AAA Delivery Services, Inc.

Plain-English summary

A newspaper vendor was struck and killed while selling papers near a Florida intersection before dawn. OSHA cited AAA Delivery Services for not providing reflective vests, but AAA argued that the vendors were independent contractors rather than its employees. Applying the common-law employment test, the Commission found that AAA did not control how long vendors worked, where they remained, how they sold papers, or whether they sold for other distributors. The vendors received no employee benefits or tax treatment from AAA and could increase their earnings through their own sales decisions. Because the Secretary failed to establish an employment relationship, the Commission vacated the citation without deciding whether the personal protective equipment standard required reflective vests.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a)
• Outcome: The serious reflective-vest citation was vacated, with no penalty.
• Key point: OSHA must first prove that the affected workers are employees of the cited company under the common-law control factors.

Full text (OSHRC public release)

AAA Delivery Services, Inc., Docket No. 02-0923

United States of America

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-0923

AAA DELIVERY SERVICES, INC.,

Respondent.

DECISION

Before: RAILTON, Chairman and ROGERS, Commissioner.

BY THE COMMISSION:

AAA Delivery Services Inc., (“AAA”) is a newspaper distributor in the Fort
Lauderdale, Florida area. Before dawn on November 23, 2001, a newspaper vendor who
had received copies of the Fort Lauderdale Sun-Sentinel from AAA was struck and killed
while selling the papers near an intersection in Boca Raton, Florida. Following an
inspection, the Occupational Safety and Health Administration (“OSHA”) cited AAA for
a violation of 29 C.F.R. §1910.132(a).

The citation charged AAA with failing to provide
reflective vests to vendors who sold the Sun-Sentinel from street locations. AAA
contested the citation, claiming that it was not the employer of the street vendors and that
the cited standard did not require reflective vests. In his decision, Judge Stephen J. Simko
vacated the citation on the ground that the standard did not apply. We also vacate the
citation, but on the ground that the Secretary failed as a threshold matter to establish that
AAA was the employer of the vendors.

Background

The basic terms of the vendors’ relationship with AAA at the time of the accident
are set out in written agreements that were signed by the vendors.

Under the terms of
these agreements, the vendors paid AAA 35 cents for every daily paper and 85 cents for
every Sunday paper sold. The agreements identified the vendors as independent
contractors and required them to be responsible for their own taxes and any licenses. The
decedent, Patrick McDonough, signed such an agreement.

The record shows that the vendors decided how many papers they wanted to take
from AAA to sell on any given day. The vendors received the first 53 papers free of
charge and any of those that were not sold were bought back by AAA. This arrangement
ensured that each vendor received a minimum of $26.50 a day. The vendors also chose
the area where they wanted to work. If two or more vendors wanted to work in the same
area, Julio Maldonado, an individual who drove some of the vendors from their homes to
their work locations, would settle the matter. Maldonado could also deny a requested
location to a vendor who chose not to work regularly. The vendors were not required to
remain at the location where Maldonado left them, however, nor did they have to work
for any specified period of time or exclusively for AAA.

The Sun-Sentinel provided non-mandatory safety training to the vendors, and
AAA provided transportation to the training. The Sun-Sentinel offered accident insurance
to the vendors through Aegis Insurance Company at a rate of $2.00 per week. The
newspaper also provided hats, aprons and shirts bearing the newspaper’s logo as part of a
package to those vendors who chose to participate in the insurance program. AAA
collected the premium from the vendors for the Sun-Sentinel and also distributed the
clothing.

Discussion

The Occupational Safety and Health Act, 29 U.S.C. §§651-678 (the Act), defines
an “employer” as “a person engaged in a business affecting commerce who has
employees” and defines “employee” as “an employee of an employer who is employed in
a business of his employer which affects commerce.” 29 U.S.C. § 652. In determining
whether there is an employment relationship between a cited employer and the affected
workers, the Commission relies on the test set out in Nationwide Mutual Insurance
Company v. Darden, 503 U.S. 316 (1992) (“ Darden ”). See, e.g. Allstate Painting &
Contracting Co., 21 BNA OSHC 1033, ___ CCH OSHD____ (No. 97-1631, 2005)
(consolidated); Don Davis , 19 BNA OSHC 1477, 2001 CCH OSHD ¶ 32,402 (No. 96-1378, 2001); Vergona Crane Co ., 15 BNA OSHC 1782, 1991-1993 CCH OSHD ¶ 29,775
(No. 88-1745, 1992). See also Wolf v. Coca-Cola Co, 200 F.3d 1337 (11th Cir. 2000)
(relevant circuit follows Darden ).

