FreightCar America, Inc.

Read the official release (oshrc.gov)

Plain-English summary

A worker at an Alabama railcar manufacturing facility was hospitalized after slipping from a steel sheet onto roller-bed crossbeams and sustaining facial and abdominal injuries. OSHA cited FreightCar America, Inc. under the general duty clause for the slip-and-fall hazard. The Commission found that the Secretary did not prove the cited parent company employed the facility's workers. Payroll, tax, benefit, and labor-election records identified FreightCar Alabama, LLC as the employer, while signs and documents using the FreightCar America name largely reflected branding and did not establish control. The evidence also did not show that the parent and subsidiary shared enough worksite control, management, or integrated safety operations to be treated as a single employer. The Commission reversed the judge, vacated the citation, and eliminated the $4,712 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1).
• Outcome: Judge reversed; serious general duty clause citation vacated and $4,712 penalty eliminated.
• Key point: The Secretary must prove that the cited corporate entity employed the affected workers or formed a single employer with the actual employer; common branding alone is insufficient.

Full text (OSHRC public release)


FreightCar America, Inc.OSHRC Docket No. 18-0970

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR ,

Complainant,

v.

FREIGHTCAR AMERICA, INC.,

Respondent.

OSHRC Docket No. 18-0970

ON BRIEFS:

Louise
McGauley
Betts, Senior
Attorney;
Heather R. Phillips , Counsel for Appellate Litigation;
Edmund C. Baird ,
A ssociate
Solicitor
for Occupational Safety and Health ;
Kate S.
O’Scannlain , Solicitor of Labor ; U.S. Department of Labor, Washington, D.C.

For the Complainant

John J. Coleman, III, Esq.
and
Emily C. Burke , Esq. ;
Burr & Forman LLP ,
Birmingham, AL

For the Respondent

DECISION

Before: ATTWOOD , Chairman;
SULLIVAN
and LAIHOW, Commissioners.

BY THE COMMISSION:

In April 2018, a worker was seriously
injured
when he fell on to
equipment
at a railcar manufacturing facility in Cherokee, Alabama . T he Occupational and Safety Health Administration
inspected the facility
following the incident
and
issued
FreightCar
America, Inc. ,
a citation
alleg ing
a
serious
violation of section 5(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. 654(a)(1) ,
based on employee exposure to
a “slip and fall”
hazard . Administrative Law Judge Sharon D. Calhoun affirmed the violation and assessed the proposed penalty of $4,712. We reverse the judge’s decision and vacate the citation because the Secretary
has
failed to establish that
FreightCar
America, Inc. ,
i s properly cited as an employer responsible for the alleged violation.

BACKGROUND

Two accidents occurring six weeks apart at the
Cherokee
railcar manufacturing facility resulted in
OSHA issuing
two citations under
different
OSHA inspection numbers to
FreightCar
America, Inc. Respondent contested both citations and the cases were
docketed
separately
by the Commission (Docket Nos. 18-0772 and 18-0970). Judge Calhoun
was assigned to adjudicate both
cases , which
have
not
been
consolidated,
and
she
held
a
separate hearing
in each
case . S he
also
accepted the parties’
stipulat ion
that
“the
evidence admitted at the hearing in  . . .  Docket No. 18-0772 pertaining to the issue of whether
FreightCar
America,
Inc . [ , ]
is the properly cited employer may be considered in  . . .  Docket No. 18-0970. ”

Before the judge in both cases, the parties disagreed on which corporate entity employed the workers at the
Cherokee
facility. The Secretary identified the employer as
FreightCar
America, Inc., whereas Respondent argued that the workers are employed by
FreightCar
Alabama, LLC, a subsidiary of
FreightCar
America, Inc. The
judge found in both cases that
FreightCar
America, Inc. ,
was the employer of the workers at the facility . Our review of this issue, however, is limited to whether
FreightCar
America, Inc. ,
has been
properly cited as an employer in Docket No. 18-0970 . 1

DISCUSSION

T he Secretary argued
to the judge
that application of the common law
agency doctrine
set forth in
Nationwide Mut. Ins. Co.
v.
Darden , 503 U.S. 318 (1992),
shows that an employment relationship exist s
between
F reightCar
America, Inc. ,
and the workers at the Cherokee facility. The judge agreed that such an employment relationship exist s , but rather than applying the
Darden
common law
doctrine
to reach this conclusion,
she
applied
the “economic realities” test articulated
by the Commission
in
Loomis Cabinet Co. , 15 BNA OSHC 1635, 1637 (No. 88-2012, 1992),
aff’d , 20 F.3d 938 (9th Cir. 1994). The judge relied on this test because, in her view, the factors set forth in
Darden
“are not particularly apposite to this proceeding.” In
addressing this
question
on review,
the parties were
also
asked
to discuss whether the single employer test should be applied in resolving this issue. Loretto-Oswego Residential Health Care Facility , 23 BNA OSHC 1356, 1359
(No. 02-1174, 2011) (consolidated)
(explaining Commission’s single employer test),
aff’d , 692
F.3d 65 (2d Cir. 2012) . We therefore
analyze
whether an employment relationship existed between
FreightCar
America, Inc. ,
and the Cherokee workers, as well as whether
FreightCar
Alabama, LLC ,
and
FreightCar
America, Inc. ,
functioned as a single employer under the OSH Act. 2

Employment Relationship

Since the Supreme Court issued
Darden , 503 U.S. 318 ,
i n 1992, the Commission has consistently applied the common law
agency doctrine
set forth
in that decision
to
employment relationship
questions arising
under the OSH Act
in stead
of the economic realities test
that
the judge
applied here . See , e.g.,
All Star Realty Co. , 24 BNA OSHC 1356,
1358-59
(No. 12-1597, 2014)
(applying
Darden
factors) ;
Lake
Cty .
Sewer Co. , 22 BNA OSHC 1522,
1523-24
(No. 07-1786, 2009) (same);
see
Timothy Victory,
18 BNA OSHC 1023, 1026 (No. 93-3359, 1997) (recognizing that, in light of
Darden , Commission had found that term “employee” should be interpreted consistent with common law principles, and finding that “the Secretary was mistaken in relying on [ S&S Diving Co. , 8 BNA OSHC 2041, 2042 (No. 77-4234, 1980), which applied the economic realities test] and other Commission decisions before [ Vergona
Crane Co. , 15 BNA OSHC 1782, 1783 (No. 88-1745, 1992)] as to the operative test of an employment relationship”). The Commission relies on th is
doctrine
because
the OSH Act ’s
defin ition of
“employe e ”
is “unhelpfully circular.” 3
Don Davis , 19 BNA OSHC 1477,
1479-80
(No. 96-1378, 2001) ;
see Darden , 503 U.S. at 323 (“adopt[ ing ] a common-law test for determining who qualifies as an ‘employee’ under [Employee
Retirement
Income Security Act of 1974]” because statute’s “nominal definition of ‘employee’  . . .  is completely circular and explains nothing”) .
U nder
such circumstances,
the Supreme Court has found that Congress intended
“ th e term ‘employee’  . . .  to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Don Davis , 19 BNA OSHC
at
1480
(quoting
Darden , 503 U.S. at 322-23) ;
see
Vergona
Crane Co. , 15 BNA OSHC at
1784
(noting that Supreme Court held in
Darden
that “the term ‘employee’ in a federal statute should be interpreted under common law principles, unless the particular statute specifically indicates otherwise”). Thus, consistent with our precedent, w e
apply
th at
doctrine
here to determine
whether
F reightCar
America, Inc. ,
i s the employer of
the
worker s at the Cherokee facility .

The common law agency doctrine
set forth
in
Darden
“focuses on ‘the hiring party’s right to control the manner and means by which the product is accomplished. ’ ”
All Star Realty Co. , 24 BNA OSHC at 1358
(citing
Darden , 503 U.S. at 323). The Supreme Court recognized the following factors as “relevant to this inquiry”:

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

Darden , 503 U.S. at 323-24 . In the context of the OSH Act, the Commission has held that the control exercised over a worker is the “principal guidepost.” S. Scrap Materials Co.,
23 BNA OSHC 1596, 1612 (No. 94-3393, 2011) ;
Froedtert
Mem’l
Lutheran Hosp., Inc. , 20 BNA OSHC 1500, 1506 (No. 97-1839, 2004) (quoting
Clackamas Gastroenterology Assocs., P.C. v. Wells , 538 U.S. 440, 448 (2003)).

Apply ing
the
Darden
factors
here , we conclude the Secretary has failed to establish that the workers at the Cherokee facility
are
employees of
FreightCar
America, Inc. T he W-2 forms and pay/earnings statements
in evidence
for workers at the facility, including those in managerial roles such as “production supervisor” and “HR manager,” identify
F reightCar
Alabama, LLC ,
as the employer. 4

These forms
specify
the pay ,
retirement ,
and health benefits that workers received ,
as well as
the amounts of state and federal taxes withheld . See
Darden , 503 U.S. at 323-24 (listing as factors “the method of payment;  . . .  the provision of employee benefits; and the tax treatment of the hired party ” ). In addition , a document titled, “United States of
America[ ,] National Labor Relations Board[,] Stipulated Election Agreement,” lists the
workers’
employer as “ FreightCar
Alabama, LLC, a subsidiary of
FreightCar
America, Inc. , ” and provides the address of the
“Employer’s  . . .  Cherokee ,
Alabama
facility ”
as the location of the election. 5
Id.
(listing “ the location of the work” as a factor). Finally, as to the railcars
manufactured
at the facility
(the “product”) ,
the
OSHA compliance officer
who inspected the facility
acknowledged
that he
did not know whether
F reightCar
America, Inc. ,
gets “customers, decides what railcars to build,
[or]
decides how they are going to be built , ” and we
have
f ound
no evidence
that
F reightCar
America, Inc. ,
rather than
F reightCar
Alabama, LLC ,
is responsible for these product-related activities. All Star Realty Co. , 24 BNA OSHC at 1358
(noting that common-law agency doctrine “focuses on ‘the hiring party’s right to control the manner and means by which the product is accomplished ’   ”
(citing
Darden , 503 U.S. at 323)).

To
support her conclusion
that
FreightCar
America, Inc. ,
exercises authority over the Cherokee facility’s workers ,
the judge
relied
on
visual references to
“ FreightCar
America”
that appear
throughout the
facilit y , including on various documents
such as the
facility’s log of
visitors
and
its
parking permits . But
many of
these
references
appear to be
to
the brand name
“ FreightCar
America ”
rather than the corporate entity,
and to the extent that the
corporat ion
is identified
in certain documents ,
the ir
content
is silent regarding
what
authority —if any— FreightCar
America, Inc. ,
exercise s
over the facility
and
its workers.
Specifically,
the name
“ FreightCar
America”
appears on a sign outside the
Cherokee
facility and on the workers’ uniforms, and
also
as a header
or heading
(in most cases, without the “Inc.”)
on
a
“ P roduct
A ssembly
D ocument” and s everal
safety
program
documents , as well as
on
the visitors’ log and parking permits . In addition,
“ FreightCar
America ”—both with and without the “ I nc.” — is identified as the “establishment
name ”
o n
several of
the
facility’s OSHA 300 forms,
th ough the forms from 2016 identify the establishment
name , interchangeably, as “ FreightCar
America – Shoals” and “ FreightCar
Alabama, LLC.” Finally, the facility ’ s agreement with the temporary employment agency
that
supplied the worker
whose injury resulted in
the
inspection
here
lists the contracting party as “ FreightCar
America – Shoals Facility , ”
which
as noted with respect to the
2016
OSHA 300 forms,
is a name that
on
at least
one occasion
has
been used interchangeably with “ FreightCar
Alabama, LLC.”

