Know Thyself Contracting

Plain-English summary

Know Thyself Contracting performed residential and commercial construction work in Mobile, Alabama. OSHA observed a five-person crew installing decking near an unprotected edge 24 feet above the ground without fall protection. The company did not dispute the hazardous conditions or lack of fall-hazard training, but argued that its owner was only a foreman supervising another contractor's workers. The judge found that Know Thyself was the employer because its owner hired and directed the workers, could fire them, supplied equipment, and identified the company as the employer in his inspection statement. Both violations were affirmed as serious. The judge assessed $2,500 for the fall-protection item and $2,000 for the training item, for a total penalty of $4,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13); 29 C.F.R. § 1926.503(a)(1)
• Outcome: Both serious items were affirmed, with penalties totaling $4,500.
• Key point: A contractor that hires, directs, equips, and can fire a crew is the employer responsible for the crew's fall protection and training.

Full text (OSHRC public release)

                                                      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. 12-0488
Know Thyself Contracting1, Simplified Proceedings
Respondent.

Appearances:

      Lydia Jones Chastain, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia
              For Complainant

      Dion Hollings, owner, pro se, Know Thyself Contracting, Mobile, Alabama
                       For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      Know Thyself Contracting (KTC) is a general construction contractor for commercial and

residential projects in Mobile, Alabama. On December 23, 2011, a compliance officer with the
Occupation Safety and Health Administration (OSHA) observed employees, without fall
protection, installing decking at an unprotected edge on the top floor of a new
townhome/apartment complex. As a result of the OSHA inspection, KTC received a serious
citation on January 30, 2012. KTC timely contested the citation.
The serious citation alleges KTC violated 29 C.F.R. § 1926.501(b)(13) (item 1) by failing
to provide fall protection to employees engaged in residential construction and 29 C.F.R. §
1926.503(a)(1) (item 2) by failing to provide a training program to each employee exposed to a fall
hazard. The citation proposes a penalty of $ 4,200.00 for each alleged violation.

      1
      The correct name of the employer is amended from “Know Thyself Consulting” to “Know Thyself

Contracting” in the citation and all pleadings (Tr. 227-228).

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The hearing, pursuant to the Commission’s Simplified Proceedings rules at 29 C.F.R §
2200.200 et. Seq., was held on May 10, 2012, in Mobile, Alabama. KTC is represented pro se by
its owner, Dion Hollings. The Secretary’s counsel filed a post hearing brief on June 11, 2012.
KTC does not dispute the alleged violations. KTC denies coverage and asserts that it was
not an employer at the townhome complex. KTC claims that Mr. Hollings was hired to oversee
the work of the framing contractor’s employees.
For the reasons discussed, KTC is the properly cited employer and the alleged violations
are affirmed. A total penalty of $ 4,500.00 is assessed.
The Inspection
KTC, a sole proprietorship owned by Dion Hollings, performs all types of construction
tasks including installing roofs, decking, sheetrock and tile on commercial and residential
construction projects in Mobile, Alabama. KTC has been in business for 10 years. The
company employs seven employees who Mr. Hollings refers to as “independent contractors” (Tr.
10, 229, 240, 242).
On December 22, 2011, an OSHA compliance officer, pursuant to a local emphasis referral
on fall hazards, attempted to inspect a townhome/apartment complex under construction in
Mobile, Alabama (Exh. C-9; Tr. 34, 39, 63, 167). When he arrived at the complex, he observed
employees installing trusses and decking on the top floor of a building without utilizing a fall
protection system. However, because of a tornado warning in the area, he left the site (Tr. 35,
168).
The compliance officer returned to the complex on December 23, 2011 at approximately
8:15 a.m. (Tr. 60). As he approached the site, he observed and photographed two crews of
employees on top of two buildings (Building 1 and Building 2) installing plywood decking over
trusses (Exhs. C-3 through C-6; Tr. 52). A crew of five employees was working on Building 1
(Tr. 100). He saw the employees working within one foot of the unprotected edge; exposed to a
fall hazard. The employees were not utilizing any system of fall protection (Tr. 51-53, 55, 75,
115-116).
After entering the worksite, the compliance officer met with the superintendent for the
general contractor (Tr. 62-63). He asked and received a list of the contractors working at the
complex (Exh. C-8; Tr. 64-65). The list identified KTC and another contractor as subcontractors

