SIP Insulation Professionals, LLC

Read the official release (oshrc.gov)

Plain-English summary

Workers were erecting a building with structural insulated panels at an Alabama construction site when OSHA observed alleged aerial-lift, roof fall-protection, and equipment-modification violations. OSHA issued the three-item citation to SIP Insulation Professionals, LLC. The central issue was whether SIP, LLC was the employer of the workers exposed at the site. Applying the common-law employment factors, the judge found that the project contractor controlled the manner and means of the work, could override work directions, and could reassign laborers. SIP, LLC's member supervised panel installation in a manner consistent with an independent contractor serving as a foreman for the project contractor. Because the Secretary failed to prove that SIP, LLC employed the affected workers, all three items were vacated and no penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.453(b)(2)(v), 1926.501(b)(1), and 1926.602(c)(1)(ii).
• Outcome: Three serious items vacated; proposed penalties totaling $11,366 were not assessed.
• Key point: Employer status under the OSH Act turns primarily on control over the manner and means of the work, not merely payment or involvement in the project.

Full text (OSHRC public release)


SIP Insulation Professionals 19-1770

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant,

v.

OSHRC Docket No.
19-1770

SIP Insulation Professionals, LLC ,

Respondent.

Representatives:

Emily O. Roberts , Esq. , U.S. Department of Labor, Office of the Solicitor,
Nashville, TN , for Complainant

Brian Von Allworden ,
SIP Insulation Professionals, LLC , for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

On May 28, 2019,
construction
workers were erecting a
building in
Hoover, Alabama , using
structural insulated panels.
A s tructural insulated panel (SIP)
is a
precut panel co mposed
of an
insulati ng foam core
sandwiched between two layers of
engineered wood .
A
compliance safety and health officer (CSHO) for the Occupational Safety and Health Administration
drove
past
the worksite
and
saw what he
believed were
unsafe
conditions . He stopped and conducted a safety inspection of the
worksite.
He interviewed Zachary
(Zac)
von Allworden , whom the CSHO believed
worked for SIP Insulation Professionals, LLC (SIP, LLC) . The Secretary issued a
three-item
Citation and Notification of Penalty to
SIP, LLC ,
on October 9, 2019. 1

On
October
31, 2019, Brian von Allworden , a partner in
SIP, LLC,
(and father
of
Zac) , sent
a letter to
OSHA
stating
the
Secretary had
issued the
Citation incorrectly to
SIP, LLC,
who
was not an employer on the worksite.
The Secretary construed the letter as a not ice of contest, and the Commission docketed the
case on November 13, 2019.
Whether
SIP, LLC,
was an employer
at
the
Hoover, Alabama, worksite on May 28, 2019,
within the meaning of
§
3(5) of
the Occupational Safety and Health Act of 1970 , 29 U.S.C. § 651-678
(Act) , is the central issue
in this case. 2

The undersigned held a
hearing
via
video conference
in this matter on October 7 and 8, 2020.
Brian von Allworden represented
SIP, LLC,
at the hearing.
The parties have filed post-hearing briefs.
For the reasons that
follow,
the Secretary failed to establish
SIP, LLC,
was an employer
of the affected employees
at the Hoover, Alabama, worksite
at the time of the inspection.
Accordingly,
Items 1, 2, and 3 of the Citation
are
VACATED
and no penalties
assessed .

JURISDICTION

SIP , LLC,
timely contested the
Ci tation and Notification of Penalty on
October 31, 2019 . The parties stipulate the Commission has jurisdiction over this action (Tr. 8). Based on the stipulation and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10 (c)
of the Act .

STIPULATIONS

The parties stipulate the following facts:

1.
SIP, LLC,
“is a perpetual member-managed limited liability company, organized on January 19, 2019 [,] by its Statutory Agent, Brian von Allworden. ”

2.
SIP, LLC ’s,
“business address is 9160 S Rural Road, Tempe, AZ 8 5284. ”

3.
SIP, LLC,
“has four members : Jeff Beason, Phil
Ligon , Zac von
Allworden , and Brian von Allworden. ”

( Joint Prehearing
Statement,
p. 5 ,
¶
IV ; Tr. 8 )

BACKGROUND

The U.S. Forest
Service began developing SIPs
as an alternative construction material
in the mid-1940s
(Tr. 13) .
Brian von Allworden started working with SIPs in 1994 : “ Building them, designing them, engineering them, and testing them[.]” (Tr. 13)
He believes
that
“in
the majority of
situations for an ything five
stories or less,”
S IPs are “a very, very valid building material . ”
(Tr. 14)

SIPs are stronger than conventional wooden construction and provide better insulation. Because they are precut and are of standard sizes, SIPs can be assembled faster and by fewer workers than conventional construction (Tr. 14). Construction with SIPs
does not require
“ skilled laborers to put them together. You only need one skilled
labor e r
and the others can follow directions.
So,
the construction site is a lot easier and a lot faster.” (Tr. 15)

In May 2019,
a
construction
crew
w as
in the process of
building
a restaurant in Hoover, Alabama , using SIPs
and structural steel .
The panels were provided by Premier Building Systems , for which
SIP, LLC,
partner s
Phil
Ligon
and Jeff Bea son are
regional manager s .
SIP, LLC,
partner
Brian von Allworden
designed
the structural engineering
( in his capacity
as an employee of Wright Engineering)
for
the SIPs on the project.
SIP, LLC,
partner
Zac
von
Allworden
worked onsite and
instructed the crew in the installation of the panels
on the worksite
(Tr. 18-20).

Zac von Allworden
was responsible for hiring the construction crew. He
went to the temporary staffing agency Staff Zone
in Birmingham , Alabama, and met with
agency personnel. He hired three employees for the Hoover project and completed the paperwork for the transaction . He also arranged for the rental of the heavy equipment required
to install the SIPs
( Tr. 18-20,
58 , 118 ).

On M ay 28, 2018, a CSHO for OSHA’s
Birmingham area office
drove past the construction worksite in Hoover, Alabama,
a little before 11:00 a . m . ( Tr.
156-57) .
He observed “a forklift hanging
with suspended material underneath the forks” and
what he perceived as
“fall hazards in the construction area .” (Tr. 108)

The CSHO
stopped and took photographs of the worksite fro m the public road. He then approached the worksite
and saw four men working there —one in an aerial lift, one operating the forklift, one on the
flat roof of the structure being erected, and one near the work truck.
The CSHO first went to the general contractor’s trailer but no one was inside. As he left the trailer,
a
man , whom the CSHO assumed
represented
the general contractor,
pulled up in a truck
and spoke with
him.
The man
told t he CSHO
that SIP, LLC, was
the employer
of the crew currently working on the site (Tr.
108-1 2 , 157 ).

The CSHO next met with Zac von Allworden ,
whom he had observed in the aerial lift .
Zac von Allworden told the CSHO he needed to call
his father
and Bill Smith, owner of W.W. Smith Con struction (Smith) .
While Zac
made his calls,
the CSHO took more photographs of the worksite . He interviewed two of the laborers on the worksite
(Tr. 116).

