Magor Plumbing & Heating Co.

Plain-English summary

Magor Plumbing & Heating was cited in August 1991 for alleged serious and nonserious violations found during an OSHA inspection of a church under construction in Bayside, New York, with $7,650 in proposed penalties on the serious citation. The only contested issue was whether Magor was the employer of the workers at the site. The Secretary's case rested on the compliance officer's testimony that the pastor and Magor's president had identified the workers as Magor employees. The pastor testified the workers were volunteer members of the church, not Magor employees, and denied telling the compliance officer otherwise; Magor's president said he had only two administrative workers on his June payroll and that his earlier admission to the compliance officer was a mistaken assumption because he had confused the site with another recent church job. Administrative Law Judge Richard DeBenedetto found both the pastor and the president credible and, applying the Commission's "economic realities test," held the Secretary failed to prove that an employment relationship existed. The citations were vacated.

Decision snapshot

• Cited standard(s): None specified in this decision. The case turned solely on whether Magor was the responsible employer, not on the merits of any standard.
• Outcome: Vacated. Both citations were vacated because the Secretary did not prove Magor employed the workers at the site.
• Key point: Under the "economic realities test," OSHA must prove the cited party actually employed the exposed workers. Where credible testimony shows the workers were volunteers rather than employees, the citations fail.

Full text (OSHRC public release)

                                    UNTED STATES OF AMERCA
      ()ccupATlo~AL          SAFETY AND HEALTH REVIEW COMMISSION
                                        1025 K STREET NW
                                            4TH FLOOR
                                   WASHINGTON,   DC 20006- 1246

SECRETARY OF LABOR
Complainant,
v.
MAGOR PLUMBING & HEATISG COMPAiiY
Respondent.

                 NOTICE OF DOCKETING
           OF ADMNSTRATIVE  LAW JUDGE’S DECISION
 The Administrative hw Judge’s Report in the above referenced case wm

docketed with the Commission on February 4, 1993. The decision of the Judge
will become a final order of the Commission on &March8, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretarv on or before _
Febiuary ! 4, 1993 in order to ermit sufficient time for its rev&w. See
Commission Rule 91, 29 C.F. tQ. 2200.91.
All further pleadings or communications regarding this case shall’be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
18’5 K St. S.W., Room 401
W’li h 1nyton. D.C. X006- 136

Petitioning parties shall 31~) mail a copy to:

If a Direction for Revlcu l\ I\rled hv the Commission, then the Counsel for
Regional Trial Litigation ~11 rcipr&nt the Department of hbor. Any partv
havmg questions about rc\ 1~ rights may contact the Commission’s Executivk
Secretary or call (202) h3JW

Date: February 3, 1993
DOCKET NO, 91-2227

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 ConstitutionAve., NW.
Washington, D.C. 202 10

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of 1ice of the Solicitor, U.S. DOL
201 Varick, Room 707
tNew York, NY 10014

Leonard Ma @ore
Ma or Plum %mg & Heating
52.f0 108th Street
Corona, NY 11368

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00102666823:02
 OCCUPATIONAL SAFETV AND HEALTH REVIEW COMMISSION
I’
P1 JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETB 021094501
(617) 223-9746

                                                         ..

SECRETARY OF LABOR, ..

                 Complainant,                                           OSHRC Docket No. 91-2227

                        v.                               ..
                                                          ..

MAGOR PLUMBING & HEATING, ..
..
Respondent. ..
.

Appearances:

        Estier Curtwright, Esq.                          Leonard Ma&ore, Ro Se
                Office of the Solicitor                          Magor Plumbing & Heating
                U.S. Department of Labor                         Corona, New York
                         For Complainant                                 For Respondent

Before: Administrative Law Judge Richard DeBenedetto
DECISION AND ORDER .
Magor Plumbing & Heating (Magor) was cited on August 6, 1991, for alleged serious
(citation number 1) and nonserious (citation number 2) violations of various safety and
health standards. The Secretary proposes that penalties be assessed for the serious citation
in the total amount of $7,650. M3gor contested the matter. The only issue which emerged
from the pleadings is whether Wqor IS the employer responsible for the violative conditions
described in the citations.
The credl%ility of the wttnesscs is the essence of this case. As part of a routine
general inspection, an OSHA compliance officer visited a worksite on June 20, 1991, in
Bayside, New York, where a church of the Korean faith was under constnxtion. It was a

three-story structure of steel frame with masonry brick exterior walls. Upon entering the
building, the compliance office encountered the Reverend Jae Hong Han who identified
 ‘:
.

