All Star Realty Co., Inc.

Plain-English summary

All Star Realty had a contract to demolish a strip mall, where OSHA found two brothers removing metal roofing without fall protection and using an improper ladder. The brothers had previously done odd jobs for All Star's owner, but he told them they could take the roofing only after the building had been demolished. The Commission found virtually no evidence that All Star controlled their hours, methods, tools, payment, or other work conditions. Their decision to enter the site early and remove the roofing contrary to the owner's instruction did not make them All Star employees. Because the Secretary failed to prove an employment relationship, the Commission vacated all four fall-protection, training, and ladder items without reaching employer knowledge. No penalty remained.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(11); 29 C.F.R. § 1926.503(a)(1); 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1060(a)
• Outcome: All four citation items were vacated because the exposed individuals were not shown to be All Star employees.
• Key point: The Secretary must prove that a cited company controlled the affected workers before OSHA standards can be enforced against it as their employer.

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. 12-1597

ALL STAR REALTY CO., INC.,

                                      Respondent.

ON BRIEFS:
Alek Felstiner, Attorney; Scott Glabman, Senior Appellate Attorney; Heather Phillips, Counsel for
Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety
and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC
For the Complainant

   Richard B. Aldridge, President; All Star Realty Co.
           For the Respondent

                                         DECISION

Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
After two individuals were observed working at a strip mall, one of whom was on the
roof of a building without fall protection or a proper ladder, the Occupational Safety and Health
Administration issued a citation to All Star Realty Company, which had a contract to tear down
the building. Administrative Law Judge Sharon D. Calhoun vacated the citation, and the
Secretary sought review of the judge’s decision. Because we find that the Secretary has failed to
show that All Star employed either of the two individuals observed at the site, we vacate the
citation.
BACKGROUND
All Star, which is in the construction and demolition business, was awarded a contract for
a strip mall demolition project in Birmingham, Alabama. In accordance with its usual practice, it
engaged subcontractors rather than hire employees itself to do the demolition project. Work on
the project had not yet begun when All Star’s owner and president, Richard Aldridge, was
approached by two brothers who had previously performed odd jobs for Aldridge on his farm.
The brothers said they were looking for work, and Aldridge told them that his “dad needs a roof
on his shed at his home, and I’m about to tear these buildings down and you can use some of this
metal [roofing] to save him money, and just charge him labor.” Aldridge also testified that he
told the brothers they could have the roofing material “[o]nly after I knocked the buildings down
and it was safe to get it.”
Thereafter, an OSHA compliance officer drove by the strip mall and saw one of the
brothers (“F.M.”) on the roof of a building and the other brother on the ground below. F.M. was
using a hand tool to remove metal roofing from the roof framing, which had a 6/12 pitch and was
22 feet above the ground. A 24-foot-long, portable extension ladder was being used to access the
roof, and no fall protection was at the site. The CO initiated an inspection and questioned F.M.
who, according to the CO, stated that he: (1) had begun working at the strip mall that day; (2)
worked for Aldridge; (3) had worked for “Aldridge Construction” for two years; (4) was paid by
Aldridge via check; and (5) had last been paid seven days earlier. F.M. then phoned Aldridge,
who arrived at the site and explained to the CO that his company, All Star, had been hired to tear
down the strip mall, but that the brothers were not his employees. Based on this inspection,
OSHA issued All Star a citation alleging serious violations of two provisions of the fall
protection standard and two provisions of the stairways and ladders standard. 1
Following a hearing, the judge concluded that All Star was the brothers’ employer, but
she nonetheless vacated the citation on the ground that the Secretary failed to establish that the
company had knowledge of the violative conditions. On review, the Secretary contends that the

