RG Design Express Inc.

Plain-English summary

RG Design Express was building a home where workers used two table saws without adjustable hood guards or anti-kickback fingers. The judge found that the workers were employees, not independent contractors, and that the foreman's cooperation gave OSHA consent to inspect. Both saw-guard instances were affirmed as serious because employees used the unguarded saws for cabinetry trim and management knew about the missing guards. The residential fall-protection item was vacated because OSHA alleged exposure on the inspection date but did not prove that anyone accessed the second floor that day. A $2,400 penalty was assessed for the grouped saw violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.304(f); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Two saw-guard instances affirmed as serious, fall-protection item vacated; $2,400 total penalty assessed.
• Key point: OSHA must prove employee exposure within the time and circumstances alleged in the citation, while actual use of unguarded saws supports a guarding violation.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 15-1131
v.

RG DESIGN EXPRESS INC.

                         Respondent.


    Peter Nessen, Esq. and Jing Zhang, Esq., Office of the Solicitor, U.S. Department of
    Labor, Chicago, IL
    For Complainant

    Igor Gluzman, pro se
    For Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                    DECISION AND ORDER

    This proceeding is before the Occupational Safety and Health Review Commission (the

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (the Act). The Occupational Safety and Health Administration (OSHA)
commenced an inspection of a RG Design Express, Inc. (Respondent) worksite at 34420 North
Converse Lane, Ingleside, Illinois (Worksite) on April 23, 2015. As a result of the inspection,
OSHA issued a Citation and Notification of Penalty (Citation) to Respondent alleging three
serious violations of the Act1 with a penalty of $4,400.00. The Citation was issued on May 27,
2015. Respondent filed a timely Notice of Contest on June 5, 2015. This case was designated as
a Simplified Proceeding, where the filing of a Complaint and Answer are not required. See 29
C.F.R. § 2200.200(b). A hearing was conducted in Chicago, Illinois on November 20, 2015.
The parties have filed post-hearing briefs/statements with the Court.2

1
The first serious citation has two items and alleges a violation of 29 C.F.R. § 1926.304(f). The second serious
citation has one item that alleges a violation of 29 C.F.R. § 1926.501(b)(13).
2
Respondent filed a post-hearing statement with attachments that were not offered during the hearing and were not
admitted as evidence. Even though the exhibits were not timely submitted, the Court will discuss those attachments

                                                    1

Factual Background
RG Design Express, Inc. is a corporation owned and operated solely by Igor Gluzman.
(Tr. 91–92). Respondent serves as a general contractor licensed to build homes in Chicago. (Tr.
92). OSHA initiated the inspection at the Worksite after receiving a complaint alleging that there
were fall hazards at the Worksite. (Tr. 26, 70). Compliance Safety and Health Officer Gary Weil
(CSHO) was assigned to conduct the inspection which commenced on April 23, 2015. (Tr. 24–
26).
The CSHO arrived at the Worksite on the morning of April 23, 2015. (Tr. 26, 72). As the
CSHO was approaching the house, a man, who was later identified as Marcin Dabrowski, was
walking out of the garage. (Tr. 27–28). The CSHO introduced himself, explained the nature,
scope, and purpose of the inspection and presented his credentials. (Tr. 28). Mr. Dabrowski
could understand and communicate in English and graduated from high school in the United
States. (Tr. 107–108, 110–111). The CSHO asked to speak to the Project Manager. (Tr. 28). Mr.
Dabrowski identified himself as the “foreman” for Respondent. (Tr. 28, 29, 47, 57-59, 72, 85).
Mr. Dabrowski also informed the CSHO that another employee of RG Design, Mr. Vitali
Doutka, was also at the Worksite. (Tr. 29). According to Dabrowski, Respondent was engaged
in cabinetry work that day. (Tr. 28). At no time during the inspection did either Mr. Dabrowski
or Mr. Doutka indicate to the CSHO that they were independent contractors of Respondent. (Tr.
29–30 and 58).
The CSHO observed two portable table saws, a DeWalt saw and a Bosch saw, in the
garage. (Tr. 33; Ex. C-4, C-8). Neither saw was equipped with the proper guarding for the
rotating saw blade. (Tr. 33; Ex. C-6, C-8). The DeWalt saw was connected to an extension cord
that had its power light on, indicating that it was energized. (Tr. 36; Ex. C-4). The DeWalt saw
had a splitter but was missing an adjustable hood or anti-kickback fingers for the blade. (Tr. 34–
35, 37; Ex. C-6). The Bosch saw was five or six feet away from the DeWalt saw and had a
splitter but was also missing an adjustable hood and anti-kickback fingers.3 (Tr. 38–39, 43–44;
Ex. C-8). The CSHO observed wood pieces4 and saw dust around the two saws, which were

in this Decision as the tendering of those attachments does not alter the Court’s conclusions, which are supported by
the evidence adduced at hearing.
3
Exhibit C-8 does not show the Bosch saw was energized. The CSHO testified he did not test the saw to determine
if it was energized. (Tr. 38). The CSHO speculated that the employees may have been switching the two saws to the
extension cord and that is why it does not show that it was energized. The CSHO testified that this is common
practice in the construction industry. (Tr. 43).
4
Exhibit C-6 shows a piece of cabinetry trim that had been ripped. The CSHO testified that this wood material is

