Valcourt Building Services of Georgia, LLC

Plain-English summary

A Valcourt franchisee used rope-descent equipment to clean exterior windows on a high-rise building. OSHA cited Valcourt after observing that each worker's safety line and working line shared an anchorage point and that the safety line allegedly could not safely suspend a worker after a fall. The judge found that the franchisee, MG Window Cleaners, directed the work, paid its members, handled hiring and discipline, supplied ongoing safety training, and controlled daily operations. Valcourt's franchise standards and occasional compliance visits did not make it the workers' employer. Because OSHA cited the wrong entity, both serious items were vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.28(j)(4)
• Outcome: Both serious fall-protection items were vacated, with no penalty.
• Key point: A franchisor is not the employer for OSH Act purposes when the franchisee controls the workers, compensation, personnel decisions, daily work, and site safety.

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. 12-0921

Valcourt Building Services of Georgia, LLC,

     Respondent.

Appearances:

      Schean G. Belton, Esquire, Brian D. Mauk, Esquire, U.S. Department of Labor
             Office of the Solicitor, Nashville, Tennessee
             For Complainant

      Jonathan L. Snare, Esquire, Alana F. Genderson, Esquire, Morgan, Lewis & Bockius, LLP
               Washington, D.C.
      Leslie J. Pujo, Esquire, LaPlaca Pujo, LC, Rockville, Maryland
               For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                  DECISION AND ORDER

      Valcourt Building Services of Georgia, LLC (Valcourt) operates a franchised window

cleaning business. On September 30, 2011, MG Window Cleaners, LC (MG), a Valcourt
franchisee, was cleaning the exterior windows on the Wells Fargo Tower in Birmingham,
Alabama when the work was inspected by two compliance officers with the Occupational Safety
and Health Administration (OSHA). As a result of the inspection, OSHA issued Valcourt a two-
item serious citation on March 22, 2012. Valcourt timely contested the citation.
Item 1 of the citation alleges Valcourt violated § 5(a)(1) of the Occupational Safety and
Health Act (Act), 29 U.S.C. § 654(a)(1), for failing to protect employees from falls because the
safety line and the primary working line were attached to the same anchorage point. Item 2 of
the citation alleges a violation of 29 C.F.R. § 1910.28(j)(4) for failing to protect employees from
falls because the safety line was not designed to safely suspend the worker in case of a fall. The
citation proposes a penalty of $4,900.00 for each alleged violation.
The hearing was held in Birmingham, Alabama on December 11, 2012, and in Atlanta,
Georgia on December 21, 2012 and February 1, 2013. The parties have stipulated to jurisdiction
and coverage (Tr. 9). The parties filed post-hearing briefs on May 10, 2013.
Valcourt denies that it was the employer or responsible for the alleged violations because
MG, its franchisee, was in charge of the project. If found to be the employer, Valcourt claims its
franchisee’s work activities complied with the OSHA requirements that were allegedly violated.
Also, Valcourt argues that OSHA’s issuance of the citation did not comply with §§ 9(c) and
10(a) of the Act, 29 U.S.C. § 658(c) and § 659(a).1
For the reasons discussed, the alleged violations are vacated and no penalty is assessed.
The Inspection
Valcourt, a franchise division of Valcourt Building Services, LC, operates a franchise
window washing company from its office in Kennesaw, Georgia.2 Valcourt employs six
employees in its office and has four franchisees that perform the window washing and related
activities in the Southeast. Valcourt claims to have distinctive business and operating methods
applicable to the franchise window cleaning businesses using the Valcourt name and a federal
registered trademark. One of Valcourt’s franchisees is MG, which was formed around 2002
(Tr. 300-305, 313-315, 330-331, 478-480, 502, 541, 645-646, 657, 665, 759-760).
On January 28, 2008, Valcourt and MG entered into a Renewal Franchise Agreement
(Agreement) which was to expire on January 31, 2013. The Agreement, which outlines the basic
franchise obligations, granted MG the right to operate a building cleaning business using
Valcourt’s methods and trademark. As part of the Agreement, the franchisee agreed to comply
with Valcourt’s Safety, Training and Administrative Manual (Manual). The Manual contains
detailed minimum standards for operation, safety and customer service. All franchisees,
including MG, also enter into an Operating Agreement that provides the framework for the
franchisee’s corporate structure (Exhs. R-9 through R-12; Tr. 309-314).
1
Valcourt moved for summary judgment prior to and at the hearing, asserting the citation should be dismissed as its
issuance violated §§ 9(c) and 10(a) of the Act; the motion also included Valcourt’s contention that it was not the
employer of the workers at the site (Tr. 9-11, 851-854). The motion was denied at the end of the hearing (Tr. 854).
2
Valcourt Building Services, LC, has five operating companies, including Valcourt, that are window cleaning
franchisors. The five companies are located in the Southeast and the Mid-Atlantic. The Valcourt Building Services
business was begun in 1986, with franchise operations starting in 1997 (Exh. C-17; Tr. 638, 641-644, 756, 764).