W ithout
additional evidence
that
directly address es
or
explain s
the parent company’s role at the
Cherokee
facility ,
we cannot conclude that
these
referenc es
to
FreightCar
America , either as a brand name or a corporate entity,
prove
that
the
company
exercise s
sufficient control over
the
facility’s
workers to establish an employment relationship .

Indeed, t he W-2 forms and pay /earning
statements,
along with the
stipulated election agreement,
are
the only
documents
that
explicitly
identif y
the “employer” of the se
workers, and
they all name
FreightCar
Alabama, LLC,
not
FreightCar
America, Inc . This
documentary
evidence also undermines the judge’s reliance on the belief of some workers that their employer
is
FreightCar
America, Inc. With no
explanation in the record for
why
they held this belie f,
such
statements, alone,
do
not
show
that
FreightCar
America, Inc. ,
employed
the
workers.

Finally, we are troubled by the lack of
evidence
addressing
many of the factors listed in
Darden . And
as discussed above,
the factors that
the evidence does
address
weigh in favor of
a
finding
that the workers at the Cherokee facility
are
employed by
FreightCar
Alabama, LLC, not
FreightCar
America, Inc. A finding here that the Secretary carried
his
burden of proof under
Darden
would create an impermissibly low bar for
establishing
the test and strip it of its intended purpose.

This is especially true when the Commission has previously enunciated that
the
control exercised
by a cited company
over
the
workers
at issue
is the “principal guidepost”
under
a
Darden
analysis.

S. Scrap Materials Co.,
23 BNA OSHC at 1612 .

Little, if any, actual control
exercised
by
FreightCar
America Inc. over
the workers at the Cherokee facility
i s demonstrated in the record before us.

We therefore conclude that
the
preponderance of the
evidence
does not show that
FreightCar
America ,
Inc. ,
i s the employer of the Cherokee facility’s workers .

All Star Realty Co. , 24 BNA OSHC at 1358
(“[T]he Secretary has the burden of proving that a cited respondent is the employer of the affected workers at the site.” (citing
Allstate Painting & Contracting Co. , 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated) ) ) .

Single Employer

T he judge
opined
in her decision
that
the employment relationship issue would have been better analyzed under the Commission’s single employer test , which assesses whether two entities should be treated as a single employer for purposes of the OSH Act . Loretto , 23 BNA OSHC
at
135 8
(“Commission precedent hold[s] that ‘related employers are regarded as a single entity
where  . . .  they share a common worksite, have interrelated and integrated operations, and share a common president, management, supervision, or ownership. ’ ”
(cit ation
omitted)) .
The judge did not base her decision on this
theory of employer liability
because neither party raised it as an issue, but she
nonetheless noted that
the record evidence shows
the two companies
are
a single employer . 6
In response to our briefing notice request that the parties address this question, the Secretary urges us to apply the single employer test to the
inquiry
at hand. But even under this test,
the record evidence does not establish
that
FreightCar
America, Inc. ,
i s a
responsible
employer i n
this case.

The Secretary bears the burden of establishing
that
the cited entity is part of
a
single
employer relationship . Loretto , 23 BNA OSHC at 1358 n.4. The factors
relevant to
this inquiry
include whether
the two entities “ share a common worksite, are interrelated and integrated with respect to operations and safety and health matters, and share a common president, management, supervision, or ownership.” S. Scrap Materials Co. , 23 BNA OSHC at 1627 . The record evidence showing that such a relationship exist s
here
is
thin . Although the Secretary established that the corporate headquarters for the two companies is at the same address in Chicago, Illinois, the
record does not show that the companies “share” the worksite at issue—the Cherokee facility. There is also no evidence showing that the two companies share “a common president, management, supervision, or ownership.” Id. In
fact , no thing
in the record
identifies
the occupants of
these positions for
FreightCar
America, Inc.

As to interrelation and integration of the two companies “with respect to operations and safety and health matters,” much of the record evidence lacks
the necessary
context. As discussed above, “ FreightCar
America”
appears to be
visually represented throughout the Cherokee facility as a brand name rather than a corporate entity .

This is not unlike
the branding practice among other affiliated enterprises ,
where there is a common brand
name
but independent commercial enterprises
carry out the work— such
examples include hospital systems, airlines, and hotel chains .

Further,
the evidence does not address the extent, if any, to which
FreightCar
America, Inc. is involved in operational and safety and health matters at the
Cherokee
facility. And the mere fact that employees at the facility believed at the time of the inspection that their employer was
FreightCar
America, Inc. ,
is insufficient to establish the existence of a single employer relationship. 7
See
Loretto , 23 BNA OSHC at
1359-60
(finding single employer relationship was not established where entities “shared the same president, chief executive officer, and chief financial officer” and there was some evidence that companies interacted on safety and health matters, but companies did not share common worksite and record did not show companies “handled safety matters as one company”);
compare
Vergona
Crane Co. , 15 BNA OSHC at
1783
(finding single employer relationship where two companies were owned by same family, had same president, and operated out of same office, and leases for crane at issue appeared to use names of companies interchangeably);
C.T. Taylor Co. , 20 BNA OSHC
1083, 1087 (No. 94-3241, 2003) (consolidated)
(finding single employer relationship where two companies were owned and controlled by same individual and operated out of same office, and one company, on behalf of other, essentially performed all administrative functions and, as to job at issue, controlled and directed employee work and maintained responsibility for employee safety).

In
arguing that
the two companies
operate as
a single employer, the
Secretary
focuse s
on
a
Cherokee facility
safety manager’s “dual role as a corporate safety director for
FreightCar
America and onsite safety director . ” We find, however, that the record evidence is
insufficient to establish that
this safety manager
was
either
employed by
FreightCar
America, Inc. ,
or acted as a corporate director for the company.
During hearing testimony, a business card was read into evidence that
listed
FreightCar
America, Inc. ,
under the safety manager’s name and duty title.

The actual business card , however,
was not admitted into evidence.

Regardless of the business card’s
reference to
FreightCar
America , the safety manager
claimed
that he worked for
FreightCar
Alabama, LLC.

Other than the business card and
the
safety manager’s testimony
about it , there
i s no other evidence presented as to wh ich company
actually employed
the safety manager.

Indeed,
at no point during either hearing did the Secretary’s counsel attempt to elicit evidence concerning the identity of the safety manager’s employer, including when the
human resources
manager authenticated and
testified
about the
pay records
of other individuals who worked at the
Cherokee
facility .

Although t h e judge
properly
accorde d
the safety manager’s
testimony little weight based on
her sound
demeanor-based credibility determinations,
she
then
simply
presumed that th e
safety manager
must be
an employee of
FreightCar
America, Inc. ,
even though
the Secretary never submitted
th is
manager’s
W-2 forms and pay/earning statements
into the
record.

See
Nordam
Grp. , 19 BNA OSHC 1413, 1416 (No. 99-0954, 2001) (“The Commission will ordinarily accept a credibility finding when it is based on the judge’s observation of a witness’s demeanor and is clearly explained.”),
aff’d , 37 F.
App’x
959 (10th Cir. 2002) (unpublished).

Absent such documentation,
which would be the most definitive evidence of his employe r’s identity ,
the judge’s
inference
lacks sufficient support . 8

Nor are we
persuaded
to find otherwise
based on the compliance officer’s
testimony
that th is
safety manager
said he was
employed by
FreightCar
America, Inc. Considering the factors enunciated in
Darden ,
503 U.S. at 323-24,
th is
fact
alone
does not establish that
FreightCar
America, Inc., is his employer,
particularly when considered with
a second
safety
manager’s
pay statement
that identifies
his
employer as “ FreightCar
A labama . ” 9
Indeed, there
is no
evidence in the record showing that
FreightCar
America, Inc. ,
exercised control over
either
safety manager
or
their
work at the Cherokee facility .
The Secretary
points out
that t he safety manager
who testified
at the hearing
confirmed
that
he had “some responsibilities” at
other facilities
associated with
FreightCar
America ,
but
since no further inquiry was conducted,
it
is
unclear what his role
was at these facilities or whether he was even acting on behalf of
FreightCar
America, Inc. ,
rather than
FreightCar
Alabama, LLC ,
in meeting those responsibilities . With the
limited
information before us, there
remains
a
significant
amount of confusion as to the nature of the relationship between
FreightCar
America, Inc. and
FreightCar
Alabama, LLC, and as such ,
we
decline to
infer what the exact nature of their relationship is.

Therefore, we conclude
that
the record does not establish an employment relationship between the
Cherokee facility’s
safety managers and
FreightCar
America, Inc.

As to whether
either
safety manager acted as
a
corporate director for
FreightCar
America, Inc . , t he Secretary
directs us to
the manager’s
testi mony
that his business card includes “ FreightCar
America, Inc.” under his title, “ Corporate Director of Environmental Health and Safety.” Putting aside that the business card, like th e
safety manager’s pay records, was never submitted into evidence, his testimony —which was
otherwise discredited — is insufficient to establish that
he
in fact
functions as a corporate director for
FreightCar
America, Inc. Moreover , there is no testimony or documentary evidence
from
FreightCar
America, Inc. ,
confirming that
either
safety manager was a corporate director. Thus, we also conclude that the record does not establish that the se
safety managers were corporate directors for
FreightCar
America, Inc.

Simply put,
the record
evidence
concerning
FreightCar
America, Inc.’s
role at the Cherokee facility
falls short .
W e
therefore
conclude
that
the Secretary
has
failed
to
establish
that
FreightCar
America, Inc. ,
i s an employer
responsible
for the violation
alleged in
Serious
Citation 1, Item 1 .

Accordingly, we reverse the judge and vacate the citation.

SO
ORDERED.

/s/               

Cynthia L. Attwood

Chairman

/s/                                        James J. Sullivan, Jr.

C ommissioner      

/s/               

Amanda Wood Laihow

Dated:    March 3, 2021                Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant

v.

OSHRC Docket No.:
18-0970

FreightCar
America, Inc.,

Respondent.

Appearances:

Emily O. Roberts, Esq.

Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee

For Complainant

John J. Coleman, III, Esq. and Emily C. Burke, Esq.

Burr & Forman, Birmingham, Alabama

For Respondent

BEFORE: Administrative Law Judge
Sharon D. Calhoun

DECISION AND ORDER

On April 2, 2018, a worker at a railcar manufacturing facility in Cherokee, Alabama, was injured when he slipped and fell while walking across a roller bed platform. On April 10, 2018, Compliance Safety and Health Officer (CSHO) Javier Rodriguez of the Occupational Safety and Health Administration opened an inspection at the facility. After completing his inspection, Rodriguez recommended the Secretary cite
FreightCar
America, Inc., the corporate entity Rodriguez believed to be the owner and operator of the facility (and the employer of the injured worker), for a violation of § 5(a)(1), the general duty clause, of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 654(a)(1).

On May 24, 2018, the Secretary issued a one-item Citation and Notification of Penalty to
FreightCar
America, Inc. (Respondent) alleging a serious violation of the general duty clause for
exposing employees to slip and fall hazards when welding atop the roller bed platform. The Secretary proposes a penalty of $4,712 for Item 1.

