Berkebile Auto Service, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Berkebile Auto Service operated an automotive garage and towing service in Pennsylvania. A tow-truck driver died after an off-loaded vehicle rolled forward and pinned him against the tow truck. The judge found that the driver was Berkebile's employee and that the company and towing industry recognized the crushing hazard between the vehicles. Chocking the off-loaded vehicle's wheels was a feasible way to materially reduce the hazard, and the employee-misconduct defense failed because the company had no established, communicated, monitored, or enforced safety rules. The serious general duty clause citation was affirmed with a $3,803 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Serious general duty clause citation affirmed; penalty of $3,803.
• Key point: Tow operators working between vehicles must be protected against unintended movement, including by chocking the off-loaded vehicle when feasible.

Full text (OSHRC public release)


Berkebile Auto Srvice Inc. Docket No. 17-0923

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.
17-0923

BERKEBILE AUTO SERVICE, INC.,

Respondent.

APPEARANCES:         

John M. Strawn , Esquire

U.S. Department of Labor,
Philadelphia, PA

For the Secretary

Brian P. Litzinger , Esquire

Leventry, Haschak & Rodkey , LL C ,
Johnstown, PA

For the Respondent

BEFORE:    Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

Berkebile Auto Service, Inc. (BAS or Respondent) operates a n automotive
garage and towing service
at 337 Oakland Avenue in Johnstown,
Pennsylvania.
A
tow truck driver for
BAS
was fatally injured when he was pinned between the bed of a tow truck and an off-loaded vehicle
on December 13, 2016 . As a result of the fatal injury, the
Occupational Safety and Health Administration (OSHA) began an inspection
of BAS. On May 5, 2017,
OSHA issued a
one-item
c itation and
n otification of
p enalty ( c itation) to BAS for violation of
s ection 5(a)(1) of the Act , the g eneral
d uty
c lause ,
as a result of the inspection . The
c itation alleged that the tow truck driver was not protected from the crushing hazard in the area between the tow truck and
the off - loaded
towed vehicle. BAS filed a timely
notice of contest bringing this matter before the Occupational
Safety
and
Health Rev iew Commission (the Commission ) pursuant to section 10(c) of the Occupational Safety and Health Act of 197 0, 29 U.S.C. § 659(c) (the Act ).

A hearing was held in Pittsburgh, Pennsylvania on March 27
and
28, 2018. 1
At the hearing, the parties stipulated to
many
facts. 2 ( Tr. 323-24;
Ex. J-1). Both parties filed post-hearing briefs.

The
key
issues in dispute are
( 1) whether
BAS was an employer under the Act,
( 2)
whether there was a violation of the
g eneral
d uty
c lause, and
( 3) whether there was unpreventable employee misconduct related to the alleged violation.

For the reasons discussed below,
BAS is found to be an employer within the meaning of the Act,
the
general duty clause
citation is affirmed ,
and a
penalty of $
3, 8 03.00
is assessed.

Jurisdiction

Based upon the record, I find that at all relevant times BAS was engaged in a business affecting commerce
in accord with section 3(3) of the Act. (Ex. J-1). For the reasons that follow, I find BAS
was an employer within the meaning of section 3(5) of the Act . I also find that the Commission has jurisdiction over the parties and subject matter in this case.

Findings
o f Fact

The
C ompany

BAS is an auto repair and towing company owned by Harold Berkebile. (Ex. J-1, Fact ¶ ¶ 2,
3). Mr. Berkebile has been the owner and operator since he purchased the company from his
father and
brother in 1968. 3 For the first few years, BAS provided automotive body work. In 1977, Mr. Berkebile added towing to the services provided by BAS. (Tr. 16 1-63 ).

The accident

On December 13, 2016, BAS assigned Driver J.H.
4
to tow a red 2007 Dodge
dump
truck with a fa iled
transmission
to Weinzierl’s garage . (Ex. J-1, Fact ¶ 5). Driver J.H. used a BAS-owned truck to tow the Dodge
dump
truck. (Tr. 30,
67; Ex. J-1, Fact ¶ 5; Ex. C-5, p p . 2 , 12 ). Mr. Berkebile stated that Driver J.H. would have known the transmission was faulty when preparing the
Dodge dump truck
for towing. (Tr. 197-98).

Driver J.H. off-loaded the
disabled
Dodge truck onto a sloped area at Weinzierl’s garage. (Tr. 39-40, 205).
He did not chock its wheels to prevent movement. (Tr. 31-32 , 78, 87 ; Ex. J-1, Facts ¶ 7). Driver J.H. then stood behind the tow truck, and in front of the disabled vehicle, perhaps to store the chains and winch cable on the
tow
truck’s bed. (Tr. 33 ;
Ex. C-5, p. 13 ). While standing there, the disabled truck drifted forward and pinned Driver J.H. between the two vehicles. (Ex. J-1, Facts ¶ 8; Ex. C-2, p. 3). Driver J.H. was found pinned and crushed between the back of the tow truck and the front of the off-loaded disabled truck. 5 (Tr. 187; Ex. C-5; Ex. J-1, Facts ¶ ¶
5, 6, 7).

EMS w ere
called to the accident scene. (Ex. C-5, p. 2). Driver J.H. was transported to the hospital. He died later that day from the injuries sustained when
he was
crushed
between the vehicles . (Ex. C-5, p. 2).

Weinzierl’s garage
called Mr. Berkebile, to
tell him that a
driver for BAS had been injured . (Tr. 187). Rather than
personally
go ing
to the accident site to check on Driver J.H.,
Mr. Berkebile called Harold Cole,
another BAS driver,
and asked him to go over to Weinzierl’s to see what had happened. (Tr. 187, 231).

Inspection and basis for the OSHA citation

Officer Michael Beb l ar of the West Hills Regional police department notified OSHA’s Pittsburgh area office about the accident on December 13, 2016. (Ex. C-5). The case was assigned to
Compliance Officer (CO) Kathy Clugston , who
began an inspection of BAS
on December 14, 2016 . (Tr. 22 ; Ex. J-1, Fact ¶ 11 ).

CO Clugston obtained accident information and photographs from
the
EMS and the West Hills police
department . (Tr. 23, 28-29, 35 ; Exs. C-5, C-6 ). CO Clugston also received
information from WreckMaster ’s Administrative Director and lead instructor. WreckMaster
is a third-party provider of education and safety practices to operators in the towing industry. (Tr. 78-80, 170-72, 186-87; Ex. C-10).

