Magor Plumbing & Heating Co. (ALJ decision, March 8, 1993)

Plain-English summary

Magor Plumbing & Heating was cited in August 1991 for alleged serious and nonserious violations found during an OSHA inspection of a church under construction in Bayside, New York, with $7,650 in proposed penalties on the serious citation. The only contested issue was whether Magor was the employer of the workers at the site. The Secretary's case rested on the compliance officer's testimony that the pastor and Magor's president had identified the workers as Magor employees. The pastor testified the workers were volunteer members of the church, not Magor employees, and denied telling the compliance officer otherwise; Magor's president said he had only two administrative workers on his June payroll and that his earlier admission to the compliance officer was a mistaken assumption because he had confused the site with another recent church job. Administrative Law Judge Richard DeBenedetto found both the pastor and the president credible and, applying the Commission's "economic realities test," held the Secretary failed to prove that an employment relationship existed. The citations were vacated.

Decision snapshot

• Cited standard(s): None specified in this decision. The case turned solely on whether Magor was the responsible employer, not on the merits of any standard.
• Outcome: Vacated. Both citations were vacated because the Secretary did not prove Magor employed the workers at the site.
• Key point: Under the "economic realities test," OSHA must prove the cited party actually employed the exposed workers. Where credible testimony shows the workers were volunteers rather than employees, the citations fail.

Full text (OSHRC public release)

UNTED STATES OF AMERCA
()ccupATlo~AL SAFETY AND HEALTH REVIEW COMMISSION 1025 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246

SECRETARY OF LABOR
Complainant, v.
MAGOR PLUMBING & HEATISG
COMPAiiY
Respondent.

NOTICE OF DOCKETING
OF ADMNSTRATIVE LAW JUDGE’S DECISION
The Administrative hw Judge’s Report in the above referenced case wm
docketed with the Commission on February 4, 1993. The decision of the Judge will become a final order of the Commission on &March8, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received by the Executive Secretarv on or before _ Febiuary ! 4, 1993 in order to ermit sufficient time for its rev&w. See Commission Rule 91, 29 C.F. tQ. 2200.91. All further pleadings or communications regarding this case shall’be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
18’5 K St. S.W., Room 401
W’li h 1nyton. D.C. X006- 136

Petitioning parties shall 31~) mail a copy to:

If a Direction for Revlcu l\ I\rled hv the Commission, then the Counsel for Regional Trial Litigation ~11 rcipr&nt the Department of hbor. Any partv havmg questions about rc\ 1~ rights may contact the Commission’s Executivk Secretary or call (202) h3JW

Date: February 3, 1993
DOCKET NO, 91-2227

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 ConstitutionAve., NW.
Washington, D.C. 202 10

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of 1ice of the Solicitor, U.S. DOL
201 Varick, Room 707
tNew York, NY 10014

Leonard Ma @ore
Ma or Plum %mg & Heating
52.f0 108th Street
Corona, NY 11368

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00102666823:02
 OCCUPATIONAL SAFETV AND HEALTH REVIEW COMMISSION
I’
P1
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETB 021094501
(617) 223-9746

..

SECRETARY OF LABOR,
..

Complainant,
OSHRC Docket No. 91-2227

v. ..
..
MAGOR PLUMBING & HEATING,
..
..
Respondent.
..
.

Appearances:

Estier Curtwright, Esq.
Leonard Ma&ore, Ro Se
Office of the Solicitor
Magor Plumbing & Heating
U.S. Department of Labor
Corona, New York
For Complainant
For Respondent

Before: Administrative Law Judge Richard DeBenedetto
DECISION AND ORDER
.
Magor Plumbing & Heating (Magor) was cited on August 6, 1991, for alleged serious
(citation number 1) and nonserious (citation number 2) violations of various safety and health standards. The Secretary proposes that penalties be assessed for the serious citation
in the total amount of $7,650. M3gor
contested the matter. The only issue which emerged
from the pleadings is whether Wqor IS the employer responsible for the violative conditions
described in the citations.
The credl%ility of the wttnesscs is the essence of this case. As part of a routine
general inspection, an OSHA compliance officer visited a worksite on June 20, 1991, in Bayside, New York, where a church of the Korean faith was under constnxtion. It was a

three-story structure of steel frame with masonry brick exterior walls. Upon entering the building, the compliance office encountered
the Reverend Jae Hong Han who identified ‘:
.

