Sean Benschop d/b/a S&R Contracting

Read the official release (oshrc.gov)

Plain-English summary

S&R Contracting was demolishing a multi-story Philadelphia building with an excavator while a three-to-four-story masonry wall remained standing without lateral bracing. The wall collapsed onto an adjacent Salvation Army store, causing six deaths and injuring twelve people. The judge found that an S&R employee worked within the wall's danger zone and that Sean Benschop had created and knew about the unsupported condition. Benschop knew the wall was dangerous but continued demolition without correcting the hazard, which showed plain indifference to employee safety and supported a willful classification. His guilty plea in the related criminal case also prevented him from denying the underlying reckless conduct. The judge affirmed the willful demolition-standard violation, reduced the proposed penalty for the company's small size, and assessed $56,000. Two other citation items withdrawn by the Secretary were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.854(b)
• Outcome: Willful unsupported-wall item affirmed with a $56,000 penalty; two withdrawn items vacated.
• Key point: Continuing demolition after recognizing that a multi-story unsupported wall is dangerous demonstrates plain indifference and supports a willful violation.

Full text (OSHRC public release)



Sean Benschop d/b/a S&R Contracting., Docket No. 14-0015

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

Secretary
of Labor,

Complainant,

v.

OSHRC
D ocket No.
14-0015

Sean Benschop d/b/a S&R Contracting,

and its successors,

Respondent.

APPEARANCES:                                 

Jennifer L. Bluer, Esquire

U.S. Department of Labor, Philadelphia, Pennsylvania

For the Secretary

Sean Benschop,
Pro S e 1

Bellefonte, Pennsylvania

For the Respondent

BEFORE:

Covette Rooney

Chief
Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission or OSHRC) pursuant to
section
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). On November 14, 2013, the
Occupational Safety and Health Administration (OSHA)
issued a Citation and Notification of Penalty (Citation) to Respondent, Sean Benschop d/b/a S&R Contracting, and its successors (S&R
or Respondent). Respondent
filed a timely Notice of Contest bringing this matter before the Court.

The alleged violation at issue is related to
Respondent’s activities at the 2132-2138 Market Street, Philadelphia, Pennsylvania 2
( Market Street worksite )
from June 2 to June 5, 2013.

Background

On
Wednesday, June 5, 2013,
Sean Benschop
was
using an excavator to demolish a building
at the Market Street worksite in center city Philadelphia.

A
multi-story,
freestanding wall of
the building
under demolition
collapsed and fell onto the adjacent one-story Salvation Army thrift store, which had
employees and customers inside. Six people were killed,
and
twelve
others injured
in
the collapse. (Ex. C-18, p. 21).

OSHA compliance officer
(CO), Sarah Carle, and OSHA assistant area director
(AAD), Nicholas DeJesse,
arrived at the accident site
that same day and began the OSHA investigation. (Tr. 233-34). OSHA
issued a Citation to the Respondent on November 14, 2013. 3 The Citation alleged Respondent had committed a willful violation of 29 C.F.R. § 1926.854(b) when it did not brace a
multi-story,
freestanding wall at the worksite
and proposed a $70,000 penalty for the violation. 4

Respondent
timely filed a notice of contest bringing this matter before the Commission. This case was docketed with the Commission on
January 8, 2014.

On January 31, 2014, in accordance with Commission Rule 9, this case was consolidated with OSHRC Docket No. 14-0061,
Secretary v. Griffin Campbell d/b/a Campbell Construction . 5
See
29 CFR
§
2200.9. Docket No. 14-0061 was consolidated with the instant case because the cases involved common issues of laws and facts. See
Id .

On March 10, 2014, the consolidated cases were stayed pending the resolution of
the state’s
criminal prosecutions
of Sean Benschop
and Griffin Campbell
related to
the
June 5, 2013 building collapse.

On July 21, 2015,
Sean
Benschop entered a guilty plea before
Judge Glenn B. Bronson of the
Philadelphia County Court of Common Pleas. Mr.
Benschop pled guilty to six counts of involuntary manslaughter, twelve counts of recklessly
endangering another person, one count of causing a catastrophe, one count of criminal conspiracy, and one count of aggravated assault. (Exs. C-18, C-19). On
January 8, 2016,
Mr. Benschop was sentenced to
7 1/2 to
15 years in prison. ( See
Jan. 21, 2016
Update
from Secretary). Mr. Benschop was subsequently incarcerated at SCI Rockview in Bellfonte, Pennsylvania.

On October 19, 2015, a jury found
Griffin
Campbell
guilty of six counts of involuntary manslaughter, twelve counts of recklessly endangering another person, one count of causing a catastrophe, one count of criminal conspiracy, and one count of aggravated assault; he was found
not guilty for
six counts of third-degree murder. (S. Br. 2;
See
Oct. 23, 2016
Status Report from Secretary).

On November 5, 2015, the
undersigned issued an order lifting the March 10, 2014
stay
of
proceedings
for this matter.

On
January 6, 2016, 6
a
settlement
was reached
between the Secretary and Griffin Campbell
for
Docket No. 14-0061, which
was
then
removed
from consolidation with the instant matter.

A two-day hearing for the instant case was held
on October 25-26, 2016. The hearing was held in the
Commission’s hearing room
in Washington, D.C. Complainant’s counsel and witnesses
were
present in the hearing room. Mr. Benschop participated remotely
via video teleconferencing
equipment 7
from the
state
correctional institution where
he was
incarcerated. 8

Darryl
Alston was subpoenaed to appear at the hearing in the instant case but did not respond. In lieu of his testimony, the undersigned allowed the admission of
Alston’s October 5, 2015 sworn testimony from the Campbell
criminal
trial
in the Court of Common Pleas (hereinafter referred to
as October 5, 2015 Alston testimony) . (Tr . 13-14 ; Ex. C-32
(CCT-A 9 ) ).

Because Mr. Benschop indicated he was unable to
read English
effectively, several exhibits were read into the
record. (Tr. 16-18). These exhibits were Darryl Alston’s June 4, 2013
OSHA
signed statement 10
(Tr. 274-299; Ex. C-16),
the
transcript of
October 5, 2015
Darryl Alston testimony from Griffin Campbell’s criminal trial 11
(Tr. 18-74; Ex. C-32
(CCT-A)),
excerpts
of Sean Benschop’s October 8, 2015 sworn testimony from
the
Campbell
criminal trial
(Tr. 130-172; Ex. C-17
(CCT-B 12 )),
and the
transcript of Sean Benschop’s July 21, 2015
plea
hearing and signed plea agreement. 13
(Tr. 81-94, 99-122; Exs. C-18, C-19).

The record includes photographs of the accident site taken by CO Carle, AAD DeJesse,
and members of the public. (Exs. C-1, C-4 to C-14). A video
from a
camera on a
city SEPTA bus that showed the
moment of building collapse was entered into the record. (Ex. C-29). Two video recordings taken by Darryl Alston using his mobile phone
on June 5, 2013,
were also admitted into the record during the hearing. (Exs. C-21, C-23).   

Mr. Benschop
called no
witnesses
to testify at the hearing. However, he requested
additional
time
to
submit
evidence
in
the
form
of
two
written
witness
statements
as exhibits
to include in
the
record. (Tr.
399, 411). At the close of the hearing, the undersigned granted Respondent’s request to submit post-hearing
evidence
in the form of written statements from Eric Sullivan 14
and his wife,
Tynisha Gregory-Benschop. 15 (Tr.
393, 414).

Because Mr. Benschop was
pro
se
in the instant matter
and
incarcerated during the litigation of this case, the Court allowed
the record to stay open for a week,
until
November 2, 2016,
so Respondent could
submit
these two written statements. (Tr.
396-97, 414).

During his cross-examination of AAD DeJesse, Mr. Benschop requested the notes
Mr.
DeJesse
had taken
during his June 5, 2013
interview of Griffin Campbell.

(Tr. 383,
385,
388-89). The undersigned
asked the Secretary’s counsel to
produce the notes from the June 5, 2013
Campbell
interview, which would be admitted as Exhibit J-1. (Tr. 405, 408). Mr. Benschop stated that he had no objection
to
the notes
being entered into the record. 16 (Tr. 387). The notes were subsequently received and entered into the record as Exhibit J-1.

O n November 1, 2016, the
undersigned received an email
submission
from Tynisha Gregory -Benschop
(Respondent's
Exhibit 1 ,
Ex. R -1 ) with two documents attached.

The first document was a hand-written statement
dated October 26, 2016,
with the
signature of Eric M. Sullivan .

(Respondent's Exhibit 2 , Ex. R-2 ).

The second document was a
typed statement
from Tynisha Gregory -Benschop
dated October 28, 2016 (Respondent's Exhibit 3 , Ex. R-3 ). The Secretary did not object to
the admission of these documents into evidence.

On November 7, 2016,
in response to the admission of Mr. Sullivan’s post-hearing handwritten statement,
the Secretary filed a
motion
requesting
Mr. Sullivan’s prior sworn
deposition
statement 17
of August 14, 2013,
be admitted
in lieu of conducting a new deposition. The August
14, 2013 deposition was designated as Complainant’s Exhibit 33 (Ex. C-33). The Respondent filed no objection to the
admission of Mr. Sullivan’s August 14, 2013 deposition. See
November 30, 2016 Order.

In an order dated November 30, 2016, the undersigned admitted into evidence the following
exhibits
and closed the record:
R-1, R-2, R-3, and C-33. Subsequently, the Secretary filed a post-hearing brief. The
Respondent did not file a post-hearing brief.

For the reasons that follow,
the willful
citation is affirmed
and
a penalty of
$56,000
is
assessed.

Findings of Fact

On June 5, 2013, OSHA CO Carle and AAD DeJesse arrived at the accident site to open an
investigation. (Tr. 233-34). Emergency response personnel were still onsite and searching the collapse area for victims. (Tr. 236-37). CO Carle and AAD DeJesse
interviewed employees of Campbell Construction, Griffin Campbell, and other witnesses from the general public. (Tr. 238, 255). The following day,
they
returned to the accident site to collect more information and CO Carle interviewed Sean
Benschop in his hospital room. 18 (Tr. 241-42).