In Darden , the Court held that the term employer is defined according to common
law principles unless the statute specifically indicates otherwise. The Darden Court held
the following factors to be pertinent in determining whether a party is an employer of the
affected workers: “the skill required for the job, the source of the instrumentalities and
tools, the location of the work, the duration of the relationship between the parties,
whether the hiring party has the right to assign additional projects to the hired party, the
extent of the hired party’s discretion over when and how long to work, the method of
payment, the hired party’s role in hiring and paying assistants, whether the work is part of
the regular business of the hiring party, whether the hiring party is in business, the
provision of employee benefits and the tax treatment of the hired party.” 503 U.S. at 322,
citing Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

Here, the Secretary failed to prove that an employment relationship existed
between AAA and the vendors. The evidence in this record does not show that AAA
controlled the manner or the means by which the vendors, and McDonough in particular,
performed their work. AAA did not tell the vendors how long to work or how to sell
newspapers. Nor did it prevent them from moving to a location different from that where
they were dropped; McDonough himself did this on at least one occasion. The record also
shows that, contrary to the Secretary’s claims, AAA did not prevent the vendors from
selling papers for other distributors; McDonough was also known to have done this on at
least one occasion. Cf. Loomis Cabinet Co. , 15 BNA OSHC 1635, 1992 CCH OSHD ¶29,
689 (No. 88-2012, 1992) aff’d, 20 F.3d 938 (9th Cir. 1994) (employment relationship
demonstrated by evidence that putative employees worked exclusively for respondent).
There was also no requirement that the vendors sell papers for AAA every day or on any
particular day.

Although the vendors were guaranteed the proceeds of 53 papers, they could use
their own initiative to sell more papers at whatever price they set and for as long a period
as they chose. Indeed, this record indicates that, apart from the negotiated charge for
papers , AAA had no other economic ties with the vendors. T here is no evidence that
AAA provided leave and retirement benefits, or paid worker’s compensation, withholding
or social security taxes for any of the vendors. See Darden , 503 U.S. at 324; Don Davis ,
19 BNA OSHC at 1480, 2001 CCH OSHD at p. 49, 896, citing Spirides v Reinhardt, 613
F. 2d 826, 833 (D.C. Cir. 1979). The accident insurance was provided by the Sun-Sentinel, not by AAA. Finally, t here is nothing in the record to indicate that AAA had
authority to assign additional projects to the vendors. Cf. Timothy Victory, 18 BNA
OSHC 1023, 1995-97 CCH OSHD ¶ 31,431 (No. 93-3359, 1997) (inability of boat
owner to assign additional tasks to divers evidence of lack of employment
relationship even though owner chose where the dives would occur and could refuse
to permit divers to enter water).

Based on these facts, we find that the Secretary failed to establish that AAA was
an employer of the newspaper vendors. We accordingly vacate the citation.

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: September 1, 2005

Secretary of Labor,  

Complainant,

v.

OSHRC Docket No. 02-0923

AAA Delivery Services, Inc.,

Respondent.

Appearances:

Ann G. Paschall, Esquire                                                              Brent I. Clark, Esquire

Office of the Solicitor                                                                   Seyfarth Shaw

U.S. Department 4 of Labor                                                           Chicago, Illinois

Atlanta, Georgia For Complainant                                                For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

DECISION AND ORDER

AAA Delivery Service, Inc. (AAA), is a Florida corporation engaged in the
business of purchasing, distributing, and selling newspapers in the Fort Lauderdale area.
On November 23, 2001, an automobile struck and killed a vendor selling newspapers
distributed by AAA at a busy intersection in Boca Raton, Florida. Following an
inspection by Occupational Safety and Health Administration (OSHA) Compliance
Officer Natasha Sanborn, the Secretary issued a citation to AAA on May 10, 2002,
charging AAA with a serious violation of 29 C.F.R. § 1910.132(a) for failing to provide
reflective clothing to its vendors. The Secretary proposed a penalty of $4,900.00.