Respondent contends the Secretary failed to establish a violation of the general duty clause but also vigorously argues the Secretary cited the wrong employer—Respondent claims
FreightCar
Alabama, LLC, not
FreightCar
America, Inc., owns and operates the facility and urges the Court to vacate the Citation because it is not the employer of the affected employees.

For the reasons that
follow, the Court finds the Secretary properly cited Respondent
FreightCar
America, Inc. as the employer of the affected employees at the cited facility. The Court also finds the Secretary established the cited violation. Accordingly, the Court
AFFIRMS

Item 1 of the Citation and assesses a penalty of $4,712.

JURISDICTION AND COVERAGE

Respondent timely contested the Citation on June 14, 2018. The parties stipulate the Commission has jurisdiction over this action and Respondent is a covered employer under the Act ( Joint Prehearing Statement , p. 4; Tr. 13). Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and Respondent is a covered employer under § 3(5) of the Act.

STIPULATIONS

The parties stipulated the following pertinent “Proposed Facts”:

6. The employee [who slipped and fell] sustained injuries requiring hospitalization.

7. The roller bed platform is roughly 42" above the ground and 53' long by 12' wide.

8. Employees accessed the steel sheet atop the elevated covered roller bed to conduct welding work five times per day, for seven weeks.

9. The sheets of steel on which the injured employee worked rest on rollers mounted on vertical girders supported by protruding horizontal girders laid out in a cross brace "x" pattern.

10. The facility at 1200 Haley Drive, Cherokee, Alabama, 35616, manufactures rail cars.

11. Following the April 2, 2018, accident and inspection, the prescribed abatement was that the employees would no longer work on top of the platform, but perform all welding from below, and a work rule has adopted the abatement.

( Joint Prehearing Statement , pp. 4-5; Tr. 15-16)

BACKGROUND

The cited railcar manufacturing facility is commonly referred to as the “Shoals facility” (it is near Muscle Shoals, Alabama) (Tr. 15; No. 18-0772,
Exh . CX-1). 10
The Shoals facility has several production lines with roller beds. At the roller bed at issue, large steel sheets are welded together by an automated butt welder, then moved along the roller bed to an area (the cut off station) where the welded sheet is clamped in place. Workers at the station cut metal tabs off the steel sheet with grinders (Tr. 156, 158-59, 187). 11 A wooden three-step staircase is placed on either side of the roller bed. Before the April 2, 2018, accident, workers would perform the grinding work by climbing one of the staircases and stepping onto the metal sheet lying on top of the roller bed to cut off the tabs. They would then climb down the stairs to wait either for the rest of the steel sheet to move into place to cut off the remaining tabs or for the next steel sheet. The first time the steel sheet is clamped in place, workers cut off two tabs. After the steel sheet is moved forward and clamped again, workers cut off four tabs. The Former Employee estimated it takes less than two minutes to cut off four tabs ( Exh . RX-10; Tr. 42, 46, 159, 170, 188).

Employee #1 was a temporary employee hired by Respondent from Lyons HR, a temporary staffing agency (Tr. 154). 12
He worked the second shift on the cut off station, and his supervisor was J.M. (Tr. 154, 189-90). On April 2, 2018, Employee #1 was standing on top of a steel sheet on the roller bed platform after he had finished cutting off its tabs. To get to the staircase he wanted
to use, Employee #1 stepped off the metal sheet onto one of the horizontal bars (or “beams”) of the roller bed and proceeded to step from one bar to the next. 13 He lost his footing and fell forward onto the bars, injuring his face and abdomen ( Exh . RX-11; Tr. 47, 167). He suffered a broken nose, facial lacerations, and a pancreatic contusion (Tr. 55-56, 165). He was hospitalized and missed “roughly a month” of work (Tr. 165-66). He returned to work for Respondent but in a different area of the facility (Tr. 156).

In response to Respondent’s report of a work-related accident and hospitalization, CSHO Javier Rodriguez opened an inspection at the facility on April 10, 2018, taking photographs and measurements, interviewing employees, and requesting employer documents (Tr. 30-32). As a result of Rodriguez’s inspection, the Secretary issued a Citation to
FreightCar
America, Inc. on May 24, 2018.

WAS RESPONDENT THE EMPLOYER OF THE AFFECTED EMPLOYEES?

The Secretary cited “ FreightCar
America, Inc.” as the employer of the affected employees. Respondent contends “ FreightCar
Alabama, LLC” is the correct employer, and so the Citation issued to
FreightCar
America, Inc. should be dismissed. It is the Secretary’s burden to establish
FreightCar
America, Inc. is the properly cited employer in this proceeding.

Only an “employer” may be cited for a violation of the Act,
see
29 U.S.C. § 658(a), and the Secretary has the burden of proving that a cited respondent is the employer of the affected workers at the site.

Allstate Painting & Contracting Co ., Nos. 97-1631 & 97-1727, 2005 WL 682104, at *2 (OSHRC March 15, 2005) (consolidated).

The Secretary believes this issue should be analyzed using the Supreme Court’s
Darden
test, set out in
Nationwide Mutual Insurance Company v. Darden , 503 U.S. 316, 323 (1992) (Looking to “ the hiring party's right to control the manner and means by which the product [was] accomplished ” to determine the employer/employee relationship). Respondent claims it is not the employer of the affected employees based on an almost
30-year old
unreviewed ALJ decision that addresses the issue of limited liability. Hills Department Stores, Inc.,
No. 89-1807, 1990 WL 146495, at *2 (OSHRC Sept. 12, 1990) (“Under the doctrine of limited liability, recourse is against
the corporation itself, not against its parent company or shareholders. Generally, a parent is not liable for the acts of its subsidiary.”). 14

The Court finds the Secretary has established he properly cited Respondent
FreightCar
America, Inc. as the employer of the affected employees. The testimony of the witnesses and the documentary evidence demonstrate
FreightCar
America, Inc. exercised substantial control over the Shoals facility.

Testimony of CSHO Javier Rodriguez and Documentary Evidence

In Docket No. 18-0772 ,
CSHO Rodriguez testified that when an employer calls in to report an accident, OSHA’s duty officer takes “ all the information directly from the caller and input[s] that information into
a system [.] . . . We take exactly what the employer tells us that happened. And then, when that is assigned to a compliance officer, the compliance officer is to do the investigation.” ( No. 18-0772,
Tr. 95-96 ) On
March 1, 2018, OSHA’s duty officer received a telephone call from management official “Fred Parson,” who identified the “Establishment Name” of the accident site at 1200 Haley Drive in Cherokee, Alabama, as “ FreightCar
America, Inc.” ( No. 18-0772,
Exh . CX-8) As part of OSHA’s standard procedure, Rodriguez conducted a business entity search on the Alabama Secretary of State’s website (which he referred to as the “database”) ( No. 18-0772,
Tr. 122-23). The Alabama Secretary of State’s website has an entry for “ FreightCar
Alabama, LLC” with the following pertinent information:

Principal Address:    Two North Riverside Plaza Ste. 1300, Chicago, IL 60606

Status:       Exists

Formation Date:    2-8-2013   

Reporting Address:    1200 Haley Dr., Cherokee AL 35616-5369   

(No. 18-0772,
Exh . CX-2 ) In
its
Corporate Disclosure Statement , Respondent stated
FreightCar
Alabama, LLC is one of several of its “[a] ffiliates
and/or subsidiaries.”

CSHO Rodriguez met with environmental health and safety (EHS) management employees Fred Pearson and Scott Tittle when he visited the Shoals facility on March 7 and 22 ( No. 18-0772,
Tr. 113, 118). He later called Pearson to clarify the correct employer name for the facility.

I asked [Pearson] about . . . the legal name of the company because . . . I went through the . . . database and I found the Alabama Secretary, I found “ FreightCar
Alabama, LLC,” and I also found “ FreightCar
America, Inc.”
So
I remember specifically asking, look, I'm confused, which one it is. Could you get with your -- somebody in your legal department and just get back with me. He says, okay. And that's what happened . . . .
I
can't
remember if I called him back the next day or --
or
two days after or he called me back and he said, look, as far as I know, it's “ FreightCar
America, Inc.” So
that's
how it was entered.

( No. 18-0772,
Tr. 121)

CSHO Rodriguez also looked at the website of
FreightCar
America, Inc. ( No. 18-0772,
Tr. 125). Small print at the bottom of the website states, “All content is © 2018
FreightCar
America, Inc.” ( No. 18-0772,
Exh . CX-1) Under “Locations,” the website lists four cities and a state with the designated functions of their facilities for
FreightCar
America, Inc.:

Chicago: Headquarters

Muscle Shoals: Manufacturing

Roanoke: Manufacturing

Johnstown: Parts

Nebraska: Parts

( Id. ).

The address for the Chicago headquarters of
FreightCar
America, Inc. is 2 North Riverside Plaza, Suite 1300, Chicago Ill.
60606, which is the same address listed for
FreightCar
Alabama, LLC on Alabama’s Secretary of State website. The text for the Muscle Shoals facility states, “Opened in 2008 and located in the Shoals region of Alabama, this state-of-the-art production facility was designed to build a wide variety of railcar types. FreightCar
commenced operations in February 2013, subleasing 25% of the plant from Navistar. In February 2018,
FreightCar
announced the acquisition of Navistar’s assets and is now the sole tenant of the 2.2-million-square-foot facility.” ( Id. )

The
Employer’s First Report of Injury
required by the State of Alabama was filed in the name of
FreightCar
America, Inc. The Employer Identification Number (EIN) used on that form
is different from the EIN for
FreightCar
Alabama, LLC that Respondent provided to CSHO Rodriguez ( No. 18-0772,
Tr. 106, 364).

As part of his inspection, CSHO Rodriguez requested several documents from Respondent, including its OSHA 300 logs. ( No. 18-0772,
Tr. 100-02). Respondent provided CSHO Rodriguez with a copy of the facility’s
OSHA’s Form 300A, Summary of Work-Related Injuries and Illnesses
for the years 2015 through 2018. The front page of the summary for each year features a box in which the employer
enters “ Establishment Information.” Written above the signature line is : “ Knowingly falsifying this document may result in a fine. I certify that I have examined this document and that to the best of my knowledge the entries are true, accurate, and complete.” ( No. 18-0772,
Exh . CX-5, p. 1;
Exh . CX-10 ) In
2015, the entry next to “Your establishment name,” is “FREIGHTCAR AMERICA, INC.” The bottom of the “Establishment Information” box is illegibly signed and dated 1-8-16 by someone who listed his or her title as “GEN MANAGER.” ( Id. )

For 2016, “Your establishment name” is entered as “ FreightCar
America – Shoals” by someone with the title “VP” (again with an illegible signature) and is dated 1/30/17 ( No. 18-0772,
Exh . CX-5, p. 5;
Exh . CX-10). Despite the Summary page for 2016 stating the establishment is “ FreightCar
America – Shoals,” two of the log pages for 2016 list the establishment name as “ FreightCar
Alabama, LLC” ( No. 18-0772,
Exh . CX-5, pp. 6-7;
Exh . CX-10 ) For
2017, “Your establishment name” is “ FreightCar
America” (no “Inc.”). It is signed illegibly by someone who lists his or her title as “VP Ops,” and is dated 1/29/18 ( No. 18-0772,
Exh . CX-5, p. 8;
Exh . CX-10). There is no summary page with a signature line for 2018, but the single log page provided for that year lists the “Establishment name” as “ FreightCar
America.” ( No. 18-0772,
Exh . CX-5; p. 14;
Exh . CX-10).