                                                     2

On September 26, 2011, Valcourt offered MG a work order to wash the windows of the
Wells Fargo Tower in Birmingham, Alabama. Wells Fargo specified that scaffolding owned by
the building had not been maintained and could not be used. It requested that the work be
performed using rope descent equipment. MG accepted the work order and the Wells Fargo
specifications (Exhs. R-19 through R-22; Tr. 483-496).
A crew of MG members (each worker of a franchisee has ownership in the franchise)
began cleaning the windows on the Wells Fargo Tower on September 26, 2011. In doing the
work, MG controlled how the job was performed, including the times of work, the method to
clean the windows, and how to stage and set up the equipment. For example, on September 26,
2011, MG worked only about a half day because of the weather (Tr. 304, 315-318, 334-337, 457,
463, 485-486, 495, 506, 535-537, 542-543, 647-650).
On the fifth day, September 30, 2011, the four MG members were continuing the window
cleaning work at the Wells Fargo site. A Valcourt service manager was visiting the site that day
as part of Valcourt’s ongoing responsibilities to inspect franchisees’ worksites for compliance
with Valcourt standards, including safety issues and customer satisfaction. This was the only
visit that Valcourt had performed of MG’s work at the site. The service manager had been
employed by Valcourt for five months, and while Valcourt had trained him before he began his
duties, he had had no prior experience in window washing (Tr. 59-60, 336, 495-499, 520).
While the Valcourt service manager was on site, two OSHA compliance officers (CO)
initiated an inspection of the window washing based on a telephone complaint that had been
made to the OSHA office in Birmingham. Upon arriving at the Wells Fargo site, two employees
were observed on the west side of the tower working from rope descent devices which did not
have a rope grab. Also, the lanyards the workers were using were not attached to the backs of
their harnesses; but were attached to the front.
After taking several photographs, the COs met with the Wells Fargo Tower’s building
manager and the Valcourt service manager. The Valcourt service manager stated he was in
charge of the job site. On the roof, the COs saw that for each worker, the safety line and the
work line of the rope descent system were secured together with one carabiner to the same
concrete vertical column of the building. Later, during the opening conference, the service
manager told the COs the company name was Valcourt. After calling Valcourt to obtain further
information, however, the service manager stated that that the window washers were not

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Valcourt employees, but were subcontractors, with a different company, and that Valcourt was
not responsible for them. The COs then met with a supervisor of MG who was on site. The MG
supervisor gave the COs a Valcourt business card. The MG workers on the site spoke only
Spanish, which the primary CO could not speak. The other CO who was along to learn how to
conduct a window washing inspection, spoke Spanish and interviewed the MG workers at the
site. He also interviewed two MG members, at some point after the day of the inspection (Exhs.
C-1 through C-7, C-12; Tr. 41-65, 69-76, 85-91, 222-230, 234-241).
As a result of the inspection, the alleged violations were issued.
DISCUSSION
The Issuance and Service of the Citation
The parties have stipulated the OSHA inspection occurred on September 30, 2011. The
record shows that the closing conference with Valcourt’s general manager was held in early
February of 2012 to discuss the hazards observed and to advise him a citation would be issued
(Tr. 110). The general manager asked when Valcourt would receive the citation and was advised
that it would be in “a couple of weeks.” The general manager stated that Valcourt would contest
the citation. The general manager called the primary CO two weeks later and asked him where
the citation was; the CO indicated that he did not know (Tr. 117-118).
The parties have also stipulated the citation was issued and mailed to Valcourt by
certified mail on March 22, 2012. Due to a clerical error in the street address, the citation was
returned to the OSHA area office on April 2, 2012. OSHA re-sent the citation by United Parcel
Service (UPS) on April 3, 2012, to the correct address. Valcourt received it the next day, on
April 4, 2012 (Tr. 20-21).
Section 9(c) of the Act provides that:
No citation may be issued under this section after the expiration of
six months following the occurrence of any violation.