1
The cited provisions are 29 C.F.R. § 1926.501(b)(11) (“Each employee on a steep roof with
unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from
falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems.”);
29 C.F.R. § 1926.503(a)(1) (“The employer shall provide a training program for each employee
who might be exposed to fall hazards.”); 29 C.F.R. § 1926.1053(b)(1) (“When 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 . . . .”); and 29
C.F.R. § 1926.1060(a) (“The employer shall provide a training program for each employee using
ladders and stairways, as necessary.”).
judge’s ruling on knowledge was error, 2 while All Star maintains—as it has from the outset of
these proceedings—that the brothers were not its employees.
DISCUSSION
“[T]he Secretary has the burden of proving that a cited respondent is the employer of the
affected workers at the site.” Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035,
2004-2009 CCH OSHD ¶ 32,804, p. 52,506 (No. 97-1631, 2005) (consolidated). In determining
whether the Secretary has satisfied this burden, the Commission applies the common law agency
doctrine enunciated in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), which
focuses on “the hiring party’s right to control the manner and means by which the product is
accomplished.” Id. at 323 (internal quotation marks and citation omitted). See Sharon & Walter
Constr. Co., 23 BNA OSHC 1286, 1289, 2009-2012 CCH OSHD ¶ 33,103, pp. 54,896-97 (No.
00-1402, 2010) (applying Darden). Many factors are relevant to this inquiry, including the work
location, who set the work hours, who provided the tools being used, the duration of the
relationship between the parties, and the method of payment. Darden, 503 U.S. at 323-24. But
“the primary focus is whether the putative employer controls the workers.” Allstate Painting, 21
BNA OSHC at 1035, 2004-2009 CCH OSHD at p. 52,506.
Here, we disagree with the judge that the Secretary has established an employment
relationship between All Star and the brothers. Apart from the fact that the strip mall was going
to be an All Star worksite, there is virtually no evidence that All Star controlled the brothers
when they were found at the site at the time of the inspection. Indeed, the record contains no
evidence that the company prescribed work hours, work methods, or any other aspect of the
activities the CO observed. Compare Barbosa Group, Inc., 21 BNA OSHC 1865, 1867, 2004-
2009 CCH OSHD ¶ 32,877, p. 53,197 (No. 02-0865, 2007) (finding employment relationship
where “supervisors provided first-line direction and meted out discipline to its contract security

2
We agree that the judge erred in her knowledge analysis. According to the judge, constructive
knowledge was lacking because “[n]o one from [All Star’s] management was at the jobsite,” and
“Aldridge did not know the [brothers] were [there].” Constructive knowledge, though, depends
on “whether, with the exercise of reasonable diligence, [the employer] could have discovered the
[violative condition].” Donohue Indus., Inc., 20 BNA OSHC 1346, 1348-49, 2002-2004 CCH
OSHD ¶ 32,679, p. 51,500 (No. 99-0191, 2003). Therefore, neither Aldridge’s absence from the
strip mall alone, nor his lack of actual knowledge, would establish a lack of constructive
knowledge. However, because we find, as a threshold matter, that the Secretary has failed to
establish an employment relationship between All Star and the brothers, we need not address
whether knowledge was otherwise established.
personnel”), aff’d, 296 F. App’x 211 (2d Cir. 2008) (unpublished). This is because the record
establishes that Aldridge never even authorized the brothers to remove the metal roofing from
the strip mall building’s roof in the first place. On the contrary, he told them they could have the
material only after All Star had taken the strip mall down, and he “was as surprised that they
were up [on the roof] as [the CO] was.” 3 That the brothers disregarded the one thing Aldridge
asked of them further supports a finding that All Star lacked any control over them whatsoever.
The Secretary has produced so little evidence of control that when we apply the
remaining Darden factors to this record, the evidence either weighs clearly against an
employment relationship or is equivocal at best. Regarding the provision of tools, there is no
evidence that the ladder or hand tool the brothers used on the day of the inspection belonged to
All Star—in fact, the CO testified that she saw no demolition equipment at the site, which is
consistent with the company’s contention that it had not yet begun its work. As to the duration
of the relationship, the only evidence cited by the Secretary is the CO’s testimony that F.M. said
he had worked for “Aldridge Construction” for two years. But Aldridge’s unrebutted testimony
establishes that the brothers’ previous work consisted of odd jobs for Aldridge that took place on
his farm. This suggests that the prior jobs were done for Aldridge personally, not for All Star.
Moreover, the record is silent as to how many jobs the brothers did, how often they did them,
and how long each job lasted.