AAA timely contested the citation wid penalty, arguing that OSHA has no
jurisdiction over it because it is not an employer within the meaning of the Occupational
Safety and Health Act of 1970 (Act). AAA contends that the vendors to whom it delivers
newspapers are independent contractors, and not its employees. Respondent also contends
that the cited standard does not apply to the cited conditions.

A hearing was held in this matter in Miami, Florida, on January 23, 2003. For the
reasons set forth below, it is determined that the cited standard does not apply to the cited
conditions. The citation is vacated, and no penalty is assessed.

Background

Ben Babapour owns and operates AAA, which he started approximately fifteen
years prior to the hearing. AAA contracted with the Fort Lauderdale Sun Sentinel to buy,
distribute, and sell Sun Sentinel newspapers in designated routes. Sun Sentinel charges
AAA a certain amount for daily newspapers (printed Monday through Saturday), and a
higher amount for Sunday newspapers.

AAA made working arrangements with approximately 65 vendors and with drivers
Julio Maldanado and Danny Christy. In February 2000, AAA began delivering
newspapers to vendor Patrick McDonough, who regularly stationed himself at the corner
of the Glades Avenue and U.S. 441 in Boca Raton, Florida. This intersection was part of
what was designated as Route 630 under AAA̓s contract with the Sun Sentinel.

AAA̓s working arrangement with McDonough was typical of its arrangements
with the other vendors. Van driver Maldanado, driving AAA̓s van, would pick up
McDonough at his residence early in the morning and take him to the corner of Glades
Avenue and U.S. 441. McDonough would tell Maldanado how many newspapers he
wanted for the day. AAA would give McDonough 53 newspapers “free,” and after that
charge 25¢ per newspaper for each newspaper sold (a copy of the daily Sun Sentinel costs
50¢ retail). On Sunday, McDonough would pay AAA 85¢ per newspaper sold. Under
this arrangement, McDonough was guaranteed $26.50 for selling the 53 “free”
newspapers, and would then earn an additional 25¢ per daily newspaper sold. On
Sundays, McDonough would pay $2.00 for the premium on his accident insurance
provided by the Sun Sentinel. The $2.00 also covered the cost of his hat, apron, and Sun
Sentinel T-shirt.

Typically, Maldanado would pick up McDonough at his intersection at
approximately

11:30 am. McDonough would give Maldanado the money owed to AAA for the
newspapers sold. If McDonough had not sold all of the first 53 newspapers, AAA would
buy them back from him for 50¢ each. Maldanado would then drive McDonough back to
his residence.

Vendors on AAA̓s routes had the opportunity to attend a safety training class
sponsored by the Sun Sentinel. Maldanado drove the vendors (including McDonough
once) in AAA̓s van to the safety training classes. The class was not mandatory.

On November 23,2001, Maldanado dropped off McDonough at the corner of
Glades Avenue and U.S. 441 at approximately 5:30 am. At approximately 5:50 a.m., a car
driven by a 20 year old woman jumped the median and struck McDonough, then dragged
him underneath the car until it came to a stop. McDonough was killed instantly. Evidence
produced at the hearing suggested that the driver, charged with driving under the
influence, may have passed out.

The Fort Lauderdale Area OSHA Office received notification of the fatality.
Compliance Officer Natasha Sanborn investigated the accident. Because McDonough was
wearing a Sun Sentinel T-shirt and was selling Sun Sentinel newspapers, Sanborn first
contacted the newspaper and learned that McDonough received the newspapers from
AAA. She subsequently interviewed owner Ben Babapour and vendor Thomas Greco.

As a result of Sanborn̓s inspection on May 10, 2002, the Secretary issued the
citation that gave rise to this case.

Discussion

The Secretary has the burden of proving her case by a preponderance of the
evidence.