The day after the accident, CO Clugston, accompanied by CO Butchkoski, 6
opened the inspection with owner, Harold Berkebile, at BAS’s office and garage
in
Johnstown, Pennsylvania. CO Clugston interviewed Mr. Berkebile and others at the BAS garage. (Tr. 22-23 ; Ex. J-1, Fact
¶  1 ). CO Clugston observed the tow truck involved in the accident, which had been moved from the accident site to the BAS garage. (Tr. 31). The tow truck appeared to be in the same condition as it had been when it was photographed at the accident site the day before. (Tr. 30-31; Ex. C-5, pp. 12-13). She then went to Weinzierl’s garage to inspect the area where the accident occurred and to see the towed Dodge truck. (Tr. 23-24 ).

The tow truck was a Super Duty Ford 650 truck with a Jerr-Dan tow bed. (Tr.
42; Ex. C-5, p. 4). The Jerr-Dan Operations and Maintenance Manual (Manual) for this model stated that a vehicle should be on level ground during loading and unloading operations. (Tr. 42-44; Ex. C-11, pp. 6-8). The Manual also stated that the load (towed vehicle) should be aligned directly behind the tow truck when loading and unloading. (Tr. 41-44; Ex. C-11, pp. 6-7).

CO Clugston stated that after the Dodge truck was off-loaded directly behind the tow truck, the area between the
trucks
presented a struck-by and crushing hazard to the
tow truck
driver. (Tr. 39). This area between the back of the tow truck and the front of the off-loaded vehicle is the hazard zone that is the subject of the alleged violation.

According to CO Clugston, both the
Jerr-Dan
Manual and WreckMaster’s training materials maintain that an off-loaded vehicle should be secured to prevent movement before working in the hazard zone. (Tr. 3 9 -4 4 ; Ex. C-11). The Manual instructs the driver to “[s]ecure the load on the ground” before removing and storing the winch cable. (Tr. 43-45; Ex. C-11, p. 8). WreckMaster’s training referred to the area between the back of the tow truck and the off-loaded vehicle as the “kill zone” because of the hazard to
a
driver
working in th is
area . (Tr. 40-41 ).

Mr. Berkebile agreed there was a risk anytime the driver was between the back of the tow truck and the towed vehicle. (Tr. 151).

The tow truck drivers

In December 2016, three or four tow truck drivers worked for BAS, including Harold Cole, Mr. Petak, and Driver J.H.

Also, Vernon Fulton worked for BAS, on a weekly basis, as a mechanic, performing oil changes, tow truck maintenance, and computer data input. (Tr. 70-71,
114,
226-27, 320-21). Mr. Berkebile informed CO Clugston that he had no employees. He
stated that he
used independent contractors to drive the tow trucks. (Tr. 24-25, 165; Ex. J-1, Facts ¶ 4).

Since 2004, Mr. Berkebile had each driver sign a one-page “Independent Contractor Agreement” (Agreement).
(Tr. 24, 166-67; Exs. C-9, R-6). The Agreement did not specify the rate of pay , the
nature of services provided , or the duration of the agreement . (Tr.
166-68,
189-90; Exs. C-9, R-6). Mr. Berkebile stated that the pay and work assignments were the same for all drivers. (Tr.
189-90). Each Friday, Mr. Berkebile paid each driver for that week’s completed service calls. (Tr. 138 , 140, 177 ; Ex. C-13). Drivers were paid at the rate of 40
percent
of the BAS rate
charged to the customer
for towing calls and 50
percent
of the BAS rate charged to the customer
for non-tow service calls. (Tr. 134 -38 ,
140,
190).

Agreements signed by Driver J.H. and former driver Richard Caron were entered into the record. (Exs. C-9, R-6). Driver J.H. signed an Agreement with BAS on May 31, 2004. (Ex. C-9). Driver J.H. had
previously driven
a tow truck for another company and was a certified tow truck driver
before he drove for BAS . (Tr. 170). Driver J.H.
drove for BAS from
2004 until
his death in
2016. (Ex. J-1,
Facts ¶
9; Ex. C-9).

Richard Caron had been
a driver for BAS from 2006 to 2012. (Tr. 301, 30 5-0 6 ; Ex. R-6). Prior to becoming a driver, Mr. Caron brought doughnuts to the
BAS
garage around
7:00 a.m.
e very
morning
to
have
coffee with Mr. Berkebile and others , for companionship . (Tr. 291). Eventually, Mr. Berkebile asked Mr. Caron if he would like to drive for BAS. (Tr. 292). Mr. Caron had done some towing work before he retired from the military in 1996, ten years before. (Tr. 289-90, 293). Mr. Caron signed an Agreement with BAS in 2006. (Ex. R-6). Mr. Caron knew the Agreement stated that he had to take care of his own taxes. (Tr. 292, 297). Mr. Caron believed that he worked for himself; however, he also knew that he represented BAS and only used BAS equipment for service calls. (Tr. 298 -99 , 304).

Mr. Berkebile stated that since 2006 he had accumulated a three to four-inch stack of the
driver
Agreements. (Tr. 166-67). Mr. Berkebile did not notify a driver when an Agreement was terminated. Instead, he simply stopped calling the driver. (Tr. 169).

BAS p rovided no formal work rules, training, or safety instruction
to its drivers . Mr. Berkebile gave no specific instructions on how to strap a
vehicle
down or unload a
vehicle
from the tow truck . (Tr. 196).
During a driver’s first two weeks with BAS, Mr. Berkebile had a senior driver accompany
a
new
driver. (Tr. 170, 174-75, 214-15, 292-93). When
Driver J.H. started driving for BAS in 2004, he was trained by
driver
Ross Snyder . 7
Mr. Berkebile testified that Mr. Snyder showed Driver J.H.
how to drive the truck, hook up, and tie down the vehicle.
(Tr. 17 4-7 5 , 214-15 ). In 2006, Richard Caron was trained by Driver J.H. (Tr. 292). Mr. Caron commented that he had to “be checked out to make sure that I knew how Mr. Berkebile wanted it , ”
in other words how Mr. Berkebile wanted the job performed. (Tr. 293). The record is
otherwise
silent on what information was conveyed to a new driver during this time. Mr. Berkebile
personally
did not accompany the drivers on a tow job or train them. (Tr. 176).
Mr. Berkebile claimed that no one supervised the drivers and that “everybody does their thing.” 8 (Tr. 176, 195-96). He assumed Driver J.H. knew what he was doing. (Tr. 195-96).

Prior to working for BAS, Driver J.H. attended WreckMaster classes and received a towing and recovery operator certificate. (Tr. 170-72; Ex. C-10). Driver J.H. attended two WreckMaster classes while he worked for BAS; one
class
Mr. Berkebile also attended because
Driver J.H. talked him into it. (Tr. 170-71). BAS did not pay for Driver J.H.’s training classes. (Tr. 17 0-72 ). Mr. Berkebile stated
that
the class
he attended
included a demonstration of how to hook-up an overturned bus. (Tr. 172). Mr. Berkebile could not recall wh ether the training included any discussion of the hazardous
area between the towed vehicle and tow truck. (Tr. 186-87). The record is silent as to whether the class
content
included safety topics.