himself as the pastor of the church and according to the compliance officer’s own testimony,                        .
as the person “in charge of the work” (Tr. 10). The compliance office testified that during
his initial conversation with Reverend Han, he asked him: “who were the contractors at the
site?” and he was informed “they were Tsinil Masonry and Magor Plumbing” (Tr. 78).
There is a written agreement between Reverend Han and Magor dated December                            14, 1990,
which called for the church to supply all the plumbing material, fixtures and equipment and
for Magor to furnish the labor (Exh. C-1).
       As the compliance       officer proceeded        to conduct an inspection of the site, he was
accompanied      by Reverend    Han.       On the ground floor level, they came across two men
performing plumbing work. The compliance                officer attempted to speak to the workers, but
they did not speak or understand English.          When Reverend             Han undertook to help resolve
the language problem. the compliance           officer questioned        the workers through the medium
of the Reverend’s      interpretations      (Tr. 11).       Up to this point, the facts are essentially

undisputed.
       The point of divergence           between   the parties      lies in the testimony    concerning     the
employment       status of the Korean        workers.        The compliance       officer testified   that the
Reverend informed       him that the workers        were employed            by Magor, that they had been
working at the site for about four weeks doing “[elssentially a plumbing operation,” and that
the Reverend      “was in charge of the operation                [although] he wasn’t too familiar with
construction.”    The compliance officer stated further that the Reverend also told him that
Mr. Maggiore, Magor’s president, visited the site “once a week or so” to “see that they are
doing the job right” (Tr. 12).
        It is undisputed that upon completion           of the OSHA inspection, Reverend              Han gave
the compliance officer a buslncss card containing                 Magor’s    name and telephone        number.
Seven days after the inspection, on June 27, the compliance                     officer telephoned     Magor’s
office and spoke to Mr. M~~LZNVCconcerning                  the conditions    he found at the church during
the OSHA inspection on June LO. According               to the compliance       officer, Mr. Maggiore stated
that it was true the workers at the church were his employees, that they would be on the job
two or 3 more weeks, and that he would see to it the conditions were corrected (Tr. 14 - 15).



                                                        2

Reverend Han testified that the church had been under construction since 1989,and
that the work was being done “step by step” as the funds became available. The Reverend
insisted that although he hired a general contractor for the project and entered into a
written contract with Magor to provide the labor for the plumbing work, including the work
observed by the compliance officer, the men doing the work were Korean church members
performing voluntary services, and were not employed by Magor (Tr. 26 - 28). The
Reverend added that when the compliance officer arrived at the church and introduced
himself as an OSHA representative he did not know what “OSHA” meant and assumed he
was a New York building inspector. He became quite concerned about “legal problems”
when the compliance officer continued to ask him questions and it was only after the
compliance officer completed his physical inspection that he gave him Magor’s business card
(Tr. 32 - 35, 76). The Reverend flatly denied that he told the compliance officer the workers
were employed by Magor (Tr. 40).
Leonard Maggiore testified that his initial contact with OSHA in this case occurred
when the compliance officer telephoned him on June 27 to inform him of the violations
found at the church site on June 20. Mr. Maggiore asserted that he did acknowledge to the

compliance officer that the men at the church were Magor’s employees; however, the
admission was made “because they could have been my men” and not because he knew it
to be actually so; having just recently finished a job at another church, he confused the two
projects. He stated further that with respect to the church in question, he did the plumbing
work periodically within a three-month period until April 1991 and thereafter he performed

several “inspections.” When he had done the work at the church he had only two other
persons on the job, both of whom were of Irish descent, and during June 1991 he had only
two persons on his payroll and none was Korean or oriental (Tr. 41 - 60).
In her posthearing brief the Secretary maintains that “the uncontroverted facts” show
that Magor was the employer of the workingmen at the church during the time of the OSHA
inspection in June 1991. The Sccrctary also characterizes the compliance officer’s testimony
as “undisputed” when he state3 that the Reverend “told him the employees said that their
employer was Magor Plumbing.” This argument completely ignores or overlooks the
Reverend’s clear denial of that testimony (Tr. 40).

                                                  3

.

   me Secretary aIs0 -contends that the testimony of Leonard Maggiore should be

discredited because of the “convoluted, contradictory story [he told] of why he had originally
acknowledged to the compliance officer that the employees were his employees and that he
would have the violations corrected.” Secretary’s brief at 2. The Secretary is correct in
descniing his testimony as convoluted; however, the convoluted manner in which Maggiore
testified is undoubtedly a peculiar but natural way of speaking and it was displayed in an
unvarying pattern throughout his testimony. The Secretary refers to two examples where
Maggiore gave conflicting testimony: at one point he testified that he had confused the
compliance officer’s telephone discussion with another job he had “just finished.” On the
other hand, he testified that he had no employees during the month of June 1991 except for
two office workers (Tr. 69 - 71).
At another point, Maggiore testified that he did not know that the church members
were doing plumbing work at the church site (Tr. 75). The Secretary claims that contrary
testimony was elicited by Maggiore himself when he questioned the Reverend as to when
he first informed Maggiore that some plumbing work was being done by church members

(Tr. 29 - 30):

                   Q       First question, did you notify me about
                           your working there?
                   A       Yes,
                           Yes, first time
                                      time -- before, about two days I
                           call you.
                   Q       Yes.
                   A       Our church members coming to the --
                           volunteer working, we go would you like
                           check for us, but you answered to me
                           saying that that day impossible because
                           your workers working on other place.
                   Q       All right. Now,
                                       Now, the second
                                                 second question
                                                         question I ask
                           PJ
                   A       YL .
                   Q       DIJ I make all the inspections before I --
                           for the underground and for the roughing
                           with the inspector and the --
                   A       Yes.
                   Q       Al1 right. And I have one question after
                           that. Around let’s say June, July I made
                           that.