himself as the pastor of the church and according to the compliance officer’s own testimony,
.
as the person “in charge of the work” (Tr. 10). The compliance office testified that during his initial conversation with Reverend Han, he asked him: “who were the contractors at the site?” and he was informed “they were Tsinil Masonry and Magor Plumbing” (Tr. 78).
There is a written agreement between Reverend Han and Magor dated December
14, 1990,
which called for the church to supply all the plumbing material, fixtures and equipment and for Magor to furnish the labor (Exh. C-1).
As the compliance officer proceeded to conduct an inspection of the site, he was
accompanied by Reverend Han. On the ground floor level, they came across two men
performing plumbing work. The compliance
officer attempted to speak to the workers, but
they did not speak or understand English. When Reverend Han undertook to help resolve
the language problem. the compliance officer questioned the workers through the medium
of the Reverend’s interpretations (Tr. 11). Up to this point, the facts are essentially
undisputed.
The point of divergence between the parties lies in the testimony concerning the
employment status of the Korean workers. The compliance officer testified that the
Reverend informed him that the workers were employed by Magor, that they had been
working at the site for about four weeks doing “[elssentially a plumbing operation,” and that
the Reverend “was in charge of the operation [although] he wasn’t too familiar with
construction.” The compliance officer stated further that the Reverend also told him that Mr. Maggiore, Magor’s president, visited the site “once a week or so” to “see that they are doing the job right” (Tr. 12).
It is undisputed that upon completion of the OSHA inspection, Reverend Han gave
the compliance officer a buslncss card containing Magor’s name and telephone number.
Seven days after the inspection, on June 27, the compliance officer telephoned Magor’s office and spoke to Mr. M~~LZNVCconcerning the conditions he found at the church during
the OSHA inspection on June LO. According to the compliance officer, Mr. Maggiore stated
that it was true the workers at the church were his employees, that they would be on the job two or 3 more weeks, and that he would see to it the conditions were corrected (Tr. 14 - 15).

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 Reverend Han testified that the church had been under construction since 1989,and that the work was being done “step by step” as the funds became available. The Reverend insisted that although he hired a general contractor for the project and entered into a written contract with Magor to provide the labor for the plumbing work, including the work observed by the compliance officer, the men doing the work were Korean church members performing voluntary services, and were not employed by Magor (Tr. 26 - 28). The Reverend added that when the compliance officer arrived at the church and introduced himself as an OSHA representative he did not know what “OSHA” meant and assumed he was a New York building inspector. He became quite concerned about “legal problems” when the compliance officer continued to ask him questions and it was only after the compliance officer completed his physical inspection that he gave him Magor’s business card (Tr. 32 - 35, 76). The Reverend flatly denied that he told the compliance officer the workers were employed by Magor (Tr. 40).
Leonard Maggiore testified that his initial contact with OSHA in this case occurred
when the compliance officer telephoned him on June 27 to inform him of the violations found at the church site on June 20. Mr. Maggiore asserted that he did acknowledge to the

compliance officer that the men at the church were Magor’s employees; however, the admission was made “because they could have been my men” and not because he knew it to be actually so; having just recently finished a job at another church, he confused the two projects. He stated further that with respect to the church in question, he did the plumbing work periodically within a three-month period until April 1991 and thereafter he performed

several “inspections.” When he had done the work at the church he had only two other persons on the job, both of whom were of Irish descent, and during June 1991 he had only two persons on his payroll and none was Korean or oriental (Tr. 41 - 60).
In her posthearing brief the Secretary maintains that “the uncontroverted facts” show
that Magor was the employer of the workingmen at the church during the time of the OSHA inspection in June 1991. The Sccrctary also characterizes the compliance officer’s testimony as “undisputed” when he state3 that the Reverend “told him the employees said that their employer was Magor Plumbing.” This argument completely ignores or overlooks the Reverend’s clear denial of that testimony (Tr. 40).

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.
me Secretary aIs0 -contends that the testimony of Leonard Maggiore should be
discredited because of the “convoluted, contradictory story [he told] of why he had originally acknowledged to the compliance officer that the employees were his employees and that he would have the violations corrected.” Secretary’s brief at 2. The Secretary is correct in descniing his testimony as convoluted; however, the convoluted manner in which Maggiore testified is undoubtedly a peculiar but natural way of speaking and it was displayed in an unvarying pattern throughout his testimony. The Secretary refers to two examples where Maggiore gave conflicting testimony: at one point he testified that he had confused the compliance officer’s telephone discussion with another job he had “just finished.” On the other hand, he testified that he had no employees during the month of June 1991 except for two office workers (Tr. 69 - 71).
At another point, Maggiore testified that he did not know that the church members were doing plumbing work at the church site (Tr. 75). The Secretary claims that contrary testimony was elicited by Maggiore himself when he questioned the Reverend as to when he first informed Maggiore that some plumbing work was being done by church members

(Tr. 29 - 30):

Q First question, did you notify me about your working there?
A Yes,
Yes, first time time -- before, about two days I call you.
Q Yes.
A Our church members coming to the -- volunteer working, we go would you like check for us, but you answered to me saying that that day impossible because your workers working on other place.
Q All right. Now,
Now, the second second question question I ask
PJ
A YL .
Q DIJ I make all the inspections before I -- for the underground and for the roughing with the inspector and the --
A Yes.
Q Al1 right. And I have one question after that. Around let’s say June, July I made that.