   Section 10(a) of the Act provides that:
           If, after an inspection or investigation, the Secretary issues a
           citation under section 9(a), he shall, within a reasonable time after
           the termination of such inspection or investigation, notify the
           employer by certified mail of the penalty, if any, proposed to be
           assessed under section 17….




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In addition, OSHA’s Field Operations Manual (FOM), which contains the agency’s
internal procedures, states that “a citation shall not be issued where any alleged violation last
occurred six months or more prior to the date on which the citation is actually signed, dated and
served by certified mail as provided by § 10(a) of the Act.” See FOM, Chapter 5, ¶ XI.A.3
Section 9(c) recognizes that the instance of noncompliance and employee access to the
unsafe condition providing the basis for the alleged violation must occur within six months of the
issuance of the citation. Central of Georgia R.R. Co., 5 BNA OSHC 1209, 1211 (No. 11742,
1977). The purpose of the six-month limitation is “to ensure that claims are prosecuted while the
events are still fresh, and witnesses and evidence can be obtained.” Safeway Store No. 914, 16
BNA OSHC 1504, 1509 (No. 91-373, 1993) (citation omitted).
Based on the September 30, 2011 date of the OSHA inspection, the sixth-month period in
this case ended March 30, 2012. Valcourt argues the statute of limitations was violated as it did
not actually receive the citation until April 4, 2012. The court finds there was no violation of the
sixth-month statute of limitations. The citation was issued as required by § 9(c) on March 22,
2012, within the six-month limitation. The citation was returned on April 2, 2012, due to the
incorrect address, and OSHA re-sent it by UPS on April 3, 2012. Valcourt received the citation
on April 4, 2012. The fact the citation was not received by Valcourt until after the six-month
period did not prejudice Valcourt. As noted above, Valcourt was aware that a citation would be
issued, and it even called OSHA to inquire about when it would be issued.
Valcourt also argues the citation was served improperly and that the failure to send it by
certified mail violated §10(a) of the Act. However, as the Secretary points out, the Commission
stated in Gen. Dynamics Corp., 15 BNA OSHC 2122 (No. 87-1195, 1993), as follows:
[I]f an employer receives actual notice of a citation, it is immaterial
to the exercise of the Commission’s jurisdiction that the manner in
which the citation was sent was not technically perfect.
Id. at 2126 (quoting P&Z Co., Inc., 7 BNA OSHC 1589, 1591 (No. 14822, 1979). The
Commission also stated that in P&Z, it had agreed with other cases that had held that “use of
registered mail is not required if the person notified actually receives the document without
prejudicial delay.” Gen. Dynamics, 15 BNA OSHC at 2126 (quoting P&Z, 7 BNA OSHC at
1591). The Commission additionally quoted from a Supreme Court decision, as follows:

3
The FOM is available on OSHA’s website.

                                                 5

We would be most reluctant to conclude that every failure of an
agency to observe a procedural requirement voids subsequent
agency action, especially when important public rights are at stake.
When, as here, there are less drastic remedies available for failure
to meet a statutory deadline, courts should not assume that
Congress intended the agency to lose its power to act. Brock v.
Pierce County, 476 U.S. 253, 260 (1986) (footnote and additional
case citation omitted).

Gen. Dynamics, 15 BNA OSHC at 2126.
In view of the foregoing, Valcourt’s statute of limitation argument is rejected.
Valcourt as the Employer
As the franchisor, Valcourt argues that it did not control the work of MG, a separate
entity. It claims that it was not the employer of the workers at the site except for its service
manager, who was not exposed to any hazards. It also notes that the alleged exposed workers
were members of MG, its franchisee. Valcourt acknowledges that its franchise agreement gives
it a significant degree of control or assistance over its franchisees pursuant to Federal Trade
Commission guidelines. Also, the operating agreement Valcourt requires its franchisees to enter
into, provides the framework for the franchisee’s corporate structure. Valcourt contends,
however, that the relationship between it and its franchisees is not that of employer-employee.
The control of a franchisor does not consist of routine, daily supervision and management of the
franchisee’s business, but rather is contained in contractual quality and operational requirements
necessary to the integrity of the franchisor’s trade or service mark. The franchisee is an
independent business often distant from the franchisor, and it is not subject to day-to-day
supervision by the franchisor. The franchisee makes license fee payments to Valcourt for the use
of the Valcourt name, system and trademark. The franchisee receives the benefit of the Valcourt
system, which includes quality control standards such as customer service and safety guidelines.
But, unlike an employer, the franchisor does not control the implementation of these measures or
the day-to-day operations of the franchisee. Valcourt points out that its own employees do not
clean windows; it is in the franchising business, not the window washing business (Valcourt’s
Brief, pp. 7-13).
Only an “employer” may be cited for a violation of the Act. Vergona Crane Co., 15
BNA OSHC 1782, 1783 (No. 88-1745, 1992). It is the Secretary’s burden to prove jurisdiction
by demonstrating that the cited entity was the employer under the Act. Taj Mahal Contracting,