Based on his inspection, t he CSHO recommended
the Secretary cite
SIP, LLC, for serious violations of §§ 1926. 453(b)(2)(v), 501(b)(1) , and 602(c)(1)(ii). The Secretary issued the
recommended
Citation
to SIP, LLC, on
October 9, 2019.

WITNESS TESTIMONY

Four witnesses testified at the hearing: Brian von
Allworden , Zac von
Allworden ,
Theodus
Sanders Jr., and the CSHO.
Their testimon ies
relating to the issue of
the employment relationship between SIP, LLC, and the workers on the Hoover, Alabama, worksite
are summarized below.

Brian von Allworden

Brian von Allworden testified he has been involved in the use of SIPs for 27 years (Tr. 13) .
He is a structural engineer and designs
structures
built
using SIPs .
He gives talks and provides training on the use of SIPs (Tr. 13-14) .
He is the statutory agent for SIP, LLC .
He testified he organized SIP, LLC, to provide specialized assistance to contractors using SIPs (Tr. 16) .
SIP, LLC, partners
Phil
Ligon
and
Jeff Beason work for Premier Building
Systems who supplies SIPs to contractors (Tr. 11-12) .
SIP, LLC, partner
Zac von Allworden works in the field providing
installation
expertise
to contractors using SIPs .
SIP, LLC,
partners benefit from promotion of the use of SIPs.

Brian von Allworden
explained the business model of SIP, LLC:

SIP, LLC,
is not a contractor. It is organized to provide a SIP expert to a contractor who will hire the SIP expert as far as part of his crew. Also SIPs sometimes require equipment that some contractors
don ’ t
have access to, a large forklift for instance, you need to have a contract with an equipment supplier, to actually rent one of those big forklifts. So ,
somebody off the street
can ’ t
go in and say I want one of those. So ,
SIP, LLC,
contracts
[with]
the big equipment suppliers so they can supply that type of equipment to contractors that
don ’ t
have access to them.

(Tr. 16)

The expert
may
undertake
hiring unskilled laborers
for the project , especially in the southeast ern United States , where
SIP, LLC ,
had not
done as much business.

[O] n the
W est
C oast ,
we have independent people that we can call and say,
[ “ H] ey ,
do you
want to come up for three weeks [? ”]
And they can get hired by the contractor on-site. Out in Alabama, we don ’ t have that resource, so we would go to a local labor source such as Staff Zone and say,
[ “ H] ey , Staff Zone we have a client that needs three laborers. Can you provide the laborers to
them [ ? ” ]
And they say,
[ “Y] es. [ ” ]
They will charge $5,000 a week and we say,
[ “O] kay. [ ” ]
So ,
we turn around to our client and say,
[ “H] ey , it ’ s going to cost you $5,000 a week for laborers. $8,000 a week for the equipment. $1,000 a week for the expert.
So,
it ’ s going to cost you that
much , [ ” ]
and then we contact, like, Staff Zone and say,
[“ H] ey , can three guys come to this job site for this contractor [?” ]

(Tr. 17-18)

Brian von Allworden designed the part of the building at the Hoover worksite that was to be constructed with SIPs. He testified he created the plans as an employee of Wright Engineers, who own the plans (Tr. 22). Wright Engineers had “a contract to do the structural engineering for this project before we started. . .. Wright Engineers got paid for producing these plans just like any other project anywhere else.” (Tr. 23)

Brian
von Allworden
testified
Smith
was the framing
contractor on the project ,
responsible for installing both the SIPs and the structural steel .
He stated another
entity was the general contractor for the project, but he could not remember its name (Tr.
20).
Brian von Allworden maintains
SIP, LLC ,
did not
assign
Zac
von Allworden
to provide SIP expertise on the Hoover worksite, but contends
Zac
“was hired by Smith, who sent him out there . . . .
SIP recommended him . . . .
[Zac] works independently, as an independent contractor, just like any other partner in any other firm. ” (Tr. 21)

Brian von Allworden contends
Zac 3
had the option of
declining to
work for Smith :

He could.
He ’ s
done that before. It depends on the contractor. He doesn ’ t get along with some contractors and he says, [
“N] o, I ’ m not going to work for them ever again. [ ” ]
So ,
if that contractor has a project and hires SIP [, LLC]
to provide structural or SIP expertise, then we ’ ll talk to Zachary and the other partners and decide who might go out there, and what type of expertise, and how long they ’ ll stay, and what the services would be.

(Tr. 26)
Brian von Allworden
argues that when a
SIP, LLC ,
partner
is
on a project providing SIP expertise,
“He’s just an employee, and he can quit.” (Tr. 27)

Brian von Allworden
testified that Zac von Allworden called him
to discuss work
issues (including
the OSHA inspection at issue) bec ause of their familial relationship, not because
Zac
works for Brian.
“[Zac]
might call me because I ’ m his father. But he doesn ’ t call me because of
SIP [ , LLC] . It has nothing to do with
SIP [ , LLC] . If he walks off a project, says I ’ m done with this project, for any reason, that doesn ’ t have to do with
SIP [ , LLC]
because he ’ s not working for SIP [, LLC] . ” (Tr. 27)

Brian von Allworden
stated SIP, LLC, had nothing to do with
worksite safety . “I’m a resource provider. I did not run the job. I was not in charge of Zachary, his means or methods . . . .
That would be the . . . job of the contractor which was W.W. Smith Construction . . . .
[Fall protection is] means and methods and it has absolutely nothing to do with me.” (Tr. 36)

At the hearing,
the
Secretary’s counsel read from
the
notice of contest
filed by SIP, LLC
( Exh . C- 17) . Brian von Allworden
testified
the quoted language from the notice of contest was accurate :

[SIP, LLC] is a personnel supply company that supplies construction workers with Structural Insulation Panels experience. If the project is not in
Arizona
we supply one, two, or three workers with Structural Insulated Panel experience
to act as [team] leaders and hire the rest from a local construction personnel supply company to complete the crew.

For the project in Hoover, Alabama,
SIP [ , LLC,] supplied labor to W.W. Smith Construction. W.W. Smith Construction was hired by the owner to supply and install the structural steel and Structural
Insulated Panels. SIP provided Zac von Allworden and hired four local workers from Staff Zone to complete the crew that SIP supplied to W.W. Smith Construction.

SIP[ , LLC,] was not a contractor
on the project and was not in charge of the work site.

. . .

SIP[ , LLC,]
has never had any contact with the owner/developer for this project or anyone else con nected to the project except for W.W. Smith Construction. All consulting fees made to SIP, [LLC,]
were received from W.W. Smith Construction. All payments to Zac von Allworden were from W.W. Smith
Construction through
SIP[ , LLC].