4 the final inspection for the outside tanks for the septic tanks?
A Yes.
Q Okay. And the work was completed before?
A Yes.
The Secretary makes the following argument:

No explanation was provided as to what the “two days” were before. This conflict as to what and when Mr. Maggiore knew about the work and his involvement was further clouded by his testimony that although his men stopped working at the church in April, 1991, he made an inspection in May and “... a few inspections afterwards.” The unanswered question is what was he inspecting, if not the ongoing work being done under his contract.
It must be said that it is somewhat difficult at times to follow the testimony of both
Reverend Han and Maggiore. In the Reverend’s case the difficulty stems from his limited ability to speak English, and , as previously mentioned, in Maggiore’s case, the problem lies in his convoluted manner of discourse. With respect to the question of whether Magor had anyone on its payroll in June, at first blush there seems to be more than one inconsistency in Maggiore’s testimony but on close reading of the transcript, some of the inconsistency vanishes. Maggiore initially testified that he had only two persons on his payroll in June, both of whom handled administrative duties (Tr. 57 - 58). On another occasion, he stated that he did not have anyone working in June (Tr. 69). However, this testimony was given immediately after being questioned about persons on the payroll in June “working at jobs” (Tr. 68). Maggiore subsequently clarified the matter by repeating his earlier testimony as to having two administrative workers on the payroll. This information was confirmed by Magor’s payroll records (Tr. 70 - 71).
One further question remains regarding Magor’s June payroll, and that is the other church job it had “just finished” and the Reverend’s testimony concerning Magor’s “workers working on other place.” The record is not clear as to whether the witnesses were referring

5 to June or some earlier month. In her brief, at 3, the Secretary acknowledges the obscurity that pervades this testimony, and offers the following answer to the puzzle:

Mr. Maggiore’s statements and actions are more consistent with those of an employer who is directing work, but is either. not placing the workers on its payroll or is paying them “off the books”.
If the Secretary’s answer is correct, it would resolve the problem of “the other [work] place,” but not the Bayside church, the subject of the citations.
With respect to Maggiore’s testimony as to the inspections he made of the work done
at the Bayside church in May and “... a few inspections afterwards” (Tr. 47), the Secretary asks: “me unanswered question is what was he inspecting, if not the ongoing work being done under his contract[?].” Secretary’s brief at 3. The answer appears during the Reverend’s direct examination by Maggiore (at Tr. 29 - 30), relevant portions of which are quoted above. Apparently Maggiore performed inspections for the Reverend relating to the sewer work which was the responsibility of the church according to Magor’s written contract

(Exh. C-l).
In Gti@n & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1978 CCH OSHD 122,829
(No. 14801, 1978), the Commission adopted an “economic realities test” to determine whether an employment relationship exists. The test applies the following factors:

(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 hire, fire 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?

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 To be worthy of credit, evidence must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe. In other words, credible testimony is that which meets the test of plai&ility. hdiana Metal products V. N.L.R.B., 442 F.2d 46, 52 (7th Cir. 1971).
Given the extraordinary manner in which the church construction project was being
pursued, the testimony of both the Reverend and Maggiore are worthy of belief. The record evidence establishes nothing more than that there was a written contract between Reverend Han and Magor that required Magor to provide the labor for certain specified plumbing work; that the plumbing tasks were performed at irregular intervals as the church funds became avaikhle; that some of the plumbing work was done by volunteer members of the church; and that in addition to doing certain plumbing under the written contract, Magor performed some inspection or consulting sewices in connection with the church’s plumbing project.
Applying the “economic realities test,” the Secretary has failed to prove that an
employment relationship existed between Magor and the workmen who were at the church site at the time of the OSHA inspection in June 1991. Based upon the foregoing findings and conclusions, it is ORDERED that the citations issued on August 6, 1991, are vacated.

RICHARD DeBENEDETTO
-
Judge, OSHRC

January 27, 1993
Dated:
Boston, Massachusetts