                                                      2

consistent with the type of wood that was being cut for cabinetry. (Tr. 36, 44–45 and 52; Ex. C-
4, C-8).
Dabrowski stated to the CSHO that: (i) they had been using both saws to do “finish trim
cabinetry work” that day; (Tr. 46); (ii) they did not have guards for the saws at the Worksite; and
(iii) the guards would not allow them to cut the trim pieces that they needed because of the
narrowness of the cuts. (Tr. 45–46, 47, 89). When the CSHO requested to see what work Doutka
and Dabrowski were doing that day, Dabrowski led him inside the house where Doutka was
installing cabinetry with the trim pieces. (Tr. 52; Ex. C-9).
The CSHO was next shown the second floor balcony that was the subject of the
complaint to OSHA. (Tr. 53; Ex. C-10). The second floor balcony had an unfinished railing
system that consisted only of a top rail. (Tr. 57; Ex. C-10, C-11). Dabrowski informed the
CSHO that they had installed the partial railing system the day before the inspection. (Tr. 57,
82). Dabrowski stated that they did not use any fall protection when installing the railing the
previous day. (Tr. 57). Dabrowski informed the CSHO that there were no fall protection systems
at the Worksite, and the CSHO did not observe any fall protection systems during the course of
the inspection.5 (Tr. 57). The second floor was more than six feet above the first floor, and the
railing system was missing a mid-rail halfway between the deck and the top rail. (Tr. 55–56, 66–
67; Ex. C-10; C-11). Dabrowski informed the CSHO that the morning of the inspection that they
had glued the stairs and the deck and therefore the second floor could not be accessed. (Tr. 81).
The CSHO conducted a closing conference with Gluzman over the phone on the same
day of the inspection after the inspection had been concluded. (Tr. 62). Gluzman was at Home
Depot to buy a new blade for the DeWalt saw when he held this conversation with the CSHO.
(Tr. 10, 78, 100-101, 103, 105). During the closing conference, Gluzman was informed of the
nature, purpose, and scope of the inspections, as well as the hazards observed by the CSHO.
Gluzman and the CSHO discussed how those hazards could be abated. (Tr. 62). Gluzman stated
that he did not have any guards at the Worksite but would obtain and install them. (Tr. 62–63,

the same wood cabinet material that was being installed inside the home. (Tr. 39–40). This information undermines
the testimony of Mr. Gluzman that the workers were doing no finishing work and the saw blades that are shown in
the pictures are not the proper blades for cutting cabinetry finishing. The Court can infer based upon the evidence
the saws were utilized to cut the cabinetry trim and when the employees could not get the trim correctly cut that is
when Mr. Gluzman went to Home Depot to purchase the correct blade. Thus, while Mr. Gluzman argues the blades
shown are not the “right” blades to cut the cabinetry trim does not mean that they were not used to attempt to cut the
cabinetry trim before it was concluded a different blade was needed. Okland Constr. Co., 3 BNA OSHC 2023, 2024
(No. 3395, 1976) (reasonable inferences can be drawn from circumstantial evidence).
5
This conflicts with testimony that the torn down scaffolding was in the garage. (Tr. 120–122).

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65, 103; Ex. C-3). Gluzman told the CSHO until that had been done he would instruct the
workers not to use the equipment until he obtained the guards. (Tr. 62, 101–103). Gluzman also
stated he would instruct the workers not to go up to the second floor balcony until the spindles
were installed. (Tr. 63). During the closing conference, Gluzman did not claim that any of the
workers at the Worksite were independent contractors nor that the workers owned the two saws
at issue. (Tr. 63–64). Neither the CSHO nor Gluzman provided testimony that would suggest
OSHA did not have Respondent’s permission to be on the property—a position taken by
Respondent for the first time at the hearing. (Tr. 9–10).
Jurisdiction
The Commission has jurisdiction over this action pursuant to section 10(c) of the Act by
the filing of Respondent’s Notice of Contest. 29 U.S.C. § 659(c).
Respondent Is Engaged in Interstate Commerce
The Court finds Respondent is engaged in a business affecting interstate commerce
within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). See Slingluff v. OSHRC, 425
F.3d 861, 867 (10th Cir. 2005) (noting that economic activity of construction as an aggregate
affects interstate commerce). Complainant has the burden to establish this element of coverage.
The use of the term “affecting commerce” indicates a congressional intent to “exercise fully its
constitutional authority under the commerce clause.” Godwin v. OSHRC, 540 F.2d 1013, 1015
(9th Cir. 1976); U.S. v. Dye Constr. Co., 510 F.2d 78, 83 (10th Cir. 1975); Brennan v. OSHRC,
492 F.2d 1027, 1030 (2d Cir. 1974); see also Piping of Ohio, Inc., No. 91-3481, 1993 WL
119649, at *3-4 (O.S.H.R.C.A.L.J. Apr. 5, 1993). Commerce, according to section 3(3) of the
Act, “means trade, traffic, commerce, transportation, or communication among the several
States, or between a State and any place outside thereof . . . .” Following the Ninth Circuit in
Usery v. Franklin R. Lacy, 628 F.2d 1226, 1228-29 “commerce” means it “is in a class of
activity that as a whole affects commerce.” Clarence M. Jones d/b/a Jones Co., 11 BNA OSHC
1529, 1530 (No. 77-3676, 1983). In Jones Co., the Commission found “[t]here is an interstate
market in construction materials and services and therefore construction work affects interstate
commerce.” Id. (citing NLRB v. Int’l Union of Operating Eng’rs, Local 571, 317 F.2d 638, 643
n.5 (8th Cir. 1963) (judicial notice taken that construction industry affects interstate commerce)).
Because Respondent is engaged in construction work as established by Complainant, the Court
finds it is engaged in a business affecting interstate commerce. (Tr. 34, 97).
Respondent Is an Employer