Assignments to drivers

For more than ten years, BAS had towing
and recovery
contracts with several companies, including, Allstate, GEICO, Agero, U-Haul and
the
U nited
S tates
P ostal
S ervice . (Tr.
130,
136-37, 225-26). Mr. Berkebile negotiated the contract with each company. (Tr. 136-37). Some
contracts specified payment to BAS on an hourly or per mile basis, others paid BAS per tow. (Tr. 136-37).

BAS received towing
and non-towing service
requests at its office. (Tr. 131 , 138 ). Mr. Berkebile assigned the tow request to an available driver. (Tr. 176). Sometimes the assigned driver was already at the BAS garage; at other times,
t he
driver
came to the garage to get the tow truck. (Tr. 188, 212-13).

If the driver had taken the tow truck home, the driver began the assigned call from his home. (Tr. 188-89).
Generally, Mr. Berkebile contacted available drivers based on seniority. (Tr. 176). A driver had the option to not accept the offered assignment. (Tr. 176). If the driver refused, Mr. Berkebile contacted the next available driver on the list. (Tr. 176). Driver J.H. had the most seniority and had been at the top of the contact list .
9 (Tr. 179).

BAS had six or seven tow trucks that drivers were required to use for all towing service calls. (Tr.
152, 192,
228). BAS paid for the costs of the fuel, maintenance, and insurance for the tow trucks. (Tr. 134-35).
If more than one person was needed to perform the towing assignment, the assigned driver would call the BAS shop and another BAS driver would be assigned to assist. (Tr.
195,
234-35, 237).
In addition to towing, Mr. Berkebile assigned other service calls to drivers, such as jump-start, flat tire, gas and lock-out requests. (Tr. 134, 138). Generally, d rivers used their personal vehicles for the non-tow service calls. (Tr. 134 , 299-300 ).

Mr. Berkebile claimed that drivers “leased” the tow trucks from BAS. 10 (Tr. 142, 190, 213-14). On
each tow truck , there were
piece s
of paper (sticker s ) stating the truck was leased to its driver, attached
with scotch tape
to the
outside
doors and
one on the inside
dashboard .

At first,
Mr. Berkebile hand - wrote these stickers. Later, he prepared them by typing. (Tr. 190-92 , 247 ). Mr. Berkebile claimed he had placed
the
“lease” stickers on his tow trucks for the past six years. (Tr. 190). He started using the lease stickers after he noticed them in a taxi and on another company’s trucks. (Tr. 206). On December 14, 2016,
CO Clugston did not see sticker s
on the
BAS
truck
involved in the accident , when she began the inspection. The COs
did not open the truck and look inside
to see if there was a sticker on the dashboard . 11 (Tr. 83, 10 3-06, 247 ).

In December 2016, when CO Clugston first interviewed Mr. Berkebile there was no mention of a “vehicle lease.” (Tr. 106).

When CO Clugston
returned
to the BAS garage in March 2017, she noticed
on a
truck
a “vehicle leased to driver ” sticker.
(Tr. 67-68). Mr. Berkebile admitted that sometimes the stickers had to be replaced . The stickers
came
off
when
they
became wet from weather and
when
the trucks
were
steam cleaned
because they
were
only
attached with scotch tape. (Tr. 192 , 233-34, 236-37 ).

There was no document, contract, or other source that explained the terms of the purported lease. (Tr.
69,
142).
The Agreement did not mention a vehicle lease. (Exs. C-9, R-6).

Mr. Berkebile stated
that
the “lease agreement” was simply the percentage of the BAS customer fee the driver would earn based on whether the assignment was a tow or non-tow
service
assignment. (Tr. 206). Mr. Berkebile stated that he explained the “oral lease” of the tow trucks to the drivers when they started. (Tr. 142). Contrary to this claim,
Mr. Caron testified that when he had noticed a lease sticker in the tow truck, he was
surprised to find that
Mr. Berkebile considered the tow truck to be leased to Mr. Caron. (Tr. 303-04).
Mr. Caron could not recall where the lease sticker was on the truck, he only noticed the sticker one time. (Tr. 303-04).

Mr. Berkebile stated that a driver could only use the truck for BAS towing work. (Tr. 134, 142 , 213-14 ). The driver could not sublease the truck, allow anyone else operate the truck, or use it for his own benefit. (Tr. 69). The record is silent on whether a particular truck was leased to each driver; however, it appears that the “lease” simply applied to whatever truck the driver happened to use. Mr. Caron stated that for most of his tow jobs he used the same tow truck that Driver J.H. used. (Tr. 300-01). Mr. Berkebile testified that Driver J.H. used the same Berkebile tow truck ninety-nine percent of the time. (Tr. 187-88, 212-13).

Mr. Berkebile advertised BAS as Berkebile Auto Service and as Berkebile Towing and Recovery. (Tr. 124-25 , 127 ; Exs. C-3, 4). Only Mr. Berkebile could advertise or solicit business on behalf of BAS. (Tr. 142). The drivers were required to present themselves as representatives of BAS to clients and the public. The tow trucks were marked with BAS signage. (Tr. 35, 301; Ex. C-5, p. 13). The uniform shirt and jacket that Driver J.H. routinely wore had a “Berkebile Towing” patch on the left side and his name on the right
side . (Tr. 269-71, 280, 313-15, 317 ; Exs. C-18, 19, 20 ). Driver J.H.’s daughter stated that Driver J.H. had several BAS t-shirts that he wore. (Tr. 280).

Analysis

BAS was an employer under the Act

BAS asserts that it was not an employer under the Act. (R esp’t . Br. 9). The Act def ines an employer as a “person engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). Person means “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.” 29 U.S.C. § 652(4).

An employee is defined as “an employee of an employer who is employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(3).

In similarly worded statutes, the Supreme Court has relied on the common law for guidance in determining whether an individual is an employee, or alternatively, the kind of person the commo n law would consider an employee . See
Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 322-23 (1992) ( Darden ). The Commission analyzes the
Darden
factors to determine if an individual is an employee of the cited employer. Sharon & Walter Constr., Inc.,
23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) ( S&W ). For the following reasons, I find Driver J.H.
was an employee of BAS
and, thus, BAS was an employer under the
A ct .

Darden analysis

“[T]he Secretary has the burden of proving that a cited respondent is the employer of the affected workers at the site.” 
All Star Realty Co., Inc.,
24
BNA OSHC 1356, 1357 (No. 1 2 -1597, 2014) (citation omitted).
T he common-law agency doctrine set forth in
Darden
focuses on the company’s “right to control the manner and means by which the product” is accomplished.