Respondent also provided CSHO Rodriguez with a copy of its
Incident Report
for the February 28, 2018, accident ( No. 18-0772,
Tr. 125-26). It bears the “ FreightCar
America” logo and is titled
FCA Shoals Incident Report. The five handwritten witness statements are on forms headed “ FreightCar
America, Inc. Statement of Witness.” ( No. 18-0772,
Exh . CX-7 ) The
Shoal’s facility PAD showing how to assemble the railcars on Line 4 is marked “ FreightCar
America.” ( No. 18-0772,
Exh . CX-6)

CSHO Rodriguez interviewed a Shoals facility Team Leader, writing his questions and the Team Leader’s answers on a standard OSHA witness statement form. The Team Leader signed
and initialed the form. When asked for his employer’s name, the Team Leader stated, “ FreightCar
America.” ( No. 18-0772,
Exh . CX-22 ) Respondent
submitted the Team Leader’s W-2 form for 2017, which states his employer is
FreightCar
Alabama, LLC and gives its address as 129 Industrial Park Rd., Johnston PA 15909 ( No. 18-0772,
Exh . RX-12). Respondent also submitted an earning statement from 2018 for the Team Leader, which states his employer is
FreightCar
Alabama, LLC but gives its address as 2 N Riverside PLZ, Ste 1300, Chicago IL 60606, the shared address for
FreightCar
America, Inc. ( No. 18-0772,
Exh . RX-13).

Respondent adduced several documents through Cris Stephenson, HR manager for the Shoals facility ( No. 18-0772,
Tr. 339), including three W-2 forms for employees naming their employer as
FreightCar
Alabama, LLC and giving the Johnstown, Pennsylvania address ( No. 18-0772,
Exhs . RX-14, RX-16, and RX-17). Exhibit RX-15 in Docket
No. 18-0772
is an earning statement for an employee employed by
FreightCar
Alabama, LLC but showing the Chicago address. Respondent also adduced an NLRB
Stipulated Election Agreement
between the International Association of Sheet Metal Air Rail Transportation Workers (SMART) and “ FreightCar
Alabama, LLC, a Subsidiary of
FreightCar
America, Inc.,” dated May 22, 2018, a month after the Secretary issued the Citation in Docket No. 18-0772 ( No. 18-0772,
Exh . RX-3).

CSHO Rodriguez was also the investigating CSHO in this proceeding. The Secretary submitted through CSHO Rodriguez a client service agreement between Lyons HR, Inc. (a temporary staffing agency) and “ FreightCar
America – Shoals Facility,” dated April 5, 2017 ( Exh . CX-5, p. 4; Tr. 58). Pay statements for Shoals facility employees show their employer to be
FreightCar
Alabama, LLC but are paid from the Chicago headquarters address of
FreightCar
America, Inc. ( Exhs . RX-7, RX-8, RX-18). During cross-examination, Respondent’s counsel read from Rodriquez’s deposition testimony ( Exh . RX-23, pp. 27-28).

"QUESTION:
Let's
assume for a second that this individual was not -- was -- and then I say have -- was an employee of Lyons. No question about that. But that the facility you inspected was neither not operated by
FreightCar
America, Inc. and that the employees on-site were not directed by
FreightCar
America, Inc., that they were instead directed by Rodriguez Cars Inc.? ANSWER: Okay. QUESTION: Would you agree with me that the citation against
FreightCar
America, Inc., if that were true, should be dismissed? ANSWER: If we are assuming, yes. QUESTION: Right.
We're
assuming. ANSWER: Yes."

(Tr. 81-82)

CSHO Rodriguez later clarified his answer.

Q.: So
what's your understanding of assuming that for sake of answering those

questions?

CSHO Rodriguez: Like the words say,
he's
assuming.
It's
not the real thing.
He's
assuming.

Q.: So
for the sake of the assumption or hypothetical, you agree, but do you, in fact, agree with that
FreightCar
America, Inc. should be dismissed?

. . .

CSHO Rodriguez: No, it should not be dismissed.

(Tr. 132-33)

Respondent argues this testimony “foreclosed contrary evidence,” and constitutes an admission by the Secretary that the Citation should be dismissed in this proceeding and in No. 18-0970 (Respondent’s brief, p. 8, n. 45). The Court disagrees. As is evident from the deposition excerpt read by Respondent’s counsel, as well as CSHO Rodriguez’s subsequent clarification, the question posed by Respondent’s counsel was clearly hypothetical and Rodriguez’s answer is not a binding admission by the Secretary.

Respondent’s counsel read another excerpt from Rodriguez’s deposition ( Exh . RX-23, p. 82).

"QUESTION: Okay. Are you aware that
FreightCar
Alabama, LLC operates the site -- the job site that you inspected in looking into [the injured employee’s] accident? ANSWER: Please repeat the question? QUESTION: Are you aware
FreightCar
Alabama, LLC operates the job site and employs the employees on the site you inspected? ANSWER: Yes."

(Tr. 82)

Rodriguez’s deposition was taken under Fed. R. Civ. P. 30(b)(6). Respondent interprets his statement as an admission by the Secretary. Rodriguez’s statements are not dispositive of the issue since “’the Commission is not bound by the representations or interpretations of OSHA Compliance Officers.”
Kaspar
Wire Works, Inc. v. Sec'y of Labor , 268 F.3d 1123, 1128 (D.C. Cir. 2001) (citing
L.R. Wilson & Sons, Inc. v. Donovan , 685 F.2d 664, 676 (D.C.Cir.1982))

Testimony of Corporate Director of EHS Fred Pearson

In Docket No. 18-0772, Fred Pearson testified he has worked for
FreightCar
Alabama, LLC since September 2017 as its corporate director of EHS (No. 18-0772, Tr. 44-45). 15 Pearson’s demeanor on the stand was uncomfortable and evasive, and his testimony was notable for its vagueness, lapses in memory, and general lack of awareness. He testified he believed there is no company name on the Shoal’s facility gate when in fact there is a large sign that bears the name “ FreightCar
America.” (No. 18-0772, Tr. 40; Tr. 153, 167, 185). The visitor parking permits provided for the Shoals facility read : “ Parking Permit, Visitor. Permit must be
displayed at all times . If lost or stolen report to security.
FreightCar
America.” When asked to read the permit aloud, however, Pearson substituted “Alabama” for “America” and had to be corrected by the Secretary’s counsel (No. 18-0772, Tr. 43). He could not remember the company name displayed on his own business card and was reminded it was
FreightCar
America, Inc. when shown the card he had provided to CSHO Rodriguez during the OSHA inspection (No. 18-0772, Tr. 47-48). Despite being a corporate officer, Pearson did not know the name or location of
FreightCar
Alabama, LLC’s president (No. 18-0772, Tr. 59). Pearson was similarly incurious about the relationship between
FreightCar
America, Inc. and
FreightCar
Alabama, LLC.

Q. : [ Y] ou're
claiming that [ FreightCar
Alabama, LLC] is not associated with
FreightCar
America?

Pearson: I
don't
know directly how it's set up to be associated with.

Q.: But you know that it is associated with the
FreightCar
America, Chicago location?

Pearson: Yes

(No. 18-0772, Tr. 56) 16

Pearson refused to concede even incidental background information to the Secretary’s counsel.

Q. : [ T]he Muscle Shoals facility has 2.2 million square feet; is that correct?

Pearson: No.

Q.: No?

Pearson: No.

Q.: How many square feet is it?

Pearson: I
don't
know the Muscle Shoals facility.

Q.: Okay. Is the Cherokee, Alabama facility called the Shoals facility sometimes?

Pearson: It's
called the Shoals facility.

Q.: Okay. Would that be
in reference to
the Muscle Shoals we're in right now?

Pearson: Not to my knowledge.

(No. 18-0772, Tr. 56)

Pearson acknowledged he had corporate responsibilities for
FreightCar
America, Inc. facilities other than the Shoals facility.

Q.: Where are you physically located?

Pearson: I'm
officed out of the Shoals facility.

. . .

Q.: And you have some responsibility for other places. Can you remind us where those are?

Pearson: One is in Roanoke, Virginia, one is in Richland, Pennsylvania, one is in Grand Prairie, Nebraska and until recently, one was in Danville, Illinois.

. . .

Q.: How often [do you go] to Roanoke?

Pearson: Quite frequently.

Q.: Once every couple of months, once a month; how often?

Pearson: Once every couple of months.

(Tr. 369-70)

Pearson was vague and forgetful when testifying about the telephone conversation between him and CSHO Rodriguez regarding the proper legal name of the business entity operating the Shoals facility. The first day of the hearing in Docket No. 18-0772 took place less than a year after the February 28, 2018, accident occurred, an event in which Pearson, as corporate director of EHS, was directly involved. He met twice with CSHO Rodriguez during his visits and was in contact with him by telephone. He provided requested documents to OSHA. The Secretary issued the Citation in the name of
FreightCar
America, Inc. less than two months after the date of the
accident. The significance of the correct identity of the actual employer of the affected employees was clear from the outset of this proceeding. Yet Pearson seemed to find the details of his participation in clarifying the issue inconsequential.

Q.: And [you] told the OSHA inspector that
FreightCar
America, Inc. was the legal name of the company, correct?

Pearson: I told him the parent was
FreightCar
America, Inc.

. . .

Q.: He
actually asked
you what the legal name of the company was?

. . .

Pearson: Yes.

Q.: Okay. And that was in a phone call, correct?

Pearson: I
don't
know.

Q.: Okay.
So
you recall that he did ask you what the legal name of the company was, but you don't know when that was, or do you?

Pearson: I
don't
-- I don't know the -- if it was on the phone or in person. I
don't
know.

. . .

Q.: Do you recall him asking what the legal name of the company was?

. . .

Pearson: Yeah, I vaguely remember. Yes.

Q.: And you had to
actually check
with somebody, right, before you could get back to him?

Pearson: I had to check with somebody to get the -- there was a number, a [Dun & Bradstreet Number] or something I had to get for him.

Q. Okay. And when you got back to him, you told him it was
FreightCar
America, Inc., right?

Pearson: I gave him the [Dun & Bradstreet Number] that he had asked for. I think it was a Dun & Bradstreet No. or something like that, he was looking for that, I had to go get from somebody else.

Q.: Okay.
So
was that a "yes or a no" as still whether when you got back to him, you told him the company's legal name was
FreightCar
America, Inc.?

Pearson: I
don't
recollect.

(No. 18-0772, Tr. 77-80) 17

He also professed to not “recollect” whether he placed the initial employer referral call to OSHA to notify the agency of a work-related accident (Tr. 368). Pearson did not deny he was the source of the information but engaged in a coy attempt to sidestep the question. Respondent’s counsel showed him Exhibit CX-9 from Docket No. 18-0772, a copy of the referral report listing the referral source as “Fred Parson.”

Q.: Does any of that information from you?

Pearson: It appears to be from Fred Parson.

Q.: Is that you?

Pearson: No.

(Tr. 369)

Testimony and Statements of Employee Witnesses

The Team Leader interviewed in Docket No. 18-0772 identified “ FreightCar
America” as his employer when giving his signed statement to CSHO Rodriguez (No. 18-0772,
Exh . CX-22). Employee #1, the worker injured in the accident that resulted in this proceeding, testified as follows:

Q.: And
who's
your employer?

Employee #1: FreightCar
Alabama, LLC.

Q.: Does it go by any other names? Do you know?

Employee #1: The name of -- well, the side and front
says
FreightCar
America.