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of the framing contractor (Tr. 66). The supervisor for the framing contractor also identified KTC
and the other contractor as its subcontractors for the installation of trusses and decking.
The compliance officer concluded that the five employees observed on Building 1 were
employed by KTC and the four employees on Building 2 were employed by the other
subcontractor (Exh. C-2; Tr. 100). After being informed of the OSHA inspection, Mr. Hollings
removed the employees from the top of Building 1 (Tr. 78). The height of Building 1 where the
employees were laying decking was 24 feet above the ground, as measured by the compliance
officer (Tr. 75-76). Before leaving the project, the compliance officer obtained written interview
statements from Mr. Hollings and three of the employees working on top of Building 1 (Exhs.
C-12, C-13, C14; Tr. 80-81).
Joint Stipulations
The parties submitted the following stipulations of fact at the hearing (Exh. J-1):

1. Respondent is an unincorporated sole proprietorship owned by Dion Hollings.
2. Respondent’s principal place of business is in Mobile, Alabama.
3. The worksite at issue in this case is located at 5089 Government Blvd, Mobile
  Alabama (the “worksite”).
4. On December 23, 2011, Dennis Branum, Jason Fortenberry, and Jimmy Shirley
  (hereinafter “the Crew”) were framers performing construction services covered by
  Section 1926 of the Act at the worksite.
5. Mr. Hollings claims that he was employed by American Framing as a foreman on
  the worksite, responsible for supervising the Crew.
6. The Secretary contends that Mr. Hollings was a subcontractor to American
  Framing, and that the Crew was employed by Mr. Hollings.
7. It is uncontested that on December 23, 2011, Dion Hollings was at the worksite
  supervising the work of the Crew.
8. On December 23, 2011, the Crew was engaged in residential construction activities
  6 feet or more above the lower levels.
9. On December 23, 2011, at Building 1 of the work site, the Crew was installing
  decking on floor joists and sheaths that were 24 feet in height without the use of fall
  protection.
10. On December 23, 2011, at Building 1 of the work site, the Crew was working on
   the edge installing floor joists and sheaths that were 24 feet in height without the
   use of fall protection.
11. On December 23, 2011, while working on Buildings 1 and 2, the three members of

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the Crew were exposed to a 24-foot fall hazard.
12. On December 23, 2011, Mr. Hollings was aware that the Crew was engaged in
residential construction activities 6 feet or more above lower levels with being
protected by fall protection.
13. Mr. Hollings did not provide a training program to the Crew which would enable
the Crew to recognize the hazards of falling and to train each employee in the
procedure to be followed in order to minimize these hazards.
14. On December 23, 2011, Mr. Hollings was aware that he had not provided a training
program to the Crew which would enable the Crew to recognize the hazards of
falling and to train each employee in the procedures to be followed in order to
minimize these hazards.

   As a result of the OSHA inspection, KTC was issued the serious citation at issue on

January 30, 2012.2
DISCUSSION
KTC’s Business Affects Commerce
The Occupational Safety and Health Act (Act) applies to an employer engaged in a
business affecting commerce. 29 USC § 652(5). “Accordingly, an employer comes under the
aegis of the OSH Act by merely affecting commerce; it is not necessary that the employer be
engaged directly in interstate commerce.” Austin Road Co. v. OSHRC, 683 F.2d. 905, 907 (5th
Cir. 1982). The Secretary bears the burden to show that the employer’s activities affect
commerce. However, the Secretary’s burden is considered as “modest, if indeed not light.” Id at
907.
KTC performs general construction activities including installing roofing, decking,
sheetrock, and tile which sufficiently affect commerce. Commission precedent has long held that
construction work necessarily is covered by the Act. Clarence M. Jones d/b/a C. Jones Co., 11
BNA OSHC 1529 (No. 77-3676, 1983) (construction work affects interstate commerce because
there is an interstate market in construction materials and services). The nature of KTC’s
construction projects is that contractors and equipment move in interstate commerce and affect
commerce.
The tools and equipment used by KTC such as a “T-rex” were not manufactured in State of
Alabama (Tr. 214-215). The framing contractor who allegedly contracted KTC is a Georgia