S & W ,
23 BNA OSHC
at
1289
(citation omitt ed). T he company’s control over the worker is
a
“principal guidepost” to determine the existence of an employment relationship. Froedtert Mem'l
Lutheran Hosp., Inc. ,
20 BNA OSHC 1500, 1506 (No. 97-1839, 2004) (citations omitted).
Additional factors relevant to analysis include:

the skill required [for the job]; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business;
[and]
the provision of employee benefits and the tax treatment of the hired party.

S&W,
23 BNA OSHC at 1289
citing
Darden , 503 U.S.
at
323-24 .

A n
evaluation of the
Darden
factors
shows an employer-employee relationship between BAS and Driver J.H. In particular, the control of
the worksite,
work
assignments,
payments,
and
the essential
tools
of the trade are indicative of an employer-employee relationship.

a. General control over the manner and means to accomplish the product

This factor is the most significant
in
determining whether Driver J.H. was an employee of BAS. “Control over the
‘ manner and means of accomplishing the work ’
must include control over the
workers
and not just the results of their work.” D on D avis ,
19
BNA
OSHC 1477 , 1482 (No. 96-1378, 2001) (emphasis in original).
I find that BAS ha d
general control over the drivers’ means and manner to accomplish the work.

Respondent’s
control was manifested through its towing contracts, the tools used for towing services, service call assignments, th e non-negotiable rate of a driver’s pay, limits on the use of “leased” tow trucks, the prohibition of driver advertising or self-promotion, and the initial two-week ride-along training of drivers.

Mr. Berkebile negotiated the terms of the towing contracts between BAS and its client companies. Each driver’s payment from BAS was based upon the towing rates established in these contracts. (Tr. 134). The drivers had no input into the fee structure or other contract terms. (Tr. 136-37). Further, each driver was required to follow the terms specified in each contract. For example, one client’s contract specified that a driver
could not
allow the owner of the vehicle being towed to assist the driver in any way, such as by moving a
vehicle. (Tr.
195,
234-36). Drivers were
bound to contract terms over which they had no control.

BAS specified how a driver could represent himself when providing tow services. Drivers were not allowed to solicit or advertise for themselves . (Tr. 134, 142 ) . The tow trucks were
marked with BAS signage. (Tr.
35,
66, 125-26,
301 ; Ex. C-5, p. 13 ). Drivers could
not use the tow trucks for non-towing calls, such as jump-start or lock-out; instead
generally
BAS required them to use their personal vehicles. 12 (Tr. 134). Even though
Mr. Berkebile
claim ed
the tow truck was leased to
the
driver, the driver had no control over the use of the truck . The driver could not sublet the truck or use the truck in any other way.

The truck was exclusively for towing calls assigned by BAS.

Some drivers wore
BAS
uniforms , even though
it was not a requirement .
(Tr. 73,
156-57 ,
207-08) . Driver J.H. routinely wore a BAS uniform shirt and jacket. 13 (Tr. 280, 306). Mr. Caron
testified that a lot of the drivers wore a BAS shirt. 14

(Tr. 306). Mr. Berkebile
claimed
that BAS initially purchased and then deducted the
uniform
cost
from the drivers’ weekly paychecks.
15
(Tr. 156 -57 ,
207,
315).
Contrary to this claim, during the inspection, the employees told CO Clugston that Mr. Berkebile paid for the uniforms. (Tr. 26, 112-13).

The uniforms show that the drivers knew they were representatives of BAS.

Mr. Berkebile controlled the
driver
assignments .
Service requests were routed through BAS. (Tr. 131, 176). Mr. Berkebile decided which driver would be contacted for
an
assignment. (Tr. 176). Instead of terminating a driver’s contract with BAS, Mr. Berkebile simply stopped offering assignments to that driver, apparently without notice. 16 (Tr. 169). The driver only had control over whether to accept the assignment offered to him.

Drivers had to be trained on BAS requirements. When a driver started working for BAS, Mr. Berkebile had an experienced, senior driver ride along for a couple of weeks to train the
new driver , even when the driver had prior towing experience. (Tr. 17 4-7 5, 292). Driver J.H. was an experienced, certified tow truck driver when he started working for BAS. Nonetheless,
experienced BAS driver
Ross Snyder trained him for two weeks. (Tr. 175). Mr. Caron had done some towing work while in the military, but still had to “be checked out to make sure that I knew how Mr. Berkebile wanted it.” (Tr. 293). Driver J.H. was assigned to train Mr. Caron.

Mr. Berkebile delegated th e
training duty to a senior driver. Th e
two-week training period is more akin to an employer-employee relationship rather than relying on an independent contractor’s expertise. Delegation of training to a
senior
driver is indicative of an assignment
that
an employer would give to an employee.

Finally, the payment terms were the same for all drivers. (Tr. 134, 190). A driver either received 40
percent
or 50
percent
of the fee collected by BAS. (Tr. 134). Drivers could not negotiate their payment terms or the underlying tow fees charged. (Tr. 136-37). Drivers could not negotiate a minimum number of assignments per week. (Tr. 176). If a driver collected payment during the towing service call, the total amount was given to Mr. Berkebile. (Tr. 37-38 ).

BAS had extensive control over the drivers through its owner Harold Berkebile. He provided the primary tools, the towing contracts, and was the source of all tow assignments. He exclusively controlled the amount of pay each driver received. This
one - sided
control
by BAS is indicative of an
employer-employee
relationship.

I find that BAS had significant control over the drivers and the manner and means to accomplish the work. This factor supports an employer-employee relationship.

b. Skills required

Mr. Berkebile did not indicate whether he had a minimum experience or certification requirement for drivers. Driver J.H. and Mr. Caron had significantly different prior towing experience when they began driving for BAS. Driver J.H. was a certified tow truck driver. (Tr. 170; Ex. C-10). Mr. Caron had “some”
towing
experience
from when
he was in the military many years before. (Tr. 289-90). Regardless of prior experience, Mr. Berkebile had a senior driver ride along with a new
BAS
driver for two weeks to show them the BAS way. (Tr. 175, 293).