Sean
Benschop had
experience doing
demolition work since 1996 as
both
a laborer an d machine operator. (Tr. 131 ; Ex. C-17, pp. 5-6
( CCT-B, pp.
6-7) ). Mr. Benschop owned two pieces of heavy equipment, a backhoe he purchased in 2006 and a hydraulic excavator he purchased in 2007. (Tr. 131;
Ex. C-17, pp. 6-7 ,
( CCT-B, pp.
7-8) ;
C-18, p. 19). S&R was a demolition company formed by Sean Benscho p and his wife, Tynisha Gregory- Benschop in 2012. (Tr. 179). S&R
had been
placed on the city of Philadelphia’s master demolition list in 2013. (Tr. 132-33 ; Ex. C-17, p.8 ( CCT-B, p. 9) ). S&R had completed 4 demolition projects for the city of Philadelphia in
the first five months of
2013. (Tr. 132-33, 179 ; Ex. C-17, p. 8 ( CCT-B, p. 9 ). In June 2013, S&R had not received payment from the city for th ese
projects. (Tr. 133-34).

The property’s owner , STB Investments,
hired
Griffin Campbell of Campbel l Construction
as the contractor
to de molish the buildings
at the Market Street worksite . ( Tr. 113;
Ex.
C-18, p. 19 ; Ex. J-1, p. 1 ).

Campbell had done
a little
demolition
work
before,
but the Market Street job
was bigger than
any of
his previous jobs. ( Ex. J-1, p.4 ) .

In May 2013,
Mr.
Campbell disc ussed the Market Street
project with Mr. Benschop. (Tr. 182-84). The Market Str eet worksite consisted of the four -story Hoagie City building and 2 shorter buildin gs adjacent to t he Hoagie City building ’s east side . (Ex. C-1). The Hoagie City
building ’s west wal l was shared with the adjacent one -story Salvation Army thrift store, which sat at the corner of Market Street and 22nd Street. (Exs. C-1, C-18 pp. 19-20).

At the instant hearing,
Mr. Benschop
stated that he had
offered to
be the
subcontract or for
the demolition
work at the Market Street worksite .

(Tr. 18 2-8 3). Mr. Benschop told
Mr. Campbell
the
best way to demolish the
4-story Hoagie City building would be
to
dismantl e
it
floor-by-floo r from the roof downwar d by “walking the wall . ” 19 (Tr. 182-83).
Mr. Benschop proposed a
cost
of
about
$11,000 per floo r plus the cost of renting high- reach equipment
that would be
needed as a work platform . ( Tr.
183 ) .

Mr. Campbell did not subcontract the
Market Street project
to
Mr.
Benschop
because the cost was too high. Instead, Mr. Campbell
told
Mr.
Benschop
his
own
employees would take care of
the demolition
at the Market Street site . (Tr. 18 3-8 4).

In June
2013 ,
Mr. Campbell asked Mr. Benschop to demolish the Hoagie City building;
Mr.
Benschop
agreed to use his
excavator
to demolish the Hoagie City building
for $800
day . ( Ex.
C-18, p. 19; Tr. 182). The two shorter
buildings
at the Market Street worksite
had
already
been
demolished.
(Ex. C -33, p p .
13, 33 ) .

On Sunday, June 2, 2013, Darryl
Alston drove
Mr.
Benschop to the Hoagie City building to begin work. 20
( Tr. 187). Mr.
Alston had worked for
S&R
for 4-6 weeks
before the Market Street job . ( Tr. 23;
Ex. C-16, p.
1 ; Ex. C-32, pp. 8-9
(CCT-A, p.
8-9) ).
Mr.
Alston
had
performed a variety of tasks for
Mr. Benschop
during his six weeks of employment, including getting diesel and hydraulic oil for the
equipment, cutting beams, driving Mr. Benschop to and from
a
worksite, making repairs,
and running errands at the direction of
Mr.
Benschop. (Tr.
24,
260, 338-39; Ex. C-16, pp. 1, 6; Ex. C-32, p. 42
(CCT-A, p.
42)). Mr. Alston did not have a set schedule of work; he waited for Mr. Benschop’s call. (Tr. 276-77).

Mr. Alston met Mr. Benschop through Eric Sullivan, who also worked for
Mr.
Benschop at demolition sites. (Tr. 275; Ex. C-16, p. 1). In addition to driving Mr. Benschop to the Market Street worksite, Mr. Alston
sometimes
worked as a fill-in at the site for Eric Sullivan, who usually assisted Mr. Benschop with demolition projects. 21 ( Tr. 274;
Ex. C-16, p. 1). Mr. Benschop
generally
supervised Mr. Alston’s demolition work, but,
sometimes Mr. Sullivan did. 22 (Tr. 277; Ex. C-16, p. 3).

Before
Mr.
Benschop began
using the excavator
to demolish
the building
on Sunday ,
Mr.
Benschop instructed
Mr.
Alston to enter the building to cut the top floor’s center beam with a chain saw. (Tr.
33,
145; Ex. C-16, pp. 3-4;
Ex. C-17, pp. 22-23 ( CCT-B, pp. 31, 34);
Ex. C-32, pp. 17-18
(CCT-A, pp.
17-18) ). Mr.
Alston cut the beam on the top floor
as instructed
and
while inside
noticed a lot of big holes in the building’s floors and several missing joists . ( Tr. 30;
Ex. C-32, pp. 14-15
(CCT-A, pp.
14-15) ). Mr.
Alston told
Mr.
Benschop about the
building’s interior condition
and that he did not feel safe;
Mr.
Benschop told him to not go back inside the building. (Tr. 264 ; Ex. C-16, p. 7 ) . Mr.
Alston believed Campbell had
already
removed
many of the building’s
joists
to sell a s salvage. ( Tr. 282-83;
Ex. C-16, p. 4).

That day,
Mr.
Benschop
remove d
the front of the building and a portion of the
building’s
east wall;
Mr.
Alston stood near the building’s west wall and used a water hose to keep the dust down while
Mr.
Benschop us ed
the excavator. (Tr.
34, 187 ; Ex. C-18, pp. 20-21; Ex. C-32, pp. 19-20
(CCT-A, pp.
19-20) ).

By the end of the
day on
Sunday, June 2, 2013, the excavator had demolished enough of the building that the wall
adjacent
to the Salvation Army building had become a multi-story,
freestanding wall. (Tr. 152, 189-190; Ex. C-5; Ex. C-17, p. 44 (CCT-B, pp. 96)). Mr. Benschop confirmed
that
the photograph at Exhibit C-5
accurately
showed the freestanding wall that had developed. (Tr. 189-90; Ex. C-5).

No demolition
work
was done at the site
on Monday,
June 3, because of rain. ( Tr .
35-36 ;
C-32, p.
21
(CCT-A, p. 21) ). However,
Mr.
Benschop did
visit the worksite
on Monday to check on his excavator , which he had left
at the Market Street site. (Tr.
194 ). Mr. Benschop confirmed
that
a photograph taken on June 3
accurately
reflected the worksite as it existed when he stopped by to check on his equipment that day. (Tr. 194-95; Ex. C-4). Because no work had been done at the site on June 3, the photograph also
shows
the site’s condition as it was at the end of the work day on Sunday, June 2 and the beginning of the work day on June 4,
when work at the site
resumed. This photograph shows
that about 25% of the wall
that stood
next to the Salvation Army had become an unsupported,
freestanding wall. (Ex. C-4).

On Tuesday, June 4, 2013,
Mr.
Alston again drove Mr. Benschop to the Market Street worksite. 23 ( Tr. 36, 287-89;
Ex. C-16, p. 6;
Ex.
C- 32, pp. 21-22
(CCT-A, pp.
21-22) ). Mr. Benschop
then
instructed
Mr.
Alston to
go to
S&R’s previous demoli tion worksite on Page S treet
to repair a damaged fence and gate . ( Tr. 36;
Ex. 32, pp. 21-22
(CCT-A, pp.
21-22) ). Mr.
Alston w orked
at the Page S tr eet site for about 5 hours and r eturned to the Market Street worksite
around 1:30-2:00
P.M . 24 ( Tr. 36, 287-89;
Ex. C-16, p.
6;
Ex. C-32, p. 22
(CCT-A, p.
22) ).
Mr.
Benschop
told
Mr.
Alston to stay
at the Market Street worksite
and wait for him . ( Tr. 292;
Ex. C-16, p. 6).

Mr. Alston
waited at the worksite until they left around 5 :00
P.M . ( Tr. 287-88, 292-93 ; Ex. C-16, pp. 6, 8 ) .

A photograph, Exhibit C-6, taken by a member of the public during the day on Tuesday, June 4, 2013, showed
that
the freestanding wall above the Salvation Army had grown in
size;
about 50% of the wall next to the Salvation Army had become unsupported and freestanding. (Tr. 198; Ex. C-6). Mr. Benschop confirmed that it was his excavator in the photograph at Exhibit C-6 and the photograph accurately portrayed the worksite on Tuesday, June 4, 2013. (Tr. 199; Ex. C-6). Another photograph taken at the end of the day June 4, 2013,
showed
the entire front portion of the building had been removed except the west
wall
of
the building shared with the adjacent
Salvation Army
building,
which was still almost fully intact for 3-4 stories and was not supported. 25 (Tr. 202-03; Ex. C-8). Approximately
30-35
feet of the multi-story wall adjoining the Salvation Army was exposed
and towered abo ve the one -story Salvation Army building . (Tr. 292-93).

When
Mr.
Benschop expressed his concern about the unsupported ,
free-standing west wall ,
Mr.
Campbell told him his guys would take care of it. (Tr. 147, 187-88, 352; Ex. C-32, p. 24
(CCT-A, p.
24) ). Mr.
Benschop assumed
that meant
Mr.
Campbell was going to have his employees take down the wall manually (without machine)
overnight
--
because no one would be around to get hurt
d uring that time . (Tr. 147-48).

