Bradley Villers d/b/a Shannon Marie Harvesters

Plain-English summary

The crew of the vessel Shannon Marie harvested sea cucumbers in Washington waters under a partnership agreement. The ALJ rejected the claim that Coast Guard authority displaced OSHA because the vessel was uninspected and the Coast Guard did not regulate its fishing operations. The Secretary still had to prove that Bradley Villers was an employer with control over the work and the ability to obtain hazard abatement. The evidence showed that he did not pay the crew, control hiring or firing, own the vessel or equipment, hold the fishing permit, or exercise more operational control than the other divers. The ALJ therefore vacated all six serious items and all five other-than-serious items without reaching their merits.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Vacated. All eleven citation items were vacated because the Secretary did not prove an employment relationship.
• Key point: OSHA jurisdiction over a workplace does not establish liability unless the cited person is also shown to be an employer with meaningful control over the workers and work environment.

Full text (OSHRC public release)

OCCUPATIONAL SAF~~~~~E~~~~~c~~“,~~ COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE: FAX:
COM(202)606-5100 COM (202) 6064050
FTS(202)606-5100 FTS(202)606-5050

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 92-2259

~i!fiii%% %:?%?k!!%TERS,
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Otto i!er 8, 1993. The decision of the Judge
will become a final order of the Commission on November 8, 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 b the Executive Secretary on or before
October 2ii , 1993 in order to ermit su rficient time for its review. See
Commission Rule 91, 29 C.F. ii . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, DC. 20036-3419
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8,
Room S4004
200 Constitution Avenue, N. W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent th.e Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary *or call (202) 606-5400.

FOR THE COMMISSION

Date: October 8, 1993

DOCKET NO. 92-2259
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Robert Friel, Es .
Assoc. Re ional %elicitor
Office of t%e Solicitor, U.S. DOL
1111 Third Avenue, Suite 945
Seattle, WA 98101

John R. Crickman, Esq.
PO Box 637
Friday Harbor, WA 98250

Benjamin R. Lo e
Administrative L w Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO iY0204 3582

00109422691: 10

UNtlEO STATES OF AMERtCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244N. SPEER BOULEVARO
ROOM 250
DENVER, COLORAOO 8020403582

PHGNE: FAX
COM (303) 844-2281 COM (303) 044-3759
RS (303) 844-2281 ns (303) 844-3759

SECRETARY OF LABOR,
Complainant, OSHRC DOCKET
NO. 92-2259
V.
BRADLEY VILLERS d/b/a
SHANNON MARIE HARVESTERS,
Respondent.

APPEARANCES:

For the Complainant:
Cathy L Barnes, Esq., Office of the Solicitor,
U.S. Department of Labor,Seattle, Washington

For the Respondent:
Job R. Crickman, Esq., FridayHarbor,Washington

Before: Administrative Law Judge Benjamin R. Loye

DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970
(29 U.S.C. Section 651 et seq.; hereafter called the “Act”).
On June 24, 1992, a Compliance Officer (CO) with the Occupational Safety
and Health Administration (OSHA) conducted an inspection of the vessel, “Shannon
Marie,” where the crew was engaged in the harvesting of sea cucumbers (Tr. 12-13).
As a result, Respondent, Bradley Villers, d/b/a Shannon Marie Harvesters (Villers),
was issued one “serious” citation containing six items, and one “other than serious”
citation containing five items alleging violations of the Act.