                                             4

Only an “employer” may be cited for a violation of the Act. Vergona Crane Co., 15 BNA
OSHC 1782, 1783 (No. 88-1745, 1992). Respondent argues it is not an employer. (Tr. 9).
Respondent argues that all the individuals working at the Worksite were subcontractors that had
their own company and insurance. (Tr. 16). Respondent’s position that Dabrowski and Doutka
were independent contractors was raised for the first time at hearing. The CSHO was never
informed by Dabrowski, Doutka or Gluzman during the inspection that there was no
employer/employee relationship.
It is Complainant’s burden to prove coverage under the Act by demonstrating that the
cited entity is an employer. Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035
(No. 97-1631, 2005)(holding that an employer controls manner and means of production); Don
Davis d/b/a/ Davis Ditching, 19 BNA OSHC 1477, 1481 (No. 96-1378, 2001) (citing Timothy
Victory, 18 BNA OSHC 1023, 1027 (No. 93-3359, 1997)). CSHO Weil testified that Dabrowski
and Doutka viewed themselves as employees of Respondent. Dabrowski repeatedly affirmed to
the CSHO that he was the foreman of Respondent and that he “worked for RG Designs.” (Tr.
28–29). Dabrowski informed the CSHO that there was another employee (Doutka) at the
Worksite on the day of the inspection doing cabinetry work. (Tr. 29). Testimony indicated that
there was no language barrier with Dabrowski—he communicated and understood English and
finished high school in the United States. (Tr. 107–108, 110–111). Gluzman affirmed that it is
unlikely that Dabrowski and the CSHO would have a misunderstanding as Dabrowski finished
high school and knew English. (Tr. 111).
The Act places duties on “employers” to protect the health and safety of “employees.” 29
U.S.C. § 654(a). The Act requires each employer to comply with occupational safety and health
standards and regulations promulgated under the Act. Id. An employer is 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). As the Commission noted in Davis Ditching, this definition is
“unhelpfully circular.” See 19 BNA OSHC at 1480.
The Act’s definitions of “employer” and “employee” incorporate longstanding master-
servant principles that were developed under the common law of agency. See Froedtert Mem’l
Lutheran Hosp., 20 BNA OSHC 1500, 1505 (No. 97-1839, 2004) (citing Nationwide Mut. Ins.

                                            5

Co. v. Darden, 503 U.S. 318 (1992)). Those principles, as applied to the determination of
whether a person is an owner or an employee, focus on the person’s legal and actual ability to
exert control over the organization. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538
U.S. 440, 448 (2003)(“[T]he common-law element of control is the principal guidepost that
should be followed . . . .”). “Being remedial and preventative in nature, the [OSH] Act must be
‘construed liberally in favor of the workers whom it was designed to protect[.]’ ” Bristol Steel &
Iron Works, Inc. v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979) (internal citation omitted).
In determining whether Complainant has satisfied his burden to establish a cited entity as
an employer under the Act, the Commission has applied the common law agency doctrine
enunciated in Darden.6 See, e.g., All Star Realty Co., Inc., d/b/a All Star Realty & Construction,
Co., 24 BNA OSHC 1356, 1358 (No. 12-1597, 2014) (applying Darden factors and noting that
the Secretary carries the burden of proof) ; Summit Contractors, Inc., 23 BNA OSHC 1196, 1204
(No. 05-0839, 2010)(discussing Darden factors as a function of muti-employer liability) aff’d.,
442 Fed.Appx. 570 (unpublished) Sharon & Walter Constr. Co., 23 BNA OSHC 1286, 1289
(No. 00-1402, 2010) (reciting Darden factor application); AAA Delivery Servs., Inc., 21 BNA
OSHC 1219, 1220 (No. 02-0923, 2005)(same). In Darden, the Court considered primarily “the
hiring party’s right to control the manner and means by which the product is accomplished.”
Darden, 503 U.S. at 323. See also Froedtert Mem'l Lutheran Hosp., Inc., 20 BNA OSHC at 1506
(citing Clackamas, 538 U.S. at 448) (recognizing the company’s control over the worker is the
“principal guidepost” to determine the existence of an employment relationship). Other factors

6
Prior to 1992, the Commission applied the “economic realities test” to such cases. Griffin and Brand of McAllen,
Inc., 6 BNA OSHC 1702 (No. 14801, 1978). In applying that test, questions to be considered are: (i) whom do the
workers consider their employer; (ii) who pays the workers’ wages; (iii) who has the responsibility to control the
workers; (iv) does the alleged employer have the power to control the workers; (v) does the alleged employer have
the power to fire, hire, or modify the employment condition of the workers; (vi) does the workers’ ability to increase
their income depend on efficiency rather than initiative, judgment, and foresight; and (vii) how are the workers’
wages established. Griffin and Brand, 6 BNA OSHC at 1703. In Griffin and Brand, the Commission found a farm
owner was the employer of a crew of migrant workers, overturning the judge’s finding that the crew leader was an
independent contractor. In so holding, the Commission drew a distinction between an entity’s “legal right” to control
the workers, and its “practical power” to do so. Id. Where an entity has the power to control the workers as to the
manner in which they accomplish their work, that entity may be found the employer under the economic realities
test.
Following the Supreme Court’s decision in Darden, the Commission modified its prior position that the term
“employer” is not limited to common law principles but may take into account the economic realities of the
relationship. See Timothy Victory, 18 BNA OSHC at 1026, citing Vergona Crane, 15 BNA OSHC at 1784. Current
Commission precedent holds the term “employee” should be interpreted consistent with common law principles.
The Commission has also noted those common law principles are less inclusive than the economic realities test.
Timothy Victory, 18 BNA OSHC at 1026, n. 3. Applying the “economic realities test” to this set of facts, the Court
would still find Respondent was an “employer” under the Act.