On Wednesday, June 5,
Mr.
Alston drove
Mr.
Benschop to the Market Street worksite
and
arrived
about
7:30
A.M. (Tr. 288;
Ex. C-16, p.
6). Most of the west wall
next to the Salvation Army building
was still there;
very little had been removed
after
Mr.
Alston and
Mr.
Benschop left at 5:00
P.M.
the prior evening. (Tr. 151). Mr.
Benschop told
Mr.
Alston to wait at the Market Street site for instructions on
some
window repair work
to be done at
the Page Street worksite. (Tr. 288;
Ex. C-16, p. 6).

Mr.
Benschop admitted that he knew it would have been safer to take the wall down manually (not with heavy equipment);
but,
Mr.
Campbell
had
indicated the
property
owner wanted the
demolition project
completed quickly. (Tr. 153-54). Mr.
Benschop had told Campbell “over and over” that the Hoagie City building was dangerous. (Tr. 171). Nonetheless,
Mr.
Benschop felt it was necessary to continue to work so that he could be paid – he stated he needed to feed his family and
to pay to
have
his excavator
hauled from
the worksite. 26 (Tr. 160; Ex. C-17, p. 40 (CCT-B, p. 92)).

Mr.
Benschop
began chipping away at the
Hoagie City building’s east wall,
using an I-beam in the excavator’s jaws,
at about 8:30
A.M.,
the morning of June 5, 2013;
he
was planning to have the wall fall toward the east into the adjacent empty lot. (Tr. 153, 288; Ex. C-16, p. 6). By this time the building’s structure had been demolished to the extent
that the interior of the building was essentially a V-shape –
there was very little structure remaining inside the building. (Tr. 153-54, 376).

While he was waiting,
Mr.
Alston
observed
Mr. Benschop
demolishing the building. (Tr. 45; Ex. C-32, p. 25). At about 10:25
a.m.,
Mr.
Alston used his phone to film
two short videos of the excavator chipping away at the east wall. (Tr. 289;
Ex. C-16, p. 6; Exs.
C-21,
C-23). Mr.
Alston was standing in the adjacent empty lot next to the Hoagie City building. (Tr.
49-50; Ex. C-32, pp. 34-35 (CCT-A, pp. 34-35)).

At about 10:42
A.M. on Wednesday
June 5, 2013—as
Mr.
Benschop was
using the excavator to
chip
away at the east wall—the
east wall
collapsed and
fell
westerly
into the Hoagie City building. (Tr. 154-56; Ex. C-18, p. 21; Ex. C-17, pp. 31-34 (CCT-B, pp. 45, 47-49)). When the east wall fell inward, it took out the remaining interior
structure
of the building. The entire
Hoagie City
building
then
collapsed,
with the
three-four
story
freestanding
west wall falling onto the
adjacent Salvation Army store. (Tr. 156, 375-76; Ex. C-18, p. 21; Ex. C-17, pp.48-49 (CCT-B, pp. 33-34). Bricks, mortar, and wood
from the Hoagie City
building’s
multi-story
west wall
fell onto the Salvation Army thrift store
causing it to collapse
onto customers and employees, killing six people and injuring 12
others. 27 (Ex. C-18, p. 21).

Mr.
Benschop injured his hand, arm, leg, and shoulder getting out of the excavator
after the collapse. (Tr. 156-57; Ex. C-17, pp. 34-35 (CCT-B, pp. 49)). About
ten
minutes later,
Mr.
Alston drove
Mr.
Benschop to the hospital for treatment. (Tr. 157; Ex. C-17, pp. 33-34 (CCT-B, pp. 49-50)).

Respondent
was
an employer at the Market Street worksite

The central issue in controversy is whether Respondent was an employer with a n
employee at the Market Street worksite.
The Secret ary asserts that Darrel Alston
was
Respondent ’s employee at the
Market Street
worksite. (S. Br. 6.)

The OSH Act places duties on “employers” to protect the health and safety of “employees.” 29 U.S.C. § 654(a). An employer is defined as “a person engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). “Only an employer may be cited for a violation of the Act.” Allstate Painting & Contracting Co ., 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated) ( Allstate ). The Act requires each employer to comply with occupational safety and health standards and regulations promulgated under the OSH Act. Id.

The Secretary has the burden of proving
Respondent
is the employer of at least one affected employee at the worksite. See Allstate , 21 BNA OSHC at 1035;
Poughkeepsie Yacht Club, Inc ., 7 BNA OSHC 1725, 1727 (No. 76-4026, 1979).

Respondent
argues that it
was not an employer because it had no employees at the
Market Street
worksite. Respondent asserts Mr. Benschop was not a subcontractor at the worksite, instead he was Campbell
Construction’s employee at the worksite and thus could not be an employer. (Tr.
76, 134). Further,
Respondent
asserts
that
any demolition-related work
by Mr. Alston
at the
Market Street
site
was
as an
employee of
Campbell
Construction. (Tr.
75-76, 216, 402).

Based on t he weight of the credible evidence and analysis under Commission law ,
the undersigned finds
Mr. Alston was an employee of
Respondent for the reasons set forth below .

Post-hearing statements
do not
support Respondent’s
position

At the hearing for the instant case, Mr. Benschop vigorously asserted that Mr. Alston did
not work for him at the Market Street worksite
doing demolition work. (Tr. 76, 95, 123, 173, 300, 399, 402). Mr. Benschop asserted Mr. Alston
never did demolition work;
Alston
had
simply
driven
him to worksites,
had run errands as needed,
and
had done
repair
work
for him at another worksite. (Tr. 76, 173, 399). Mr. Benschop
also
stated that only Griffin
Campbell
could hire
employees at the
Market Street
worksite.

(Tr.
400).

During the hearing for the instant matter,
Mr. Benschop
objected to the content of
Alston’s
signed
OSHA statement and Alston’s testimony at
the
Campbell
criminal
trial, 28
stating that Mr. Alston
lied when he said he
had
worked for Mr. Benschop
at the Market Street site. (Tr.
75, 300). Additionally, Mr. Benschop asserted that Mr. Alston could not be his employee because
Mr.
Alston was not on the company’s workers compensation plan;
the city of Philadelphia required him to put
employees
on the company worker’s compensation plan. (Tr. 402-03).

As supporting evidence for the
assertion
that Mr. Alston was not an
employee, Respondent submitted two
post-hearing statements
from
Mrs. Tynisha Gregory-Benschop and Mr. Eric Sullivan. (Tr. 393-95, 414;
Exs. R-1, R-2, R-3).

Mr. Sullivan’s
3-page
handwritten,
signed
statement had been
photographed, and sent to Mrs. Gregory-Benschop by phone; it was not notarized or otherwise validated. (Exs. R-1, R-2).
In his written statement, Mr. Sullivan asserts
that Mr. Alston never helped Mr. Benschop with demolition work. Instead,
Mr. Alston
only
provided transportation for Mr. Benschop and
hauled
scrap metal. (Ex. R-2). In his post-hearing statement,
Mr. Sullivan
stated that
Mr.
Campbell had not allowed
independent contractors
to work
at the
Market Street
worksite. If
Mr. Alston was working at the site he must have been working for Campbell. (Ex. R-2). Additionally,
Mr. Sullivan
thought
Mr.
Alston did not have enough demolition experience to work at the Market Street project. (Ex. R-2).

The undersigned finds Mr. Sullivan’s statement has no credibility with respect to Mr. Alston’s status at the worksite. Mr. Sullivan was not present at the worksite so
he
had no personal knowledge of what occurred. Further, Mr. Sullivan
wrote his statement—neither sworn nor subjected to direct cross examination—over 3 years after the building collapse.

Mrs. Gregory-Benschop
also
submitted a post-hearing statement,
which was neither
notarized
nor validated. (Exs. R-1, R-3).

Mrs. Gregory-Benschop stated that, to her knowledge, Mr. Alston was never hired for
demolition work at the Market Street site. (Ex. R-3). As a partner in S&R, she had written checks on behalf of Mr. Benschop for Mr. Alston’s services. (Ex. R-3). She stated that
Mr.
Alston was
paid
either
at the end of the work week or daily as a driver. (Ex. R-3). Mr. Alston had been hired to transport, run errands, and haul scrap metal for Mr. Benschop. (Ex. R-3). She knew
Mr. Alston had
also
been paid
to repair a damaged fence at S&R’s
Page Street worksite. (Ex. R-3). Further, it was her
understanding that only
Campbell could hire workers at the Market Street site; Campbell ran the worksite, not S&R. (Ex. R-3).

The undersigned finds Mrs. Gregory-Benschop’s statement has little credibility with respect to Mr. Alston’s role at the Market Street worksite. Mrs. Gregory-Benschop was not at the Market Street worksite. Further,
her role in the business was limited to administrative work
not
onsite work. Mr. Sullivan
made his
statement
over 3 years after the collapse,
which
was not a sworn statement,
nor was it
subject to direct or cross examination. Finally, as a partner in S&R, she is not an objective source of information.

The post-hearing statements of Mrs. Gregory-Benschop and Mr. Sullivan are not dispositive in determining whether Mr. Alston was an employee at the Market Street worksite.

C redible evidence shows Alston was Respondent’ s employee

The weight of the
credible
evidence shows that Mr. Alston was an employee of Respondent
and
had been
working at the Market Street worksite as Mr. Benschop’s assistant. In their various statements
and interviews,
Mr. Sullivan, Mr. Alston, and Mr. Benschop
generally agreed that Mr. Alston had
been Respondent’s employee prior to the Market Street worksite. 29 (Tr.
22-23, 134-35,
250-51, 258-61,
274, 338-39; Ex. C-16,
p. 1; Ex. C-33;
Ex.
C-17, p. 14
( CCT-B, p.
21);
Ex.
C-32, p.
8
( CCT-A, p.
8)). The dispute lies in whether Mr. Alston was an employee working at the Market Street worksite.

Mr. Benschop
had
admitted
that
Mr. Alston
was his employee on several occasions. The day after the collapse,
CO Carle interviewed Mr.
Benschop in the hospital, where he told her that
Mr.
Alston
had
assisted him at the Market Street worksite. (Tr. 250-51, 258-60). Several times during his
October 8, 2015
testimony at the Campbell criminal trial,
Mr. Benschop
consistently referred to
Mr.
Alston as his assistant and employee.
(Tr.
134-35, 143, 145 , 165 , 169 ;
Ex. C-17,
pp.
9,
21, 23, 48, 55
( CCT-B, p.
14, 30, 34, 109, 120)).