                                              4

the final inspection for the outside tanks
for the septic tanks?
A Yes.
Q Okay. And the work was completed
before?
A Yes.
The Secretary makes the following argument:

                  No explanation was provided as to what the “two
                  days” were before. This conflict as to what and
                  when Mr. Maggiore knew about the work and his
                  involvement was further clouded by his testimony
                  that although his men stopped working at the
                  church in April, 1991, he made an inspection in
                  May and “... a few inspections afterwards.” The
                  unanswered question is what was he inspecting, if
                  not the ongoing work being done under his
                  contract.
   It must be said that it is somewhat difficult at times to follow the testimony of both

Reverend Han and Maggiore. In the Reverend’s case the difficulty stems from his limited
ability to speak English, and , as previously mentioned, in Maggiore’s case, the problem lies
in his convoluted manner of discourse. With respect to the question of whether Magor had
anyone on its payroll in June, at first blush there seems to be more than one inconsistency
in Maggiore’s testimony but on close reading of the transcript, some of the inconsistency
vanishes. Maggiore initially testified that he had only two persons on his payroll in June,
both of whom handled administrative duties (Tr. 57 - 58). On another occasion, he stated
that he did not have anyone working in June (Tr. 69). However, this testimony was given
immediately after being questioned about persons on the payroll in June “working at jobs”
(Tr. 68). Maggiore subsequently clarified the matter by repeating his earlier testimony as
to having two administrative workers on the payroll. This information was confirmed by
Magor’s payroll records (Tr. 70 - 71).
One further question remains regarding Magor’s June payroll, and that is the other
church job it had “just finished” and the Reverend’s testimony concerning Magor’s “workers
working on other place.” The record is not clear as to whether the witnesses were referring

                                              5

to June or some earlier month. In her brief, at 3, the Secretary acknowledges the obscurity
that pervades this testimony, and offers the following answer to the puzzle:

                 Mr. Maggiore’s statements and actions are more
                 consistent with those of an employer who is
                 directing work, but is either. not placing the
                 workers on its payroll or is paying them “off the
                 books”.

If the Secretary’s answer is correct, it would resolve the problem of “the other [work] place,”
but not the Bayside church, the subject of the citations.
With respect to Maggiore’s testimony as to the inspections he made of the work done
at the Bayside church in May and “... a few inspections afterwards” (Tr. 47), the Secretary
asks: “me unanswered question is what was he inspecting, if not the ongoing work being
done under his contract[?].” Secretary’s brief at 3. The answer appears during the
Reverend’s direct examination by Maggiore (at Tr. 29 - 30), relevant portions of which are
quoted above. Apparently Maggiore performed inspections for the Reverend relating to the
sewer work which was the responsibility of the church according to Magor’s written contract

(Exh. C-l).
In Gti@n & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1978 CCH OSHD 122,829
(No. 14801, 1978), the Commission adopted an “economic realities test” to determine
whether an employment relationship exists. The test applies the following factors:

                  (1) Whom do the workers consider                         their
                  employer?
                  (2) Who pays the workers wages?
                  (3) Who     has the     responsibility      to control    the
                  workers?
                  (4) Does the alleged employer have the power to
                  control the workers?
                  (5) Does the alleged employer have the power to
                  hire, fire or modify the employment condition of
                  the workers?
                  (6) Does the workers’ ability to increase their
                  income depend on efficiency rather than
                  initiative, judgment, and foresight?
                  (7) How are the workers’ wages established?



                                                  6

To be worthy of credit, evidence must not only proceed from a credible source, but
must, in addition, be credible in itself, by which is meant that it shall be so natural,
reasonable and probable in view of the transaction which it describes or to which it relates,
as to make it easy to believe. In other words, credible testimony is that which meets the test
of plai&ility. hdiana Metal products V. N.L.R.B., 442 F.2d 46, 52 (7th Cir. 1971).
Given the extraordinary manner in which the church construction project was being
pursued, the testimony of both the Reverend and Maggiore are worthy of belief. The record
evidence establishes nothing more than that there was a written contract between Reverend
Han and Magor that required Magor to provide the labor for certain specified plumbing
work; that the plumbing tasks were performed at irregular intervals as the church funds
became avaikhle; that some of the plumbing work was done by volunteer members of the
church; and that in addition to doing certain plumbing under the written contract, Magor
performed some inspection or consulting sewices in connection with the church’s plumbing
project.
Applying the “economic realities test,” the Secretary has failed to prove that an
employment relationship existed between Magor and the workmen who were at the church
site at the time of the OSHA inspection in June 1991. Based upon the foregoing findings
and conclusions, it is
ORDERED that the citations issued on August 6, 1991, are vacated.

                                                    RICHARD DeBENEDETTO                   -
                                                    Judge, OSHRC


                    January 27, 1993

Dated:
Boston, Massachusetts