Drivers were not required to have a certificate or special driver’s license, such as a CDL, to drive a BAS tow truck. (Tr. 66,
99- 100, 151-52 ; Ex. J-1, Fact ¶ 10 ). The only requirement was
a “medical card” obtained with a doctor’s certification. (Tr. 229, 238, 240). The lack of required specialized training, certification ,
or licensing is akin to an employer-employee relationship. Further, the lack of significant, prior experience and the requirement for an initial
two -week ride-along for new drivers is also akin to an employer-employee relationship. I find the skills required for a driver reflect an employer-employee relationship.

c. Source of the tools, work location, and hours worked

BAS provided the essential tools for the work. BAS provided the tow truck, the tools on the truck (such as blocks , chocks, ratchet straps,
chains , come-along, hoist, fire extinguisher ), and the tow assignments. The driver incurred no costs for towing services. (Tr. 134-35,
152,
228 , 298 ). BAS paid the cost of insurance,
equipment,
maintenance,
state vehicle inspections,
and fuel for the tow trucks. (Tr.
70-71, 100,
134, 138 ; Ex. R-3, pp. 2, 4, 6, 8 (Berkebile Towing & Recovery. IRS Form 1040, Schedule C) ).
BAS paid
for the vehicle
insurance on the tow truck s
and
liability insurance for
four of the
tow truck
drivers, including Driver J.H. (Tr. 67, 70-71, 110-11, 134).

Mr. Berkebile claimed the drivers leased the tow trucks. Despite this claim, the driver was only allowed to drive the tow truck for a BAS-assigned towing job. The driver could not sublet the truck or use it for his own benefit. Further, the driver did not pay for the lease and the driver had no costs related to the use of the tow truck. These terms show that control remained with BAS and the driver had no autonomy.

For non-towing
assignments,
such as jump-start or lock-out calls ,
generally
the drivers used their personal vehicles.
Mr. Caron recalled performing a jump start call for BAS. To perform this assignment, he used a BAS van and BAS equipment, jumper cables, and a charger unit. (Tr. 299-300). Mr. Berkebile claimed that he ordered the tools
Driver J.H.
needed to perform “lock - out service”
assignments,
and
that
Driver J.H.
later
reimbursed Mr. Berkebile for the cost . 17
(Tr. 182-83).

The location of work was controlled by BAS through its assignment of tow jobs to a driver. A driver could refuse a job that he was offered, but otherwise could not set his own hours of work. A driver could not demand a minimum number of assignments per week. A driver’s opportunity to work was limited to when Mr. Berkebile called with an assignment.

BAS had control over the hours of work and the source of essential tools. I find this is
indicative of a traditional employer-employee relationship.

d. Method of payment

Payment by the hour, day, week,
and month
is generally indicative of payment to an employee. Whereas, payment per job
suggests
an independent contractor
relationship. I nvestment in the business or the ability to incur losses or gains is a feature of
an
independent contractor rel ationship. The l ack of investment in
a b usiness and no risk of economic loss
suggests an employer- employee relationsh ip.

Here,
even though the drivers were paid based on the actual service calls
performed
each week
(rather than by the hour) the payment
structure
is more akin to that of
an employer-employee relationship
rather than
that of
an independent contractor . A driver could not
negotiate his rate of pay. A driver was paid at 40
percent
of a tow fee
and 50 percent of a non-t ow
fee ,
fees
that had been exclusively negotiated by Mr. Berkebile. All payments from tow clients
and non-t ow
customers
were remitted to BAS. BAS then paid each driver their portion of the fees each week. The weekly dispersal of payments to drivers is more like a traditional employment relationship.

Further, the drivers had no
opportunity
to
impact
gains or losses incurred by the business.
Drivers could not increase their profit from tow assignments by finding a better price for fuel or insurance. Drivers were paid at the rate determined by Mr. Berkebile
and all drivers were paid at the same rate . A driver’s income was not affected by expenses incurred. A driver could not increase his income through his own initiative.

While the lack of an hourly wage points toward an independent contractor relationship, the lack of control over the
payment structure
and lack of investment in the business
is more akin to an employer-employee relationship. This factor
leans toward an employer- employee relationship.

e. Was towing a regular part of BAS’s business

Towing was a regular part of the business. BAS added towing to its garage services in 1977. BAS relied on the tow truck drivers to perform this essential service for BAS’s towing operation.
This factor weighs in favor of a traditional employer-employee relationship.

f. Duration of the relationship and hiring or paying of assistants

The agreements between BAS and its drivers were not limited in time and were generally of long duration.
(Tr. 168) . Additionally, the relationship was not related to a particular project or contract.
(Tr. 91) .

Driver J.H. was a driver for BAS from 2004 until 2016. (Exs. C-9, J-1, Fact ¶ 9). Mr. Caron was a driver from 2006 until 2012. (Tr. 301, 306).
Mr. Petak also was a
BAS
driver for several years. (Tr. 65, 70-71, 157).
The BAS logo worn by many drivers on their work shirts and jackets, is evidence that both the drivers and Mr. Berkebile regarded their working relationship as long-term
and
on-going. (Tr. 269-71, 280, 312-20, 323-24).
The drivers did not hire assistants. If a driver needed assistance, BAS assigned another driver to the
service call . (Tr.
195,
234-35, 237 ). The assignment of another BAS driver to assist on a service call is indicative of an employee-employer relationship.

The duration and open-ended nature of the employment is akin to that of a traditional employer-employee relationship. See Absolute Roofing Constr., Inc.,
580 F. App ’ x 357, 362 (6th Cir. 2014 )
citing
FM Home Improvement,
22 BNA OSHC 1531, 1538 (No. 08-0452, 2009) (ALJ).

g. Tax treatment and employee benefits

BAS did not withhold taxes from a driver’s weekly pay.
(Tr. 206-07).

BAS used the IRS 1099-MISC form to report its drivers’ income. 18
Prepared
by an accountant
in 2017
after his death ,
Driver J.H.’s 2016 federal tax return
reported his income from BAS as self-employment income. (Ex. C-15 ).

Here, t he taxes and benefits are
like those
of an independent contractor relationship. Even s o, tax reporting status is not the
controlling factor in a
Darden
analysis. See S&W , 23 BNA OSHC at 1290. ( In this case, the
Commission found the “failure to withhold federal income and social security taxes was . . . not a bona fide reflection of an authentic independent contractor relationship.”) I find the tax treatment and lack of benefits are not dispositive
in determining the nature of the employment relationship .

h. The independent contractor agreement (Agreement)

Respondent asserts the Agreement signed by its drivers proves they are not employees. The following is a representation of the Agreement.

(Exs. C-9, R-6). I find the Agreement does not demonstrate the drivers were independent contractors under a
Darden
analysis. First, the terms of each Agreement were not individually negotiated with a driver. The Agreement wa s a
generic,
boilerplate ,
fill-in-the blank form
that only varied with the name of the Contractor (driver). ( Exs. R-6, C-9).

Second,
the Agreement
simply
specifies there
was
no employer-employee relationship for the purpose of
local, state, and federal tax liability . I t does no t specify the nature of work agreed to or each party’s responsibility .
BAS contends the tow trucks were leased to drivers, yet there is no mention of this in the agreement.