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relevant to the inquiry are:
the skill required; the source of the instrumentalities and tools; the location of the work;
the duration of the relationship between the parties; whether the hiring party has the right
to assign additional projects to the hired party; the extent of the hired party's discretion
over when and how long to work; the method of payment; the hired party's role in hiring
and paying assistants; whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and the tax
treatment of the hired party.

Darden, 503 U.S. at 232–24, n. 3 (citing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
751–52 (1989)).
A. Respondent and Work Location
RG Design Express, Inc. is a corporation owned and operated solely by Igor Gluzman.
(Tr. 91-92). Respondent serves as a general contractor licensed to build three-story homes in
Chicago. (Tr. 92). Mr. Gluzman has been a general contractor for over thirty years and has been
serving in that role in the United States since 2001. (Tr. 93). Gluzman served as the general
contractor for the work being done at the Worksite. Respondent provided the workplace for
Dabrowski and Doutka to perform their duties. The work performed by Dabrowski and Doutka is
an integral part of the regular business of Respondent, which is a long-standing corporate entity
that has provided general contracting services in the Chicago area for 15 years. That Respondent
has continuously provided the place where the work must be performed during that time supports
a finding that the professional working relationship between Respondent and Dabrowski and
Doutka was that of employer-employee.
B. Duration of Business Relationship with Dabrowski and Doutka
Respondent considers Dabrowski and Doutka each to be an “independent entity” or
“independent contractor” with which Respondent has a contractual relationship. Gluzman
testified that if it is a big job like the one at the Worksite he would do a contract. (Tr. 97).
However, at the hearing and given the opportunity to provide a copy of that contract after
hearing in conjunction with its post-hearing submission, Respondent failed to produce the
contract. It is undisputed that Respondent, Dabrowski and Doutka had a long-standing
professional working relationship. Gluzman testified that Dabrowski and Doutka work for
Respondent nine to ten months every year. (Tr. 94). He testified that Doutka has worked for
Respondent for seven years. (Tr. 97). Dabrowski has worked for Respondent for nine or ten
years. (Tr. 114). Dabrowksi and Doutka were free to work on other non-Respondent projects
when Respondent does not have any work for them to perform. (Tr. 95-96). So in this regard,

                                            7

they were not exclusive to Respondent. However, the Court finds that Dabrowski and Doutka
had a long-term relationship with Respondent, which supports a finding that their professional
working relationship was that of employer-employee.
C. Selection, Payment, Benefits and Tax Treatment
There was no testimony at the hearing regarding the establishment of wages, i.e., what
factors determined their rate of pay and whether any benefits were paid to Dabrowski and
Doutka by Respondent. Dabrowski and Doutka were hired and selected by Gluzman to perform
finishing, flooring, drywall, and cabinetry work at the Worksite—jobs which they were hired to
perform over the years at other Respondent projects. (Tr. 94, 99-101). Gluzman testified that he
would write checks to the company of Dabrowski7 and Doutka and every year he would do a
10998 for them. (Tr. 94–97). Respondent determined the rate and amount of payment which
Dabrowski and Doutka would receive under their arrangement. Dabrowski and Doutka received
their compensation only from Respondent for the work performed at this Worksite. (Tr. 95-96).
The Court notes Respondent was provided the opportunity to address the independent
contractor issue by providing a copy of the contract with them which defines their contractual
relationship as it relates to this Worksite and to provide copies of Form 1099 issued to
Dabrowski and Doutka. When Respondent submitted its post-hearing statement, it did provide
copies of Form 1099’s issued for 2012 – three years before the year in which this inspection took
place. The production of 2012 Form 1099s for Dabrowski and Doutka does not convince the
Court that this same type of arrangement was in place in 2015 when the inspection occurred.
The Court gives the 2012 Form 1099s no weight as they do not bear on the type of relationship
which existed in 2015. Employment arrangements and relationships change over time. It could
well be the relationship of Dabrowski and Doutka started out as independent contractors in 2012;
however, there is no evidence except Mr. Gluzman’s testimony that this relationship continued to
exist in 2015. See, e.g., KSP Enters., Inc., 24 BNA OSHC 2250, 2259 (No. 13-0647, 2014) (ALJ
Calhoun) (holding 1099 forms were inconclusive on matter of employment relationship because,
amongst other things, respondent did not submit 1099 forms for the time period at issue in the
case).
7
Respondent provided a letter in its post-hearing submission which established an EIN number for Mr. Dabrowski
which did not indicate he had a separate business entity from his individual status. This letter from the IRS does not
provide any new information on which is can be concluded that Dabrowski was not an employee of Respondent.
8
The Court takes judicial notice of the term “1099” as referring to IRS Form 1099-MISC which is used to “report
payments made in the course of trade or business to a person who is not an employee or to an unincorporated
business.” See www.irs.gov.