(Tr. 39-42)

Brian von Allworden testified
Smith paid SIP, LLC, three payments in the amounts of $10,000 , $20,000, and $17,000
(Tr. 48-49). Brian von Allworden testified these payments
include d wages for Zac von Allworden and the Staff Zone laborers,
equipment rental, and payments for
the profit and overhead of SIP, LLC (Tr. 49).

Zac von Allworden

Zac von Allworden
testified he
identified himself
to the CSHO
as the site foreman “only for installing the panels.” (Tr. 59) When workers were not installing SIPs, Zac von Allworden assisted the crew with installing the structural steel
under the supervision of Smith owner Bill Smith . Zac von Allworden stated,
“ [Bill Smith]
came out five or six times at Alabama for a couple of days each time just to install steel. And he would use me or the --
the
rest of the crew
in order to
install steel for those couple of days, then we go back to SIPs .”
(Tr. 59)
Bill Smith
directed Zac’s work during steel installation (Tr. 59).
Zac
explained
the bifurcated nature of his duties : “ [W]hen [it] came to the SIPs, I was the foreman. I gave them their direction. When it came to the steel, I was just another
laborer
and I took direction.” (Tr. 70-71)

The construction project lasted approximately
six
weeks . Zac von Allworden testified he did not set the hours for working during that time.
“[T]hat was kind of set by Staff Zone . . . .
[T]heir
workers arrived in a van and left in a van, so I don’t have their time .
. . .
[T] hat’s
what they told me their hours were, and that’s what we took. ” (Tr. 71 -72 ) 4

On May 28, 2019, Zac von Allworden met with the CSHO . He testified , “I stepped up as who would be in charge out there.” (Tr. 63) When asked if
he told the CSHO that he worked for SIP, LLC, Zac testified, “ Well, I gave him both. I
wasn’t
sure what the legal proceeding would be . So I told him I worked for W.W. Smith for this project, but al so we’ve made our company called SIP, and I didn’t know how to proceed from there, so I just gave him both answers .
. . .
We don’t have any employees, I guess, because we’re all partners.” (Tr. 63)

Zac von Allworden stated he called his father and Bill Smith when the CSHO arrived at the worksite
and told
both
that an OSHA inspection was underway
(Tr. 64-65). He testified he called Brian von Allworden
because he is his father. “[T]his is my first experience with something like this.
So
I just called him, kind of as
my father, just to get guidance.” (Tr. 64)

Zac von Allworden testified that Smith could have fired him from the Hoover project, but SIP, LLC, partners Phil
Ligon , Jeff Beason, and Brian von Allworden
could not fire him (Tr.
243).
Zac described the negotiation he engaged in with Bill Smith
when Smith wanted to hire him for the Hoover project.
“ Bill told me what he expected to pay me and then I told him what I expected to be paid and there was a bit of a negotiation there, and then just kind of handshake on -- there was no -- nothing signed, nothing written. It was just a handshake agreement. ” (Tr. 249)

Theodus
Sanders Jr.

Theodus
Sanders Jr. worked
on
the
Hoover work site in June or July of 201 9
(Tr. 2 10,
221 ).
At the time of the hearing, he was working
with Zac von Allworden on another project (Tr. 220). Sanders
testified regarding his observations of
the exercise of authority
between Zac and Bill Smith
on the
Hoover
worksite.

Q .: Did you ever witness Bill Smith
. . .
being in charge of
the laborers?

Sanders: Oh, yes, he did. Like I said, a couple of time he told me to go do something else. He took another laborer that was out there that was working under Zac, I believe his name was Calvin. He took him a couple of times to go do some things. So ,
to me, he was the big boss of the whole crew and I was working for Zac, unless he needed me to go do something else.

Q .: So ,
Bill Smith could take you away from Zac at any time?

Sanders:
Yes, sir.

Q .: And Bill Smith could take any of the other workers away from Zac at any time, according to what
you've
seen?

Sanders: Yes, sir.

(Tr. 214-15)

Q .:
Is the foreman in charge of the workers?

Sanders: In my -- to my knowledge, yes, Zac, my foreman he was -- he
was in charge of
that job under -- I was working under, but Bill was the bigger
foreman, I would say. He was my boss under Zac, I would -- as I can say it like that. I
don't
know how to say it. Bill was the bigger
boss,
Zac was the guy who introduced me to the SIPs installation. He was there as foreman and
that's
who I worked with over there, but Bill was over all of us.

Q .: In your time at the job site, did you ever
see Zac overrule Bill Smith?

Sanders: Negative.

Q .: Did you ever see Bill Smith overrule Zac?

Sanders: Yes.

(Tr.
216)

Sanders performed work
installing the SIPs under Zac von
Allworden’s
direction .
(Tr. 212) .
He had not been hired through Staff Zone
but was brought to the worksite to perform concrete work by Bill Smith (Tr. 211 -12) .
Zac von Allworden set his rate of pay and paid him in cash every Friday ( Tr. 218).

The CSHO

The CSHO
testified he observed possible safety violation s
as he drove past the Hoover worksite on May 28, 2019
(Tr. 108).
After he stopped and checked
inside
the
general contractor’s trailer,
a man who represented himself as the general contractor for the project pulled up in his truck .
The CSHO testified the man told him SIPS, LLC, was
performing the work currently being done on the building
and “he walked me over to the worksite.” (Tr. 110)

The CSHO
testified he
assumed Zac von Allworden was the
subcontractor’s
foreman
because the man he assumed was the general contractor
“pointed me to his direction and said, ‘[T]hat’s the foreman for this project. ’ ” (Tr. 116)
According to the CSHO, Zac von Allworden “stated that he worked for SIPS. He was the only employee. That his dad and other individuals were—I don’t know the exact
words, but
were partners in the company but he was the only employee. ” (Tr. 117)

The CSHO faced extensive cross-examination regarding the
OSHA-1A
or
Safety Narrative
he completed
for
this inspection.
Safety Narratives
are used by CSHOs t o document information
gathered during the inspections
the y
conduct. Exhibit C-2 is a copy of the
Safety Narrative
the CSHO completed for the inspection at issue. The CSHO completed the form approximately four and a half months after the May 28, 2019, inspection date (Tr. 161, 186).
It is undisputed that none of the following statements from the CSHO ’s
Safety Narrative
is true:

Under
Opening Conference Notes and Findings , the CSHO wrote, in pertinent part:

It was explained to Mr. Zac [v]on Allworden,
foreman[ ,] that his employees were observed painting a window while standing on a porch overhang without any fall protection. Mr. Zac [v]on Allworden, foreman, stated that Mr. Samuel Rosales,
painter[ ,] and Mr. Eddie Coteries, painter[,] did not speak English and he would translate for me.

( Exh . C-2, p. 2)

Under
Compliance Programs , the CSHO wrote:

No fall protection was used while working from heights during the installation of shingles.

( Exh . C-2, p. 2)

Under
Findings/Comments , the CSHO wrote:

At the time of the inspection, employees were observed painting while standing on a porch overhang at approximately ten feet one inch above ground level without fall protection.