For example, when asked whether anyone worked for him or was with him at the Market Street worksite, he replied
with the following:

“Question: Did you have anybody that worked for you on that job?

Answer: Yes.

Question: Who worked for you?

Answer: Darryl. I just know him by Darryl. I don't know his last name.

Question: You're referring to Darryl Alston?

Answer: Yes.”

(Tr. 134-35;
Ex. C-17,
p.
9
( CCT-B, p. 14)).

“Question: All right. When you arrived on
Sunday, June 2, did you bring anybody
with you?

Answer: Yes, Darryl.

Question: Darryl Alston?

Answer: Yes.

Question: And what was Darryl's role coming with you?

Answer: Darryl was like the man that take[s]
me to get diesel. He go[es]
for the
diesel. He go[es]
for the hydraulic fuel. He drive[s]
me around whatever I have -- wherever I have to go.

Question: Okay. So he was your assistant?

Answer: Yes.

Question: And he was your employee?

Answer: Yes, he was.

Question: You paid him?

Answer: Yes, I brought him.”

(Tr. 143-44;
Ex. C-17,
p.
21 ( CCT-B, p. 30)).

“Question: So you did get a chainsaw and Darryl was able to cut that?

Answer: Yes.”

(Tr. 145
Ex. C-17,
p.
23 ( CCT-B, p. 34)).

“Question: Now who was working for you that day, sir?

Answer: Darryl.”

(Tr. 165;
Ex. C-17,
p.
48
( CCT-B, p. 109)).

“The Court: Who drove you to the hospital?

Witness: Darryl.

Mr. Hobson.
Question: And Darryl works for you?

Answer: Yes.”

(Tr. 169;
Ex. C-17,
p.
55
( CCT-B, p. 120)).

These examples from Mr. Benschop’s sworn testimony show that he considered Mr. Alston his employee at the Market Street worksite.

Additionally, Mr. Alston stated he was an employee of the Respondent. In Mr. Alston’s signed statement from his
June 14, 2013 OSHA interview,
he stated that
he had been a t the
Market S treet worksite from 8 :00
A . M .
to 6 :00
P . M .
on Sunday, 1:30
P.M
to 5 :00
P.M.
on Tuesday, and 7:30
A.M.
to 10:30
A.M.
Wednesday , either doing demolitio n work or awaiting instruction s
from Mr. Benschop . (Tr. 287-88, 293 ; Ex. C-16 , pp. 6, 8 ).

In Mr. Alston’s October 5, 2015 testimony at
the Campbell
criminal
tria l, he stated he was paid by
Mr.
Benschop and
had worked for
Mr.
Benschop at the Market Street worksite. (Tr.
55-56;
Ex. C-32 , p . 39-40
(CCT-A, p.
39-40) ) . Mr. Alston consistently stated he was Respondent’s employee .

In
his
August 14, 2013 deposition ,
Eric Sullivan stated
Mr.
Benschop hired Mr. Alston to drive
Benschop
to worksites,
to
run errands, and
to
do
other small jobs. (Ex. 33, p. 66, 109). In his August 14, 2013 deposition,
Mr.
Sullivan
stated
(in stark contrast to his post-hearing statement) that
Mr.
Alston
had
worked for
Mr.
Benschop at the Market Street worksite and that if
Mr.
Alston
had
entered a building, it would have been to assist
Mr.
Benschop
with
the
demolition work . (Ex. 33, pp. 65-66, 108- 1 10 ). In that same deposition,
Mr.
Sullivan
stated that he did not think of
Mr. Alston a s a
“de molition guy ”; i ns tead,
Mr.
Alston was just supporting
Mr.
Benschop “in any little way that he could.” (Ex . C-33, p. 6 6 ). Mr. Sullivan also stated that
Mr.
Campbell did not pay
Mr.
Alston,
Mr.
Benschop paid
Mr.
Alston. (Ex. 33, p.
109).

Mr. Sullivan’s
2013
deposition statements are given greater credibility than his post-hearing statement. At his deposition, Mr. Sullivan was sworn, his statements were
officially transcribed , and he was subject to direct questions from the Secretary’s counsel. Even so ,
Mr. Sullivan’s
deposition
statements are given
minimal
weight
because
he was not at the worksite when Mr. Alston was there.

The weight of the most credible evidence shows that
Mr.
Alston was considered to be
Respondent ’s employee at the Market Street worksite. Mr. Alston and Mr. Benschop’s sworn testimonies at the Campbell criminal trial show
that
both believed Mr. Alston was Mr. Benschop’s assistant at the Market Street worksite. Further, their testimonies were consistent with their statements to OSHA during the post-collapse investigation.

The evidence supporting Respondent’s assertion that
Mr.
Alston did not work at the Market Street site consists of two p ost-hearing statements
that were not subject to cross or direct examination and not otherwise substantiated
made over three years after the accident . Further,
Mr. Benschop’s testimony at the hearing in the instant manner is given little credibility; it is to his benefit to believe that
Mr.
Alston was not his employee
at the Market Street worksite. Thus, Mr. Benschop’s testimony at the Campbell criminal hearing is given greater weight because
there
he was testifying in a mat ter not related to his own self- interest. Further, Mr. Benschop’s testimony at the criminal trial ,
that he considered
Mr.
Alston his assistant and employee,
is consistent with the statement he gave
to
the CO the day after the
accident.

In addition to the
credible statements that
support a finding that
Mr.
Alston was
Respondent’s
employee , an an alysis under
the
Commission ’s legal
precedent
also
supports the
conclusion Mr.
Alston was an employee of
Respondent
at the Market Street worksite.

Darden
Analysis

To determine whether the Secretary has established the existence of an employer-employee relationship, the Commission relies upon
an analysis of
the
Darden
factors. Sharon & Walter Constr., Inc. , 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) ( S&W ).

The OSH Act defines a n employer as a “person engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). Person means “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.” 29 U.S.C. § 652(4). An employee is defined as “an employee of an employer who is employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(3) .

In similarly worded statutes, the Supreme Court has relied on the common law for guidance in determining whether an individual is an employee, or alte rnatively, the kind of person
the common law would consider an employer. See Clackamas , 538 U.S. 440, 444-45 (2003) ;
Nationwide Mut . Ins. Co. v. Darden , 503 U.S. 318, 32
2-23
(1992)
( Darden ).

In
Darden ,
the Court sets forth several factors to consider when evaluating the existence of an employment relationship. Darden , 503 U.S.
at
323-24 (1992) . The Commission follows
Darden
and
emphasizes
the critical factor in this analysis is the “right to control the manner and means by which the product [was] accomplished.” S&W , 23 BNA OSHC at 1289,
quoting
Darden , 503 U.S. at 323. In addition, the following factors are considered:

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.

Darden , 503 U.S. at 323-324 (citation omitted).

An analysis of the evidence using the factors set forth in
Darden
shows
Mr. Alston was an employee of
Mr. Benschop
at the Market Street worksite. Mr. Benschop directed and controlled
Mr.
Alston’s work, which is the most significant factor
when evaluating
employee status.

Darden
Factors 30

Hiring party’s right to control the manner and means by which the product is accomplished

Alston’s June 14, 2013
signed OSHA
statement,
Alston’s
October 5, 2015
testimony, Benschop’s
October 8, 2015
testimony, and Benschop’s
June 6, 2013
statement
to CO Carle consistently show
that Mr.
Benschop
had
control over
Mr.
Alston’s work. (Tr. 22-23, 143-44, 250-51;
Ex. C-16;
Ex. C-17, p. 21
( CCT-B, p.
30); Ex. C-32, p. 9
(CCT-A, p.
9)).

Mr. Benschop hired Mr. Alston to drive him to worksites and assist him in demolition-related activities at worksites. (Tr.
22-23, 28-29, 32,
260; Ex. C-16, pp. 4-6; Ex. C-32, pp. 7, 14, 17-18
(CCT-A, p.
7, 14, 17-18)). Mr. Alston drove Mr. Benschop to the Market Street worksite every
day. On Sunday, June 2,
Mr.
Benschop had Mr. Alston assist him at the Market Street worksite by cutting an interior beam to start the machine demolition and using a water hose to keep the dust down.
(Tr.
28-29, 32,
282-85;
Ex. C-16, pp. 4-5; Ex. C-32, pp. 14, 16-18
(CCT-A, p.
14, 16-18)). On Tuesday,
Mr.
Benschop sent
Mr.
Alston to make post-demolition repairs
at Respondent’s
Page Street worksite. (Tr.
36-38,
268, 287-89; Ex. C-16, p. 6; Ex. C-32, pp. 21-22
(CCT-A, p.
21-22)). On Wednesday,
Mr.
Benschop told
Mr.
Alston to wait at the
Market Street
worksite for
further
instructions
about
work to be done at the
Page Street worksite. (Ex. C-16, p.
6).

Mr. Benschop directed Mr. Alston’s
work
activities –
Mr.
Alston
had no
control over when, how, or where to work. Because this is the most significant factor,
and other factors do not
significantly
weigh toward a contrary determination,
Mr.
Benschop’s control over the manner
and means of
Mr. Alston’s works supports
finding
Respondent was Mr. Alston’s employer
at the Market Street worksite.

Skill required

Mr. Benschop was experienced in demolition work and was on the city’s master demolition list. Mr. Alston had
little
experience with demolition
and
was learning on-the-job
from Mr. Benschop. Because Mr. Alston did not have the skill required to do demolition work independently, this factor
weighs in favor of
finding
Mr.
Alston
was
an employee of
Respondent.

Source of the instrumentalities and tools

Mr.
Benschop required
Mr. Alston to
purchase a hardhat and safety glasses
to use while working at the site. (Ex. C-16, p. 5). Mr. Alston did not provide
the tools he
used at the worksite on Sunday, June 2. Respondent
provided
a
chainsaw;
when the chainsaw did not work, Mr.
Alston used a chainsaw provided by the
site’s
general contractor, Campbell. (Tr.
32-33,
281-82;
Ex. C-16, p.
4-5;
Ex. C-32, p. 18
(CCT-A, p.
18)). The excavator at the worksite belonged to Mr. Benschop. (Tr. 131; Ex. C-17, p. 6 (CCT-B, p. 7).