Considering all the facets of the relationship between BAS and its drivers, I find the relationship
was more akin to that of an employer-employee rather than of a self-employed independent contractor. Considering all the
Darden
factors, especially the
significant
control the company had in obtaining and assigning
work , setting the compensation rate of the drivers, and providing the
tow trucks
to complete the work,
I find
that Driver J.H.
was an employee of BAS
for purposes of the
Act.

The Citation

Citation 1, Item 1 , alleged
a serious violation of
section
5(a)(1)
of the Act , also referred to
as the
g eneral
d uty
c lause. The
g eneral
d uty
c lause
requires
an
employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. §
654(a)(1). The citation alleged
a violation as follows:

The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to
employees from crushing and struck-by hazards:

(a) Facility, 337 Oakland Avenue, Johnstown, PA: On or about December 14, 2016 an employee was positioned between the rear of the roll off tow truck and the front of the vehicle that had been offloaded. The vehicle was offloaded on a sloped area and the wheels were not chocked or otherwise secured to prevent movement or travel. The employee was pinned when the vehicle drifted forward and caught him against the rear of
the
tow bed.

A feasible and acceptable method of abatement is to follow the manufacturer’s (Jerr-Dan) operations and maintenance manual to ensure proper steps and methods are followed to prevent the operator from being in a danger zone until the vehicle has been secured. The manufacturer’s operating instructions include,
but are not limited to: the unit shall be loaded and unloaded on level and stable ground; the truck is to be parked with approximately 13 feet plus the length of the equipment to be unloaded; and the offloaded vehicle should be secured. In addition, the employer should develop and implement a written motor vehicle safety program that defines organizational requirements for driver and motor vehicle safety. The written program shall include the elements listed in ANSI/ASSE Z15.1-2012, Safe Practices for Motor Vehicle Operations, Section 3.2.1 Program Elements.

Complaint, at
Ex . A .

“To prove a violation of the general duty clause,
the Secretary must establish th at : (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.”
  Peacock Eng’g, Inc.,
26 BNA OSHC 1588, 1589 (No. 11-2780, 2017)
citing
Arcadian Corp. , 20 BNA OSHC
2001, 2007 (No. 93-0628, 2004) .

In addition to the four elements of the general duty clause,
t he Secretary must
prove “the employer knew or, with the exercise of reasonable diligence could have k nown of the hazardous condition. ”
Peacock ,
26
BNA OSHC at 1589 (citations omitted);
S. J. Louis Constr. of Tex . ,
25 BNA OSHC 1892, 1894 (No. 12-1045,
2016)
(citations omitted).

Respondent does not challenge the recognition or abatement of the hazard as alleged by the Secretary. Also, Respondent does not challenge that a hazard existed or that it was serious. Respondent simply assert s
that it was not always possible to load and unload a vehicle on level
ground and that if there was a violation, it was the result of employee misconduct by Driver J.H.
(Tr. 287-88).

The hazardous condition

The “ hazard must be defined in a way that apprises the employer of its obligations, and identifies conditions and practices over which the employer can reasonably b e expected to exercise control . . . and [be] defined
in terms of the physical agents that could injure employees rathe r than the means of abatement” for a general duty clause violation. Peacock,
26 BNA OSHC at 1590
citing
Arcadian , 20 BNA OSHC
at 2007 .

Here, the hazardous condition
wa s
working in
the area between the back of the tow truck and the front of the towed vehicle. This hazard existed each time the driver worked between the back of the tow truck
and the towed vehicle,
either when loading or unloading the towed vehicle. (Tr.
45- 46, 151). The disabled vehicle was aligned directly behind the tow truck when loading and unloading. (Tr. 41-44; Ex. C-11, pp. 3, 6). While working in this area the tow truck driver was exposed to a caught-between and crushing hazard. Driver J.H. was crushed when he was pinned between the tow truck and towed vehicle that he had just unloaded.

The Secretary proved a hazardous condition existed.

Hazard recognition

The Secretary must show that either the employer or industry recognizes the hazardous condition.
Peacock,
26 BNA OSHC at 1590-91 (citations omitted)
( h azard recognition may be shown by
proof
of
either the employer’s recognition or by t he
“general understanding in the [employer’s] industry”).

BAS does not dispute this is a recognized hazard. Mr. Berkebile recognized there was a risk anytime the driver was between the back of the tow truck and the towed vehicle. (Tr. 151). Industry recognition of the hazard is shown through the tow truck’s manual and an industry training provider. The Manual for the tow truck required the towed vehicle to be secured to prevent its movement. (Ex. C-11, p. 8). WreckMaster’s training referred to the area between the tow truck and towed vehicle as the
“kill zone” due to its hazard to the driver. (Tr.
40 -41 ).

I find both the towing industry and BAS recognized the crushing hazard between the
back of the tow truck and the towed vehicle. Recognition of the hazard is established.

The hazard was likely to cause death or serious physical harm

Determination of whether a hazard can cause serious harm is not based on the likelihood that an injury will occur, instead it is whether there is a likelihood that death or serious physical harm could
result if an accident occurs .
The Duriron Co., Inc. , 11
BNA
OSHC 1405, 1407 (No. 77-2847, 1983). Here, being caught between the tow truck and a towed vehicle could result in serious injuries and, as in this case, death. I find the hazard was likely to cause death or serious physical harm.

Abatement of the hazard

The
Secretary must show that the
proposed abatement method
is
feasible and
will
materially reduce the hazard. Arcadian Corp.,
20 BNA OSHC
at
2011 .
“[T]he Secretary need only show that the abatement method would materially reduce the hazard, not that
it would eliminate the hazard.” Morrison-Knudsen
Co./Yonkers Contracting Co. , 16 BNA OSHC
1105 , 1122 (No. 88-572, 1993) . And, that the “methods undertaken by the employer to address the alleged hazard were inadequate.” U.S. Postal Serv.,
21 BNA OSHC 1767, 1773-74 (No. 04-316, 2006).

To abate this hazard, the Secretary asserts that Respondent must establish a safety policy 19
that requires drivers to unload vehicles on level ground and secure the unloaded vehicle against movement using blocks, or other means ,
to chock the wheels before working in the hazard zone between the tow truck and towed vehicle. (S. Br. 18-19). The tow truck’s Manual sets forth these procedures. The Manual states that “[t]he unit should always be loaded and unloaded on level and stable ground” and when the vehicle is unloaded, the driver should, “[s]ecure the load on the ground. Remove the winch cable from the load and store the cable.” (Ex. C-11, pp. 6, 8). In contrast, Respondent had no work rules for loading and unloading vehicles, including a requirement for chocking the wheels or level ground.