( Exh . C-2, p. 4)

Under
Closing Conference Notes,
the CSHO wrote:

A closing conference was held on April 12, 2019[,] with Mr. Zac [v]on Allworden, foreman for Vera Home
Builders[ ,] and a second closing was held with the Owner of SIP Insulation Professionals, LLC[,] over the phone on April 15, 2019.

( Exh . C-2, p. 4) 5

Upon cross-examination, the CSHO confirmed there were no shingles or windows on the Hoover worksite the day of his inspection . No
workers were painting the day of the inspection
(Tr. 162). He acknowledged Zac von Allworden did not tell him he would translate for two workers who were not present on the worksite (Tr. 179).
The CSHO attributed the discrepancies to “a clerical error on my behalf. Probably from copy and paste.” (Tr. 177-78) He testified,

I rewrite narratives, and we use -- instead of writing a whole new narrative over and over and over, because it -- there could be four pages, is
I've
taken narrative that's similar to what I have done, and put the information in. And with this narrative, I --
I
know what inspection that this narrative came from, and I see the mistakes that I made.

(Tr. 182)

When asked if he had proofread the form before submitting it to his supervisor, the CSHO responded, “I did, but it—obviously, I missed some things.” (Tr. 180) He conceded his supervisor also failed to catch the clerical errors (Tr. 180).

After acknowledging he had conflated two separate inspections in his Safety Narrative for this case, the CSHO was asked how one could tell which part related to the Hoover worksite at issue and which part related to the other inspection. The CSHO replied, “Well, by reading it, the information that is incorrect is the information from the other site, and the information that
applies to SIPs is the information for SIPs . . . .
[T]he only way you know is me telling you it hasn’t been modified for . . . the complete inspection.” (Tr. 182-83) This testimony does not assist readers of the
Safety Narrative
in discerning what is and is not accurate information for the May 28, 2019, inspection of the Hoover worksite .

The CSHO contended SIP, LLC, was acting as a subcontractor for Smith on the Hoover worksite.
When asked
the basis for this contention, the CSHO responded,
“The only evidence I have is the foreman at the time, Mr. Zac
V on [sic] was stating that he was a subcontractor of W.W. Smith.” (Tr. 163)
Unlike other
parts of his hand-written inspection notes, th e conclusion that SIP, LLC, was a subcontractor for Smith is not attributed to a statement from Zac von
Allworden
( Exh . C-12, p. 4). 6
The CSHO also wrote that SIP, LLC, was the framing contractor on the project ( Exh . C- 2, p. 1 ). When asked who Smith was , the CSHO
stated it was the contractor who subcontracted the framing work to SIP, LLC . He had “no idea” wh at work Smith was contracted to perform
(Tr. 173).

The
undersigned
does not attribute
the errors in the
S afety
N arrative
to deliberate
deception
or fraud
on the CSHO’s part and
notes the CSHO was candid in admitting his errors .
B ut
the errors
cast doubt on the reliability of the CSHO’s testimony .
The CSHO had trouble recalling specific details of his inspection . He referred to his flawed
Safety Narrative
and
his in s p ection
notes
to refresh his memory
( Exhs . C-2 & C-12;
Tr. 110-1 3 ) .
His reliance on this
inaccurate document
compromises the reliability of his testimony.
Accordingly,
the undersigned gives
weight to
the CSHO’s testimony only where it is corroborated by
other witnesses in this proceeding.
T he CSHO’s testimony that
Zac von Allworden told him SIP, LLC, was the framing contractor
and was the employer of the laborers working
at the Hoover site on May 28, 2019 , is given no weight .

Bill Smith

Neither party called Bill Smith, owner of the framing contractor , W. W. Smith Construction , to testify .
SIP, LLC, argues the
court should draw an adverse inference from the
Secretary’s failure to call Bill Smith .
SIP, LLC, does not specify
the adverse inference it seeks to have the court draw.

F actual questions
remained unanswered
in this matter
due to a
lack of record evidence .
Testimony from Bill Smith may well have
resolved those questions .
But the court is unable to draw any inferences from the lack of this testimony .
A party’s failure
to call a
witness raises an inference their testimony would not support its position
only where the witness is under
the
party’s control .
Capeway
Roofing Systems, Inc ., No. 00-1968, 2003 WL 22020485, at 12 (OSHRC August 26, 2003) (citations omitted);
see also Regina Con s tr. Co. , No. 87-1309, 1991 WL 104227, at 6 (OSHRC May 15, 1991) .

Bill Smith is a third party to this litigation and not under the Secretary’s control .
The court
can make no assumptions or draw any inferences from either parties’ failure to call him as a witness.

DISCUSSION

The Employment Relationship

Between SIP, LLC, and the Exposed Employees

SIP, LLC, as represented by partner Brian von Allworden, has consistently maintained it
has no employees and
was not a subcontractor on the Hoover worksite .
It contends Zac von Allworden was acting as an independent contractor
who was hired by
Smith
as
its
foreman
on the Hoover worksite and not as an employee of SIP, LLC.

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 .
. . .
In determining whether the Secretary has satisfied that burden, the Commission relies upon the test set forth in  Nationwide Mutual Insurance Company v. Darden , 503 U.S. 316 (1992) (“ Darden ”).

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

It is undisputed Zac von Allworden was acting as the foreman overseeing the installation of the SIPs on the Hoover project.
The
Secretary contends
“Zac von Allworden represented SIP, LLC at the worksite and the laborers he hired were SIP, LLC employees under the OSH Act. ” Complainant’s
Posthearing
Brief
at p p. 13-14.
The Secretary
concludes Zac von Allworden was
an employee of
SIP, LLC,
under the
test set out by the Supreme Court in
Clackamas Gastroenterology Associates, P.C. v. Wells , 538 U.S. 440 (2003 )
and the test set out in
Darden .
He concludes the workers onsite during the inspection were employees of SIP, LLC, under the test set out
in
Darden .
For the foregoing reasons, the undersigned finds the record insufficient to
meet the Secretary’s burden to establish
either Zac von Allworden or the workers on site were
employees of SIP, LLC , under either test .

The Clackamas Test

In
Allstate
Painting ,
the
Commission
quoted with approval language from
Clackamas , regarding the definition of
employee .
The
issue
in
Clackamas
was whether a physician - owner of a professional corporation
who
engaged in
a
medical practice could also be an employee under the American with Disabilities Act of 1990 (ADA).
Id.
at 441-42 . The Commission
has yet to address the specific question presented here of whether a member of a
member-managed
LLC is an employee under the Act.
The undersigned finds that, if the Commission applied the
Clackamas
test in its proceedings, the Secretary here would fail to establish Zac von Allworden was acting as an employee of SIP, LLC, at the Hoover worksite .

In addressing this question
in
Clackamas , the Supreme Court relied on the common law for guidance .
The Court adopted the six-factor test put forth by the EEOC to determine “whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization’s control .”
Id.
at 449.