Mr. Alston provided his own hardhat and safety glasses but was not responsible for providing the tools needed to complete
the primary
work at the site.
This factor weighs in favor of
finding
an employment relationship.

Duration of the relationship between the parties

The record shows Mr. Alston was an employee prior to the Market Street worksite and that he was with Mr. Alston for the entirety of the project at the Market Street worksite. At the time of the
June 5, 2013 building
collapse,
Mr.
Alston had worked for
Respondent
approximately four to six weeks. (Tr.
23,
275; Ex. C-16, p. 1; Ex. C-32, p. 8 (CCT-A, p. 8)). He had started doing demolition work at a
previous
worksite on 63 rd
Street and was usually paid $100 per day
when he did
fill-in demolition work. (Tr. 277; Ex. C-16, p. 2). With respect to the Market Street worksite, the record reveals that Mr. Alston was with Mr. Benschop every day that demolition work was done from June 2 to June 5, 2013. (Tr. 287-88, 293; Ex. C016, pp. 6, 8). During
his June 14, 2013 OSHA interview,
Mr.
Alston
referred to himself as
an
employee of Respondent. (Tr. 259-60, 274-75; Ex. C-16, p. 1).

This factor weighs in favor of finding an employment relationship.

Whether the hiring party has the right to assign additional projects to the hired party

Mr. Benschop assigned tasks to Mr. Alston. On Sunday, Mr. Alston
was assigned to work at the Market Street site. On Tuesday, Mr. Benschop had
Mr. Alston go to the Page Street site to make repairs. On Wednesday, Mr. Benschop had Mr. Alston wait
at the Market Street site
for instructions on additional repairs to be made at the Page Street site. Mr. Alston
did
various tasks as assigned by Mr. Benschop and was
subject to
Mr. Benschop’s call
for transportation to and from
the
worksites
and for
specific work assignments.

The evidence shows Mr. Benschop had the right to assign additional projects to Mr. Alston. This factor weighs heavily in favor of
finding
an employment relationship.

Location of the work

Mr. Benschop determined
Mr. Alston’s work location. Mr.
Alston either stayed at the Market Street site or worked at the Page Street site based on
Mr.
Benschop’s daily instructions. (Tr. 287-89; Ex. C-16, pp. 6). This factor weighs in favor of
finding
an employment relationship.

Extent of the hired party's discretion over when and how long to work

Mr. Alston
did not have a set schedule of work; he waited for Mr.
Benschop’s call. (Tr. 276-77; Ex. C-16, pp. 1-2). Mr. Alston drove Mr. Benschop to the
Market Street
worksite each day and then Mr. Benschop directed him to work at
either
the
Market Street
or the Page
Street worksite. (Tr. 33-37, 41, 56, 287-89;
Ex. C-16, p. 5; Ex. C-32, pp. 12, 14, 21, 24, 42
(CCT-A, p. 12, 14, 21, 24, 42)). The
evidence shows that
Mr.
Benschop
determined when and how long Mr. Alston worked. This factor weighs heavily in favor of finding an employment relationship.

Method of p ayment

Mr. Benschop
paid
Mr. Alston
by
cash or
check
on a daily or weekly basis. (Tr.
35,
276-278;
Ex. C-16, p.
2; Ex. C-32, pp.
20-21
(CCT-A, p.
20-21)). The undersigned
finds
this factor
weighs in favor of
finding
an employment relationship.

Whether the work is part of the regular business of the hiring party

Respondent
is in the business of demolition and the work at the Market Street site was demolition. This factor weighs in favor of finding
Respondent was
Mr. Alston’s employer.

Whether the hiring party is a
business

S&R is a
demolition
company formed by Mr. Benschop and his wife
in 2012. (Tr. 179). An excavator and backhoe
owned by Mr. Benschop
were used
for S&R’s business. (Tr. 131; Ex. C-17, p. 6 (CCT-B, p. 7)). S&R was an approved demolition contractor for the city of Philadelphia. (Tr.
132-33
Ex. C-17, p. 8 (CCT-B, p. 9)). Because S&R is in the business of demolition and the work at the Market Street worksite was demolition, this factor weighs in favor of
finding
Respondent was Mr. Alston’s employer.

Conclusions Based on the
Darden
Test

Based on the foregoing, and in particular, the
key factor –
control
over Mr. Alston’s work activities –
I conclude that
Mr. Alston was
Respondent’s
employee at the Market Street worksite.

In reaching this conclusion, I have considered
Respondent’s assertion that Mr. Alston did not engage in demolition work and reject that assertion. The evidence shows that Mr. Alston was onsite all three days
Mr.
Benschop
used
the excavator for
demolition work
at the Market Street site. Mr. Alston assisted
Mr.
Benschop generally, and in particular, entered the building to cut a joist
so the machine demolition could begin. For all three days, Mr. Alston was acting at the instruction of Mr. Benschop for that day’s work assignment.

The weight of the
credible
evidence supports finding Mr. Alston was an employee of Respondent.

Credibility
Assessments

Generally, the undersigned
finds
statements made under oath (such as,
at
the
Campbell
criminal
trial) or closer in time to the date of the
collapse
have greater
credibility
and thus
are
assigned
greater
weight. In that vein,
statements made under oath
that were
subject to
direct and
cross-examination
are
more credible than
sworn statements not subject to cross-examination and thus given greater
weight.

Additionally, the post-hearing statements from Mrs. Gregory-Benschop and Mr. Sullivan were not
subject to direct or cross examination and not
given under oath. Thus, to the extent those statements are not supported by other credible evidence, they are given little weight.

Mr. Benschop
consistently asserted that Mr. Alston was not his employee during the hearing
for the instant case. This is
in
stark contrast to
Mr.
Benschop’s
sworn testimony at the Campbell
criminal trial
where he
consistently
stated that Mr. Alston was his employee and
had
assisted
him
at the worksite.

(Tr. 134-35, 143, 145, 165; Ex. C-17, pp. 14, 18, 30, 34, 48 (CCT-B, p. 21, 25, 44, 49, 109)).

Because of the vested interest he has in the outcome of the instant matter, the undersigned gives Mr. Benschop’s statements during the hearing for the instant manner less credibility than his statements under oath at the Campbell criminal trial. Thus,
Mr.
Benschop’s
testimony at the Campbell
criminal trial,
that
Mr.
Alston was his assistant and employee,
is given greater weight than his
statement
during the hearing that
Mr.
Alston was
not
an employee.

Jurisdiction

Based upon the record, the
undersigned
finds Respondent, at all relevant times, was engaged in a business affecting commerce 31
and was an employer within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5) . The undersigned
concludes that the Commission has jurisdiction over the parties and subject matter in this case.

Secretary’s Burden Of Proof

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. Prod s ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d
in relevant part ,
681 F.2d 69 (1st
Cir. 1982).

Citation

The Secretary
alleges
a
willful violation of 29 C.F.R. § 1926.854(b), which requires:

No
wall
section,
which
is
more than
one
story
in
height,
shall
be
permitted
to
stand
alone
without
lateral
bracing ,
unless
such wall
was
originally
designed
and
constructed
to
stand
without
such
lateral
support,
and
is in
a
condition
safe
enough
to be
self-supporting.

All
walls
shall be
left
in a
stable
condition
at
the
end
of
each
shift. ( e mphasis added.)

The Secretary alleged that,
at Respondent’s
2136-38 Market Street worksite, Respondent
permitted a three-to-four-story
exterior masonry
wall
to stand alone
without lateral bracing exposing employees to crushing hazards. See Citation
and
Complaint.

The standard is applicable

Mr.
Benschop was demolishing the
Hoagie City
building
at the Market Street worksite with an excavator. The wall section without lateral bracing was three to four stories in height.
The
requirements of the cited standard apply to Respondent .

The standard’s requirements were violated .

The evidence shows
that by the end of
Sunday, June 2, 2013,
the excavator
had
demolished enough of the building
that the wall next to the Salvation Army building had become a
multi-story,
freestanding wall
without lateral support. (Tr. 152, 189-190; Ex. C-5; Ex. C-17, p. 44 (CCT-B, p. 96)). Mr. Benschop confirmed the
photograph
at Exhibit C-5
showed
the
freestanding wall
as it
had
developed
by the end of the day
on Sunday, June 2. (Tr. 189-90;
Ex.
C-5). About 25% of the wall next to the Salvation
Army
had become an unsupported freestanding wall
by the end of the day Sunday. 32 (Exs. C-4, C-5).

A photograph, Exhibit C-6,
taken by a member of the public during the day on Tuesday,
June 4, 2013, showed the freestanding wall above the Salvation Army had grown in size; about 50% of the wall
adjoining
the Salvation Army had become unsupported and freestanding. (Tr. 198; Ex. C-6). Mr. Benschop confirmed that it was his excavator in the photograph
at Exhibit C-6
and the photograph accurately portrayed the worksite on Tuesday, June 4, 2013. (Tr. 199; Ex. C-6). Another photograph taken at the end of the day June 4, 2013,
shows the
entire
front portion of the building’s
right
(west) wall
next to the Salvation Army, was
still almost fully intact
for
three-four
stories
and
was not supported. 33 (Tr. 202-03;
Ex. C-8).

These
photographs show,
and Mr. Benschop’s testimony confirms,
the wall
adjoining
the
Salvation
Army building was multi-story and
unsupported. Respondent did not comply with the cited standard’s requirement to
laterally support
a multi-story wall
section. The standard was violated.

An e mployee
was
exposed to the hazard ’s zone of danger .

To prove employee exposure, the Secretary must show that an employee was either actually exposed to the zone of danger,
or that exposure was reasonably predictable. Consol. Grain & Barge Co.,
23 BNA OSHC 2055, 2065 (No. 10-0756, 2011) (citations omitted). The predictability of exposure can be determined through “evidence that employees while in the course of assigned work duties, personal comfort activities and normal means of ingress/egress would have access to the zone of danger.” Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079 n.6 (No. 90-2148, 1995),
aff’d ,
79 F.3d 1146 (5th Cir. 1996)
(unpublished).