Chocking the wheels of the towed vehicle to prevent its movement is feasible. Mr. Berkebile admitted that blocks were available on each tow truck for this use. (Tr. 196-97). After unloading a vehicle, the driver can chock the wheels of the towed vehicle before working between the tow truck and towed vehicle.

With respect to loading and unloading on level ground, Mr. Berkebile asserted this was not feasible because a tow truck driver had little control over the location of the disabled vehicle that will be towed; a vehicle must sometimes be moved and loaded from its disabled position. (Tr. 199-200 , 204-05 ). Nonetheless, I find it would be feasible for Respondent to establish a policy that, whenever conditions allow, the loading and unloading process must be done on level ground. Plus,
a requirement to always
chock the wheels to prevent movement
will
mitigate the effect of the sloped ground.

I find it is feasible to block the wheels to prevent movement of the unloaded vehicle. This materially reduces the hazard of being pinned between the tow truck and towed vehicle.

Knowledge of the hazardous condition

The Secretary
must
prove “the employer knew or, with the exercise of reasonable diligence could have known of the hazardous condition.” PSP Monotech Ind us .,
22 BNA OSHC 1303,
1305 (No. 06-1201,
2008)
(citations omitted). Reasonable diligence involves several factors related to an employer’s safety program,
including
adequate work rules, an adequate training program, an
obligation to inspect the work area,
supervision of employees, efforts to
anticipate hazards , and
mea sures to prevent the occurrence of a hazard.  
North
Landing Line Constr. Co. , 19
BNA OSHC
1465 ,
1472
( No.
96-721 , 2001)
(citations omitted). The Secretary can prove constructive knowledge by showing the Respondent had an inadequate safety program. PSP,
22 BNA OSHC at
1305
(Commission finding violation of general duty clause where constructive knowledge proved through employer’s inadequate safety program).

BAS had no general safety program, written or otherwise.
(Tr. 50, 54-55, 89).

BAS had no work rules for loading and unloading a vehicle. (Tr. 196). Mr. Berkebile had “no idea” whether Driver J.H. had
ever re ad
the operat ing manual 20
that was in the tow truck. (Tr. 186).

Mr. B erkebile
never rode with the drivers or supervised them . (Tr. 176, 195-96 ). He
simply
assumed
Driver J.H.
knew wh at he was doing. (Tr. 195-96). Mr. Berkebile admitted that no one supervised the drivers and that “everybody doe s their thing.” (Tr. 195-96).

BAS did not provide adequate work rules, training, supervision of its employees, or take steps to prevent hazardous conditions. Overall, the absence of work rules, training, and attention to safety shows a lack of reasonable diligence. Therefore, I find BAS had constructive knowledge.

For the alleged
g eneral
d uty
c lause violation, I find
there was a crushing hazard, employees were exposed to th e
hazard,
the hazard was serious,
the hazard was recognized by
BAS and by
the industry, and there was a feasible means to abate the hazard. Further,
BAS had constructive knowledge of the hazard due to its lack of reasonable diligence and inattention to safety. The Secretary proved his prima facie case. Berkebile asserts the affirmative defense of unpreventable employee misconduct.

Unpreventable employee misconduct defense

During the hearing, 21
Respondent asserted that Driver J.H. worked independently, with little supervision, so any violation must be employee misconduct. (Tr. 287-88). It was Driver J.H. ’s fault
that the wheels were not chocked to secure the vehicle against movement. (Tr. 287).

An
employer may defend a gainst a
violation by asserting the affirmative defense of unpreventable employee misconduct. Manganas Painting Co ., 21 BNA OSHC 1964, 1997  (No. 94-0588, 2007). 
To establish the defense, Respondent must
prove “ (1) it has established work rules designed to prevent the violation; (2) it has adequately communicated those rules to its employees; (3) it has taken steps to discover violations; and (4) it has effectively enforced the rules when violations have been discovered.”
Id.

This asserted defense fails. As discussed above, Respondent had no established work
safety
rules, it did not communicate those rules, it took no steps to discover violations of
work
safety
rule s , and it made no attempt to enforce safety rules. Mr. Berkebile made no effort to determine if Driver J.H. followed safety guidelines or worked in a safe manner. The asserted affirmative defense of unpreventable employee misconduct is rejected.

I find the Secretary
has proved a violation of the
general duty clause
and
c itation 1,
i tem 1 is affirmed.

Characterization

Under
section 17(k) of the Act, a violation is serious “if there is a substantial probability that death or serious physical harm could result from” the violative condition. 29 U.S.C. § 666(k). As
tragically
d emonstrated here , being pinned and crushed between the
off-loaded
towed vehicle and the tow truck can result in serious physical injury or death. The violation is serious in nature.

Penalty

Section 17(j) of the Act 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. Compass Envtl., Inc. ,
23 BNA OSHC 1132, 1137 (No. 06-1036, 2010)
aff’d , 633 F.3d 1164 (10 th
Cir. 2011) . The gravity of the violation is generally accorded greate st
weight. See
J. A. Jones Constr. Co. , 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993).

The maximum statutory penalty for a serious
viola tion is $12,675.00. 22
The violation’s gravity was assessed as high. (Tr. 53).
The probability was assessed as greater. (Ex. C-2, p. 1).

Because Respondent had no safety program
OSHA applied
no reduction for good faith. (Tr. 54-55). T here was no adjustment
for history because
Respondent had no prior inspection s.

(Tr. 55).
Because this citation resulted from a fatality, OSHA applied no discount for company size and proposed the maximum penalty .
(Tr. 56-57 , 114-15 ).

Typically, a high gravity penalty is adjusted for a small business such as BAS. In December 2016, at the time
of the violation in this case, five individuals worked for
BAS .

(Tr.
70-71, 114, 226-27, 320-21 ).
At that time,
Respondent had between
six and
seven trucks.
23

(Tr.
152, 192, 228 ). I find that BAS was a small business at the time of the violation in this case and that a penalty
reduction based on size is appropriate. ( See generally , Ex C-2, pp. 1-2.). A penalty of $ 3,803.00 is assessed.

In summary

For purposes of the Act, BAS was the employer of Driver J.H. Further, BAS violated the
g eneral
d uty
c lause. Finally, the affirmative defense of preventable employee misconduct was unsupported and fails.

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.

O RDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
that:

Citation 1, Item 1,
alleg ing
a serious violation of § 5(a)(1)
of the Act,
is AFFIRMED as
Serious
and a total penalty of
$
3,803.00
is ASSESSED.

/s/ ______

Carol A. Baumerich

Judge, OSHRC

Date:
April 1, 2019

Washington, D.C.

"

1
The following witnesses testified at the hearing: OSHA Compliance Officer (CO) Kathy Clugston, OSHA CO Joshua Butchkoski, BAS owner Harold Berkebile, a former driver for BAS Richard Caron, and the daughter of the deceased driver. No testimony was presented from a current or recent BAS driver.