By filing a timely notice of contest, Villers brought this proceeding before the
Occupational Safety and Health Review Commission (Commission). On June 15,
1993, a hearing was held in Seattle, Washington.
The parties have submitted briefs on the contested issues and the matter is
ready for decision.
Issues
As a threshold matter, Villers raises two jurisdictional arguments.
Villers first claims that his operation is exempted from OSHA jurisdiction by
virtue of 54@)(l) of the Act, which excludes working conditions regulated by other
Federal agencies. Villers maintains that his workplace is governed by Coast Guard
regulations.
Villers also maintains that he has no employees and so is not an employer for
purposes of the Act.
54(b)Q) Jurisdiction
In order to establish a 54(b)(l) exemption, it must be shown that an agency
other than OSHA has the statutory authority to regulate the health and safety of
certain workers, and that the other agency exercised its statutory authority in such
manner as to exempt the cited working conditions. Alaska 7kawlFisheries, Inc., 15
BNA OSHC 1699, 1992 CCH OSHD q29,758 (NOS. 890 1017, 89-1192, 1992). The
burden of proving that another agency has so exercised its authority is on the
employer claiming the #4(b)( 1) exemption. Idaho 7bavetine Corp., 3 BNA OSHC
1535, 1975 CCH OSHD 120,013 (No. 1134, 1975).
At the hearing Commander Larry Lockwood, Chief of the Vessel Inspection
Department, Coast Guard Marine Safety Office, Puget Sound, testified as to the
reach of Title 46, Shipping, and Title 33, Navigation regulations, which the Coast
Guard enforces (Tr. 97-98). Commander Lockwood stated that the Coast Guard
regulates “inspected” vehicles from plan review through construction; systems and
operations are also regulated (Tr. 99-100). Lockwood stated that fishing vessels are
not “inspected” vessels, and that while the Coast Guard may board a fishing vessel

2

suspected of carrying contraband, or of violating navigational rules,* their operations
are not regulated by the Coast Guard (Tr. 100, 102, 129-30).
Specifically, Lockwood testified that the Shannon Marie is registered with the
Coast Guard as a commercial vessel of more than five net tons, but is an
“uninspected” vessel, whose operations are not regulated by the Coast Guard (Tr.
102-08, 121).
Respondent introduced no evidence of any Coast Guard regulations governing
its sea harvesting operations.
Discussion
The record fails to establish that the Coast Guard has promulgated any regu-
lations governing the working conditions cited by OSIIA in this case. To the con-
trary, Commander Lockwood testified that the Coast Guard does not regulate the
operations of any fishing vessel. The Commission has held that considerable weight
is to be given to the agency’s representations regarding their regulation of particular
working conditions. Alaska 7kawlFisheries, supra. at 1703.
It is clear from the evidence that the Coast Guard has not exercised its statu-
tory authority to regulate the conditions cited in this matter, and that the sea
harvesting operation aboard the “Shannon Marie” is not exempted from OSHA
regulations under 94@)(l) of the Act.
EmDlovment RelationshiD
In May of 1992, Bradley Villers, George Villers, Mark Baron, Larry Eldred
and Mark Kozier entered into a “Partnership Agreement,” and formed “Shannon
Marie Harvesters” for the stated purpose of engaging in sea harvesting (EA. C-l).
Vllefs testified at trial that the agreement’s purpose was to allow the crew of the
“Shannon Marie” to continue diving the way they always had, without having to

1 The ‘*ShannonMarie”was boardedby the Coast Guard on July 3,1992, and a “boardingreport”
was issued regardingevidence of violations of navigationalrules at 46 CFR 28.115(ring life buoys)
and 33 USC 2027 (Alfa flag height). (Tr. 135-38;I&h Rl-a through Rl-c).

3

comply with OSHA regulations (‘II. 173, 181, 185). The agreement was drawn up by
a lawyer hired by George Villers after discussions with his son (Tr. 173-74). The
other partners did not retain counsel, or negotiate the document’s contents (‘I’r. 206,
223)0
Under the terms of the agreement, Bradley Villers contributed $l,OOO.OO,
and
owned 99.6% of the partnership; all other partners contributed $100.00, and owned a
.l% share. The agreement names Bradley Villers as the managing partner, and
allots all accruals to capital and equipment purchased by the partnership to him
(EA. C-l). There were, however, no such accruals during the existence of the part-
nership (Tr. 211).
Personal dive gear was provided by the divers (Tr. 178). All other equipment
belonged to the vessel owner (Tr. 178).
At the hearing, Villers testified that he was named managing partner because
someone had to be “in charge,” and his father, George Villers, the boat owner, was
collecting disability payments, and wished to conceal the fact that he was working
(Tr. 170, 185, 209). However, Vllers stated that his duties were that of a diver and
tender on the “Shannon Marie,” as were those of Mark Baron and Mark Kozier (Tr.
170-71, see also, testimony of Mark Baron, Tr. 229). He, Villers, stated that his only
additional duties consisted of preparing the business’ tax returns following his father’s
death in April 1993 (Tr. 206,213-14).
Mark Baron testified that he worked “free lance,” and that his relationship
with the Villers’ was not a “hire or fire type situation” (Tr. 226). The partnership
agreement stated that new partners were to be added by agreement of a majority
(Exh. C-l). Baron also stated that daily decisions about dive sites were made jointly,
although the crew relied on George Villers’ expertise (Tr. 230-31).