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Respondent’s failure to provide a contract on which to assess its business relationship
with Dabrowski and Doutka and its failure to provide the most recent Form 1099 that would
have been issued to Dabrowski and Doutka for 2014 undermines its claim of an independent
contractor relationship.9 At the time of the inspection, Dabrowski and Doutka viewed
themselves as employees of Respondent and were paid directly by Respondent. Dabrowski
repeatedly affirmed to the CSHO that he was the foreman of Respondent and that he “worked for
RG Designs.” (Tr. 28–29). Dabrowski informed the CSHO that there was another employee
(Doutka) at the Worksite on the day of the inspection doing cabinetry-type of work. (Tr. 29)
(emphasis added). Testimony indicated that there was no language barrier with Dabrowski—he
communicated and understood English and finished high school in the United States. (Tr. 107–
108, 110–111). Gluzman affirmed that it is unlikely that Dabrowski and the CSHO would have a
misunderstanding as Dabrowski finished high school and spoke English. (Tr. 111). Respondent’s
tax treatment of Dabrowski and Doutka does not establish the existence of an independent
contractor relationship. Dabrowski and Doutka were selected and paid according to the terms
established by Respondent. These facts support a finding that their professional relationship was
that of employer-employee.
D. Source of Instrumentalities and Tools
Gluzman testified Respondent does not own tools, nor did it provide tools to Dabrowksi
or Doutka. (Tr. 97). Respondent argues that, as independent contractors, Dabrowski and Doutka
owned their own tools, drove their own cars, and bought their own gas. (Tr. 95–96). Those
arguments are not persuasive upon close examination of the evidence. All witnesses testified
that on the morning of the inspection Gluzman was at Home Depot buying a new blade for the
DeWalt saw. (Tr. 10, 78, 100–101, 103, 105). Dabrowski, whom Gluzman testified owned the
DeWalt saw, did not pay him back for the blade.10 (Tr. 97, 110). Based on these facts, the Court
finds that it is reasonable to infer that Dabrowski did not own the saw—not only did Gluzman
pay for the new saw blades, but he also told the CSHO that he would outfit both saws with the
required guards. Accordingly, the Court finds that Respondent provided the DeWalt and Bosch
saws used by Dabrowski and Doutka.
In a true independent contractor relationship, the skilled tradesman provides all the tools
9
While Dabrowski and Doutka could have started out as independent contractors, due to the length of time of their
relationship with Respondent, it may have changed over time to an employer-employee relationship.
10
Normally a businessman purchasing supplies on behalf of another expects that he will be repaid, unless, of course,
the individual making the purchase owns the equipment for which the supplies were intended.

                                                     9

and equipment necessary to do their job. The record is replete with Respondent providing
Dabrowski and Doutka tools and equipment to do their work. Gluzman testified that the scaffold
used to secure the top railing and spindles was provided and owned by Respondent. (Tr. 122).
Respondent ordered and provided the wood and cabinets used by Dabrowski and Doutka to
perform their jobs. (Tr. 102). Gluzman told the CSHO that he would buy guards for the two
saws. (Tr. 62-63, 65, 103; Ex. C3). Again, in a true independent contractor relationship, a
general contractor usually does not purchase tools and equipment for use by the independent
contractor. Respondent bought and owned equipment that it controlled and permitted Dabrowski
and Doutka to use in the course of their employment. This arrangement supports a finding that
the relationship was employer-employee.
E. Assignment of Additional Duties
The Court turns its attention to the conflict between Dabrowski’s statement to the CSHO
that he was the foreman on the Worksite and Respondent’s contention that he was not a foreman.
If Dabrowski was Respondent’s foreman, this suggests that Respondent was authorized to assign
additional duties to Dabrowski, which is not the case in a typical independent contractor
relationship, wherein the duties of the independent contractor are defined by contract.11
Dabrowski repeatedly told the CSHO he was the foreman. (Tr. 28, 29, 47, 57–59, 72 and 85).12
When an OSHA inspection is commenced, the CSHO typically requests to speak to the
superintendent, project manager, foreman, or other person with authority on the worksite. The
CSHO in this case followed that procedure after he introduced himself to Dabrowski, who
represented that he was the foreman. Dabrowski showed knowledge of the Worksite, the tools
being used, other employees on the Worksite, and work that had been performed. Skilled
tradesman contracted for one specific job would normally not be knowledgeable on these
matters. Yet, Dabrowski illustrated extensive knowledge of the project and was able to answer
the questions of the CSHO.
Gluzman, responding to whether or not he could offer a reason why Dabrowski would
hold himself as the foreman, indicated that Dabrowski had worked for Respondent for five or six

11
Also, establishing whether Dabrowski was the foreman at the Worksite will assist in the resolution of issues to be
discussed infra on knowledge and consent to the inspection.
12
As part of Respondent’s post-hearing statement a purported unwitnessed statement signed by Dabrowski attempts
to convince the Court that Dabrowski did not make these statements and was not the foreman. The Court gives no
weight to the unwitnessed statement as it contradicts the CSHO’s testimony, which the Court finds credible on this
issue. The statement also is undermined by Gluzman’s own testimony about Dabrowski’s ability to deal with
inspectors discussed in the narrative.

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years, and that he knew from past jobs that inspectors would come to the worksite to inspect
work for permits. In those instances, Gluzman testified that he gave Dabrowski permission to
deal with the inspectors, show the inspector the blueprints, what work had been done, and take
the inspector wherever he wants. Based upon Dabrowski having this role in the past, Gluzman
concluded that is why Dabrowski stated to the CSHO that he was the foreman. (Tr. 107–108).
Clearly, Dabrowski was assigned additional duties to deal with inspectors in the past.
This grant of authority to deal with inspectors was not revoked, and Dabrowski exercised that
authority in the present case just as he had done in the past. The authority to speak and act on
behalf of Respondent is indicative of an employee-employer relationship, because these types of
duties are normally not given to contractors hired for one specific job aspect. Accordingly, the
Court finds Dabrowski was Respondent’s foreman.
F. Ability of Respondent to Control and Discretion over When and How Long to Work
As Darden and its progeny underscore, it is the ability to control work that is the most
important consideration in determining whether an employer/employee relationship exists. The
Court concludes Respondent retained significant and close control over Dabrowski and Doutka
to render them employees. Respondent, through Gluzman, during the closing conference with
the CSHO, demonstrated control. Gluzman said he would instruct the workers not to use the
equipment until he obtained the guards. (Tr. 62). In addition, Gluzman testified that if he saw
them (Dabrowski or Doutka) doing anything unsafe on the Worksite he would stop the job. (Tr.
98–99). While Respondent did not mandate a specific start and end time for the workday, i.e.,
from 8:00 a.m. to 5:00 p.m., it did establish a preferred starting time (no later than 8:00 a.m.) and
a maximum daily hour total (no more than six hours), because completion of the project was
time sensitive. Gluzman testified that he needed the “term of their time”. (Tr. 97–98).
The Court finds that Respondent exercised significant control over Dabrowski’s and
Doutka’s work. Gluzman testified that sometimes he relies on the expertise of subcontractors to
do their work without direction and sometimes he does not. (Tr. 112). This last comment
undermines the finding of an independent contractor relationship since in most contractual
relationships, the general contractor does not question the expertise of the individual to interfere
in the end work product. Nevertheless, Gluzman made the call on the appropriate types of blades
to do the finishing job that would normally be left to the tradesman. In addition, Gluzman
bought new blades for saws he claimed not to own, promised to purchase new guards for those
saws, and ensured that the scaffolding was used to place the spindles on the second floor. These