2
Exhibits within this decision will be referenced as Ex. J- __
for Joint exhibits, Ex. R- for Respondent’s exhibits and Ex. C - _ _ for Secretary’s exhibits. The stipulated facts will be referenced as Ex. J-1, Fact .

3
Early in 2017, the business structure of BAS changed from that of a sole proprietor to a limited liability corporation under the name Berkebile Auto and Towing Services dba Berkebile Auto Service and Towing and Recovery, LLC. (Tr. 8, 121, 126, 165, 209, 212, 228-29).

4
The deceased employee’s name is not used due to privacy concerns.

5
To unpin Driver J.H. from between the vehicles, Mr. Tom Weinzierl applied the brakes on the towed vehicle while someone moved the tow truck forward. (Ex. C-5, p.
2).

6
Mr. Butchkoski observed CO Clugston and took photographs during the inspection. (Tr. 246, 250-51).

7
Ross Snyder was a BAS tow truck driver in 2004. (Tr. 175).

8
Mr. Berkebile testified,

Whenever [Driver J.H.] drove the truck, he knew what he was doing – supposedly knew what he was doing, and I didn’t have no supervisor over him. Because everybody – everybody does their thing. You might do it this way. It might be easier for you, and it might be easier for me to do it this way. So, whatever is the easiest way for you to do, that’s what you do. (Tr. 195-96).

9
Mr. Berkebile testified that in the time period immediately before Driver J.H.’s accident, Driver J.H. was less interested in work with BAS and would turn down assignments offered by Mr. Berkebile. (Tr. 176-80). Record evidence does not support this testimony.

Review of Driver J.H.’s paystubs for 2016 reveal steady earnings from BAS throughout the year, with no decrease in earnings predating the December 2016 accident. (Ex. C-13). Likewise, Driver J.H.’s federal tax forms 1099-MISC disclose that Driver J.H. had generally consistent earnings from BAS between 2012 and 2016 (Tr. 206; Ex. C-14) and that Driver J.H . ’s yearly earnings from BAS comprised a generally consistent percentage of Respondent’s total “contract labor” expense for the years 2013 through 2016 , 24.9 %, 29.2 %, 27.1 % and 33.4 %, respectively.
( Tr. 217-20;
Ex. R-3, pp. 1, 3, 5, 7).

10
Overall, Mr. Berkebile’s testimony was influenced by his strong belief and litigation position that Driver J.H. was not an employee. Mr. Berkebile mentioned there were other ongoing issues with the state regarding his business structure. (Tr. 142-50). I find that his answers were shaped through the lens of the desired outcome of establishing an independent contractor relationship.

11
CO Clugston looked at two tow trucks at the BAS garage on December 14, 2016. (Tr. 104). Mr. Berkebile claimed that the lease stickers were on each of the tow trucks in December 2016. (Tr. 192).

12
Former driver, Mr. Caron recalled that he once used a BAS van for a jump-start call. (Tr. 299-300).

13
Mr. Caron testified that Driver J.H. wore a BAS shirt and jacket. (Tr. 306). Driver J.H.’s daughter testified that she saw him routinely wear his BAS uniform. (Tr. 280).

14
Mr. Caron stated that he went out on so few service calls that he did not get a BAS shirt. (Tr. 307).

15
Mr. Berkebile’s claim that the uniform cost was deducted from the drivers’ pay is uncorroborated and not supported by record evidence. This claim is not credited. There is no uniform cost deduction noted on the weekly pay slips Mr. Berkebile prepared for Driver J.H. (Tr. 112-13; Exs. C-13, R-5). F our years (2013-2016) of Mr. Berkebile’s tax returns show that BAS had uniform-related expenses between $1,798 and $2,178 each year. (Ex. R-3, pp. 2, 4, 6, 8). No testimony was presented to explain the nature of this expense.

16
Mr. Berkebile simply stopped calling a driver if issues arose regarding drinking or drugs. (Tr. 169).

He did not provide any other examples of when he chose to stop calling a driver.

17
Mr. Berkebile’s claim that the lock - out service tool cost was deducted from the driver’s pay is uncorroborated and not supported by record evidence. This claim is not credited. There is no tool cost deduction noted on the weekly pay slips Mr. Berkebile prepared for Driver J.H. (Tr. 182-83; Exs. C-13, R-5). F our years (2013-2016) of Mr. Berkebile’s tax returns show that BAS incurred a small tools expense each year. (Ex. R-3, pp. 2, 4, 6, 8). No testimony was presented to explain the nature of this expense.

18
IRS 1099-MISC is a federal tax form used for independent contractors. See Absolute Roofing,
580 F. App ’ x at 361.

19
For example, ANSI/ASSE Z15.1 (2012),
Safe Practices for Motor Vehicle Operations, American National Standard ,
s ection 3.2 states that “[o]rganizations shall have a written motor vehicle safety program that defines organizational requirements for driver and motor vehicle safety.” (Ex. C-12, p. 4; Tr. 48-50).

20
During the inspection, Mr. Berkebile told the CO there was no manual in the tow truck. However, the CO never inspected the truck’s interior to see if a manual was there. (Tr. 82-83). During his testimony, Mr. Berkebile stated there had been a manual in the glove box of the truck for the operation of the tow truck’s bed. He explained that when he talked to the CO during the inspection, he had thought the CO asked whether there was a manual on how to drive the truck. (Tr. 185-86; Ex. R-2). The Secretary did not provide evidence to refute Mr. Berkebile’s assertion at hearing that the operations manual was in the glove box of the tow truck.

21
This defense was raised in Respondent’s Answer and in the parties’ prehearing statement of facts to be litigated (Ex. J-1, VI ¶ 3). It was not addressed in Respondent’s post-hearing brief.

22
OSHA’s statutory maximum penalties were increased pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 (2015). The violation in the instant case was assessed on June 21, 2017, thus a statutory maximum of $12,675.00 applies. Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017,
82 Fed. Reg. 5373, 5382 (Jan. 18, 2017)
(to be codified at 29 C.F.R. Part 1903) .

23
Respondents’ federal
tax documents, Form 1040, Schedule C, for years 2013, 2014, 2015, and 2016, received in evidence, are of limited assistance. Generally, they appear to confirm BAS as a small business. That said, the tax forms raise more questions than they answer. For example, the 2014 Schedule C tax form lists “donation” expenses of $3,244.00 that exceed the reported net business
loss
of $2,177.00 for that year. No testimony was presented to explain the expenses or reported yearly business net income or loss on the tax forms. (Tr. 217-20; Ex. R-3). See
notes 15 and 17 above.