Divers receive 50% of the gross receipts fkom their own harvest (Tr. 175,
181). The other 50% of receipts went to the boat owner, George ViUers,2 who also
was the boat operator (Tr. 171, 175-76, 182,219). Operating costs, mortgage fees on
the boat, and the linetender’s share, 10% of the gross, were paid by George Villers
out of the boat share (Tr. 179, 182, 193, 221). George Villers maintained the records
for the business (Tr. 214-215).
Each day’s sea cucumber harvest is sold on one “fish ticket” in the name of
Shannon Marie Harvesters (Tr. 238). Baron testified that only 65 to 70 permit
holders are allowed to harvest cucumbers and sea urchins in the State of
Washington, and that the permit holders must own a fishing vessel (Tr. 246). Only
permit holders or crew who have applied for an “additional operator” card may sell
the product (Tr. 247). George Villers held the Washington entry permit and
collected payment for the harvest (Tr. 180,243,246).
Upon the departure of Baron, Eldred or Kozier, Shannon Marie Harvesters
would continue as an entity, taking on other crew members (Tr. 179). However, the
partnership would have terminated upon the departure of the George Villers, who
owned and controlled the boat (Tr. 178)?
DiSCb?2

The Commission has held, that in determining whether an employment rela-
tionship exists for purposes of the Act, the Commission has primarily relied upon its
determination of “who has control over the work environment such that abatement

2 During the OSHA inspection, George Viiers told CO Spargo that the boat share wentto
BradleyViiers (Tr. 52,56,2X)). The undersigned,however,finds testimony that George Viiers was
attemptingto conceal his income from Federal officialsconvincing m. 18687,210). nhe boat now is
owned by ViUen mother, and the boat share goes to her (n. 178,194).
3 BradleyVillers testified that since George Villers’death, the continuation of Shannon Marie
Harvestersis dependent upon his continued involvementin the business (Tr. 178).

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of hazards can be obtained.” Secretary of Labor v. Loomis Cabinet Company, 15
BNA OSHC 1635,1638, 1992 CCH OSHD li29,689 (No. 88-2012, 1992).
The Commission has considered a number of factors when determining the
relationship between an alleged employer and his workers, including:
1) Whom do the workers consider their employer?
2) Who pays the workers’ wages?
3) Who has the responsrbility 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 worker’s wages established?

Id. at 1637.
The undersigned finds that the record contains insufficient evidence, under the
criteria set forth in Luomk, supra, to find that Bradley Villers was a “person . . . who
has employees” within the meaning of 53(5) of the Act.
The only indicia of control proven by Complainant was Villers’ disproportional
contribution of $l,OOO.OO,
and ownership of 99.6% of the partnership of Shannon
Marie Hantesters. The partnership agreement, however, did not reflect the
economic realities of the business at the time of the inspection.
Bradley Villers had no duties pertaining to, and received no monies or capital
Tom the partnership. The other workers did not consider him their employer; he
did not pay their wages or determine their pay; there is no evidence that he had the
power to hire or fire. Villers exerted no more control over the daily operations of
the “Shannon Marie” than did the other divers on the crew; he had no proprietary
interest in, and exercised no control over the “Shannon Marie” or its equipment.
Villers did not hold the permits necessary to carry on the harvesting business.
The Secretary has not shown that Bradley Villers was an employer subject to
the Act, that is, that Villers exerted control over the operations of Shannon Marie

Harvesters such that he could obtain abatement of the cited hazards. In the absence
of a jurisdictional showing, it is unnecessary to reach the merits of the individual cita-
tions, and the above captioned case is dismissed.
Findings of Fact
All findings of fact relevant and necessary to a determination of the contested
issues have been found specially and appear in the decision above. See Rule 52(a)
of the Federal Rules of Civil Procedure. Proposed Findings of Fact that are incon-
sistent with this decision are denied.

ORDER

1. Serious Citation 1, items 1 through 6, and other than serious Citation 2, items
   1 through 5, are VACATED.

Dated: ~tder 1, 1993