3
The judge did not credit Aldridge’s testimony in this regard because she found that “[t]here
[was] insufficient credible evidence to substantiate [his] claim.” We find that the judge’s basis
for rejecting Aldridge’s testimony is at odds with the record. Aldridge’s testimony that he told
the brothers they could have the metal roofing only after the building was taken down is
unrebutted—there is no evidence that the CO ever asked either brother if Aldridge gave the
instructions he described, and no other witnesses, aside from the CO and Aldridge, even testified
at the hearing. The judge discredited Aldridge’s claim based on F.M.’s statement to the CO that
“he was working for Aldridge,” and the fact that “[the CO] testified confidently regarding what
she was told by [F.M.].” But F.M.’s bare statement that he was working for Aldridge does not
necessarily conflict with Aldridge’s testimony regarding when the brothers could remove the
roofing material, and so the CO’s “confiden[ce]” regarding what F.M. said is irrelevant. Thus,
we credit Aldridge’s unrebutted testimony that he told the brothers they could have the metal
roofing from the strip mall’s roof only after the building was torn down. See Accu-Namics, Inc.
v. OSHRC, 515 F.2d 828 (5th Cir. 1975) (stating that “[t]he judge’s ‘decision’ is merely a report,
weighty of course,” but “the Commission itself is charged with findings of fact”); Metro Steel
Constr. Co, 18 BNA OSHC 1705, 1706-07, 1999 CCH OSHD ¶ 31,802, pp. 46,666-67 (No. 96-
1459, 1999) (Commission is “in as good a position as the judge to determine the facts,” given a
credibility determination not based on demeanor or other factors “peculiarly observable by the
judge”).
 Regarding method of payment, the Secretary points to two statements: the CO’s
testimony that F.M. told her that he had “worked for [Aldridge] for two years, and . . . was paid
by check,” and Aldridge’s testimony that the brothers “could get [the metal roofing]” from this
jobsite, which the Secretary contends was payment-in-kind. But even if F.M. had previously
received checks, 4 there is no evidence that they were from All Star. In fact, according to the CO,
F.M. said he was paid “by Mr. Aldridge,” and the only record evidence of the nature of the prior
work performed by either brother—Aldridge’s testimony—shows that it consisted of “odd jobs”
“at [Aldridge’s] farm.” In addition, the record does not show that Aldridge authorized the
brothers to “get” the metal roofing as payment-in-kind. Rather, Aldridge’s uncontradicted
testimony was that the roofing was for his father—he specifically told the brothers that they
could “use some of this metal [roofing] to save [Aldridge’s father] money.” And even if the
roofing were payment-in-kind, it would constitute payment by the job, rather than by the amount
of time worked, suggesting a non-employment relationship. See Restatement (Second) of
Agency § 220 (1958) (stating that “method of payment . . . by the time” suggests a master-
servant relationship, while “by the job” suggests that “one acting for another is . . . an
independent contractor”); see also Darden, 503 U.S. at 322-23 (citing Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989), and following its adoption of the common
law agency doctrine); cf. Timothy Victory, 18 BNA OSHC 1023, 1027, 1995-1997 CCH OSHD
¶ 31,431, p. 44,449 (No. 93-3359, 1997) (finding Secretary’s assertion of employment of sea
urchin divers not substantially justified where, in addition to other factors, divers were given a
portion of their catch rather than paid a set rate for their labor).
As for the final Darden factors, there is no evidence that All Star had the authority to
assign the brothers additional work (despite the Secretary’s dubious argument that the potential
repair of Aldridge’s father’s shed was a company “assignment”), that any assistants were hired or
paid, that the brothers were given any employee benefits, or that any tax treatment suggested an
employment arrangement. See Darden, 503 U.S. at 323-24. At bottom, the record shows that
Aldridge was simply doing the brothers (and his father) a favor by offering the brothers the
opportunity to salvage materials from his company’s worksite for use on a potential job for his
father. The brothers disregarded the one condition Aldridge placed on his offer by prematurely