The zone of danger from the
uncontrolled
collapse of
the
three-to-four story freestanding
Hoagie City
wall was
substantial.
(Tr. 359-360, 365; Exs. C-9, C-12, C-29). Because the unsupported, freestanding wall at the Market Street worksite could have fallen in either direction, the zone of danger was much larger than the area
affected by
the June 5 collapse;
the zone of danger
also
included the empty lot to the east of the Hoagie City building and onto Market Street
itself, had the building collapsed
to the east.

The Hoagie City building, prior to demolition,
was a four-story structure about 40-50 feet
high
that faced Market Street
and extended about 120 feet back from the sidewalk. (Tr. 359-60). An aerial photograph of the site shows
the
area
affected
after
the collapse. The debris
was
spread across
a large area from within the Hoagie City building, covered
most of the corner lot where the Salvation Army building
had
stood and
then
extended past the sidewalk
west
onto 22 nd
Street. (Tr. 236, 358;
Exs. C-9, C-12).

A video of the collapse of the Hoagie City building was captured by the surveillance camera of a passing city bus. (Tr. 363;
Ex. C-29). The video shows the collapse of the Hoagie City building onto the Salvation Army building, which then collapsed. The video shows pedestrians,
that had been walking down the sidewalks,
running away from the plume of dust and debris. (Ex. C-29). In addition to
covering
the corner lot
at
Market Street and 22 nd
Street, the plume of dust and debris
extended to one lane of Market Street and several lanes of 22 nd
Street. (Ex. C-29).

The damage shown,
in the photographs and video,
occurred when
the
Hoagie City
building collapsed
inward and toward the
west. Had the building collapsed toward the east instead of the west, the debris would have likely covered the
empty lot
adjacent to the
Hoagie City building
to
the east
and
gone
further
into
Market Street. (Tr. 359-60, 365; Exs. C-1, C-21).

The Secretary asserts that Mr. Alston was
in the danger zone
on Sunday, June 2, and Wednesday, June 5. (S. Br. 22; Tr. 187; Ex. C-5).

At the time of the collapse
on June 5, 2013, Mr. Alston was standing just east of the free-standing wall within the security fence on the adjacent empty lot at the Market Street worksite. (Tr. 49-51; 359-60, 365; Exs. C-1, C-6, C-32, pp. 34-35
(CCT-A, p.
34-35)). He
had used his phone to video Mr. Benschop using the
excavator
to demolish the Hoagie City building about 30 minutes before the collapse. 34 (Tr. 289, 345-46;
Ex. C-16, p. 6; Ex. C-21; Ex.
C-23). Because the zone of danger included the area where Mr. Alston was standing, he was exposed to injury from the collapse of the building.

On Sunday,
June 2, 2013,
Mr. Alston was standing next to the west wall of the Hoagie City building using
a
hose to keep the dust
down while Mr. Benschop tore off the front of the building.
(Tr. 34; Ex. C-17, p. 19-20 (CCT-B, p. 26-27)). On both Sunday and Wednesday, Mr. Alston was standing in the
zone of danger from the collapse of
the
unsupported,
multi-story
freestanding wall. Further, because of the varied
duties Mr. Benschop had Mr. Alston perform
at the site,
it is reasonably predictable that any time Mr. Alston was at the Market Street worksite between
June
2 and
June 5, 2013, he was exposed to injury from the collapse of the unsupported, freestanding wall.

The Secretary has established that
Mr. Alston was exposed to the hazard of the unsupported,
multi-story
freestanding wall while
at
the
Market Street
worksite.

As discussed above, the Secretary proved Mr. Alston was Respondent’s employee.

Respondent had knowledge of the hazardous condition.

To prove his prima facie case, the Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition. Revoli Constr. Co. , 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). The employer’s knowledge is directed to the physical condition that constitutes a violation. Phoenix Roofing ,
17 BNA OSHC
at
1079-1080. It is not necessary to show that the employer knew or understood the condition was hazardous. Id.

Here, the Secretary asserts that Mr. Benschop had actual knowledge
the
unsupported
multi-story wall
was hazardous. The undersigned agrees.

Mr. Benschop’s testimony at the hearing for the instant case and at the Campbell criminal trial
both show that
he had actual knowledge of the unsupported wall. Mr. Benschop, in demolishing the building from front-to-back and removing the interior structure,
created the multi-story unsupported west wall. (Tr. 152-53, 167, 170, 204; Ex.
C-17, pp. 30, 50-51, 56
( CCT-B, p.
44, 113-14, 163)).

In his hearing testimony, Mr. Benschop stated the free-standing wall had
been created on Sunday, June 2. (Tr. 189-190; Ex.
C-5). Mr. Benschop admitted that a photograph from June 3, 2013, also showed the free-standing west wall of the Hoagie City building and that about three-fourths of the façade had been removed. (Tr. 194; Ex.
C-4). Further,
at the hearing in the instant matter,
he
stated he had been
concerned the wall would fall on the excavator while he was working. (Tr. 204, 210-11; Ex.
C-8).

At the Campbell criminal trial, Mr. Benschop
stated that he knew the freestanding wall was dangerous and told Mr. Campbell on Tuesday, June 4 he was concerned about
the height of the wall. (Tr.
147, 152; Ex.
C-17, pp. 25, 30
( CCT-B, p.
39, 44)).

The undersigned finds
Mr. Benschop
had actual knowledge
of the
unsupported,
multi-story freestanding wall at the Market Street worksite.

The Secretary has proved
the elements of
his prima facie case for Citation 2,
Item 1.   

Willful Characterization

The Secretary
characterized Citation 2, Item
1
as
a willful violation. The Secretary asserts that Respondent exhibited plain indifference to the hazardous condition at the worksite. Further, the Secretary asserts Respondent is collaterally estopped from denying willfulness because of the reckless state of mind related to the charges in his criminal conviction. (S. Br. 10, 26). The undersigned
finds
the record supports a willful characterization.

A willful violation is
one where the employer’s
state of mind
demonstrates an “ intentional, knowing, or voluntary disregard for the requirements of the Act or
.
.
. plain indifference to employee safety. ”
MVM
Contracting Corp.,
23
BNA OSHC
1164 ,
1167
( No. 07-1350 , 2010)
(citations omitted). This state of mind is evident where “the employer was actually aware, at the time of th e violative act,
that
the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care.”

Id.

Plain indifference
can be
established
where the
employer
fails
to take appropriate corrective action despite
knowing
a dangerous condition exists.

See
Elliot Constr. Corp. , 23
BNA OSHC
2110 , 2116-17
( No. 07-1578 , 2012) ;
se e also,
Arcadian Corp.,
20
BNA OSHC 2001,
2019
( No.
93-0628 , 2004)
(finding willfulness where employer’s approach to employee safety was “reckless”) ;
Seward Motor Freight Inc.,
13
BNA OSHC
2230 , 2235
( No. 86-1691,
1989)
(“ Willfulness means an employer demonstrated a reckless disregard for safety. ”);

A.E. Staley Mfg. Co.,
295 F.3d 1341, 1350-53 (D.C. Cir. 2002)
(Violations are willful where an employer exhibits plain indifference with respect to the violative conditions themselves.)

The undersigned
finds
Mr.
Benschop
demonstrated plain indifference to employee safety. Mr.
Benschop
admitted
that
he continued to
demolish the building even though he believed the
freestanding wall was dangerous. On Sunday, June 2, he
told his employee, Mr. Alston,
to not
go back into
the building because it was not
safe. (Tr.
290-91; Ex. C-16, p.7). Mr. Benschop told Mr. Campbell
several times
he was concerned about the hazard presented by the
freestanding west
wall. (Tr.
147, 152, 170,
209; Ex.
C-17, pp.
25, 30,
57-58
( CCT-B, p.
39, 44, 164-65)). Mr. Benschop stated that on Tuesday, June 4, he had asked Mr. Campbell about the unsupported right wall and Mr. Campbell had told him to just take down the east wall with the excavator – his employees would take down the west wall adjacent to the Salvation Army building. (Tr. 201).

Mr. Benschop admitted that when he came to the worksite on Wednesday, June 5,
he could see very little had changed; most of the multi-story, freestanding west wall was still three to four stories in height. At the Campbell criminal trial,
Mr. Benschop stated that he
believed it was his chipping away at the east wall that caused the building’s collapse. (Tr. 170; Ex.
C-17, p. 56
( CCT-B, p.
163)). He also
stated
that he had told Campbell “over and over
and over” that
it was dangerous to
chip away at the
east wall while
there were people inside the Salvation Army store. (Tr. 170-71; Ex.
C-17, pp. 57-58
( CCT-B, p.
164-65)). And
he
admitted that,
despite this, he
used
the excavator to chip away at the building’s east wall until the building collapsed at 10:42
A.M. on June 5, 2013. (Tr. 170-71; Ex. C-17, pp. 56-58
( CCT-B, p. 163-65)).

The undersigned
finds
Mr. Benschop knew the wall was unsupported and dangerous, yet he made no effort to correct the hazard and continued to use the excavator to demolish the building until it collapsed. Mr. Benschop exhibited plain indifference to the hazardous condition.

The Secretary has proved the Respondent’s actions at the worksite exhibited plain indifference and thus has proved the violation was willful.

Collateral Estoppel

Additionally, the Secretary argues the common law doctrine of collateral estoppel prevents
Respondent
from claiming
his actions were
not willful. (S. Br. 25-26). The Secretary asserts Mr. Benschop’s
guilty plea in
the criminal case related to
his actions at the Market Street
worksite also supports the willful characterization of the violation.
(S. Br. 26; Ex. C-18).

The Third Circuit 35
recognizes the right of a quasi-judicial federal agency to use
the doctrine of
collateral estoppel when considering an issue adjudicated in a prior criminal proceeding. Chisholm v. Def. Logistics Agency , 656 F.2d 42, 46-48 (3d Cir. 1981)
(“ A prior criminal conviction based on the same misconduct is ordinarily premised on the occurrence of the misconduct.