Q.: What do you know it as?

Employee #1: FreightCar
America.

. . .

Q. Prior to this accident if someone were to ask you who you worked for, who would you say?

Employee #1: FreightCar
America.

(Tr. 153)   

A former employee of the Shoals facility also testified in this proceeding regarding his employer, requiring some prompting from Respondent’s counsel.

Q.: Who do you work for[?]

Former Employee: FreightCar
–

Q.: Or who have you worked for? Right
now
you're unemployed, but who have you worked for in the past?

Former Employee: FreightCar
America.

Q.: FreightCar
America or
FreightCar
Alabama?

Former Employee: FreightCar
Alabama, LLC.

(Tr. 185)

Credibility Determination

CSHO Rodriguez testified he spoke with Pearson by telephone and asked him to verify the identity of the employer at the Shoals facility. A day or two later the men spoke again by telephone and, according to CSHO Rodriguez, Pearson stated, “[A]s far as I know, it’s ‘ FreightCar
America, Inc.’” (No. 18-0772, Tr. 121 ) Pearson
does not deny this statement but claims he does not recollect what he told CSHO Rodriguez.

The Court observed the demeanor of each witness and assessed the consistency and logic of his testimony. CSHO Rodriguez set out his step-by-step process as he attempted to determine the correct employer to cite. His search of the Alabama’s Secretary of State website yielded a result indicating
FreightCar
Alabama, LLC shared a business address as well as a workplace address with
FreightCar
America, Inc. CSHO Rodriguez consulted with Pearson, his contact at the Shoals facility and a corporate officer, who informed him the correct employer was
FreightCar
America, Inc. In his testimony, CSHO Rodriguez manifested an earnest attempt to resolve a discrepancy by going directly to a management official who could be expected to have or be able to find the correct information. The Court finds CSHO Rodriguez to be credible on this subject.

On the other hand, Pearson was evasive, vague, and forgetful in his testimony. He displayed little knowledge of his employer’s corporate structure and avoided answering questions by either talking about something else or pleading forgetfulness. His testimony appeared rehearsed or coached. The Court accords Pearson’s testimony little weight. Furthermore, the Court finds it more likely than not that Pearson called in the referral report on March 1, 2018, to inform OSHA of the work-related accident. CSHO Rodriguez reasonably believed “Parson” was a typographical error for “Pearson.” (No. 18-0772, Tr. 100). Pearson did not directly deny he called in the referral, but stated the information given in the telephone call (including the identification of
FreightCar
America, Inc. as the employer) “appear[ed] to be from Fred Parson.” (No. 18-0772, Tr. 369 ) If
there were an employee working at the Shoals facility with a name one vowel off from his own name, a witness’s normal response would be to explain the situation. Pearson is a management official tasked with overseeing safety issues, and he was one of the two contact people dealing with OSHA. He or Scott Tittle (who called in the referral for the accident in this proceeding) are the two people most likely to report a work-related accident to OSHA.

The Court finds CSHO Rodriguez consulted with Pearson
in an attempt to
identify the correct employer for the Shoals facility, and Pearson informed him it was
FreightCar
America, Inc.

Analysis

The Secretary assumes the
Darden
test applies here. T he  Darden  Court looks primarily to “the hiring party's right to control the manner and means by which the product [was] accomplished.”  Darden , 503 U.S. at 323 . Factors pertinent to that issue include:

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

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

The Eleventh Circuit, in which this case arises, has noted it has not explicitly affirmed the application of the  Darden  test to cases involving OSHA violations but has applied the test when the parties have not disputed its application. 18 Here, the Secretary argues
FreightCar
America, Inc. exercises sufficient control over the Shoals facility to meet the
Darden
requirements qualifying it
as the employer of the facility’s employees. Respondent neither disputes nor agrees with
Darden’s
application—it does not address the test at all. 19

The
Darden
factors are not particularly apposite to this proceeding. This is not a typical
Darden
situation, where, for example, a construction contractor claims OSHA cited it incorrectly because a subcontractor at a multi-employer worksite was the actual employer of the affected employees. Weighing the
Darden
factors in this case would not illuminate the employment relationship. For most of the factors, there is either no evidence in the record, or the factor does not weigh in favor of one of the entities over the other (e.g., skill required for the job). A more helpful test is the economic realities test, which the Commission has held to be consistent with
Darden. See Don Davis , No. 96-1378, 2001 WL 856241, at *4 (OSHRC July 30, 2001).

To determine whether an employment relationship exists, the Commission has applied an “economic realities test.” The test emphasizes the substance over the form of the relationship between the alleged employer and the workers. The Commission has considered
a number of
factors when making such a determination, including the following:

1) Whom do the workers consider their employer?

2) Who pays the workers' wages?

3) Who has the responsibility to control the workers?

4) Does the alleged employer have the power to control the workers?

5) Does the alleged employer have the power to fire, hire, or modify the employment condition of the workers?

6) Does the workers' ability to increase their income depend on efficiency rather than initiative, judgment, and foresight?

7) How are the workers' wages established?

Loomis Cabinet Co.,
No. 88-2012, 1992 WL 117116, at *2-3 (OSHRC May 20, 1992).

As with
Darden , not
all of
these factors are relevant or ascertainable from the record. Questions #6 and #7 will not be considered for those reasons. The other factors are, however, more applicable to the circumstances of this case than are the
Darden
factors.

1. Whom do the workers consider their employer?

Pearson told CSHO Rodriguez the proper employer name for the Shoals facility was
FreightCar
America, Inc. His business card displayed that name ( No. 18-0772,
Tr. 47-48, 121). The Team Leader identified his employer as
FreightCar
America, Inc. in his witness statement to OSHA ( No. 18-0772,
Exh . CX-22). Employee #1 in this proceeding testified he believed he worked for
FreightCar
America, Inc. at the time of his accident (Tr. 153). The Former Employee who testified in this proceeding reflexively responded he had worked for
FreightCar
America, Inc. when asked where he worked before being prompted by Respondent’s counsel (Tr. 185).

The Court concludes the Shoals facility employees for whom evidence exists considered their employer to be
FreightCar
America, Inc. at the time of the OSHA inspection. 20

2. Who pays the workers' wages?

The pay statements identify workers’ employer as
FreightCar
Alabama, LLC but payments are processed through the corporate headquarters of
FreightCar
America, Inc. in Chicago ( Exhs . RX-7, RX-8, RX-18).

3 and 4. Who has the responsibility to control the workers? and Does the alleged employer have the power to control the workers?

The PAD for the railcar assembly is marked on each page with the words “ FreightCar
America,” and provides instructions and specifications for the workers to follow ( No. 18-0772,
Exh . CX-6). The internal
Incident Report
is marked with “ FreightCar
America” and each employee statement page states, “ FreightCar
America, Inc. Statement of Witness” at the top ( No. 18-0772,
Exh . CX-7). These documents indicate
FreightCar
America, Inc. has the responsibility and power to control the workers.

5. Does the alleged employer have the power to fire, hire, or modify the employment condition of the workers?

Exhibit R-18 in Docket
No. 18-0772
comprises five copies of the “Employee Warning and Disciplinary Report” for Welder #1. Each report is headed “ FreightCar
America.” Four of the reports
state
“Description of Infraction: Reference
FreightCar
America Employee Handbook, page 3” ( Id. ) The report dated March 16, 2018, has “Last chance warning” written on it ( Id.
at p. 2). This indicates
FreightCar
America, Inc. had the power to fire the workers or modify the employment condition of the workers.

The
client service agreement with Lyons HR, Inc. (a temporary staffing agency) is with “ FreightCar
America – Shoals Facility,” indicating
FreightCar
America, Inc. had the power to hire workers ( Exh . CX-5, p. 4) . ) . The Court does not find the NLRB
Stipulated Election Agreement
between the SMART union and “ FreightCar
Alabama, LLC, a Subsidiary of
FreightCar
America, Inc.,” to be probative because it is dated May 22, 2018, three months after the accident and a month after the Secretary issued the Citation in Docket No. 18-0772, when Respondent knew the identity of the Shoals facility employer was a central issue (No. 18-0772,
Exh . RX-3).

Taken together, the economic realities test weighs in favor of finding
FreightCar
America, Inc. to be the employer of the Shoals facility. It is the entity the workers considered to be their employer, and its name, with or without the Inc., is prominently featured on documents originating from the Shoals facility. The only factor weighing in favor of finding
FreightCar
Alabama, LLC to be the employer is its name on the pay statements, but even that is undercut by the fact the address on the pay statements is that of
FreightCar
America, Inc.’s corporate headquarters.

Prior to the February 28, 2018, accident, hourly employees at the Shoals facility believed they worked for
FreightCar
America, Inc. Management employees at the facility were careless about using “ FreightCar
America, Inc.” interchangeably with “ FreightCar
Alabama, LLC” or some other variation of the name. They were slipshod with the employer’s name in their paperwork, including the OSHA 300 logs, where four variations of the name are used over the course of four years, with two variations appearing in 2016 (No. 18-0772,
Exh . CX-5).
FreightCar
America, Inc. places its name physically on the Shoals facility. It touts the Shoals facility on its website. It
enters into
contracts for the Shoals facility in that name. The Court of Appeals for the First Circuit has found an employer’s representations to the public could be considered as a factor in determining whether it is the properly cited employer.
A.C. Castle Construction Co. v. Acosta , 882 F.3d 34, 41 (1st Cir. 2018).

The Court determines the Secretary properly cited
FreightCar
America, Inc. as the employer at the Shoals facility.

THE CITATION

The Secretary’s Burden of Proof

Section 5(a)(1) of the Act, known as the general duty clause, states that “[e]ach employer ... shall 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). To establish a violation of the general duty clause, the Secretary must prove: “(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.”  S. J. Louis Constr. of Tex. , 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016).

Quick Transp. of Arkansas, LLC , No. 14-0844, 2019 WL 33717, at 2 (OSHRC March 27, 2019). “ The Secretary also must prove that the employer ‘knew, or with the exercise of reasonable diligence could have known, of the violative conditions.’ Tampa Shipyards Inc. , 15 BNA OSHC 1533, 1535 (No. 86-360, 1992) (consolidated).” A.H. Sturgill Roofing, Inc.,
No. 13-0224, 2019 WL 1099857, at 2 (OSHRC Feb. 28, 2019).

Alleged Serious Violation of § 5(a)(1)

Item 1 of Citation No. 1 alleges,

On or about 04/02/2018 – Cut Off Station North 701, employees were exposed to slip and fall hazards when conducting welding work on top of the roller bed platform.

Among other methods, feasible and acceptable methods to correct these hazards would be not allowing employees to access the roller bed
platform, and
conducting all welding work from the ground level.

Preemption by a More Specific Standard

Respondent argues § 1910.28(b)(6)( i ), applies more specifically to the cited condition and thus preempts the general duty clause. “ If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.” § 1926.20(d)(1).

Section 1910.28(b)(6)( i ) provides:

The employer must ensure:

( i ) Each employee less than 4 feet (1.2 m) above dangerous equipment is protected from falling into or onto the dangerous equipment by a guardrail system or a travel restraint
system, unless
the equipment is covered or guarded to eliminate the hazard.

The parties stipulate the roller bed platform was less than 4 feet high. 21
The issue is whether employees on top of the platform were “above dangerous equipment.” Section 1910.21(b) provides:

Dangerous equipment  means equipment, such as vats, tanks, electrical equipment, machinery, equipment or machinery with protruding parts, or other similar units, that, because of their function or form, may harm an employee who falls into or onto the equipment.