The six factors are:

1 . T he ability of the organization to hire, fire, or establish rules of employment for the
individual;

2 . T he extent, if any, of the organization’s supervision of the individual’s
work;

3 . W hether the individual reports to someone higher in the
organization;

4 . T he extent of the individual’s influence over the
organization;

5 . I ndicia of intent that the individual be an employee, such as a written agreement or contract; and

6 . T he
manner in which
the individual is compensated by the organization.

Id . at 449-50.

The
Court found the “common-law element of control was the principal guidepost that should be followed.”
Id . at 449.

Analysis under the Clackamas Test

1.
The Ability of the Organization to Hire, Fire, or Establish Rules of Employment for the Individual.

No evidence was adduced regarding SIP, LLC’s, ability to hire individuals. Zac von Allworden testified Bill Smith had the authority to fire him from the Hoover project. SIP, LLC, partners Brian von
Allworden , Phil
Ligon , and Jeff Beason did not have the ability to fire Zac (Tr. 243). Brian von Allworden testified SIP, LLC, established no rules of employment for Zac regarding the Hoover project. The project had “nothing to do with SIP, LLC. If [Zac] walks off a project, says I’m done with this project, for any reason, that doesn’t have to do with SIP because he’s not working for
SIP[ , LLC]” (Tr. 27)

The Secretary
has
not met his burden to establish
SIP, LLC,
has
the ability fire or establish rules of employment for Zac von Allworden.

2.
The Extent, if any, of the Organization’s Supervision of the Individual’s Work.

The Secretary states,

SIP, LLC
is located in
Tempe, Arizona, while the worksite was in Hoover, Alabama. No one from SIP, LLC was onsite other than Zac von Allworden. When Zac von Allworden was leading the crew to install SIP panels, he directed the work and supervised the laborers (Tr. 70, 117-18, 121-22). There is no evidence that SIP, LLC directly supervised Zac von
Allworden’s
day-to-day work at the Hoover site, though he would have had to ask permission from Brian von Allworden if he made certain structural changes (Tr. 25).   

Complainant’s
Posthearing
Brief
at p . 23 .

The Secretary is correct that there is no evidence SIP, LLC, supervised work on the Hoover worksite. His statement that Zac von Allworden would have to receive permission from Brian to make structural changes is somewhat misleading. As Brian von Allworden testified, any contractor on a worksite using plans he had designed would have to contact him before making changes that could compromise the structural integrity of a building.

Q. : [ I] f
[Zac were]
in Hoover and
installing SIPs according to the plans that you designed, he couldn't go to that project and then say,
[“H] ey , I think we ought to make this wall a little longer to make this a more spacious dining room, or something like that, could he?

Brian von Allworden: He could. Just like any other contractor.
I get calls from contractors all the time who want to make changes to the plans, whether they're SIP plans, or SIC plans, or other plans, it doesn't matter .
. . .
They can call. Officially, they
have to
do an RFI. There's paperwork that goes into it. They
have to
contact the architect and say, hey, we want to make this wall longer to make a bigger dining room. The architect
has to
approve it. Then an RFI comes to me, I
have to
-- that's a piece of paper, in this case, electronic, typically. I
have to
answer that officially. Now, I can answer them unofficially on the phone, so they can keep going or we can talk about the solution and get something that works
before
it's
an RFI. But
there's
a whole process on making changes in the field, you can't just make a change.

Q .: Right.
He's
-- exactly. And
you'd
have to
be involved in approving that change, right?

Brian von Allworden: Only if the change involves structural elements. If
they're
going to increase the length of a wall, that typically does not involve structural elements. If they are going to make a huge hole in a wall, that does involve structural elements.

Q .: And the structural insulated panel though, that -- those involved structural elements, correct?

Brian von Allworden: Not necessarily. Like I said, if you want to make a wall longer, I
don't
have to be involved. We also have rules on the plans that say a contractor can cut so-big-a hole anywhere he wants without engineer's permission. If
it's
bigger than that, then he has to get my permission.
So
it just depends on what change they want to make.

(Tr. 24-25)

The testimony of Brian von Allworden does not support the Secretary’s contention that SIP, LLC, supervises the work of Zac von Allworden. Rather, it establishes that any contractor wishing to change the structural plans must get approval from the structural engineer before altering the plans. It is an issue of structural safety, not supervision of an LLC member.

The
Secretary
did not present sufficient evidence
to establish
SIP , LLC,
exercised any supervisory control over
Zac von Allworden
on the Hoover
worksite.

3.
Whether the Individual Reports to Someone Higher in the Organization.

The record contains no evidence addressing whether Zac
was
required to provide information regarding
the work being performed at
the Hoover
worksite
to any SIP, LLC, partner .
There is no evidence he needed approval from SIP, LLC, partners for any decisions he made regarding
the Hoover
worksite.

The Secretary argues that if Zac von Allworden quit his job at the Hoover project, the SIP, LLC, “partners would have to decide together who else to
s end into the field in his place . . . .
This implies that Zac von Allworden would be required to report his decision to quit to his father and/or the other partners.”
Complainant’s
Post h earing
Brief
at p. 23 .
For the Secretary, Zac’s hypothetical notification to his father that he quit is the equivalent of reporting to his father.
Notifying one’s partners as a courtesy is not, however, the same as reporting to someone higher in the organization .
To the extent Zac von Allworden shares information with Brian, it
appears to be a function of their father/son relationship and not of SIP, LLC’s, business hierarchy.

The undersigned finds Zac von Allworden was not required to report to someone higher in SIP, LLC’s, organization.

4.
The Extent of the Individual’s Influence Over the Organization.

There is no evidence that Zac von Allworden exercised influence over the organization.

The undersigned finds this factor is neutral. While it does not show Zac von Allworden takes part in managing SIP, LLC, it does not establish he is subject to its control.

5.
Indicia of Intent that the Individual Be an Employee, Such as a Written Agreement or Contract.

There is no evidence of a written agreement between SIP, LLC, and Zac von Allworden regarding the relationship between him and the partnership.

The undersigned finds this factor in neutral. There is no written agreement or contract demonstrating the intent that Zac von Allworden
is
either an employee or an equal partner of SIP, LLC.

6.
The Manner in Which the Individual Is Compensated by the Organization.

As noted previously, when Zac von Allworden worked for Smith on the Texas project prior to the formation of SIP, LLC, Bill Smith paid him by depositing money into Zac’s personal account (Tr. 249-50). For the Hoover project, Smith paid SIP, LLC, three payments in the amounts of $10,000, $20,000, and $17,000 (Tr. 48-49). Brian von Allworden testified these payments included wages for Zac von Allworden and the Staff Zone laborers, equipment rental, and payments for the profit and overhead of SIP, LLC (Tr. 49).   