4
F.M. never provided the pay stub he promised to the CO.
going to the strip mall and removing the material from the roof themselves, but this did not make
them All Star’s employees. 5
ORDER
We vacate Citation 1, Items 1a, 1b, 2a, and 2b.

SO ORDERED.

                                                 /s/
                                                 Thomasina V. Rogers
                                                 Chairman



                                                 /s/
                                                 Cynthia L. Attwood

Dated: February 3, 2014 Commissioner

5
We are troubled by the dearth of evidence of an employment relationship between All Star and
the brothers. Additionally, we are concerned that the Secretary has taken liberties with the
record. For example, several times in his brief the Secretary suggested that Aldridge explicitly
told the brothers to remove the metal roofing from the strip mall’s roof. In support of all but one
of these statements, the Secretary cites page 52 of the hearing transcript. But on page 52 is
Aldridge’s unequivocal testimony that he told the brothers “they could get [the metal roofing],
but only after I knocked the buildings down,” and just five pages later is Aldridge’s testimony
that he “told [the brothers] they could get some metal to work at my father’s shed but only after I
tore the buildings down and it was safe.” And while mischaracterization of the record is
troubling enough, the Secretary also speculates, without any evidentiary foundation, that “a
group of people” Aldridge testified he could “call on” to help with work might be “employees
whose income All Star does not report and whose benefit taxes the company does not pay.”
(Sec’y Br. at 12-13.)
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1924 Building - Room 2R90, 100 Alabama Street, SW
Atlanta, Georgia 30303-3104

Secretary of Labor,
   Complainant,
      v.                                                        OSHRC Docket No. 12-1597
All Star Realty Company, Incorporated d/b/a                          Simplified Proceedings
All Star Realty & Construction, Co. 6
   Respondent.

Appearances:
Brian D. Mauk, Esquire, U. S. Department of Labor, Office of the Solicitor, Nashville, Tennessee
For Complainant

      Richard Aldridge, President, All Star Realty & Construction, Co., Clay, Alabama
              For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                      DECISION AND ORDER
      All Star Realty Company, Incorporated d/b/a All Star Realty & Construction, Co. (All

Star) contests a four-item citation issued to it by the Secretary on July 9, 2012. The citation
alleges serious violations related to the Occupational Safety and Health’s (OSHA) fall
protection, ladders and training standards. Occupational Safety and Health Compliance Officer
(CSHO) Phyllis Battle recommended the citation based on her inspection of a jobsite at Roebuck
Parkway 7 in Birmingham, Alabama, where the Secretary alleges All Star was working on May 4,
2012. OSHA proposes a penalty of $2,000.00 for grouped items 1(a) and 1(b) alleging violations