Respondent contends the roller bed platform had “protruding parts” and, therefore, exposed employees on the platform to a fall into or onto dangerous equipment. Respondent’s counsel had CSHO Rodriguez circle two bolt heads at either end of the horizontal bar on which Employee #1 fell, as shown in photographic Exhibit RX-11-A. Respondent contends these are the protruding parts which transformed the structure of the roller bed from “equipment” into “dangerous equipment.” CSHO Rodriguez disagreed.

CSHO Rodriguez: Now, [§ 1910.28(b)(6)] calls for – the vertical standard that [Respondent’s counsel] is referring to calls for falling onto dangerous equipment with protruding parts, which in this case, by looking at the pictures the way that he fell, he fell on top of a set of bars, laying horizontally, flat, zero protruding parts.

Q.: The parts that he is indicating are off to the side, right?

CSHO Rodriguez: Correct. Those are bolts that are underneath so there is no way -- he will have to fall and on purpose hit that little thing that -- the surface, the area that is -- that the bolt has. And
he's
calling that "protrusion and dangerous equipment."
That's
not -- that's not the case. By looking at the pictures, clearly you can see that he fell on top of the flat bar . . . .
[T]he key word that he is using there is "protrusion."
So
he's looking at any protrusion in that picture, and he just found two bolts that are underneath . . . the grid per se.

(Tr. 134-35)

The Court agrees with CSHO Rodriguez’s assessment. The bolt heads are flat and rise only slightly above the surfaces into which the bolts had been inserted. They are also underneath other parts of the structure, such that it is difficult to see how anyone could
come in contact with
the bolt heads, should he or she fall ( Exh . RX-11-A).

Perhaps recognizing the bolt heads do not qualify as “protruding parts,” Respondent also argues the roller bed platform itself is dangerous equipment. “[The] horizontal brace units that [Employee #1] struck pose such a hazard because they are designed to be strong enough to support the rollers, and thus cannot give way when a falling body part strikes them.” (Respondent’s brief, p. 15 ) If
this were the case, then there would be no difference between any equipment constructed of solid, inflexible material (i.e., virtually all equipment) and “dangerous” equipment. This interpretation renders “dangerous” superfluous in the standard, violating a central tenet of statutory construction.

“It is our duty ‘to give effect, if possible, to every clause and word of a statute.’”  United States v.
Menasche ,  348 U.S. 528, 538–539, 75
S.Ct . 513, 99
L.Ed . 615 (1955) (quoting  Montclair v. Ramsdell,  107 U.S. 147, 152, 2
S.Ct . 391, 27
L.Ed . 431 (1883)); see also  Williams v. Taylor,  529 U.S. 362, 404, 120
S.Ct . 1495, 146 L.Ed.2d 389 (2000) (describing this rule as a “cardinal principle of statutory construction”);  Market Co. v. Hoffman,  101 U.S. 112, 115, 25
L.Ed . 782 (1879) (“As early as in Bacon's Abridgment, sect. 2, it was said that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant’”). We are thus “ reluctan [t] to treat statutory terms as surplusage” in any setting.  Babbitt v. Sweet Home Chapter, Communities for Great Ore.,  515 U.S. 687, 698, 115
S.Ct . 2407, 132 L.Ed.2d 597 ( 1995)[.]

Duncan v. Walker , 533 U.S. 167, 174 (2001).

The Court finds § 1910.28(b)(6)( i ) is not more specific to the cited condition than the general duty clause. It does not preempt the cited standard.

(1) The Activity Presented a Hazard

“ A hazard must be defined in a way that apprises the employer of its
obligations, and
identifies conditions or practices over which the employer can reasonably be expected to exercise control.” Arcadian Corp.,
No. 93-0628, 2004 WL 2218388, at *7, (OSHRC Sept. 30, 2004). The alleged violation description (AVD) defines the hazard here as “ slip and fall hazards when conducting welding work on top of the roller bed platform.” At the time of the accident, workers at the cut off station stood on the steel sheet lying on the roller bed platform while cutting off the steel sheet tabs. The workers used grinders to cut off the tabs. Respondent trained the workers in the use of grinders as part of their welding training (Tr. 155-56). The workers cut off the tabs used to hold the metal sheets together when the butt welder welded the seams (Tr. 156-57). Respondent does not dispute the cut off station workers were conducting welding work when cutting the tabs off the metal sheets.

Respondent disputes the AVD provided fair notice in its characterization of the hazard occurring during “work on top of the roller bed platform.”

Here, the condition cited—"slip and fall hazards when conducting welding work on top of the roller bed platform"—gave no fair notice of a recognized hazard. DOL made clear the sole basis of the citation was that the work was being done 42 inches "above the ground" on top of steel—not that the employee performing it later chose to violate procedure by walking on the beams.

(Respondent’s brief, p. 10)

Respondent is referring to CSHO Rodriguez’s deposition testimony, where this exchange occurs:

Q.: Does it make any difference to you whether [Employee #1] was walking on the roller bed or standing on the steel as far as knowledge goes?

CSHO Rodriguez: No,
but,
again—again, that’s what I told you. I’m
basing my knowledge not on the fact that he’s walking on the . . . beams. On the fact that
he’s
going up above the ground to conduct the work.

. . .

Q.: And you concluded the exposure potential for injury was not where he was walking but where he was—he would have been standing even if he had been standing on the piece of steel?

CSHO Rodriguez: Correct.

( Exh . RX-23, p.66-67)

First, as noted previously, the Secretary is not bound by “representations or interpretations” of OSHA CSHOs.
Kaspar
Wire Works, Inc.,
268 F.3d at 1128. But even if Rodriguez’s deposition testimony were binding, it is not at odds with the AVD of the Citation. He is not stating walking on the horizontal bars is not a hazard; he is stating the activity that presented a hazard was created when cut off station employees accessed the top of the roller bed platform, regardless of whether they were standing on the steel sheet or walking on the bars of the platform. The AVD does not differentiate between standing on the steel sheet or walking on the bars—it defines the hazard as “conducting welding work on top of the roller bed platform.” The workers were on top of the roller bed platform whether they were standing on the steel sheet for the purpose of conducting welding work or walking on the platform bars to get to a staircase. CSHO Rodriguez agreed with Respondent’s counsel that he “concluded the exposure potential” was created when the workers stood on the steel sheet. This is consistent with the Commission’s view of exposure to the zone of danger.

Reasonably predictable exposure is established by proving that “either by operational necessity or otherwise (including inadvertence) ... employees have been, are, or will be in the zone of danger.”  Nuprecon
LP , 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012) (citations omitted). Employees may come within the zone of danger “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.”  Gilles &
Cotting , Inc. , 3 BNA OSHC 2002, 2003 (No. 504, 1976);  Donovan v. Adams Steel Erection, Inc. , 766 F.2d 804, 812 (3d Cir. 1985) (“‘access,’ not exposure to danger is the proper test”). The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible.  Fabricated Metal Prods., Inc . 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997);  Phoenix Roofing , 17 BNA OSHC at 1079;  Kaspar
Wire Works, Inc. , 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘reasonably predictable’ that an employee would come into contact with the unguarded belt and pulley either while attempting to reposition the fan, or inadvertently while passing

nearby”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

Calpine Corp.,
No. 11-1734, 2018 WL 1778958, at *3 (OSHRC April 6, 2018),
aff’d Calpine Corp. v. OSHRC , 774 Fed. Appx. 879 (5 th
Cir. 2019) (unpublished).

Here, Employee #1 was in the course of his assigned duties (cutting off tabs on the steel sheet) when he chose to exit the roller bed platform by walking on the horizontal bars rather than on the steel sheet. This exposure, which required only a step from the steel sheet to a horizontal bar for the worker, was more than theoretically possible.

Furthermore, the Court finds even if the AVD defined the hazard only in terms of standing on the steel sheet, the parties tried by consent the issue of whether walking on the horizontal bars of the roller bed platform presented a hazard.

Under Federal Rule of Civil Procedure 15(b)(2), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Trial by consent exists “only when the parties knew, that is, squarely recognized, that they were trying an
unpleaded
issue.”  See McWilliams Forge Co. , 11 BNA OSHC 2128,

2129-30 (No. 80-5868, 1984) (internal footnote omitted).

Envision Waste Servs., LLC,
No. 12-1600, 2018 WL 1735661, at *7 (OSHRC April 4, 2018). The parties squarely recognized the Secretary was alleging walking on the horizontal bars of the platform presented a hazard, and they both elicited testimony and adduced exhibits consistent with that recognition.

The Court determines workers “ conducting welding work on top of the roller bed platform,” as alleged in the AVD, had access to slip and fall hazards. The cited activity presented a hazard.

(2) The Employer or Its Industry Recognized the Hazard

A hazard is deemed “recognized” when “the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry.”  Pepperidge Farm, Inc. , 17 BNA OSHC 1993, 2003 (No. 89-265, 1997) (quoting  St. Joe Minerals v. OSHRC , 647 F.2d 840, 845 (8th Cir. 1981)). 

Quick Transp. of Arkansas, LLC,
2019 WL 33717, at *5.

The Secretary adduced no evidence of industry recognition. The record
establishes,
however, Respondent recognized the potential danger of the cut off station workers working on top of the roller bed platform.

Respondent represents it had a
workrule
that “[b] eam
walking was forbidden.” (Respondent’s brief, p. 13). Respondent presented evidence it may have had a verbal rule prohibiting employees from walking on the horizontal bars of the roller bed platform (Tr. 102, 104, 148, 188). “ Work rules addressing a hazard have been found to establish recognition of that hazard.  See Otis Elevator , 21 BNA OSHC at 2207 (recognition established by work rules and safety protocols);  Gen. Elec. Co. , 10 BNA OSHC 2034, 2035 (No. 79-0504, 1982) (recognition established by safety ‘precautions [employer] has taken’);  Wheeling-Pittsburgh Steel Corp. , 10 BNA OSHC 1242, 1246 (No. 76-4807, 1981) (consolidated) (‘That [the employer] took some [safety] measures ... to protect against this hazard, demonstrates that the hazard was recognized within the meaning of Section 5(a)(1).’)[.]” Integra Health Mgmt., Inc.,
No. 13-1124, 2019 WL 1142920, at *8 (OSHRC March 4, 2019).

(3) The Hazard Likely to Cause Death or Serious Physical Harm

Here, Employee #1 slipped and fell while walking on the horizontal bars of the roller bed platform, the cited hazard. He sustained serious injuries requiring hospitalization and missed work for approximately a month. The Court finds the cited hazard was likely to cause serious physical harm.

(4) A Feasible and Effective Means Existed to Eliminate or Materially Reduce the Hazard

The Secretary proposed as a means of abatement “ not allowing employees to access the roller bed platform and conducting all welding work from the ground level.” This is the abatement Respondent implemented the day after the April 2, 2018, accident ( Exh . CX-4; Tr. 72-73).

The Secretary has the burden of “ demonstrat [ ing ] both that the [proposed abatement] measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.”  Beverly Enters. , 19 BNA OSHC at 1190, 2000 CCH OSHD at p. 48,981. “Feasible means of abatement are those regarded by conscientious
experts in the industry as ones they would take into account in ‘prescribing a safety program.”’  Id.  at 1191 (quoting  Nat'l
Realty & Constr. Co. v. OSHRC , 489 F.2d 1257, 1266 (D.C. Cir. 1973)). If the proposed abatement “creates additional hazards rather than reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove feasibility ....”  Kokosing , 17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727 n.19. But the Secretary is not required to show that the proposed abatement would
completely eliminate
the hazard.  Morrison-Knudsen Co./Yonkers Contracting Co. , 16 BNA OSHC 1105, 1122, 1993-1995 CCH OSHD ¶ 30,048, p. 41,279 (No. 88-572, 1993).