There is therefore no logical reason why the prior conviction should not be given collateral estoppel effect to establish this relevant predicate fact.”) ;
see also, Shaffer v. Smith , 673
A.2d
872,
874-75
(Pa. 1996) ;
Folino
v.
Young ,
568
A.2d
171
( Pa.
1990) ( “It
is well
established
that a
criminal
conviction
collaterally
estops
a
defendant from
denying his acts in a subsequent civil trial.”).

The Commission also
recognizes the doctrine
of collateral estoppel .

See
Caterpillar Tractor Co.,
12
BNA OSHC 1768,
1768
(No. 80-4061, 1986)
( “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits”) (citations omitted) .

The party seeking collateral estoppel must prove the following:

1) the issue decided in the prior adjudication must be identical with the one presented in the later action;
2) there must have been a final judgment on the merits;
3) the party against whom collateral estoppel is asserted must have been a party or in privity with the party to the prior adjudication; and
4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in question in the prior adjudication. 36

Witkowski v. Welch , 173 F.3d 192, 199 (3d Cir. 1999)
(citations omitted).

Was the
issue decided in
Benshop’s criminal proceeding
the same as in the instant case?

The undersigned finds the actions and facts at issue in Mr. Benschop’s criminal case are the same as those in the instant case.

The
Commonwealth
of Pennsylvania charged Mr. Benschop for actions leading to the death of six people and injury of 12 others. (Ex. 18, p. 21). The
proceeding was before the Honorable Glenn B. Bronson in the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division,
Commonwealth v. Sean Benschop , CP-51-CR-0001791-2014 and CP-51-CR-0001792-2014.

At issue in Mr. Benshop’s criminal case was his culpability for actions at the Market Street worksite from June 2 to June 5, 2013, leadi ng to the collapse of a
three-to-four story partially demolished wall onto the adjacent Salvation Army building. (Ex. C-18, pp. 19-22). The instant matter is also about Mr. Benschop’s demolition activities at the Market Street worksite from June 2 to June 5, 2013.

On July 21, 2015,
Mr.
Benschop pled guilty to six counts of involuntary manslaughter, twelve counts of reckless endangerment of another person, one count of causing a catastrophe, one count of conspiracy to cause a catastrophe, and one count of aggravated assault in the
state’s
criminal case
against Mr. Benschop for the June 5, 2013
wall collapse
onto the Salvation Army building adjacent to the Market City worksite in Philadelphia, Pennsylvania.

As a part of the
guilty plea
hearing , Judge Bronson explained to Mr. Benschop that , for several of the counts—i.e., reckless endangerment of another person— the state of Pennsylvania would have to prove
the element of
recklessness . Judge Bronson
explained that recklessness
is defined as:

The defendant’s
conduct
is
reckless
when
he’s aware
of
and
consciously
disregards
a
substantial
and
unjustifiable risk
that
death
would
result
from
this
conduct.
The
nature
and
degree
of
the
risk
being
such
that
it is grossly
unreasonable
for
him to
disregard
it.

( Ex.
C-18
at
pp.
12-13, 15).

The
underlying facts that supported
the
Commonwealth’s
charge of recklessness also support a characterization of
willfulness
in the instant matter. Here,
the Secretary must prove Respondent’s
actions were done with “intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.” Burkes Mech., Inc.,
21 BNA
OSHC 2136, 2140 (No. 04-0475, 2007).

As discussed above,
the undersigned finds
that
Mr. Benschop
exhibited plain indifference when he continued to demolish the Hoagie City
building with
the excavator even though he knew it was not the proper way to demolish the building and
he believed the
building’s
multi-story, freestanding west wall
was
dangerous.

The undersigned finds the
relevant facts for the
issue in the instant matter are
the same as
the issue
in Mr. Benschop’s
criminal adjudication.

The
Respondent
was
a p arty in privity with
Mr. Benscho p.

“A determination by a court in a prior action binds not only parties to t hat action but also persons in privity
to those parties. ” Caterpillar Tractor Co ., 12 BNA OSHC 1768,
17 6 8-6 9
(No.
80-4061 , 1986)
(internal quotations omitted) (citations omitted) ;
see also,
Toll Bros., Inc. v. Cent. Sur. Co. , 318 F. App ’ x 107, 110–11 (3d Cir. 2009)
(unpublished)
(Privity is such an “identification of interest of one person with another as to represent the same legal right.”)
(cit ations omitted). 37

Mr. Benschop represented Respondent,
pro se , in the instant matter. Respondent, S&R, was created and owned by Mr. Be nschop and his wife. (Tr. 179 ). Mr. Benschop controlled S&R and was the owner and operator of the excavator used for S&R’s demolition work. Thus, Respondent , S&R,
is in privity wi th Mr. Benschop .

T here
was
a final judgement on the merits.

In a proceeding
on July 21, 2015,
before the Honorable Glenn B. Bronson in the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division,
Commonwealth v. Sean Benschop , CP-51-CR-0001791-2014 and CP-51-CR-0001792-2014,
Mr.
Benschop pled guilty to six counts of involuntary manslaughter, twelve counts of reckless endangerment of another person, one count of causing a catastrophe, one count of conspiracy to cause a catastrophe, and one count of aggravated assault in the
Commonwealth’s
criminal case
against Mr. Benschop for the
June 5, 2013
wall collapse
onto the Salvation Army building adjacent to the Market Street worksite. (Exs. C-18, C-19).

The undersigned finds Mr. Benschop’s guilty plea was a final judgement on the merits.

T here
was
a f ul l and f air opportunity to litigate the issue in the prior adjudication .

The undersigned finds
Mr. Benschop had a full and fair opportunity to litigate the issue in question
during his criminal proceedings. 38

The Third Circuit has found that when “ a conviction is the result of a guilty plea, its preclusive effect extends to all issues that are necessarily admitted in the plea. ” Anderson v. C.I.R.,
698 F.3d 160, 164 (3d Cir. 2012)
citing
De Cavalcante v. Comm'r,
620 F.2d 23, 27 n. 9 (3d Cir.1980);
United States v. $448,342.85,
969 F.2d 474, 476 (7th Cir.
1992);
United States v. Wight,
839 F.2d 193, 196 (4th Cir.1987);
United States v. Podell,
572 F.2d 31, 35 (2d Cir.
1978).

The charges,
and
the
elements of proof related to those charges,
were carefully explained to Mr. Benschop by Judge Bronson at the guilty plea hearing. Mr. Benschop was represented by counsel and
Mr. Benschop told the judge he understood the charges he was pleading guilty to. Further,
after the charges had been read to him,
Mr. Benschop averred
that
he
had signed the guilty plea colloquy document
of his own free will. (Ex. C-18, pp. 8-10). See generally,
Colliton v. Donnelly,
399 Fed. Appx 619, 620 - 21 (2d Cir. 2010)
(unpublished)
(finding Colliton k nowingly , and without coercion,
entered
a
plea in which he admitted he was guilty of the offenses ).

The undersigned finds the Secretary proved
Mr. Benschop was collaterally estopped from denying the behavior at the
Market Street
worksite that
constituted the basis for charges in his criminal proceeding and for the citations at issue in the instant manner.

The undersigned finds
the willful characterization is supported by the record
as a whole and Mr. Benshop is estopped from denying his underlying reckless and indifferent behavior at the Market Street worksite.

The Secretary met his burden

The Secretary has the burden of proving
Respondent violated the standard by
a preponderance of the evidence. See
Astra Pharm. Prods.,
9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff'd in relevant part , 681 F.2d 69 (1st Cir. 1982).

Even though Mr. Benschop asserted throughout the
hearing for the instant matter
that Mr. Alston was not an employee, the weight of the evidence supports a finding that Mr. Alston was Respondent’s employee.

Mr. Alston consistently stated he was working for Mr. Benschop at the worksite, including cutting a beam to start the mechanical demolition process on Sunday, June 2, 2013. Mr. Alston stated that he was an employee of Respondent in his June 14, 2013 OSHA interview and signed statement and during his sworn
October 5, 2015
testimony
at the Campbell criminal trial. (Exs. C-16, C-32).

Eric Sullivan’s August 4, 2013 deposition, under oath, where he stated Mr. Alston worked
for and was paid by Mr. Benschop is consistent with Mr. Alston’s statement and testimony. (Ex. 33, pp. 65, 108-09).

Finally, in Mr. Benschop’s June 6, 2013 OSHA interview and his sworn October 8, 2015 testimony, he consistently stated that Mr. Alston was his employee.

The two post-hearing statements from Mr. Sullivan and Mrs. Gregory-Benschop have been considered and are determined to be less credible because of the time elapsed since the collapse and that neither statement was taken under oath or
subject to questioning.

Mr. Benschop’s assertions through the instant hearing were also considered. However, the undersigned has determined that his sworn testimony at Campbell’s criminal is more credible because it was closer
in time to the collapse (2.5 v. 3.5 years) and because, as the owner, Mr. Benschop has a stake in the outcome of the instant matter against Respondent. Further, Mr. Benschop’s October 8, 2015 testimony—where
he admitted Mr. Alston was an employee—was
consistent with other credible evidence in the record.

Respondent’s arguments have been considered but the preponderance of evidence supports the Secretary’s assertion that Mr. Alston was an employee of the Respondent.

Penalty

Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties:
the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Compass Envtl . , Inc. ,
23 BNA OSHC 1132, 1137
(No. 06-1036, 2010)
aff’d , 663 F.3d 1164 (10th
Cir. 2011). The gravity of the violation is generally accorded greater weight. See
J. A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). The maximum penalty for a willful citation is $70,000.
29 U.S.C. § 666(a).

The Secretary proposed a penalty of $70,000.00. AAD
DeJesse testified
that the
violation
was rated
a s
high
gravity
because
the condition
posed
a
risk
of
death
or
serious
injury
(Tr.
369).
He also
testified that the probability was greater, due to the unsafe nature of the thirty-to-forty-foot high freestanding wall, and
the multi-day
duration of the condition. (Tr. 369-371).

OSHA did not
provide
any
penalty
reduction
for
size,
history,
or
good
faith,
due
to
Respondent’s
willful
conduct.
(Tr.
366-369).