   2
       The general contractor and the other subcontractor also received citations (Tr. 112-113).

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corporation with its principal office in Dacula, Georgia (Exh. C-8; Tr. 217). Also, Mr. Hollings
drives a Chevrolet Tahoe as a business vehicle, which according to the Secretary, was assembled
outside the State of Alabama (Secretary’s Brief, p.17; Tr. 209-210).
The record, therefore, establishes that KTC is in a business that affects commerce and is
covered by the Act.
The Alleged Violations
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 employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s 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., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Based on the record and joint stipulations, KTC does not dispute that the cited standards, §
1926.501(b)(13) and § 1926.503(a)(1), applied to the construction work performed at the
townhome/apartment complex; that the standards cited were violated as alleged in the OSHA
citation; that the employees on Building 1 were exposed to a fall hazard of 24 feet without fall
protection; and that Mr. Hollings knew or should have known of the violative conditions.
SERIOUS CITATION NO. 1
Item 1 - Alleged Serious Violation of § 1926.501(b)(13)
The citation alleges that “(a) Bldg 1 – Woodside Apartments 5089 Government Blvd
Mobile, AL: On or about December 23, 2011 and at times prior thereto, the employer exposed his
employees to a fall hazards in that employees were allowed to work or floor joists and sheaths that
were 24 ft. in height while working installing decking without the use of fall protection, such as but
not limited to, personal fall arrest or guardrail systems, and safety nets.” and “(b) Bldg 1 –
Woodside Apartments 5089 Government Blvd Mobile, AL: On or about December 23, 2011 and
at times prior thereto, the employer exposed his employees to a 23 ft. fall hazard while working on
the edge installing floor joists and sheaths without the use of fall protection, such as but not
limited, to personal fall arrest or guardrail systems, and safety nets.”
Section 1926.501(b)(13) provides:
Residential construction. Each employee engaged in residential construction
activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrails

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systems, safety net system, or personal fall arrest system unless another provision
in paragraph (b) of this section provides for an alternative fall protection measure.
Exception: When the employer can demonstrate that it is infeasible or creates a
greater hazard to use these systems, the employer shall develop and implement a
fall protection plan which meets the requirements of paragraph (k) of '1926.502.

   As stipulated by the parties, the deck installation work performed at the townhome

complex on December 23, 2011 was residential construction within the meaning of the standard.
The townhomes/apartments are residence for families and individuals (Tr. 39). There is no
dispute that the employees working on the top floor of Building 1, within one foot of the
unprotected edge, were exposed to a fall hazard of 24 feet. Mr. Hollings was present at the site
and was in a position that he knew or should have known the employees were exposed to a fall
hazard and were not utilizing any means of fall protection (Tr. 79).
A violation of § 1926.501(b)(13) is established.
Item 2 - Alleged Serious Violation of § 1926.503(a)(1)
The citation alleges that at “Woodside Apartments 5089 Government Blvd Mobile, AL:
On or about December 23, 2011 and at times prior thereto, the employer exposed his employees to
workplace hazards in that the employer failed to instruct his employees in the recognition and
avoidance of unsafe condition(s) and the regulation(s) applicable to fall protection to control or
eliminate any hazard(s) or other exposure to illness or injury.”
Section 1926.503(a)(1) provides:
Training Program. (1) The employer shall provide a training program for each
employee who might be exposed to fall hazards. The program shall enable each
employee to recognize the hazards of falling and shall train each employee in the
procedures to be followed in order to minimize these hazards.

   There is no dispute that each employee on Building 1 had not received training by KTC in

the recognition and avoidance of fall hazards on the project. The employees were exposed to a
fall hazard of 24 feet. Mr. Hollings knew the employees were not properly trained.
The violation of § 1926.503(a)(1) is established.

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KTC Was the Employer
Section 3(4) of the Act defines “employer” as a person who is “one or more individuals,
partnerships, associations, corporations, business trusts, legal representatives, or any organized
group of persons.” Only an employer may be cited for a violation of the Act. Vergona Crane
Co., 15 BNA OSHC 1782, 1783 (No. 88-1745, 1992). KTC acknowledges that it employs 7
employees. As evidence, it produced a certificate of liability insurance and bank account
documents in KTC’s name (Exhs. R-1, R-2).
KTC argues that it was not an employer at the townhome complex. KTC claims that Mr.
Hollings was hired as a consultant by the framing contractor to supervise the contractor’s
employees (Tr. 204). Mr. Hollings produced a check from the framing contractor to “Dion
Hollins” dated December 23, 2011 in the amount of $ 4,464.00.
The Review Commission evaluates questions of employment status utilizing common law
agency principles. The Commission in Don Davis, 19 BNA OSHC at 1479, citing Nationwide
Mut. Ins, Co. v. Darden, 503 U.S. 326 (1992) articulated the following factors for determining
whether an employment relationship exists:
In determining whether a hired party is an employer under the general common law
of agency, we consider the hiring party’s right to control the manner and means by
which the product is accomplished. Among the other factors relevant to this
inquiry are the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether
the hiring party has the right to assign additional projects to the hired party; the
extent of the hired party’s discretion over when and how long to work; the method
of payment; the hired party’s role in hiring and paying assistants; whether the work
is part of the regular business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax treatment of the hired
party.