Acme Energy Servs.,
No. 08-0088, 2012 WL 4358852, at *6 (OSHRC Sept. 19, 2012),
aff’d Acme Energy Servs. v. OSHRC , 542 F. Appx. 356 (5 th
Cir. 2013).

Here, the record establishes the proposed abatement measure was
actually put
into effect. Respondent does not claim the abatement method creates an additional hazard nor is there any evidence it does. The abatement method
completely eliminates
the slip and fall hazard by removing employees from access to the zone of danger. The Court finds a feasible and effective means existed to eliminate the hazard.

(5) The Employer Knew of the Violative Activity

The Secretary must prove that the employer had either actual or constructive knowledge of the violative conditions. The record does not establish Respondent had actual knowledge of the violative condition. Employee #1 worked on the cut off station during the second shift. His supervisor was J.M. (Tr. 154, 185, 189). He testified that although he and other workers at the cut off station walked on the horizontal bars of the roller bed platform daily, he was not aware if his supervisor observed him doing so.

Q.: Did your supervisor ever see you walking on the metal bars?

Employee #1: I
don't
recall him ever seeing me, ever.

Q.: Did he -- do you know if he saw others?

Employee #1: No, I
don't .

Q.: Okay. How often did you walk on the metal bars, each shift? You can estimate. . . How many times a day did you have to get on top of the roller bed?

Employee #1: Maybe 30 or 40 times.

Q.: Okay. So
that's
30 times up and 30 times down?

Employee #1: Yes.

Q.: Okay. And where did your supervisor work?

Employee #1: I was unsure of that. He would just walk by every so often.

(Tr. 163-64)

Q.: Did other employees who worked in your same position, doing the same job also walk on the beams?

Employee #1: Yes.

Q.: Okay. How often?

Employee #1: The same as me.

(Tr. 173)

Although the above-quoted testimony does not establish actual knowledge of supervisor J.M., it provides the basis for finding constructive knowledge.

An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but he was in close enough proximity that he should have . . . .
In the alternative, the Secretary can show knowledge based upon the employer's failure to implement an adequate safety program,  see New York State Elec. & Gas Corp.,  88 F.3d at 105–06 (citations omitted), with the rationale being that—in the absence of such a program—the

misconduct was reasonably foreseeable.

ComTran
Grp., Inc. v. U.S.
Dep't
of Labor,
722 F.3d 1304, 1308 (11th Cir. 2013).

Employee #1 estimated he walked on the roller bed platform “30 or 40 times” a shift, as did other cut off station workers. Yet, J.M. failed to observe this violation of a company
workrule
occur. Respondent failed to exercise reasonable diligence in taking steps to ensure employees were working safely. The Eleventh Circuit has held supervisory failure to monitor compliance with safety rules establishes constructive knowledge in a case involving a construction worksite.

[S] ubstantial
evidence supports the ALJ's determination that Florida
Lemark
had constructive knowledge of the hazard because it failed to take reasonable steps to monitor compliance with safety requirements.  See id. N.Y. State Elec. & Gas Corp. v. Sec'y of Labor,  88 F.3d 98, 105–06 (2d Cir.1996) (“[C] onstructive
knowledge may be predicated on an employer's failure to establish an adequate program to promote compliance with safety standards.”). The record establishes that Florida
Lemark
knew which elements were being erected each day but that it conducted no routine inspections of the work its employees performed, nor did it kept track of the columns it had grouted or train its employees what to do if a column went
ungrouted . Nothing prevented Florida
Lemark
from taking steps to ensure that grouting was inspected, and therefore completed, before columns were loaded. Consequently, substantial evidence supports the ALJ's determination that Florida
Lemark
failed to implement an adequate safety program to ensure that grouting was performed before columns were loaded.

Fla.
Lemark
Corp. v. Sec'y, U.S.
Dep't
of Labor , 634 F.
App'x
681, 688 (11th Cir. 2015) (unpublished).

The Court finds the Secretary has established Respondent failed to take reasonable steps to monitor compliance with its
workrule
prohibiting employees from walking on the roller bed platform bars. Respondent’s failure to establish an adequate safety program made it foreseeable employees would engage in the hazardous conduct. Respondent had constructive knowledge of the violative activity.

UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE

Respondent asserted the affirmative defense of unpreventable employee misconduct (UEM) in its answer but did not brief the issue. “ To establish that a violation was the result of UEM, an employer is required to show that it: ‘(1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.’  Manganas
Painting Co.,
21 BNA OSHC 1964, 1997  (No. 94-0588, 2007).” Calpine Corp.,
2018 WL 1778958, at *8.

Respondent contends it had a
workrule
prohibiting employees from walking on the roller bed platform bars and called the Former Employee to testify to this effect. The Former Employee worked the first shift for six to eight months at the cut off station, while Employee #1 worked the second shift. They had different supervisors, and their respective supervisors trained them (Tr. 189-91, 198). 22 The Former Employee testified regarding the
workrule .

Q.: Are you ever supposed to walk on the rollers?

Former Employee: No, sir.

Q.: How do you know that?

Former Employee: Supervisor is the one to say if you walk on the rollers.

(Tr. 188)

Respondent’s rule, when communicated, was communicated verbally, not in writing. The Secretary’s counsel asked the Former Employee if there was a written procedure detailing how employees were supposed to access and egress the roller bed platform. The Former Employee first said there was a yellow file or yellow board next to the
work station
containing a document that informed the employee how to perform the job, but then stated the document only addresses
cutting and grinding details (Tr. 191-93). He replied, “It’s just common sense,” when asked how he knew not to walk on the roller bed platform bars (Tr. 193). He then backtracked and implied perhaps there were instructions on how to get on and off the platform.

Q.: But the instructions did not tell you to use the stairs to get up there and then to use the stairs to get down, did they?

Former Employee: I mean,
it's
all right there if you read your instructions.

Q.: Are you saying they were -- it was written in the instructions?

Former Employee: I didn't read the instruction . . . .
So
I'm clearly -- it's in the instructions on how you do your job right there. You just read your instructions.

Q.: Okay.
So
you believe it's in the instructions, but you didn't read it yourself?

Former Employee: It's
in there. No, I had glanced over it. But, you know, I never did just completely read it.

Q.: I gotcha. Okay. Okay. Well, so you
wouldn't
know then whether the instructions say, do not walk on the roller bed?

Former Employee: That's common sense not to walk on the roller bed.

(Tr. 194-95)

The Secretary called CSHO Rodriguez as a rebuttal witness. He testified Respondent had produced only
Exh . CX-13, a product assembly document (PAD), in response to his request for instructions for work procedures for the cut off station (Tr. 204). The PAD is dated November 1, 2017, and it was revised April 3, 2018, to reflect the change in the cut off station procedure stating workers were no longer allowed on the roller bed platform ( Exh . CX-13; Tr. 211). Other than the post-accident revision, there is no
workrule
prohibiting walking on the roller bed platform bars.

Q.: Is there anything else in this document that discusses walking on the roller bed or side assembly?

CSHO Rodriguez: No.

Q.: Is there anything that references stairs?

CSHO Rodriguez: No.

Q.: Or how to access the roller bed?

CSHO Rodriguez: No.

Q.: Or how to access the metal sheet?

CSHO Rodriguez: No.

(Tr. 212)   

Respondent has established at least one supervisor verbally instructed one employee not to walk on the roller bed platform bars. It did not produce a written safety program or other document showing the rule. Employee #1 testified no one had informed him of the rule.

To the extent the
workrule
existed, Respondent failed to establish it adequately communicated it to its employees. The Former Employee said he knew employees were not supposed to walk on the platform bars, but whether this was due to training or “common sense” is unclear. He testified, somewhat ambiguously, that the supervisor “is the one to say if you walk on the rollers.” (Tr. 188) It may be his supervisor was more competent and conscientious than J.M., Employee #1’s supervisor. 23
The Former Employee seemed better informed about the technical aspects of the cut off station position (including the fact the workers could move the staircases) than Employee #1. But Respondent’s duty to adequately communicate its
workrules
extends to all employees on all shifts. Respondent produced no supervisory employee witnesses or documentation, such as training sign-in sheets, to show it had communicated the
workrule
at issue to Employee #1.

As noted in the section addressing constructive knowledge, Respondent failed to take steps to discover violations. Despite walking on the roller bed platform bars “30 or 40 times” a day, Employee #1 was never discovered doing so by J.M. This failure is highlighted by Respondent’s failure to establish the last element of the UEM defense, effective enforcement of the
workrule . No disciplinary records were adduced citing employees for walking on the roller bed platform bars prior to the accident. Respondent’s counsel asked witnesses if they were aware Employee #1 was disciplined for walking on the platform bars following the accident that gave rise to this proceeding, but no written evidence of the discipline was adduced and the person administering the disciplinary action was not identified (Tr. 148, 213-14).

The Court concludes Respondent has failed to establish the UEM defense. The Secretary has established a violation of § 5(a)(1).

CHARACTERIZATION OF THE VIOLATION

The Secretary characterized the violation of § 5(a)(1) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result
[from a violative condition] . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k).

Employee #1 sustained serious injuries, including a broken nose, facial lacerations, and a pancreatic contusion (Tr. 55-56, 165). The violation is properly characterized as serious.

PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the Act requires the Commission to give due consideration to the gravity of the violation and the employer's size, history of violation, and good faith. 29 U.S.C. § 666(j). Gravity is a principal factor in the penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”
Siemens Energy & Automation, Inc.,
No. 00-1052, 2005 WL 696568, at 3 (OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is usually of greater significance. The other factors are concerned with the employer generally and are considered as modifying factors.''
Natkin
& Co. Mech. Contractors , No. 401, 1973 WL 4007, at 9, n. 3 (OSHRC April 27, 1973).

Respondent employed approximately 700 employees at the Shoals facility. It had a history of
violations ( Exh . CX-1; Tr. 70-71). “ With regard to good faith, the Commission has given consideration to various factors including the employer's safety and health program and its commitment to assuring safe and healthful working conditions.  Nacirema Operating Co. , 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).” Capform , Inc.,
No. 99-0322, 2001 WL 300582, at *5 (OSHRC March 26, 2001). Because the Court finds Respondent’s safety program to be inadequate, no reduction for good faith is given.

The gravity of the violation is moderate. Although Employee #1 testified other employees on his shift walked on the roller bed platform as often as he did, the Secretary adduced no evidence regarding the number of employees. The Court calculated the penalty based on one exposed employee, who engaged in the hazardous activity approximately 30 times a day. The likelihood of injury is high, and Respondent took no precautions against injury.

Based on these factors, the Court determines the Secretary’s proposed penalty of $4,712 is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).

ORDER

Based on the foregoing decision, it is hereby
ORDERED :

Item 1, alleging a serious violation of § 5(a)(1), is
AFFIRMED,
and a penalty of $4,712 is assessed.

/s/ Sharon D. Calhoun   

Dated: September 27, 2019
Administrative Law Judge

Washington, D.C.

