C. Abbonizio Contractors, Inc.

Plain-English summary

C. Abbonizio Contractors supplied two workers and a backhoe to dig an improperly sloped and unshored trench at a New Jersey aquarium project. The company argued that the construction manager employed or controlled the workers for that task. The Commission held that Abbonizio remained the employer because it selected, hired, paid, and retained the right to control the workers, supplied the equipment, and performed the work through a change order to its excavation contract. Because the parties stipulated to the violation and penalty if Abbonizio was the employer, the Commission affirmed the serious excavation violation and assessed $875.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1).
• Outcome: Affirmed. A serious excavation violation was affirmed with an $875 penalty.
• Key point: The right to control the work is central to employer status, and a contractor cannot shift its OSHA duty merely by characterizing its workers and equipment as rented to another company.

Full text (OSHRC public release)

                                         UNITED STATES OF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                           One Lafayette Centre
                                     1120 20th Street, N.W. - 9th Floor
                                        Washington, DC 2003-l      9

PHONE
coM(202)60=100
m@02)6ts4100

                                                           ..
                                                           ..
  SECRETARY              OF LABOR,
                                                            ..
                              Complainant,                   .*
                                                              ..
                                                           .
                    V.                                     .        OSHRC Docket No. 91-2929
                                                           ..

   C. ABBONIZIO            CONTRACTORS,        INC.,

                              Respondent.


                                                  DECISION

   Before: WEISBERG, Chairman; FOULKE and MONTOYA,                           Commissioners.
   BY THE COMMISSION:
             The only issue in this case is whether respondent            C. Abbonizio Contractors,     Inc.
   (“Abbonizio”)         is an employer within the meaning of section 3(5) of the Occupational        Safety
   and Health Act of 1970, 29 U.S.C. 5 651-678) (“the Act”)?                The case concerns a dispute
    over whether Abbonizio, an excavation contractor, or Lehrer McGovern Bovis (“LMB”), the
    construction    manager, employed workers who created an improperly sloped and unshored
    excavation     in violation    of 29 C.F.R. 6 1926.652(a)(l).         The parties stipulated      that if
    Abbonizio is found to have been the employer, a serious violation of the standard occurred
                                                     .
    and that the proposed penalty of $875 is appropriate.           For the reasons that follow, we find




    ’ Section 3(5) of the Act, 29 U.S.C. 0 652(S), defines “employer” as “a person engaged in
    a business affecting commerce who has employees.”        Section 3(6) of the Act, 29 U.S.C.
    5 652(6), defines “,mployee” as “an employee of an employer who is employed in a
    business of his employer which affects commerce.”

2

that Abbonizio is an employer as defined by section 3(6) of the Act and that its employees
created the excavation in question.
I.
Abbonizio was under contract with the New Jersey Sports and Exposition Authority
(“NJSEA”) to do site excavation, grading, and back fill at the New Jersey Aquarium
construction project in Camden, New Jersey. LA&3 was the construction manager of the
project. LMB prepared bid packages, made recommendations to NJSEA as to whom to
award contracts, and coordinated the activities of the vtious contractors. When contractor
Battaglia Electric (“Battaglia”) asked LMB to arrange for a trench to be excavated so that
it could install an electrical conduit, LMB notified Abbonizio. The two workers Abbonizio
sent to perform the work along with its backhoe were employees it had hired to work on the
project and to whom it paid wages. The excavation was not included in the original contract
between NJSEA and Abbonizio, but was later added to the contract with a change order.
After an OSHA compliance officer observed Battaglia’s employees at the bottom of the
improperly sloped and unshored trench during an inspection, OSHA issued a citation to
Abbonizio for a violation of 29 C.F.R. 6 1926.652(a)(l) alleging that Abbonizio’s employees
performed the excavation.
Following a hearing, Administrative Law Judge Richard W. Gordon issued a decision
in which he held that the Secretary properly cited Abbonizio as the employer who controlled
the employees that created the violative condition. He found that LMB did not lease or rent
the equipment and manpower as Abbonizio contends and that the work was done as part
of a change order to the original contract?