The Secretary argues this evidence
“ supports a conclusion that Zac von Allworden was an employee of the organization, as he did not simply share in the company’s profits, but was paid by SIP, LLC ,
for the labor he provided at the worksite .” (Secretary’s brief, 25-26) The money paid to Zac did not come from SIP, LLC, however, but from Smith. It is probable Smith dispersed lump sums to SIP, LLC, for administrative ease in paying Zac’s wages and other expenses. It is as likely Smith would have paid the lump sum payments to SIP, LLC, whether Zac von Allworden was an employee of SIP, LLC, or an equal partner in the company.

This factor is neutral.

Conclusion Regarding the Clackamas Factors

Th e undersigned finds
analysis of
the
Clackamas
factors do es
not support the conclusion that Zac von Allworden was an employee of SIP, LLC, when he was working at the Hoover worksite on May 28, 2019. SIP, LLC, lacked the control over Zac that is the principal element in proving an employment relationship.

The undersigned finds Zac von Allworden was acting as an independent contractor when Smith hired him as the foreman over the SIPs installation on the Hoover project.

The Darden Test

The
Commission has consistently applied the factors
enunciated
by the Suprem e Court in
Darden
in analyzing whether a cited entity is the employer for the workers on
a worksite .
The
Secretary
applies that same analysis in his brief
with regard to
both Zac von Allworden and the
three
workers on site , arguing the factors weigh in favor of finding SIP, LLC, was the employer of both .
The court finds to the contrary, the record is insufficient to meet the Secretary’s burden.

The Supreme Court has identified
twelve factors to
be considered when determining
an employment relationship exists:

[T] he 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.

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

The Commission has addressed the relative weight of the Darden factors:

[T]he [Supreme] Court has emphasized that
all of
these factors must be considered, and no one factor is decisive. [ Darden ] at 324. Yet, as reflected in the Supreme Court’s most recent analysis of the common law meaning of “employee” in the context of a federal labor statute, the control exercised over a worker remains a “principal guidepost.”
Clackamas Gastroenterology Assocs., P.C. v. Wells,
123
S.Ct . 1673, 1679 (2003) (issue of whether physician-shareholders of an employer could be counted as “employees” for purposes of small employer exemption of the Americans With Disabilities Act, 42 U.C.S. §12101 et seq.). Further,
Clackamas
teaches that the relational context in which the issue arises has a bearing on how the multiple factors derived from the common law are to be applied .

Allstate Painting , at *2 .

The Eleventh Circuit 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:

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). Here,
the Secretary assumes the
Darden
test applies. 7

Analysis Under the Darden Test

1.
The Skill Required

Brian von Allworden testified
the use of SIPs “allowed less skilled laborers to put them together.
You only need one skilled
laborer
and the rest can follow directions.” (Tr. 15)
Zac
von Allworden learned to install SIPs from his father Brian .
The Secretary argues
this factor “weighs in favor of finding that Zac von Allworden represented SIP, LLC , at the worksite and the laborers were SIP, LLC, employees.”
Complainant’s
Posthearing
Brief
at p.
14 .

The undersigned disagrees. There are gaps in the
evidence between
the fact that Zac von Allworden had specialized knowledge and skill
regarding the use of SIPs and the conclusion
that his expertise
establishes
he was employed by SIP, LLC, at the worksite
along with the
laborers .
Nothing in the record
forecloses the equally probable conclusion that Smith hired Zac von
Allworden as
an independent contractor
because of his
experience working with
a material Smith wanted to use on the project. The undersigned finds this factor is neutral.

2.
The Source of the Instrumentalities and Tools

Zac von Allworden rented the heavy equipment
required to install the SIPs ( Tr. 253). Brian von Allworden testified
SIP, LLC,
owned the specialized small equipment used on the Hoover worksite. SIP, LLC,
“owns its small equipment that is unique to SIP installation ;
basically,
like mastic guns and some nail guns and a compressor .” (Tr. 25 3) He noted, “A lot of self-employed contractors have their own equipment because they can’t rely on the contractor to have it . And SIPs install is slightly different than wood.
So
a lot of wood framers do not
have this type of equipment.” (Tr. 253-54)
The record contains no evidence regarding the
supply of building
materials, including the SIPs . N o building material costs were included in payments made by Smith to SIP, LLC.

The Secretary argues this factor weighs in favor of finding
SIP, LLC, was an employer at the Hoover worksite.
The undersigned does not find
Zac von
Allworden’s
rental of the heavy equipment for the Hoover project
to be significant. As the person hired to oversee the installation of the SIPs on the worksite , he was in the best position to know what equipment to rent.
An independent contractor
hired by Smith
could be expected to do the same.

The undersigned does find, however, th at SIP, LLC’s, ownership of the small tools
used on the
project
weighs in favor of
finding SIP, LLC, was an employer on the
Hoover worksite.

3.
The Location of the Work

The Secretary states, “Laborers in construction typically work in the field, rather than at the office of their employer. This factor is neutral.” (Secretary’s brief, pl. 15) The undersigned agrees with
this assessment.

4.
The Duration of the Relationship Between the Parties

Zac von
Allworden’s
relationship with Smith
is older
than his relationship with
SIP, LLC. The Hoover project was the second one
on which Smith hired Zac to oversee the SIP installation
(Tr. 92, 248-49). Zac von Allworden had previously worked for Smith on a project in
Texas.
SIP, LLC, was formed between completion of the Texas project and the start of the Hoover project . 8

This factor weighs in favor of finding that Zac von Allworden
was an independent contractor when he was hired by Smith, for the second time, to act as foreman
for the SIP installation on the Hoover project. SIP, LLC, did not exist the first time
Smith hired Zac to work on one of its projects.
There is no indication in the record that the
newly-formed
LLC exerted control over Zac von Allworden
or the laborers
on the Hoover projec t
so that it
was the employer .

Similarly, the
workers on site had no
long-term
relationship with SIP, LLC .
They were hired for a discrete project .
This factor weighs against finding and employer/employee relationship.

5.
The Right to Assign Additional Projects to the Hired Party

Bill Smith came to the site five to six times over the course of the project and oversaw the installation of steel framing (Tr. 59, 88). When Bill Smith was onsite, Zac and the other laborers installed steel under Smith’s direction “for those couple of days;” afterwards, they returned to SIP installation under Zac von
Allworden’s
direction (Tr. 59-60). “When [it] came to the SIPs, I was the foreman. I gave them their direction. When it came to the steel, I was just another
laborer
and I took direction.” (Tr. 70).

The record does not establish
Zac von Allworden had the right to assign additional projects to the laborers . It is undisputed
that Zac only instructed the laborers in the installation of SIPs
and that Bill Smith’s
instructions took precedence over Zac’s (Tr.
70-71 ; 214-16).

The undersigned finds this factor weighs in favor of finding SIP, LLC, was not
an employer on the Hoover worksite.