Once a citation is contested, the Commission and its judges have the authority to assess penalties,
de novo ,
based on the facts of each case and the
criteria
set forth in
section
17(j) of the Act.

Valdak Corp ., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995).

The undersigned agrees with the Secretary’s assessments for gravity, good faith and history. However, the undersigned believes a discount for
employer
size should be provided due to the very small size of the Respondent’s company. 39 Thus, a 20 percent reduction is applied to the proposed penalty resulting in a final assessed penalty of $56,000.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is
ORDERED :

1. Citation 1, Items 1 and 2 were withdrawn by
   the Secretary and thus VACATED.

2. Citation 2, Item 1, alleging a
   Willful
   violation of 29 C.F.R. §
   1926.854(b), is AFFIRMED, and a penalty of $56,000.00
   is
   ASSESSED.

/s/Covette Rooney

Covette Rooney

Chief Administrative Law Judge

Dated:

July 24, 2017

Washington, D.C.

"

1
On
November
20,
2015,
John J. Delany, III, Esq. ,
of Delany McBride, P.S.
withdre w
as Respondent’s counsel
from this
matter.

2
The address of the Hoagie City building, which is the particular focus of the OSHA citation, is 2136-2138 Market Street, Philadelphia, Pennsylvania.

3
OSHA hand-delivered the citation package to Mr. Benschop at the
Curran-Fromhold Correctional Facility
where Benschop was held at that time . (Tr. 373).

4
The Citation issued on November 14, 2013 also included two alleged serious violations of OSHA’s demolition standard. See Complaint. The alleged serious violations were withdrawn by the Secretary at the
start of the hearing (Tr.
9-10).

5
Commission Rule 9 sets forth: “Cases may be consolidated . . . where there exist common parties, common questions of law or fact or in such other circumstances as justice or the administration of the Act requires.” 29 C.F.R. § 2200.9.

6
The settlement became a final order of the Commission on February 8, 2016.

7
Mr. Benschop was incarcerated at
SCI
Rockview
in Bellefonte,
Pennsylvania
at the time of the hearing.

8
During a March 2, 2016 conference call, Respondent demonstrated that he was fluent in speaking and understanding English to the undersigned. Mr. Benschop’s prison counselor later informed the undersigned that Respondent’s ability to read pleadings in English was
deficient. Thus, pleadings thereafter were presented in both English and
Spanish. However, at the hearing, Mr. Benschop indicated that his ability to read any language was limited. (Tr.
16-18). Thus, this Decision and Order is issued in English with no translation.

9
Citations to Darryl Alston’s testimony at the Campbell criminal trial will also be noted with the designation “CCT-A.”

10
OSHA Compliance Officer Sarah Carle took notes during
her June 14, 2013 interview with Mr. Alston, which Mr. Alston then signed. (Tr. 259, 262).

11
The jury trial was before the Honorable Glenn B. Bronson in the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division,
Commonwealth v.
Griffin T. Campbell , CP-51-CR-0001793-2014 (Campbell
criminal
trial).

12
Citations to Sean Benschop’s testimony at the Campbell criminal trial will also be noted with the designation “CCT-B.”

13
The plea proceeding was before the Honorable Glenn B. Bronson in the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division,
Commonwealth v. Sean Benschop , CP-51-CR-0001791-2014 and CP-51-CR-0001792-2014.

14
Eric Sullivan routinely assisted Mr. Benschop on demolition jobs. (Tr.
188-89; Ex. J-1). Mr. Benschop was introduced to Griffin Campbell by Mr. Sullivan. (Tr.
75).

15
Mrs. Benschop-Gregory started S&R with Sean Benschop and maintained the accounting and other administrative functions of the business. (Tr.
179, 411-12).

16
Specifically, Mr. Benschop stated: “ I don't have no objection with it. I don't have no objection with it because I know it's not true. I was not the subcontractor.” (Tr. 387). Exhibit J-1 was not read into the record.

17
Eric Sullivan was deposed at Department of Labor ’s
Philadelphia, PA office by Complainant’s
attorneys, Michael P. Doyle and Jennifer L. Klimowicz on August 14, 2013. (Ex. C-33).

18
William Hobson,
identified as Mr. Benschop’s attorney,
was present for most of CO
Carle’s interview with Mr. Benschop. (Tr. 256).

19
Mr. Benschop explained that when demolishing by hand from the top down, a hole of about 10 feet, which is roughly 10 feet in from the wall,
is made in each floor creating a chute for the bricks to be dropped through to the basement as
they are
removed
floor-by-floor . (Tr.
138 , 182-83 ; Ex. C-15, p. 22
(CCT-B, p. 22) ).

20
As discussed below, the undersigned finds that Darryl Alston was an employee of Respondent.

21
Mr. Sullivan had worked for Respondent about 1 ½ years and was an assistant and foreman at demolition worksites. (Ex.
C- 33, pp. 16, 24, 49). Prior to June 2, 2013, Sullivan had worked for Mr. Campbell doing demolition work on other buildings at the Market Street worksite for about 3 weeks in May 2013. (Ex. 33, pp. 13, 3 3-34). Mr. Sullivan did some minimal
work
to demolish
the Hoagie City building
the Friday or Saturday before the collapse ; he
argued
with
Mr.
Campbell
about the
plan to demolish the building. Mr. Sullivan did not return to the worksite after his argument with
Mr.
Campbell. (Ex. C-33, pp. 41, 44-45, 86).

22
Mr. Alston explained that because Mr. Benschop was from Guyana and had an accent, it was difficult to understand his instructions. In those situations, Mr. Sullivan explained the task. (Tr. 277; Ex. C-16, p. 3).

23
Mr.
Alston was at the Market Street worksite from 8:00
A.M.
to 6:00
P.M.
on Sunday, 1:30
P.M.
to 5:00
P.M.
on Tuesday, and 7:30
A.M.
to 10:30
A.M.
on
Wednesday. (Tr. 287-88, 293; Ex. C-16, pp. 6, 8).

24
Mr. Benschop testified at the hearing for the instant case that on Tuesday, June 4, Alston had stayed at the Market Street worksite; Alston
had not gone to the Page Street worksite
work there was
completed. (Tr. 196-97). This directly contradicts Mr. Alston’s sworn testimony at the Campbell criminal trial (Tr.
36, 287-89; Ex. 32, p.
22
(CCT-A, p.
22)) and Alston’s
statement to OSHA nine
days after the accident. (Ex. C-16, pp. 6,
8).

No weight is given to Mr. Benschop’s assertion at the hearing that Alston did
not work at
the Page Street worksite on Tuesday, June 4, 2013.

The undersigned finds Mr. Alston did go to Page Street as reflected in his sworn testimony and signed OSHA interview statement.

25
The photograph was taken by the project’s architect, Plato Marinakos. (Tr. 202).

26
Benschop indicated that he needed the money because he had not yet been paid by the city for jobs he had completed earlier that year. (Tr. 179, 187).

27
The Hoagie City building, prior to demolition, was a four-story structure about 40-50 feet high that faced Market Street and extended about 120 feet back from the sidewalk. (Tr. 359-60). An aerial photograph of the site after the collapse shows the area affected after the collapse. The debris was spread across a large area from within the Hoagie City building, covered most of the corner lot where the Salvation Army building had stood and then extended past the sidewalk west onto 22nd Street. (Exs. C-9, C-12).

28
Both exhibits were read into the record. (Tr. 75, 300; Exs. C-16, C-32). Mr. Alston was subpoenaed but did not appear at the hearing. (Tr. 13-14).

29
CO Carle interviewed Mr. Benschop in the hospital on June 6, 2013. (Tr. 239, 242) William Hobson came into the room
during the interview with Benschop to act as his
attorney. (Tr. 255). CO Carle
had met
Mr.
Hobson the prior day when she interviewed Mr. Campbell. Nonetheless, Mr.
Hobson
was not
Mr. Benschop’s attorney
in his criminal proceeding or in this matter. (Tr. 255-56).

30
There was no
credible
evidence in the record for two of the factors: 1) what the hired party's role was in hiring and paying assistants, and 2) the tax treatment and provision of employee benefits.

31
The Commission has found that construction activity, even a small project, affects interstate commerce. Clarence M. Jones , 11 BNA OSHC 1529, 1531
(No. 77-3676, 1983). Here, Respondent
was engaged in demolition at the worksite. Demolition
regulations are
within OSHA’s part 1926, Safety and Health Regulations for Construction. See 29 C.F.R. 1926, et seq. the undersigned finds
that Respondent
was an employer engaged in a business affecting commerce under the Act.

32
Mr. Benschop confirmed
the
photograph
at Exhibit 4 was an accurate depiction of
the worksite
on June 3. (Tr. 194-95; Ex. C-4). No work had been done at the site on June 3 due to rain; thus, the photograph showed the site’s condition as it was at the end of the work day on Sunday, June 2 and the beginning of the work day on June 4 when work at the site resumed.

33
The photograph was taken by the project’s architect, Plato Marinakos. (Tr. 202).

34
The video
Mr. Alston
took with his phone
shows he was standing within the worksite’s construction fence and to the east of the Hoagie City building in the adjacent empty lot. (Tr. 222; Ex. C-21).

35
The  Commission   applies  the precedent of the  circuit  where a decision would probably be appealed, even though it may differ from Commission precedent.  Kerns Bro s.
Tree Serv . , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

36
The
Restatement
of Judgements
explains: “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
Witkowski v. Welch , 173 F.3d 192, 199 (3d Cir. 1999)
citing
Restatement (Second) of Judgments § 27 (1982).

37
Under the doctrine of collateral estoppel, a judgment on the merits in a prior suit “precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit.” Lawlor v. Nat ’l
Screen Serv .
Corp ., 349 U.S. 322, 326 (1955).  Put another way, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.”  Montana v. United States,  440 U.S. 147, 153 (1979).” Caterpillar ,
12 BNA OSHC at 1768-69.

38
During his plea before
Judge Bronson, Mr. Benschop stated that he could understand and speak English, but was unable to read English. (Ex. C-18, p.
8-9).

39
The record shows that Respondent had less than ten employees at any given time.