2 The parties dispute whether a rental agreement existed between Abbonizio and LMB. The
judge found that a rental agreement did not exist. We do not reach this issue because the
existence of a rental agreement does not by itself transfer the lessor employer’s duty to
comply with the Act to the lessee company. See, e.g. Frohlick Crane Serv., Inc. Y. OSHRC,
521 F.2d 628, 631 (10th Cir. 1975) (a private agreement between parties over who has
exclusive control of employees cannot control the statute). There is nothing in the record
to suggest that LMB accepted responsibility for compliance with the Act.
 3

                                           II .
      The key factor in dete rmining whether      a party is an employer under the Act is

whether it has the right to control the work involved. Yergoraa Crane Co., 15 BNA OSHC
1782, 1784, 1991-93 CCH OSHD lI 29,775, p. 40,497 (No. 88-1745, 1992).3 Abbonizio
clearly had that right here. The trench work was performed as part of the construction
project Abbonizio had contracted to perform excavations on, and became part of
Abbonizio’s contract with NJSEA through a change order! When it was asked to excavate
the trench, Abbonizio selected and sent employees to do the job. It had hired the employees,
paid their wages and presumably could discipline or fire them. It also supplied the
equipment. In the absence of another party accepting responsibility, Abbonizio was required

3 The Commission has also considered numerous other factors when making such a
determination. See, e.g., Van Buren-Madawaskz, 13 BNA OSHC 2157,2158, 1987-90 CCH
OSHD li 28,504, p. 37,780 (No. 87-214, 1989)( consolidated). See also Loomis Cabinet Co.,
15 BNA OSHC 1635,1991-93 CCH OSHD lI 29,689 (No. 88-2012,1992), ard, 20 F.3d 938
(9th Cir. 1994); Griffin & Brand of IlkAllen, Inc., 6 BNA OSHC 1702, 1978 CCH OSHD
1122,829 (No. 14801, 1978).

The Commission’s test is consistent with that articulated by the Supreme Court in
NationwideMkt. I’izs.Co. v. Darden, 112 Wt. 1344, 1348 (1992), that the term “employee”
in a federdl statute should be interpreted under common law principles, tiess the particular
statute specifically indicates otherwise. The court noted that the inquiry is as follows:

      In determinin g whether a hired party is an employee under the general
      common law of agency, we consider the hiring party’s right to control the
      manner and means by which the product is accomplished.

Id. at 1348 (quoting Communityfor Creative Non-Violence v. Reid, 490 U.S. 730, 751-752
(1989) (footnotes omitted).

4 LMB’s general superintendent James O’Neill testified that he told Abbonizio’employee
Steven Crane, who was then a foreman covering several projects, that the additional work
that Abbonizio performed at the worksite, that included the cited trench, would become part
of Abbonizio’s contract with NJSEA through a change order to the contract. Crane testified
that at the time the trench was dug, he believed it was done as part of a rental agreement
between Abbonizio and LMB, but that in his current position as general superintendent for
Abbonizio, he understood how the cited trench work could have become part of Abbonizio’s
contract with NJSEA through a change order.
 4

