (No. 76-2644, 1981).

   The Secretary proposed a penalty of $3,000 for each of the serious violations.7 This

penalty reflects a 40 percent reduction based on NRG’s size. There was no safety and health
program in place, so no adjustment was made for good faith. Additionally, there was no
adjustment for history.8 (Tr. 60.) I find the proposed penalties are appropriate and are assessed.

7
No penalty was proposed for the other-than-serious violations.
8
CO Browning testified that OSHA policy allows a penalty reduction for history if the employer has prior
inspections in which the employer has shown compliance with OSHA standards. (Tr. 61).

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Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are denied.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:
1. Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.453(b)(2)(v), is
AFFIRMED, and a penalty of $3,000 is assessed.
2. Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is
AFFIRMED, and a penalty of $3,000 is assessed.
3. Item 1 of Citation 2, alleging an other-than-serious violation of 29 C.F.R. §
1926.20(b)(1), is AFFIRMED, and no penalty is assessed.
4. Item 2 of Citation 2, alleging an other-than-serious violation of 29 C.F. R. §
1926.405(a)(2)(ii)(I), is AFFIRMED, with no penalty assessed.

                                         _/s/__________________________
                                         Covette Rooney
                                         Chief Judge

Date: September 9, 2011
Washington, D.C.

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