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actions are more indicative of an employer exerting control over the manner and means of how
his employees carry out their respective job duties than that of a general contractor relying on the
judgment and expertise of hired tradesmen to do the job.
For the foregoing reasons, the Court finds that Dabrowski and Doutka were employees of
Respondent for the purpose of coverage under the Act.
Consent Was Provided For the Inspection
Respondent contends the CSHO had no right to be on his property and he did not consent
to the inspection.13 (Tr. 9–10). The Supreme Court has held that provisions of the Act violate the
Fourth Amendment to the extent that they purport to authorize warrantless inspections over the
refusal of an employer. Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978). To determine
whether a party has consented to a search, a court must look to the circumstances surrounding
the event. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).. No one factor is necessarily
decisive, but the Supreme Court has held that knowledge by the party challenging the search of
its right not to consent is “highly relevant” to the evaluation. United States v. Mendenhall, 446
U.S. 544, 559 (1980). The manifestation of assent, no matter how casual, can reasonably be
accepted as waiver of a warrant. U.S. v. Thriftimart, 429 F.2d 1006, 1010 (9th Cir. 1970). See
also Kropp Forge Co. v. Sec’y of Labor, 657 F.2d 119, 122 (7th Cir. 1981) (“Since Kropp's
representatives were present at all times during those inspections and did not raise any objections
when informed of the intended sampling, any Fourth Amendment objection to those surveys was
waived.”); Marshall v. W. Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977)
(finding valid consent given); Dorey Elec. Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977)
(noting permission to inspect given by foreman).
Upon arriving at the Worksite, the CSHO introduced himself; stated the nature, purpose,
and scope of the inspection; and asked to speak to the project manager. Dabrowksi identified
himself as the foreman, proceeded to answer questions of the CSHO, and accompanied the
CSHO around the Worksite. (Tr. 28–29, 45–48). Dabrowski had the opportunity to object to the
inspection, as he had dealt with inspectors in the past. There was no testimony that the CSHO
warned Dabrowski of his right to insist upon a warrant, and there is the possibility that
Dabrowski was not aware of the precise nature of Respondent’s rights under the Fourth
Amendment. However, the lack of such evidence does not render Dabrowski’s consent
unknowing or involuntary.
13
This argument was raised by Respondent for the first time at the hearing. (Tr. 9–10).

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Also, in the present case the violations discovered were in plain sight and at no time
during or after the inspection did Dabrowski question the inspection. Likewise, Gluzman did not
question the inspection or the authority of the CSHO during the closing conference after the
inspection, at which time Gluzman indicated what actions he would take to abate the violations.
To the extent that Respondent is alleging a violation of its rights under either section 8(a)
of the Act or the Fourth Amendment, such arguments are foreclosed by Respondent’s consent to
OSHA’s inspection and failure to allege that the inspection exceeded the scope of its consent.
Cody-Zeigler Inc., 19 BNA OSHC 1410, 1412 (No. 99-0912, 2001) (consolidated) (holding
employer’s consent to inspection precluded any probable cause challenge under Fourth
Amendment, and finding it unnecessary to address selection issue because “section 8(a) does not
require the Secretary to obtain evidence of any particular sort to support his decision to seek a
consensual inspection”) (citation omitted), aff’d per curiam, No. 01-1236, 2002 WL 595167
(D.C. Cir. March 15, 2002) (unpublished).
Controlling Case Law Applicable to Citations
To establish a prima facie violation of section 5(a)(2) of the Act, Complainant must
prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated;
(3) one or more of the 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. Ormet
Corp., 14 BNA OSHC 2134, 2135 (No. 85-0531, 1991). Proof of a hazard in most instances is
unnecessary because the promulgation of a standard presupposes the existence of a hazard when
its terms are not met. Duane Smelser Roofing Co., 9 BNA OSHC 1530, 1532 (No. 4773, 1981).
A violation is classified as serious under section 17(k) of the Act if “there is substantial
probability that death or serious physical harm could result” if an accident occurred. 29 U.S.C.
§ 666(k); Compass Envtl., Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 2010), aff'd, 663 F.3d
1164 (10th Cir. 2011). Substantial probability “refers not to the probability that an accident will
occur but to the probability that, an accident having occurred, death or serious injury could
result.” Ill. Power Co. v. O.S.H.R.C., 632 F.2d 25, 28 (7th Cir. 1980). If the harm the regulation
was intended to prevent is “death or serious injury, a violation of the regulation is serious per
se.” Phelps Dodge Corp. v. O.S.H.R.C., 775 F.2d 1237, 1240 (9th Cir. 1984).