6
At the hearing, Richard Aldridge, owner and president of Respondent testified that the proper name of the business
is All Star Realty Company, Incorporated (Tr. 48). According to Aldridge, business cards for the company include
the word “Construction” to inform others they are also in the construction business (Tr. 48). Therefore, the style of
this matter is hereby amended to specify the correct legal entity cited.
7
The inspection site is identified as Roebuck Parkway, Birmingham, AL on the Citation and Notification of
Penalty; however the descriptions of the violations refer to the inspection site as Center Point Parkway,
Birmingham, AL (See Citation and Notification of Penalty). The testimony at the hearing identified the inspection
site as Roebuck Parkway. Based on the hearing testimony and exhibits, the undersigned concludes that Roebuck
Parkway and Center Point Parkway refer to the same inspection site.
of 29 C.F.R. § 1926.501(b)(11) for failing to protect employees from falling from a steep roof,
and 29 C.F.R. § 1926.503(a)(1) for failing to train employees regarding fall hazards.
Additionally a penalty of $2,000.00 is proposed for grouped items 2(a) and 2(b) alleging
violations of 29 C.F.R. § 1926.1053(b)(1) for a ladder not extending at least 3 feet above the
landing, and 29 C.F.R. § 1926.1060(a) for not training employees on fall hazards associated with
work being performed using ladders. The Secretary proposes total penalties of $4,000.00 for
these alleged violations.
All Star timely contested the citation. This case was designated for Simplified
Proceedings under Subpart M (§§ 2200.200-211) of the Commission’s Rules of Procedure. The
undersigned held a hearing in this matter on Thursday, December 6, 2012, in Birmingham,
Alabama. For the reasons discussed below, the undersigned vacates Citation No. 1, Items 1(a),
1(b), 2(a) and 2(b).
Jurisdiction
At the hearing, Respondent disputed that jurisdiction of this action is conferred upon the
Commission pursuant to Section 10(c) of the Act (Tr. 9-10). The parties stipulated, however,
that at all times relevant to this action, All Star was an employer engaged in a business affecting
interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 8,
10).
All Star was established by Richard Aldridge and was incorporated in the state of
Alabama in 1978 (Tr. 49). Aldridge is the owner and President of All Star (Tr. 49). Other
officers of the corporation include Aldridge’s brother, who is the vice president, and Aldridge’s
sister, who is the secretary-treasurer (Tr. 49). All Star initially was engaged in real estate
construction of homes and commercial buildings (Tr. 50). It currently engages in remodeling
and demolition work (Tr. 50). Aldridge hires subcontractors to perform work for the business
(Tr. 54). Subcontractors were hired by Aldridge to perform the demolition work at the cited
location (Tr. 54).
The Act applies to a “person engaged in a business affecting commerce who has
employees.” 29 U.S.C. § 652(5), see Don Davis, 19 BNA OSHC 1477, 1479 (No. 96-1378,
2001). Section 3(4) defines “person” as “one or more individuals, partnerships, associations,
corporations, business trusts, legal representatives, or any organized group of persons.” All
employees are covered under the Act, including a company’s president and vice president when
they are performing work for the employer. D & H Pump Service, Inc., 5 BNA OSHC 1485
(No. 16246, 1977); Hydraform Products Corp., 7 BNA OSHC 1995 (No. 78-527, 1979). All
Star is a corporation. Its president performed work for the company as evidenced by the hiring
of contractors to perform work on behalf of the business. The undersigned finds All Star is an
employer with employees in a business affecting interstate commerce. Therefore, jurisdiction of
this action is conferred upon the Occupational Safety and Health Review Commission pursuant
to § 10(c) of the Act.
Background
CSHO Battle was driving on Roebuck Parkway in Birmingham, Alabama, on May 4,
2012, when she observed a fall hazard at what appeared to her to be a jobsite (Tr. 15). As a
result, she stopped to conduct an inspection pursuant to the Local Emphasis Program on falls (Tr.
14, 43-44). The site was a strip mall which had been damaged by a recent tornado in the area
(Tr. 19, 29). Battle concluded the strip mall was in the process of being torn down to be rebuilt
(Tr. 29). She initiated her inspection at approximately 11:30 a.m. that day. There were only
two people at the jobsite when Battle began her inspection.
When Battle arrived at the jobsite, she observed one individual without fall protection, on
a 6/12 pitch roof which was 22 feet from eve to ground (Tr. 15, 23). This person was identified