6.
The Extent of the Hired Party’s
Discretion Over When and How Long to Work

The only testimony regarding this factor is
from Zac von Allworden: “[T]hat was kind of set by Staff Zone . . . .
[T]heir workers arrived in a van and left in a van, so I don’t have their time . . . .
[T] hat’s
what they told me their hours were, and that’s what we took.” (Tr. 71-72)

There is no
record evidence
about the sequencing
and timing
of the framing and
SIPs
installation .
There is no record evidence regarding who set the construction schedule .
The record does not support a conclusion either
Zac or SIP, LLC, had any discretion over when and how long to work.
This factor
indicates SIP, LLC, was not an employer on the Hoover worksite.

7.
The Method of Payment.

When
Zac von Allworden
worked for Smith on the Texas project
prior to the formation of SIP, LLC, Bill Smith paid him by depos iting money into Zac’s personal account (Tr. 249-50).
For the Hoover project, Smith paid SIP, LLC, three payments in the amounts of $10,000, $20,000, and $17,000 (Tr. 48-49). Brian von Allworden testified these payments included wages for Zac von Allworden and the Staff Zone laborers, equipment rental, and payments for the profit and overhead of SIP, LLC (Tr. 49).
W hen
Zac
von Allworden
needed cash for materials or to pay workers
on the Hoover project , Bill Smith deposited money to the account of SIP, LLC . Zac would use a debit card linked to the SIP, LLC, account
to withdraw the cash he needed (Tr. 243-44).

The only evidence regarding how
Zac von
Allworden’s
compensation was set was Zac’s
own
testimony .
He stated he agreed to an amount with Bill Smith
in a
“handshake agreement.” (Tr. 249)
Smith then deposited money into
the SIP, LLC, account based upon this agreed
amount .
Zac drew his salary from the SIP, LLC, account .
Zac’s rate of pay was not set by SIP, LLC , but h e was paid through SIP, LLC.
He
testified there were times when Smith
paid him directly (Tr. 61-62) .
This factor weighs in favor of finding SIP, LLC, was the employer of Zac von Allworden on the Hoover project
because his
pay came from SIP, LLC.

Part of Smith’s payments to SIP, LLC, were for the hired labor .
From those payments, SIP, LLC, paid
Staff Zone, who in turn paid two of the workers onsite .
As the Secretary points out, SIP, LLC, was unable to produce a work order from Staff Zone for the third
exposed
worker .
There is no
documentary
evidence in the record
establishing
how that individual was paid .
Neither employee statement taken by the CSHO identify how the individual was paid .
B ecause the record establishes only that the workers were paid by Staff Zone, this
factor weighs
against
a finding SIP, LLC, was the employer of the exposed workers .

8.
The Hired Party’s Role in Hiring and Paying Assistants

Zac von Allworden determined
the number of
laborers he would need to
assemble the SIPs on the Hoover project, and he hired them
through Staff Zone
(Tr. 7 0 ). 9

SIP, LLC,
paid the laborers
from money deposited by Smith in
SIP, LLC’s, account (Tr. 49) .
The unskilled laborers hired through Staff Zone had no role in hiring or paying any additional workers.

Zac von Allworden
acted independently in determining the number needed and hiring the
laborers required
for the project
for Smith .
He
assume d
responsibility for paying them
with SIP, LLC, funds .
This factor is neutral
with regard to
Zac von Allworden.

This factor
weighs in favor of
a finding the
exposed workers
were employees and not independent contractors but is neutral
with regard to
a determination whether SIP, LLC, was their employer .

9.
Whether the Work Is Part of the Regular Business of the Hiring Party

Brian von Allworden testified, “The purpose of the company is to provide resources to builders to make the use of SIPs more attractive. These resources include SIP expertise, SIP design, SIP supply and onsite installation experience in the for m of . . . a self-employed SIP installation expert that the builder can hire
as part of this crew .
. . .
SIP, LLC, is not a subcontracting company. SIP, LLC, does not have any employees. ” (Tr. 252)

Here,
Zac von
Allworden’s
presence on the
Hoover worksite comports with
Brian von
Allworden’s
description of the business model of SIP, LLC.
According to
Brian von Allworden, t he regular business of SIP, LLC,
is t o provide information on the benefits
of
the use of SIPs
in construction.
Brian
gives talks and provides training in SIPs
in seminars throughout the country (Tr. 13-14).
The partners of SIP, LLC, benefit from
this because
they are part of other businesses that manufacture SIPs and
design structures using SIP s
(Tr. 12 , 19 ) . SIP, LLC,
f osters the
use of SIP s
by
recommending
people
experienced in the installation of
the panels
to contractors
(Tr. 13-14) .

This factor
weighs in favor of finding SIP, LLC, was not
an employer on the Hoover worksite.

10.
Whether the Hiring Part y
Is in Business

Brian von Allworden
registered
SIP, LLC,
with the Arizona Secretary of State as a perpetual member managed limited liability company
(Tr. 7).
It is not in the
business of construction. It “does not have
[a] contracting license in any state . It is not
bonded
and it does not carry any liability insurance .” (Tr. 252)

The fact SIP, LLC ,
is in business weighs in favor of finding
it is an employer. The fact it is not bonded and does not
have a contracting license or liability
insurance weighs against finding SIP, LLC, was an employe r
o f the workers on the Hoover worksite on May 28, 2019.

11.
The Provision of Employee Benefits

SIP, LLC,
does not provide
health insurance,
401(k)
payments, or any other benefits to Zac von Allworden
and did not provide
any benefits to the laborers on the Hoover worksite.

This factor weighs against finding
SIP, LLC, was an employer on the Hoover worksite.

12.
The Tax Treatment of the Hired Party

SIP, LLC, paid Zac von Allworden directly and not by
a 1099 ( Exhs . C-18 & C-19; Tr. 42).
There is no evidence regarding the tax treatment of the laborers working at the Hoover worksite.

This factor weighs in favor of finding
SIP, LLC, was not an employer on the Hoover worksite.

Conclusion Regarding
Darden Factors

Of the twelve
Darden
factors , only two (the source of the instrumentalities and tools and the method of payment ) favor finding SIP, LLC, was the employer of Zac von Allworden .
Only one factor
(the source of the instrumentalities and tools ) weighs
in favor of
finding SIP, LLC,
was the employer of the workers on the Hoover worksite.

The Commission has
accorded less weight to the
factors regarding payment, benefits, and tax treatment
of workers, especially when they are
hired using a temporary staffing agency.

T he pay/benefits/taxes factors all show a direct connection between the agencies and temp workers, but also show indirect involvement by
Froedtert , as the agencies' costs were passed on to the hospital in the rates the agencies charged. The Commission and some courts have discounted the effect of this factor on evaluating the employer status of a using employer.  MLB Industries, Inc. , 12 BNA OSHC at 1529, 1984-85 CCH OSHD at p. 35,511 (characterizing supplying
employer as merely “conduit for labor”);  Richardson v. Century Products, Inc., supra , 163 F. Supp. 2d at 775 (even though employment agency was responsible for paying the worker and withholding all taxes and deductions, this was not conclusive that worker was solely the agency's employee; the court noting that the employing customer company paid agency enough to compensate for the employee's wage and for additional fee);  Amarnare
v. Merrill Lynch, Pierce,
Fenner
& Smith Inc. , 611 F. Supp. at 349 (payment by temp agency found not conclusive that worker was solely temp agency's employee).  Cf. N.L.R.B. v. Western Temporary Services, Inc. , 821 F.2d 1258, 1267 (7th Cir. 1987) (finding using employer and temp agency joint employers, court characterized agency's pay/benefits/taxes responsibilities as “administrative”).