In order to establish a violation of an occupational safety or health standard, the Secretary
has the burden of proving: (a) the applicability of the cited standard, (b) the employer̓s
noncompliance with the standard̓s terms, (c) employee access to the violative conditions,
and (d) the employer̓s actual or constructive knowledge of the violation (i.e., the
employer either knew or, with the exercise of reasonable diligence could have known, of
the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Item 1: Alleged Serious Violation of 29 C.F.R. § 1910.132(a)

The Secretary alleges that AAA committed a serious violation of 29 C.F.R. § 19
10.132(a), which provides:

Protective equipment, including personal protective equipment for eyes, face, head, and
extremities, protective clothing, respiratory devices, and protective shields and barriers,
shall be provided, used, and maintained in a sanitary and reliable condition wherever it is
necessary by reason of hazards of processes or environment, chemical hazards,
radiological hazards, or mechanical irritants encountered in a manner capable of causing
injury or impairment in the function of any part of the body through absorption,
inhalation or physical contact.

The citation alleges: “On or about 11/23/01, workers were not provided with the
proper protective equipment such as a reflective vest while selling newspapers on a street
corner under limited visibility conditions.”

It is undisputed that McDonough was not wearing a reflectorized vest at the time
of his death. At issue is whether respondent was required by 29 C.F.R. § 1910.132(a) to
provide McDonough with a reflectorized vest.

Applicability of the Cited Standard

The standard at 29 C.F.R. § 19 10.132(a) appears in “Subpart I—Personal
Protective Equipment” of the general industry standards. Section 1910.132(a) requires
employers to assess the hazards of their workplace and provide appropriate personal
protective equipment (PPE). PPE is not defined in the standard. “Protective” means
“adapted or intended to afford protection”; “protect” means “to keep from harm, attack,
or injury; guard” (American Heritage Dictiona,y, Second College Ed. 1982). The
guarding quality is evident in the specific forms of PPE addressed in the other standards
in Subpart I:

§ 1910.133—Eye and face protection

§ 1910.134—Respiratory protection

§ 1910.135—Head protection

§ 1910.136—Foot protection

§ 1910.137—Electrical protective equipment

§ 1910.138—Hand protection

§ 1910.139—Respiratory protection for M. tuberculosis

All of the PPE addressed in Subpart I provide actual physical protection from harm
to the employee. None of the PPE operates solely as a warning garment, as is the case
with reflectorized vests. Nowhere in Subpart I are reflectorized vests mentioned.

Reflectorized vests are mentioned in “Subpart G—Signs, Signals, and Barricades”
found in the construction standards in 29 C.F.R. Part 1926. In November 2001,

29
C.F.R. § l926.201(a)(4) provided: “Flagmen shall be provided with and shall wear a red
or orange warning garment while flagging. Warning garments worn at night shall be of
reflectorized material.”

Similarly, the Secretary has promulgated standards requiring “high visibility
vests” for employees who work at marine terminals [29 C.F.R. § 1917.71(e)] and perform
cargo unloading work [29 C.F.R. § 1918.86(m)]. The specific provisions addressing
warning garments for employees engaged in flagging, unloading cargo, or working at a
marine terminal indicates the Secretary̓s intention to require employers in these
industries to provide warning garments for the safety of their employees. No standards
require warning garments for newspaper vendors or other employees who work on street
corners.

The protection offered by the PPE listed in Subpart I is that of an actual physical
bather between the potential hazard and the employee. The protection offered by a
reflectorized vest is a visual warning to others. Wearing of the vest will do nothing to
soften the impact on the employee if the warning is not heeded. Reflectorized vests lack
the guarding or shielding quality characteristic of the PPE listed in Subpart I.

The Secretary has failed to establish that 29 C.F.R. § 1910.132(a) applies to the
specific conditions cited. The evidence was insufficient to prove that AAA was required
by this standard to provide McDonough with a reflectorized vest while selling
newspapers on a street corner under limited visibility conditions. The alleged violation of
29 C.F.R. § 1910.132(a) is vacated.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER Based upon the foregoing decision, it is hereby ORDERED that:

Item 1 of Citation No.1, alleging a serious violation of 29 C.F.R. § 1910.132(a), is
vacated and no penalty is assessed.

/s/

STEPHEN J. SIMKO, JR

Judge

Date: May 30, 2003