as Filipe Marquez (Tr. 16). He identified the person working on the ground as his brother (Tr.
17, 45). Marquez appeared to be removing material from the roof using a tool (Tr. 15). Battle
also observed a ladder on the site that did not extend three feet above the upper landing surface
(Tr. 34). Battle spoke with both individuals at the site. They told her they had begun working
that morning (Tr. 25). Battle asked Marquez whom he worked for, he responded Aldridge, and
that he worked for Aldridge Construction for two years (Tr. 17, 45). Marquez told Battle he had
no fall protection on the site (Tr. 17). She also was informed that the ladder onsite was used by
both individuals to access the roof (Tr. 21, 22). Battle inquired of the men whether they had
received any fall protection and ladder training. They had not (Tr. 33, 35).
Marquez called Aldridge by telephone while Battle was onsite. Aldridge arrived at the
site shortly thereafter. When Aldridge arrived, he told Battle the two individuals at the site did
not work for him, although they had worked for him in the past (Tr. 27-28, 29). Aldridge also
explained to Battle that the two men asked him if they could have some metal, and that they had
come over to get the metal off the roof (Tr. 27-28).
 As a result of Battle’s inspection, OSHA issued the citation at issue in this matter.
Discussion
The issuance of the citation at issue in this matter is based on the two-prong premise that
(1) All Star was engaged in work activity at the cited location and (2) that the two individuals at
the site were employees of All Star. For the reasons that follow, the undersigned finds that All
Star was engaged in work activity at the cited location. Further, the undersigned finds that the
two individuals at the site were employees of All Star.
All Star was Engaged in Work Activity at the Cited Location
All Star secured a contract to remove the building at the cited location (Tr. 51).
However, Aldridge contends All Star had not begun work at the jobsite at the time of the
inspection as evidenced by the fact that it had no equipment onsite (Tr. 56-57). The undersigned
disagrees. Although All Star may not have had its subcontractors on the jobsite pursuant to the
contract, removal of the metal from the roof was authorized by Aldridge and had begun.
Aldridge admits he authorized the Marquez brothers to get the metal so they could work on his
father’s shed (Tr. 57). He claims however, the men were to obtain the metal after the building
was torn down (Tr. 57). There is insufficient credible evidence to substantiate this claim.
Marquez told Battle he was working for Aldridge at the time of the inspection (Tr. 17). Work
activity involving the removal of the metal from the roof was occurring at the jobsite. Battle
testified confidently regarding what she was told by Marquez. The undersigned finds Battle’s
testimony regarding what Marquez told her to be reliable and credits it over Aldridge’s testimony
and Marquez’s Affidavit to the contrary (Tr. 17, 26-27; Exh. R-1). The credible evidence
supports a finding that All Star was engaged in work activity at the cited location at the time of
the OSHA inspection.
The Two Individuals at the Site were Employees of All Star
All Star contends that the two individuals on the jobsite were not its employees. Section
652(6) of the Act provides the term “employee” means an employee of an employer who is
employed in a business of his employer which affects commerce.” The Commission utilizes the
“economic realities test” as described in Loomis Cabinet Co., 15 BNA OSHC 1635, 1637 (No.
88-2012, 1992) to determine whether an employer/employee relationship exists. The relevant
factors for determining employer/employee status under the applicable “economic realities test”
are: (1) whom the workers consider to be their employer; (2) who pays the workers’ wages; (3)
who is responsible for controlling the workers’ activities; (4) who has the power (as opposed to
the responsibility) to control the workers; (5) who has the power to fire, hire, or modify the
employment condition; (6) does the workers’ ability to increase their income depend on
efficiency rather than initiative, judgment, and foresight; and (7) how are the workers’ wages
established. Loomis Cabinet Co., id., citing Van Buren-Madawaska, 13 BNA OSHC, 2157, 2158
(Nos. 87-214, 87-217, 87-450 thru 459, 1989) quoting Griffin & Brand, 6 BNA OSHC, 1702,
1703 (No. 14801, 1978). The “economic realities test” focuses on control. A slightly more
specific analysis of control in determining the employment issue was set forth by the
Commission in Don Davis, 19 BNA OSHC 1477, 1482 (No. 96-1378, 2001): control over the