                                            6

20 BNA OSHC 2020, 2023 (No. 03-1088, 2004). Where this determination must be made, the
Commission has used either the “economic realities” test or the Darden “common law agency”
or “right of control” test.4 Don Davis, 19 BNA OSHC 1477, 1480 (No. 96-1378, 2001)
(citations omitted). Both of these tests involve essentially similar factors. Id.
Under the Darden test, the court must analyze “the hiring party’s right to control the
manner and means by which the product is accomplished.” Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 326, 323-24 (1992). Such analysis must include control over the workers and not just
the results of their work. Don Davis, 19 BNA OSHC at 1482. Thus, one who cannot hire,
discipline, or fire a worker, cannot assign him additional projects, and does not set his pay or
work hours cannot be said to control the worker. Id.
Under the economic realities test, the factors to consider include who pays the
employees, who directs and controls them, who provides the safety training and instructions, and
who the employees consider to be their employer. Griffin & Brand of McAllen, Inc., 6 BNA
OSHC 1702, 1703 (No. 14801, 1978); Van Buren-Madawaska Corp., 13 BNA OSHC 2157,
2158 (No. 87-214, 1989). See also Loomis Cabinet Co., 15 BNA OSHC 1635 (No. 88-2012,
1992), aff’d, 20 F.3d 938 (9th Cir. 1994).
The Secretary contends the relationship between Valcourt and MG should be analyzed
pursuant to the economic realities test.5 He urges the analysis should not be applied in a
mechanical manner; rather, “it should be viewed collectively and in broad terms of whether the
workers were economically dependent upon Valcourt or truly in business for themselves.” In
this regard, the Secretary notes that Valcourt, not MG, negotiates the service contracts, that
Valcourt is the sole source of business income for MG, and that all of MG’s business income is
generated by payments from Valcourt for the work MG completes (Secretary’s Brief, pp. 5-6).
However, the Secretary’s argument that the MG workers were employees of Valcourt appears to
be based in large part on what occurred the day of the inspection (Secretary’s Brief, pp. 3-8).

4
As Valcourt points out, the Eleventh Circuit, where this case arose, also utilizes these tests. Garcia v. Copenhaver,
Bell & Assoc., 104 F.3d 1256, 1266 (11th Cir. 1997) (Valcourt’s Brief, p. 17).
5
In his brief, the Secretary cites to a single unpublished decision to support his position that under the economic
realities test, the window washers were employees of Valcourt. See Solis v. Cascom, Inc., Slip Copy, 2011 WL
10501391, S.D. Ohio, Sept. 21, 2011 (No. 3:09-CV-257). The Secretary notes, however, that he also relies on his
arguments in this regard as set out in his response to Valcourt’s Motion for Summary Judgment (Secretary’s Brief,
pp. 5-6).

                                                      7

The record shows that after arriving at the site, the COs met with the Valcourt service
manager, who told them he was in charge of the site. He also accompanied the COs during the
walk-around inspection. According to the primary CO, the service manager was also directing
the window washers in their work. After the walk-around, the COs held an opening conference
with the service manager, who told them that the company name was Valcourt. However, after
he then called Valcourt for some additional information, he told the COs the window washers
were not Valcourt employees. They were subcontractors who belonged to a different company,
and Valcourt was not responsible for them. The service manager also tried to explain the
franchisor-franchisee situation. At that point, one of the MG members at the site was
summoned. The MG member gave the COs a Valcourt business card which had the member’s
name on it and showed his title as “supervisor.” The MG member spoke only Spanish, which the
primary CO did not speak. The other CO, a native Spanish speaker, spoke to the MG member
and learned that his company was MG and that he was the MG supervisor at the site. The COs
returned to the roof with the service manager and the MG supervisor. According to the primary
CO, the service manager directed the workers to pack up and go, which they did. The second
CO did not remember the service manager telling the window washers to leave. As he recalled
it, the MG supervisor told the window washers to gather up their equipment and go.6 During the
inspection, the second CO spoke to the other MG workers at the site, none of whom spoke
English. At some point after the inspection, the second CO spoke by telephone to two MG
members. Also during the inspection, the service manager told the primary CO that he had taken
a damaged rope out of service and was returning it to the warehouse where it would be repaired
or destroyed (Tr. 55-60, 65-67, 85-93, 122, 208-210, 214, 228-230, 234-237).
Once the Valcourt service manager stated he was in charge of the site, the record
indicates the primary CO was convinced the window washers were employees of Valcourt. He
persisted in this belief despite what the service manager told him after his call to Valcourt and
despite learning about MG and MG’s supervisor at the site. The evidence shows the service
manager had only been with Valcourt for five months and that for three of those months he had
been in training (Tr. 498-499). It would appear that due to the short time he had been with
Valcourt, he did not understand the relationship between Valcourt and its franchisees. The