"

1
In Docket No. 18-0772, the judge vacated the citation on its merits and her decision in that case subsequently became a final order of the Commission.

2
We do not reach the other issues that were raised in the briefing notice, which include whether the citation provided notice to Respondent of the recognized hazard at issue, whether a promulgated standard preempts the alleged general duty clause violation, and whether Respondent had knowledge of the hazardous condition.

3
The OSH Act defines “employee” as “an employee of an employer who is employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(6).

4
The judge found that these pay/earning statements are “processed through the corporate headquarters of
FreightCar
America,
Inc.[ ,] in Chicago.” But it is undisputed that the corporate headquarters for
FreightCar
Alabama, LLC, is located at the same address. Given that “ FreightCar
Alabama”—and not
FreightCar
America, Inc.—is the company identified on each of these statements, we find that the record does not support the judge’s finding.

5
The judge found that this agreement was not probative because it is dated May 22, 2018, a month after the Secretary issued the citation in the other case not before us (Docket No. 18-0772). As to the case at issue on review, the agreement was signed about a month and a half following the accident, but OSHA did not issue the citation until two days after the agreement was signed. Moreover, the fact that “ FreightCar
Alabama, LLC,” is identified as the employer in the agreement is consistent with the identification of the employer in the W-2 forms and pay/earning statements, some of which predate the accident in either case.

6
Given that the employment relationship issue was before the judge, we note that she could have exercised her discretion to apply the most appropriate legal framework to resolve the issue.

See C.T. Taylor Co. , 20 BNA OSHC 1083, 1086-88 & n.5 (No. 94-3241, 2003) (consolidated) (holding that, in raising
sua
sponte and applying single employer test, judge properly relied on longstanding Commission precedent; “[t]he
judge
here merely recognized that the facts pleaded and shown by the Secretary led to the legal conclusion that [the two companies] functioned as a ‘single employer’ under Commission precedent”).

7
The compliance officer testified that following the accident in the other case not before us, one of the two safety managers at the Cherokee facility informed the “duty officer” at OSHA during a phone call that the establishment at issue was “ FreightCar
America, Inc.” The compliance officer also testified that he subsequently asked this safety manager which corporate entity should be cited by OSHA and the safety manager identified
FreightCar
America, Inc. We note that at both hearings, the safety manager did not admit to providing this information, but for the reasons discussed by the judge, which include a compelling assessment of the safety manager’s credibility, we think it likely that the safety manager did, for whatever reason, inform OSHA on at least two occasions that
FreightCar
America, Inc., was the responsible entity. However, in the absence of additional supporting evidence explaining
FreightCar
America, Inc.’s role at the facility, the safety manager’s unsubstantiated statement of personal belief in this regard is not enough to satisfy the Secretary’s burden of establishing a single employer relationship between
FreightCar
America, Inc., and
FreightCar
Alabama, LLC.

8
Commissioner Sullivan notes that the burden of proof is not to be taken lightly as due process requires the party bearing the burden to meet the necessary threshold
in order to
prove its case.  Scott
Turow
described this role of carrying the burden best when he said, “[t]he prosecutor, who is supposed to carry the burden of proof, really is an author.  He’s
got different voices through different witnesses.  He has to present a compelling narrative and there’s got to be a moral to his story.”  Robert McCrum,  ‘To Hell with Perry Mason’ ,  The Guardian , Nov. 24, 2002, http://www.theguardian.com/books/2002/nov/24/crime.saulbellow.  In order to
be effective authors, successful litigators have found a number of ways to ensure they have the necessary evidence to prove their cases.  Whether it be a formal proof analysis or a thorough knowledge of the law developed over years of practice leading to a realization of what evidence is lacking in his or her case, a means of understanding the holes in one’s case is necessary.  Those holes in one’s case may be closed
through the use of
the Commission’s procedural rules regarding discovery, motions to compel, and sanctions.   See generally
29 C.F.R. § 2200.52.  It is incumbent on the parties to engage in discovery
in order to
build their cases.  If information is sought from an opposing party and that party fails to respond appropriately, then the party seeking the information must file a motion to compel or will suffer the consequences of its inaction.

9
The pay records in evidence include a pay statement for a managerial employee who held
the same position
at the Cherokee facility as the safety manager who testified at the hearing. This
pay
statement identifies “ FreightCar
Alabama” as the other safety manager’s employer.

10
O n April 23, 2018, the Secretary issued a Citation and Notification of Penalty to Respondent, alleging a serious violation of the general duty clause occurred at the Shoals facility on February 28, 2018, due to employee exposure to struck-by hazards. Respondent timely contest the Citation and argued it was not the employer of the exposed employees. That case (Docket No. 18-0772) was also assigned to the
Court
but the cases were not consolidated for hearing. The Court held a hearing in that case on February 8 and March 14, 2019, and a hearing in this case (Docket No. 18-0970) on March 14 and 15, 2019. On March 6, 2019, the parties submitted a joint stipulation:

The Complainant and Respondent in the above captioned matter stipulate that the evidence admitted at the hearing in OSHRC Docket No. 18-0772 pertaining to the issue of whether
FreightCar
America, Inc. is the properly cited employer may be considered in OSHRC Docket No. 18-0970; and the evidence admitted on that issue at the hearing in OSHRC Docket No. 18-0970 may be considered in OSHRC Docket No. 18-0772. The parties have agreed that the proof on this specific issue may be considered in both cases in the interest of judicial economy and ask that the Administrative Law Judge accept this joint stipulation.

(No. 18-0772,
Exh . J-1 ) The
Court accepted the joint stipulation and has considered evidence from the records in both cases regarding the issue of whether the Secretary properly cited Respondent as the employer of the affected employees. Citations to the transcript and exhibits in Docket No. 18-0772 will be preceded by “No. 18-0772.” Citations without a designated docket number are from this proceeding, Docket No. 18-0970.

11
The butt welder is the large blue structure in the background of
Exh . RX-10. The horizontal metal bars and rollers of the roller bed can be seen in the foreground (Tr. 169).

12
It is undisputed Lyons HR provided new employee orientation only, such as payroll and benefits information, and did not provide safety training to employees. Job-specific safety training was done by Respondent (Tr. 145).

13
The wooden staircases were movable. The Former Employer testified, “I slide my stairs wherever they needed to go.” (Tr. 187 ) It
appears likely from his testimony Employee #1was not aware he could move the staircases along the roller bed.

14
The Court is of the opinion this issue would best be analyzed under the single employer test, as set out in
Southern Scrap Materials Co., Inc.,
No. 94-3393, 2011 WL 4634275, at *34 (OSHRC Sept. 28, 2011) (“ Under Commission precedent, the factors relevant to determining whether separate entities are regarded as a single employer include whether they share a common worksite, are interrelated and integrated with respect to operations and safety and health matters, and share a common president, management, supervision, or ownership.”). Under that test, the Court would find
FreightCar
America, Inc. and
FreightCar
Alabama, LLC constitute a single employer—the entities share a common worksite (the Chicago headquarters) (No. 18-0772,
Exhs . CX-1 & CX-2); Shoals facility management employees used the names of the two entities and their variations
interchangeably, and
pay statements for its employees are issued through the Chicago headquarters, among other interrelated operations (No. 18-0772,
Exhs . CX-5, RX-13, RX-15;
Exhs . RX-7, RX-8, RX-18); and the entities share at least a common corporate director of EHS, Fred Pearson, who is located at the Shoals facility but is responsible for
FreightCar
facilities in other cities (No. 18-0772, Tr. 369-70). Neither party argued
or
briefed the single employer test.

15
On February 8, 2019, in Docket
No. 18-0772 , Pearson testified his title was “corporate director of EHS.” Five weeks later, on March 15, 2019, he testified in this proceeding, without explanation, that his title was “s enior director of manufacturing risk .” (Tr. 180)

16
This exchange occurred in the instant proceeding:

Q. Mr. Pearson, you
don't
deny that
FreightCar
Alabama, LLC is a fully owned site -- subsidiary of
FreightCar
America, Inc.?

Pearson: I have absolutely no idea.

(Tr. 182)

17
Respondent’s counsel attempted to reshape Pearson’s response into a more emphatic denial in this proceeding, with little success.

Q.: [D] id
you ever tell [CSHO] Rodriguez that
FreightCar
America, Inc. was your employer?

Pearson: Not to my recollection.

(Tr. 180)

18 The Eleventh Circuit has explained its approach to Commission cases in which the
Darden
test is applied:

Three other circuits have affirmed the application of the  Darden  test to OSHA violations.  See  Slingluff v. Occupational Safety & Health Review Comm'n , 425 F.3d 861, 867-69 (10th Cir.2005) ;  IBP, Inc. v. Herman , 144 F.3d 861, 865 (D.C.Cir.1998) ;  Loomis Cabinet Co. v. Occupational Safety and Health Review Comm'n , 20 F.3d 938, 941-42 (9th Cir.1994) . One circuit has ruled that  Darden's  reasoning is not directly applicable to the Act.  See  Sec'y of Labor v. Trinity Indus., Inc. , 504 F.3d 397, 402 (3d Cir.2007)  ( “[ Darden ] was decided under ERISA and has no impact on the question of whether the scope of the OSH Act is broad enough to cover workers who are not employees under the common law definition.”). The parties here assume in their briefs that the  Darden  test applies. Therefore, we apply the  Darden
test here without deciding explicitly whether the Commission's interpretation of  29 U.S.C. § 652(6)  is permissible.

Quinlan v. Sec'y, U.S.
Dep't
of Labor , 812 F.3d 832, 837 (11th Cir. 2016) .

19
Respondent
argues t he issue of
whether it is the
properly cited employer should be determined by the analysis set
forth
in
Hills Department Stores, Inc.,
No. 89-1807, 1990 WL 146495, at 2 (OSHRC Sept. 12, 1990). Hills
is an unreviewed ALJ decision and, as such, is not precedent. “[I]t is well-settled that an unreviewed administrative law judge's decision has no precedential value.  See  In re Cerro Copper Prods. Co. , 752 F.2d 280, 284 (7th Cir. 1985)  (holding that ‘[a]n  unreviewed    ALJ decision does not bind the OSHRC or the
courts as  precedent ’) (citations omitted).”  Elliot Constr. Corp.,
No. 07-1578, 2012 WL 3875594, at 4, n. 4 (OSHRC Aug. 28, 2012). The Court finds that, in addition to being nonprecedential,
Hills
is inapposite to this proceeding. In
Hills,
the ALJ granted
respondent’s motion to dismiss the citation on the grounds it had no employees and was not engaged in a business affecting commerce. The record established respondent was a holding company and the affected employees were employed by its subsidiary. The Court finds the economic realities test to be more applicable to the employment relationship issue
than Hills .

20
The Court does not consider the testimony of employee witnesses in the proceedings that they work for
FreightCar
Alabama, LLC to be probative. At that point they were aware identification of their employer was a central issue, and they appeared well prepared to identify their employer as
FreightCar
Alabama, including carefully enunciating the “LLC.”

21
“The roller bed platform was roughly 42” above the ground[.]”
( Joint Prehearing Statement , p. 4)

22 Although their work experiences differed, there is no discrepancy in the testimony of the two witnesses that requires a credibility determination. They did not work the same shift and did not have the same colleagues or supervisor. It is plausible the work environments and level of safety compliance differed depending on the personnel working the shifts.

23
Pearson testified J.M. no longer worked for Respondent
at the time of the hearing
and had “left under other circumstances” that were not voluntary (Tr. 181).