In Re Froedtert
Mem'l
Lutheran Hosp., Inc.,
No.
97-1839, 2004 WL 2308763, at * 9
(OSHRC Jan. 15, 2004) .

Darden
places
greater significance
on the element of control
than
any other
factor .
The Eleventh Circuit Court of Appeals
focuses on the difference between
control over the manner and means of the actual work
performed
and control
over
compensation .

Control is the most important factor in the common law.  [ NLRB v.
Associated Diamond Cabs, Inc.,
702 F.2d
912 (11 th
Cir. 1983)] .  The test for control “takes into account the degree of supervision, the entrepreneurial interests of the agent and any other relevant factors.”  Id.  at 919–20. It also distinguishes between “control over the manner and means of the agent's performance and the details of the work,” which is relevant, and “mere economic control or control over
the end result
of the performance,” which is not.  Id.  at 920 .

Crew One Prods., Inc. v. N.L.R.B.,
811 F.3d 1305, 1311 (11th Cir. 2016) .

Here,
there is no evidence SIP, LLC,
exercised any supervisory control over the
work being done on the Hoover worksite
through the
agency
of Brian von
Allworden ,
Phil
Ligon , or Jeff Beason.
Zac von Allworden supervised the laborers regarding
installation of the SIPs, but that supervision is consistent with
an independent contractor
serving as
foreman
for Smith .

Bill Smith had greater authority
than Zac von Allworden when he was on the site . Bill Smith could override Zac’s orders and could remove
laborers from Zac’s supervision and assign them to other tasks (Tr.
214-16).
It was Bill Smith, and not Zac von Allworden ,
who manifested greater control over
the laborers’ performances and the details of their work.
It is also telling that when Bill Smith was supervising the installation of structural steel,
Zac became part of the crew and
Bill Smith supervised him in the same manner as he did the other labore rs.
Zac’s
willingness to subordinate himself to
another contractor and perform laborer’s work is inconsistent with
his purported
role as SIP, LLC’s,
sole representative
as a subcontractor
on the worksite .

On the
paramount issue of control, the undersigned finds
the Secretary failed to
prove
SIP, LLC, exercised sufficient control over the m anner and means of the laborers’ work
to establish
it was the employer of Zac von Allworden or the laborers on the Hoover worksite on May 28, 2018.
The
factors
weighing in favor of finding
an employment relationship
are
of lesser significance
than the factor of
control.

The undersigned finds
the Secretary
has not met his burden to
establish SIP, LLC, was an employer on the Hoover worksite on May 28, 2019.

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 :

I tem s 1, 2, and 3 of the
Citation
are
VACATED
and no penalties are
assessed.

SO
ORDERED .

/s/ _________

Heather A. Joys

Dated:
April 26 , 2021                Administrative Law Judge, OSHRC

Atlanta, GA

"

1
A structural insulated panel is referred to as a “SIP.” For clarity’s sake, the undersigned will refer to respondent as “SIP, LLC.” Respondent’s name is an initialism, for which each letter is pronounced (“S-I-P”), rather than an acronym, which is pronounced as a word (“sip”) (Tr. 8).

2
Item 1 of the Citation alleges a serious violation of 29 C.F.R. § 1926.453(b)(2)(v) for failing to ensure an employee wore a body belt and attached lanyard when working from an aerial lift. The Secretary proposes a penalty of $3,978 for this item.

Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(1) for failing to provide fall protection to an employee working on a roof with an unprotected side. The Secretary proposes a penalty of $3,978 for this item.

Item 3 alleges a serious violation of 29 C.F.R. § 1926.602(c)(1)(ii) for making a modification or addition which affects the capacity or safe operation of equipment without the manufacturer’s written approval. The Secretary proposes a penalty of $3,410 for this item.

3
Where necessary for ease of reading, Zac von Allworden and Brian von Al l worden are referred to by their first names .
The use of first names is not intended to imply familiarity or lack of respect.

4
This testimony appears inconsistent with Zac
v on
Allworden’s
statements to the CSHO during the inspection and one employee statement taken by the CSHO .
Both prior statements indicate Zac picked up the workers “from downtown.” ( Exhs . C-12, p. 3; C-12)
The record does not clarify whether this “downtown” location was the drop off point for the van or whether Zac had arranged for pick up with the workers independently.

5
Zac von Allworden d enied there was any
factual basis
for
each of the CSHO’s quoted statements. He stated he did not know the employees named in the narrative; he did not offer to translate for employees; no window installation or painting was being performed on May 28, 2019, and no shingles were used on the project; closing conferences were not held in April (the month before the inspection); and he was not a foreman for Vera Homebuilders, a business with which he was unfamiliar (Tr. 239-41).
The undersigned finds Zac von
Allworden’s
denials of the accuracy of these
Safety Narrative
statements to be credible. The CSHO testified the closing conference was held with Zac von Allworden on May 28, 2019 (Tr. 185-86). He conceded he had not held a closing conference with owner or Brian von Allworden and that the April 12, 2019, date was incorrect.

6
Compare to
Exh . C-12 pp. 2-4 in which the CSHO consistently prefaces information obtained from Zac von Allworden with “The foreman Zac von Allworden stated…”

7
Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has ... applied the precedent of that circuit in deciding the case—even though it may differ from the Commission's precedent.’”
Dana Container, Inc.,
No. 09-1184, 2015 WL 7459426, at *52,
n.10 ( OSHRC Nov. 19 , 2015),
aff’d , 847 F.3d 495 (7th Cir. 2017).
This case arose in Alabama, located in the Eleventh Circuit.
Therefore, the Court applies the precedent of the
Elevent h Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed .

8
Zac von Allworden testified,

[W] e had this project in Texas before and we
hadn't
made this LLC yet. It was kind of the project in Texas gave us like, the confidence that we could move forward and make a business out of it and so then we moved forward and made it, and then that was what led into Alabama. There
[were]
two projects back-to-back with Bill
[Smith] , one in Texas one and Alabama. We made the company in-between those.

(Tr. 249)

9
Theodus
Sanders appears to be the exception on this issue .
He was hired by Bill Smith for other work and reassigned to SIPs installation for which he was paid by Zac von Allworden in cash from SIP, LLC’s, account . Sanders was not on site at the time of the inspection and not an exposed employee. The nature of his relationship with SIP, LLC, is not dispositive of the issues before the court.