“manner and means of accomplishing the work” must include control over the workers and not
just the results of their work. One who cannot hire, discipline, or fire a worker, cannot assign
him additional projects, and does not set the worker’s pay or work hours cannot be said to
control the worker.
In the instant case the answers to each of these questions is All Star. The Marquez
brothers considered All Star to be their employer. Their compensation was through All Star.
The work activities were controlled by All Star. All Star had the power to control the workers,
as well as their employment condition. All Star established the wages paid. Although Aldridge
testified the Marquez brothers were at the jobsite without his knowledge, he admits that he
authorized them to take the metal which was on the roof (Tr. 52). It is unclear as to the exact
payment for their work; however some form of compensation was agreed upon whether in cash
or “in kind”. Workers being compensated “in kind” rather than in cash have been held to be
employees. Arlie R. Hawk General Contractor, 4 BNA OSHC 1248 (No. 6688, 1976). Aldridge
testified the metal was to be used for repairing a shed on his father’s property, and he told the
brothers about the metal on the building because they were looking for work (Tr. 52).
According to Aldridge he was trying to help them get a small job for some gas money (Tr. 58).
He told them to use the metal to repair his father’s roof on his shed, and they could charge the
father only for their labor (Tr. 52). Application of the “economic realities test” here shows the
Marquez brothers were employees of All Star.
 The Citation
The Secretary contends that All Star violated the following standards as follows:
Item 1a: Alleged Serious Violation of 29 C. F. R. § 1926.501(b)(11), alleges “On or
about 05/04/12- Center Point Parkway, Birmingham, AL, employees removing metal roofing
were not protected from falls of more than 20 feet”.
Item 1b: Alleged Serious Violation of 29 C. F. R. § 1926.503(a)(1), alleges “On or about
05/04/12- Center Point Parkway, Birmingham, AL, employees had not been trained to recognize,
control, minimize or eliminate fall hazards associated with the work being performed.”
Item 2a: Alleged Serious Violation of 29 C. F. R. § 1926.1053(b)(1), alleges “On or
about 05/04/12- Center Point Parkway, Birmingham, AL, the side rails of the extension ladder
used by employees for accessing the roof did not extend at least 3 feet above the landing.”
Item 2b: Alleged Serious Violation of 29 C. F. R. § 1926.1060(a), alleges “On or about
05/04/12- Center Point Parkway, Birmingham, AL, employees had not been trained to recognize,
control, minimize or eliminate fall hazards associated with the work being performed using
ladders.”
The Secretary has the burden of establishing the employer violated the cited standards.
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the employer
failed to comply with the terms of the cited standard; (3) employees had access to
the violative condition; and (4) the cited employer either knew or could have
known with the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). The first three elements of
the Secretary’s burden are essentially undisputed.
Applicability of the Standards
It is not disputed that the employees were engaged in removing metal roofing from the
roof of the building, and that they used a ladder to access the building. This activity constitutes
construction activity covered by Part 1926. The standards are applicable.
Noncompliance with the Terms of the Standards
It also is not disputed that the employees were not protected by fall protection while
working on a 6/12 pitch roof, 22 feet from the lower level. Photographs taken by CSHO Battle
depict an employee on the roof without fall protection in violation of § 1926.501(b)(11) (Exhs.
C-2, C-3, C-4, C-6). All Star also does not dispute that the ladder used by the employees to
access the roof did not extend three feet above the upper landing surface, or that the ladder was
not secured, in violation of § 1926.1053(b)(1). Battle observed and took photographs of the
ladder. She testified that it neither was three feet above the upper landing surface, nor secured in
any way (Tr. 22 ; Exh. C-3). Lastly, All Star does not challenge the Secretary’s contention that
the employees received no fall protection and ladder training. The employees told Battle they
had received no such training as required by §§ 1926.503(a)(1) and 1926.1060(a) (Tr. 33). The
Secretary has established the cited standards were violated.
Employee Access to the Violative Conditions