   1.   Citation 1, Item 1
   Citation 1, Items 1a and 1b allege serious violations of 29 C.F.R. § 1926.304(f), which


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states that “[a]ll woodworking tools and machinery shall meet other applicable requirements of
American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery.”
29 C.F.R. § 1926.304(f). Citation 1, Item 1a alleges Respondent did not comply with section
4.1.2(a) of ANSI 01.1-1961, which requires hand-fed rip saws to be guarded by an automatically
adjusting hood which completely encloses that portion of the saw above the table and above the
material being cut. Citation 1, Item 1b alleges Respondent did not comply with section 4.1.2(c)
of ANSI 01.1-1961, which requires circular hand-fed rip saws to have non-kickback fingers or
dogs so located as to oppose the thrust or tendency of the saw to pick up the material and throw it
back toward the operator.
For the following reasons the Court finds both the DeWalt saw and Bosch saw violated
these two ANSI standards because both were missing the automatic adjusting hood (hood guard)
and non-kickback fingers (anti-kickback fingers).
i. DeWalt Saw
a. Standard Applies and was Violated
The standard applies because Respondent was engaged in construction. (Tr. 97). The
DeWalt saw is a woodworking tool or machine that was used to cut trim pieces for cabinetry
being installed in the residence. (Tr. 46).
The CSHO observed the DeWalt saw without and adjustable hood guard or anti-kickback
fingers in the garage. (Tr. 33; Ex. C-4). Dabrowski informed the CSHO that they did not have
guards for the saw at the Worksite. (Tr. 46). When the CSHO spoke to Gluzman during the
closing conference, he also stated that there was no guard for the saws and that he would get
some as soon as he could. (Tr. 62–63, 103). Because the DeWalt saw was missing the adjustable
hood and anti-kickback fingers, it did not meet the requirements of ANSI 01.1-1961 and 29
C.F.R. § 1926.304(f).
b. Employees Were Exposed to the Hazard
Dabrowski informed the CSHO that employees at the Worksite had been using the
DeWalt saw the day of the inspection to cut trim pieces for cabinetry. (Tr. 46). He stated that
they could not use the guards on the blade because a guard would not allow them to cut the
narrow trim pieces that they needed. (Tr. 46). The CSHO also observed pieces of wood trim and
saw dust around the DeWalt saw. He determined that the wood pieces and saw dust around the
saw was consistent with the type of wood being cut for cabinetry at the time of the inspection.
(Tr. 36; Ex. C-4). The CSHO also observed that the DeWalt saw was energized because it was

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plugged into a power cord. (Tr. 36; C-4). The power cord was powered on as indicated by a
shining light on the power cord. (Tr. 36; C-4). The Court finds that employees were exposed to
the hazardous conditions.
c. Respondent had Knowledge
Both Mr. Gluzman, the owner of Respondent, and Dabrowski, the foreman, had actual
knowledge. Both individuals knew the saw was missing hood guards and anti-kickback fingers.
Dabrowski told the CSHO that using the guards would not allow them to cut the narrow pieces
required for the trim. (Tr. 46). Gluzman also advised the CSHO that he had seen the condition of
the saw that day, which led him to go out and buy a new blade for the DeWalt saw. (Tr. 101-
102). The Court finds that Respondent had actual knowledge of the hazard.
d. Violation was Serious
The Court finds the violation is properly classified as serious. In the event of an accident
resulting from the violation, there is a substantial probability of serious injuries, including
lacerations, amputations and internal injuries. (Tr. 48–49).
ii. Bosch Saw
a. Standard Applies and was Violated
The standard applies to the Bosch saw as Respondent was engaged in construction and
employees were using the Bosch saw to cut trim pieces for cabinetry being installed in the new
residence. (Tr. 46, 97). The Bosch saw also violated the cited standard because it was missing a
hood guard and anti-kickback fingers for the blade. The CSHO observed during the inspection
the absence of a hood guard or anti-kickback fingers on the Bosch saw. (Tr. 33; C-8). Gluzman
and Dabrowski stated during the inspection and the closing conference that there were no guards
at the Worksite for the Bosch saw. (Tr. 46, 62–63).
b. Employees Were Exposed to the Hazard
The Court finds employee exposure to the hazard. Dabrowski stated employees had used
the unguarded Bosch saw that day to cut trim pieces for cabinetry. (Tr. 46). The Bosch saw was
approximately five or six feet away from the DeWalt saw and was also surrounded by saw dust
and wood pieces. (Tr. 36, 44). The pieces of wood and the saw dust around the Bosch saw was
consistent with the type of wood Respondent used for cabinetry at the worksite on the day of the
inspection.
c. Respondent had Knowledge of the Hazard
Gluzman and Dabrowski had actual knowledge that the Bosch saw was missing a hood