6
Both COs indicated they did not hear the Valcourt service manager speak Spanish at the site (Tr. 208, 242).

                                                        8

service manager had no prior experience in window washing, and he had never cleaned a
window with rope descent equipment (Tr. 498-499).7 The CO’s belief that the service manager
was directing the window washers was likely influenced by the manager’s initial statement that
he was in charge. That the manager was actually directing the work seems unlikely due to the
fact that he did not speak Spanish (Tr. 499, 504). It is also unlikely based on his lack of
experience in window washing; for example, he did not know how to set up an anchorage point,
while the MG workers, who have years of experience, plainly have that knowledge (Tr. 502-
504). The CO’s testimony that it was the service manager who told the workers to pack up and
go was contrary to the second CO’s recall that it was the MG supervisor who so instructed the
workers (Tr. 236).
The primary CO also believed the service manager had been at the site for two days,
while the record shows the manager’s September 30, 2011 visit was his only visit to the site.
The MG members, on the other hand, had been at the site since September 26, 2011 (Exh R-22;
Tr. 105, 495-498).8 Further, the CO assumed the tools and equipment at the site belonged to
Valcourt, as the service manager took a rope out of service (Tr. 214, 218). The evidence shows,
however, that MG uses its own equipment on its jobs but rents specialty equipment, like the 800-
foot ropes utilized at the subject site, as it is impractical to purchase expensive equipment that
will be rarely used. In addition, while MG rented the 800-foot ropes from Valcourt, it could
have rented them elsewhere, as long as it did so from an approved supplier (Tr. 504-506, 513-
515).9 Given that the rope at issue belonged to Valcourt, and that one purpose of the service
manager’s visit was to ensure compliance with Valcourt’s safety standards, the manager’s
removing the damaged rope from service was clearly within his expected duties (Tr. 336, 496-
498, 504-505, 520).10

7
An order dated May 3, 2013, corrected the transcript, which indicated the service manager had cleaned windows
using rope descent equipment (Tr. 499).
8
Due to the number of jobs done by franchisees, Valcourt is not able to visit all jobsites (Tr. 497, 670).
9
Valcourt provides a six-month “starter kit” of equipment to each new franchisee, as part of the initial franchise fee;
thereafter, the franchisee decides what equipment to buy from approved vendors (Tr. 335, 461-462, 506, 511-515).
10
If a service manager perceives a hazard relating to a franchisee’s work or equipment, he takes the issue up with
the franchisee’s managing member, who decides what to do; if an interpreter is required, Valcourt has an operations
manager in its office who is fluent in Spanish and English (Tr. 499-501, 520-522, 549).