Access to the violative conditions is uncontroverted. Battle observed an employee
working without fall protection and the employees told her they used the ladder to access the
roof and that they had not been trained. The Secretary has established employee exposure.
Employer Knowledge
The only disputed element of the Secretary’s case is whether All Star knew or could have
known with the exercise of reasonable diligence of the violative conditions. The Secretary must
establish actual or constructive knowledge of the violative conditions by All Star in order to meet
her burden. In order to show employer knowledge of a violation the Secretary must show the
employer knew, or with the exercise of reasonable diligence could have known of a hazardous
condition. Dun Par Engineered Form Co.,12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986).
The Secretary contends “Respondent was well aware of these regulations and the need to protect
employees on roofs. In fact, Mr. Aldridge testified that in the past, his business hired someone to
conduct safety meetings. Though he expressly authorized these employees to remove the metal
from the roof of this building, he did absolutely nothing to train or protect these employees while
working on this roof.” (Secretary’s Brief, p. 6, citations and references omitted). The
undersigned finds that this is insufficient to establish knowledge here. Aldridge, owner and
president of All Star was not at the jobsite on the day of the inspection until after Battle had
begun her inspection. Although he authorized the employees to remove the metal from the roof,
according to Aldridge, he did not know the two men were at the jobsite on the day of the OSHA
inspection. The undersigned finds Aldridge’s testimony on this point to be credible.
The only employees of Aldridge onsite on the day of the OSHA inspection were the
Marquez brothers. No evidence was presented at the hearing to indicate that either of the two
was a foreman or even a lead man, from which either actual or constructive knowledge could be
imputed to All Star. An employer is chargeable with knowledge of conditions which are plainly
visible to its supervisory personnel. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995,
1998 (No 92-1022, 1994). ABecause corporate employers can only obtain knowledge through
their agents, the actions and knowledge of supervisory personnel are generally imputed to their
employers, and the Secretary can make a prima facie showing of knowledge by proving that a
supervisory employee knew of or was responsible for the violation.@ Todd Shipyards Corp. 11
BNA OSHC 2177, 2179 (No. 77-1598, 1984). See also Dun Par Engineered Form Co., 12 BNA
OSHC 1962 (No. 82-928, 1986)(the actual or constructive knowledge of an employer=s foreman
can be imputed to the employer). The Secretary has not established actual knowledge through
either of the Marquez brothers. No other employees were onsite from whom actual knowledge
can be established.
When actual knowledge cannot be established, the Secretary can meet this element of her
case by showing constructive knowledge. Here, however, there is insufficient evidence to
establish even constructive knowledge. No one from management was at the jobsite. Further,
Aldridge did not know the employees were at the jobsite. There is no basis for establishing
constructive knowledge. The evidence is insufficient to establish that All Star had actual or
constructive knowledge of the violative conditions. It is the Secretary=s burden to adduce
sufficient evidence to establish this element of her case. The Secretary has not met her burden
of establishing a violation of the cited standards. The citation alleging violations of §§
1926.501(b)(11), 1926.503(a)(1), 1926.1053(b)(1) and 1926.1060(a) is vacated.

                             FINDINGS OF FACT AND
                             CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                        ORDER
   Based upon the foregoing decision, it is ORDERED that:
    1. Item 1a of the Citation, alleging a serious violation of 29 C.F.R. § 1926.501(b)(11) is
       vacated and no penalty is assessed;

    2. Item 1b of the Citation, alleging a serious violation of 29 C.F.R. § 1926. 503(a)(1) is
       vacated and no penalty is assessed;

3. Item 1b of the Citation, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is
vacated and no penalty is assessed;

    4. Item 2a of the Citation, alleging a serious violation of 29 C.F.R. § 1926.1060(a) is
       vacated and no penalty is assessed.

    SO ORDERED.
                                                /s/
                                                SHARON D. CALHOUN

Date: February 4, 2013 Judge
Atlanta, Georgia