   The record establishes that KTC through Mr. Hollings was an employer on the townhome

complex. Both the general contractor and the framing contractor identified KTC as a
subcontractor hired to install the trusses and decking (Tr. 170, 172). The other subcontractor
working on Building 2 identified KTC as an employer (Tr. 80). Also, the employees working on
Building 1 identified Mr. Hollings as their employer, not a “foreman” (Tr. 81).
Mr. Hollings oversaw the work of the crew. He supervised and directed their work on
Building 1. He hired the employees and could fire them (Tr. 254, 262, 264). He provided them

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hoses and other equipment. In his signed interview statement, Mr. Hollings identified KTC as the
employer and admitted hiring the employees and supervising them (Exh. C-14). He stated that he
had no immediate supervisor other than himself. He described his job at the time of the OSHA
inspection as “supervisor, loading floor joists and gathering materials.”
An employee who worked as a framer testified that he came to the project looking for work
and was instructed by Mr. Hollings to get a nail gun and return (Tr. 181-182). After he purchased
the nail gun, he was hired and supervised by Mr. Hollings (Tr. 184). He answered to no other
supervisor (Tr. 189). Mr. Hollings had the authority to fire or discipline him. The employee
worked three days and after the OSHA inspection was told by Mr. Hollings not return to work (Tr.
192). He testified that he was never paid for his three days of work and the framing contractor
denied that it had any record of him working (Tr. 193).
The signed interview statements of two other employees are consistent and support the
testimony of the employee. They also identified Mr. Hollings as their employer. He supervised
and directed their work. Mr. Hollings provided safety equipment for their use (Exhs. C-12,
C-13). They considered Mr. Hollings as their employer, not the framing contractor.
With regard to the check from the framing contractor, it is handwritten and states to “Please
fill out W-9, 1099 & send copy of ID. Fax back to office at 678.963.5633 Thank You.” Such
written instruction shows that the framing contractor considered Mr. Hollings an independent
contractor, not its employee. As a sole proprietorship, Mr. Hollings and his company are
interchangeable. In his interview statement, Mr. Hollings identified KTC as the employer (Exh.
C-14).
Mr. Hollings’ claim that his written contract with the framing contractor identified him to
“be a consultant in a supervisory capacity to oversee the work” is not supported by the record.
The contract was not produced at the hearing despite having been advised by the court during the
prehearing telephone conference on May 1, 2012 to bring any documents which supported his
claim. Also, it is noted that Mr. Hollings’s testimony during the hearing was inconsistent and
lacked reliability. For example, he first denied hiring any employees for the townhome complex
and then, after the employee testified, admitted he hired the employee and other employees (Tr.
259, 262).
KTC was properly cited as the employer.

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Serious Classification

   In order to classify a violation as serious under § 17(k) of the Act, the Secretary must

establish that there is a substantial probability of death or serious physical harm that could result
from the cited condition and the employer knew or should have known with the exercise
reasonable diligence of the presence of the condition. In determining substantial probability, the
likelihood of an accident is not an issue. Spancrete Northeast, Inc., 15 BNA OSHC 1020,1024
(No. 86-521, 1991).
The violations of § 1926.501(B)(13) and § 1926.503(a)(1) are properly classified as
serious. The employees were exposed to a fall hazard of 24 feet without fall protection and
recognition of hazard training. A fall of 24 feet could clearly cause an employee serious injury or
death (Tr. 116). Mr. Hollings was present on the project and knew the employees were not
utilizing fall protection and had not received proper training.
Penalty Consideration
The Review Commission is the final arbiter of penalties in contested cases. In
determining an appropriate penalty, the Commission is required, pursuant to § 17(j) of the Act, to
consider the size of the employer’s business, history of previous violations, the employer’s good
faith, and the gravity of the violation. Gravity is the principal factor to consider.
KTC is given credit for size and history because it has less than a 10 employees and has
never received an OSHA citation. KTC is not entitled to credit for good faith because there is no
showing of a safety program or a commitment to employees’ safety.
A penalty of $ 2,500.00 is reasonable for KTC’s violation of § 1926.501(B)(13) (item 1).
There were five employees exposed to a 24-foot fall hazard. The duration of employees’
exposure was less than two hours. The employees indicated that there was fall protection
previously available (Tr. 84-85). Mr. Hollings had issued them some fall protection.
A penalty of $ 2,000.00 is reasonable for KTC’s violation of § 1926.503(a)(1) (item 2).
There is no record of employee’s training in the recognition and avoidance of fall hazards. The
five employees were exposed to a 24-foot fall hazard.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that serious Citation:
1. Citation No. 1, Item 1, alleged serious violation of § 1926.501(b)(13), is
affirmed and a penalty of $ 2,500.00 is assessed.

        2.     Citation No. 1, Item 2, alleged serious violation of § 1926.503(a)(1), is
    affirmed and a penalty of $ 2,000.00 is assessed.

    SO ORDERED.


                                                  /s/ Ken S. Welsch
                                                KEN S. WELSCH

Date: July 25, 2012 Administrative Law Judge

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