                                                          9

The record establishes that MG directed and controlled the work at the Wells Fargo
jobsite. In regard to who the MG members considered to be their employer, there is no evidence
that the MG workers at the site told OSHA that Valcourt was their employer. To the contrary,
after the second CO spoke to the MG supervisor, the primary CO wrote MG’s name on the
business card the supervisor had given him (Exh. C-5; Tr. 57, 60, 228-230, 234-235). Further,
when the second CO later called one of the MG workers who had been at the site and questioned
him, the worker’s only response was “ask Lorenzo” (Tr. 237-240).11 The second CO learned that
“Lorenzo,” who had not been at the subject site, was the managing member of MG. When the
second CO called him and questioned him, “Lorenzo” stated that he worked for MG (Tr. 238-
242, 245-247). In view of this evidence, the MG workers considered MG their employer.
As to who paid the MG members, the record shows that each franchisee, including MG,
has a managing member who is responsible for everything involving the franchise. This includes
deciding what members to send to a site, how to perform the work, and making sure the work is
done properly and safely. The managing member is also responsible for the franchise’s finances
and makes all decisions in that regard. He decides the ownership interest of each member and
the amounts to pay the members (Tr. 524, 534-237, 577-578, 603, 630-632, 647-654).
The evidence establishes that MG, like many small companies, has an accounting firm
that takes care of matters like paying bills, providing income statements, preparing tax returns,
and paying member wages or disbursements.12 Under the franchise agreement, Valcourt collects
the fees from its clients for which MG has done work and sends the percentage due on each
contract, less the license fee, to MG’s accounting firm. The firm puts all such funds into MG’s
bank account, which Valcourt has no access to. MG’s managing member meets weekly with the
firm to review all bills to be paid, including vehicle and worker compensation insurance and any
equipment payments. The firm prepares checks for the managing member’s signature and sends
out the payments (Tr. 572-573, 577-578, 583-590, 603, 606, 619, 629-630).
The managing member decides what wages will be paid to its members, and Valcourt is
not involved in any such decisions. MG pays its workers based on criteria related to work done,
such as the number of windows cleaned or the hours worked at a site. During the weekly

11
The questions asked included: who the worker worked for, how he got paid, and who he would call if there were
a problem on a jobsite (Tr. 239-240).
12
While Valcourt has a list of approved accountants, the franchisee itself decides which accounting firm to utilize.
The firm MG uses does no work for Valcourt and owes it no fiduciary responsibility (Tr. 569-576, 603).

                                                    10

meetings with the accountant, the managing member specifies the dollar amounts to be paid to
the members. The accounting firm also withholds taxes on behalf of MG and its workers, and
the percentage to withhold is decided by the managing member (Tr. 524, 531, 584-586, 630-632,
653-654). In view of the record, MG is the entity that paid its workers.
With respect to safety training, when individuals first purchase a franchise, Valcourt
provides them with initial training; the materials are in both English and Spanish, and they
include written materials, videos and DVDs, and tests (Tr. 415-416, 663-665). In this case, MG
was formed in 2002, so initial training is not an issue. MG is responsible, however, for
providing ongoing safety training to its members. It does this by requiring any new worker upon
hire, and all other workers on an annual basis, to view a series of Valcourt-created safety videos,
each of which has a written test that must be taken. Valcourt requires each franchisee to report
that the training has been conducted by sending in the completed test results. MG also provides
on-the-job training to new members, which is done by pairing the new member with an
experienced one for a period of time. MG audits safety by having its members conduct safety
inspections of its sites, and MG managers also check for safety hazards at sites. Valcourt is not
responsible for safety at its franchisees’ sites, other than when its service managers visit sites for
compliance with, among other things, Valcourt’s minimum safety standards (Tr. 329-330, 333-
334, 425, 463-464, 517-520, 665-668). Based on this record, MG is the entity responsible for
safety at its sites and for providing workers with safety training.
The final factor to determine, under either Darden or the economic realities test, is which
entity had the power to hire, fire and discipline the MG members. See, e.g., Don Davis, 19 BNA
OSHC at 1482; Loomis Cabinet Co., 15 BNA OSHC at 1637. The evidence shows that when
MG wants to hire or fire a worker, it does so without any involvement of Valcourt. The
managing member may consult with the other members, or take a vote of the membership,
before hiring or firing someone; however, Valcourt generally does not learn of these actions until
after the fact, when MG, like all of Valcourt’s franchisees, sends in a form to memorialize the
event. Similarly, MG, and not Valcourt, makes all decisions regarding any changes in ownership
of its company. Finally, MG is the entity that disciplines its members, and Valcourt has no
authority in that regard. Valcourt can fine a franchisee like MG for infractions of its rules, but it
cannot fine any individual member of a franchisee (Exh. R-10; Tr. 338-339, 422-425, 468-469,

                                             11

521-525, 536-537, 547-548, 650-651, 659-663, 668-670). In view of the record, MG is the entity
with the power to hire, fire and discipline its members.
For the reasons set out above, the Secretary has not met his burden of proving jurisdiction
in this matter, that is, that Valcourt, the cited entity, was the employer of the MG workers at the
jobsite. The alleged violations are therefore vacated, and no penalties are assessed.
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:
1. Item 1 of Citation 1, alleging a serious violation of § 5(a)(1) of the Act, is vacated.
2. Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.28(j)(4), is
vacated.

                                                  /s/
                                                  KEN S. WELSCH
                                                  Judge

Dated: August 5, 2013
Atlanta, Georgia

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