                                            15

guard and anti-kickback fingers. Dabrowski used the Bosch saw on the day of the inspection to
cut pieces of trim that he claimed were too narrow to cut while using the guard. (Tr. 46).
Gluzman also observed the unguarded blade of the Bosch saw earlier in the day and determined
that the blade was not properly installed. (Tr. 101).
d. Violation was Serious
The Court finds the violation is properly classified as a serious citation. In the event of
an accident resulting from the violation, there is a substantial probability of serious injuries,
including lacerations, amputations and internal injuries. (Tr. 48–49).
The Court AFFIRMS Citation 1, Item 1a and Item 1b as a serious violation of the Act.
ii. Citation 1, Item 2
a. Standard Applies
Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(13), which states
that each “employee engaged in residential construction activities 6 feet (1.8 m) or more above
lower levels shall be protected by guardrail systems, safety net systems, or personal fall arrest
systems.” 29 C.F.R. § 1926.501(b)(13).
Respondent’s employees were engaged in residential construction activities and were
exposed to falls more than six feet above the first floor level when they worked on the second
story floor deck. (Tr. 55, 57; C10). The CSHO testified that based upon his observation and
experience the second floor was in excess of six feet above the first floor. (Tr. 55-56; C10). The
Court finds that the standard applies.
b. Employees were Not Exposed on the Date of the Inspection
The second floor balcony had an unfinished railing system that consisted only of a top
rail. (Tr. 57; Ex. C10, C11). Dabrowski informed the CSHO that they had installed the partial
railing system the day before the inspection. (Tr. 57, 82). Dabrowski informed the CSHO that the
morning of the inspection that they had glued the stairs and the deck and therefore the second
floor could not be accessed. (Tr. 54-55, 81).
In Citation 1, Item 2, Complainant specifically alleges that, on the date of the inspection,
“Employees were exposed to the hazard of falling where a guardrail on a second story deck was
not equipped with a mid-rail.” The narrative of the citation item does not include an allegation
that the standard was violated at any time prior to the date of the inspection. Accordingly, the
Citation must be read to allege that Respondent violated the standard on the date of the
inspection. The evidence is unconverted that on the day of the inspection, employees were not

                                             16

engaged in a work activity which exposed them to a fall hazard. On the morning of the
inspection, Dabrowski told the CSHO they had glued the stairs and the deck, which prevented
access to the second floor. Thus, on the day of the inspection, employees could not install deck
railing as alleged in the Citation.
To support the allegation that employees were exposed to a fall hazard, the CSHO
testified that the work on the deck was done the day prior to the commencement of the
inspection. There was absolutely no testimony, however, that the work performed the morning
of the inspection placed the employees in the zone of danger. The evidence indicates no one was
on the second story on the day of the inspection. (Ex. C-10). The stairs, which are shown in
Exhibit C-10, are enclosed within two walls and would not expose an employee to falls hazards
of six feet. (Ex. C-10). While there was testimony that the deck was glued there is no testimony:
of (i) how the deck was glued; (ii) whether the employees worked near the rail to put them in the
zone of danger; and (iii) what activities the employees engaged in when gluing the deck. Thus,
there appears to be a disconnect between the testimony offered to support a finding of exposure
to the hazard and what actually occurred on the date of the inspection. Complainant assumes
activities not alleged in the Citation and facts which are not in the record to argue employees
were exposed. Complainant has failed to prove exposure of any employee to the hazard alleged
in the Citation.
c. Citation 1, Item 2 Does Not Provide Fair Notice
Citation 1, Item 2 must also be vacated as it does not provide fair notice to Respondent.
For a citation to meet the requirements of fair notice it must at a minimum fulfill the
requirements of notice pleading applicable to Commission proceedings. Del Monte Corp., 4
BNA OSHC 2035, 2038 (No. 11865, 1977) (“In notice pleading an essential consideration is
whether there is fair notice of the circumstances of the alleged violation that will permit a fair
defense”). Therefore, a citation, in addition to setting forth the penalty, should state with
particularity the location, time, place, and circumstances of each alleged violation. 29 C.F.R.
§ 2200.34(2). The Citation in this case does not include an allegation that the violation took
place prior to the date of the inspection. The activity being cited was work involving the
installation of the railing which took place before the inspection commenced.14 Citation 1, Item 2

14
It is permissible to cite violations which are alleged to have occurred within six months of the issuance of the
citation. 29 U.S.C. § 658(c). Complainant commonly engages in this practice by stating on a “particular date and
prior to” certain activities were engaged in. However, in this case it did not. Accordingly, Respondent was deprived
of fair notice that Complainant’s allegations included activities that occurred prior to the commencement of the

                                                    17

is also VACATED on the grounds of failure to provide fair notice to Respondent.
Penalty
In determining the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 15
BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and its
judges conduct de novo penalty determinations and have full discretion to assess penalties based
on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel Co., 2
BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-
0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).
In this case, OSHA adjusted the penalty to take into consideration the probability of the
injury, gravity of the violation, the size of Respondent’s business, good faith, and Respondent’s
violation history. For Citation 1, Item 1, the CSHO testified that there was a greater probability
of hazard because employees’ hands were in close proximity to the blade when using the DeWalt
and Bosch saws without proper guarding. (Tr. 49). The gravity of the violation was classified as
moderate because any injuries would have had a limited period of disability. (Tr. 49). The CSHO
testified that a sixty (60) percent reduction based on Respondent’s size was applied. (Tr. 50). No
penalty adjustment was given based upon history because there were no previous inspections of
Respondent’s worksites and no reduction was given for good faith because Respondent had
limited health and safety programs. (Tr. 50). Therefore, a penalty of $2,400 was proposed for
Citation 1, Item 1. The Court finds the proposed penalty and the considerations given by
Complainant to the amount of the penalty to be supported. Therefore, the Court will assess a
penalty of $2,400.00 for Citation 1, Item 1.
ORDER
The foregoing present the Findings of Fact and Conclusions of Law in accordance with
Rule 52(a) of the Federal Rules of Civil Procedure. Accordingly, based on the foregoing, it is
ORDERED that:
1. Citation 1, Item 1a is hereby AFFIRMED as a Serious violation and a corresponding

inspection.

                                             18

penalty of $2,400.00 is ASSESSED.

2. Citation 1, Item 1b, is hereby AFFIRMED as a Serious violation and a corresponding
   penalty of zero dollars is ASSESSED.
3. Citation 1, Item 2 is VACATED.
   SO ORDERED.
   /s/ Patrick B. Augustine
   Patrick B. Augustine
   Judge, OSHRC

Date: March 16, 2016
Denver, Colorado

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