to ensure that these employees complied with the cited standard. Del-Z-M&t&Z.SZECo., 9
BNA OSHC 1703, 1706, 1981 CCH OSHD 125,324, p. 31,390 (No. 76-4899, 1981).
Although the workers in the trench at the time of the inspection were Battaglia’s employees,
and not Abbonizio’s, an employer that creates or controls a hazardous condition is obligated
to protect not only its own employees, but those of other employers as well. FlintEngg. &
Costr. Co., 15 BNA OSHC 2052, 2054, 1991-93 CCH OSHD Y 29,923, p. 40,853 (No. 90-
2873, 1992). It was therefore the duty of Abbonizio, the employer of the workers who
created the condition, to comply with the safety requirements set forth in the standards. See
Frohlick, 521 F.2d at 631.
The minimal role played here by construction manager L&U3 provides no support for
Abbonizio’s claim that LMB should be considered the employer of the workers who dug the
trench. The construction manager’s job on this site was to coordinate activities. It was doing
that here by requesting that Abbonizio excavate a trench. LMB and Battaglia only asked
that the excavation be dug and supplied the dimensions to the employees that Abbonizio
sent with its backhoe to dig the excavation. There is no evidence that they had any other
connection with the employees. Battagha and the construction manager were only relying on
the expertise of the employees to create the trench, and had no control or right to control
the work involved in performing the excavation. LMB did not furnish the supervision or the
equipment, unlike the general contractor in MU lizdutia., Inc., 12 BNA OSHC 1525,
1984-85 CCH OSHD ll27,408 (No.830231,1985), a case heavily relied on by Abbonizio. In
that case, the Commission held that MLB was a “conduit for labor,” and not an employer,
because Crown, the general contractor, assumed responsibility for the employee’s activities,
had control of the worksite, and provided the supervision of the work Id at 1530, 1984-85
CCH OSHD at p. 35,512. There is no evidence that LMB assumed any of those
responsibilities here. We therefore find that Abbonizio was the employer for purposes of
the Act.
III .
For the reasons stated above, we affirm the judge’s finding that Abbonizio is an
employer. The parties have stipulated to the existence of a serious violation and to a
 5

penalty of $875. We see no reason to disturb the stipulation. We therefore affirm a serious
violation of 29 C.F.R. 0 1926.652(a)(l) and assess a penalty of $875.
It is so ordered.

                                                 ./$timt E. vwAh3
                                               Stuart E. Weisberg
                                               Chairman




                                               Edwin G. Foulke, Jr.
                                               Commissioner




                                               Velma Montoya

Dated: December 1, 1994 Commissioner
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre ’
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

                                   ..

SECRETARY OF LABOR, ..

        complainant
                                   ..

  v.                               ..     Docket No. 91-2929
                                   ..

C. ALBONIZIO ..
CONTRACTORS, INC., l
.

        Respondent.

The attached decision by the Occupational Safety and Health Review Commission was issued on
December l,l!J94. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITE THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                           FOR THE COMMISSION

December 1, 1994
Date
Docket No. 91-2929

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004 4
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

James F. Sassaman
Director of Safety
GBCA
36 S. 18th Street
P.O. Box 15959
Philadelphia, PA 19103

Office of the Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-2929
C. ALBONIZIO CONTRACTORS, INC.
ResDondent.

                                                     _-

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on May 5 !, 1993. The decision of the Judge
will become a final order of the Commissron on June 21, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 10, 1993 in order to ermit sufficient time for its review. See.
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. NW., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti a ptiOIl
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation wiIl represent the Department of Labor. Any party
havrng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: May 21, 1993
DOCKET NO. 91-2929

NOTICE IS GMZN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington., D.C. 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varic~ Room 70’?
New York, NY 10014

James Sassaman, Director of Safety
GBCA
26 S. 18th Street
Post Office Box 15959
Philadelphia., PA 19103

Richard W. Gordon
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00006338080:02
 UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COUKWiOL’SE
ROOM 420
BOSW, MASSACHUSETTS 02109-4501 .

PHONE: FAX:
COM (617) 223-9746 COM (617) 223400~
FTS 223-9746 Ffs 223-4004

SECRETARY OF LABOR

           Complainant,
                                                                            OSHRC Docket No. 91-2929
                          v.

C. ABBONIZIO CONTRACTORS, INC.

           Respondent.

Appearances:

Evan R Barouh, Esq. James Sassaman,
Office of the Solicitor Dir. of Safety, GBCA
U.S. Department of Labor Philadelphia, PA
For Complainant For Respondent .

Before: Administrative Law Judge Richard W. Gordon

            This proceeding arises under 010(c) of the Occupational                    Safety and Health Act of

1970, U.S.C. 5651, et seq., (“Act”) to review citations issued by the Secretary pursuant to

59(a) of the Act and a proposed assessment of penalty thereon issued pursuant to 510(a)
of the Act.

            On October 10,1991, the Secretary issued a citation to Respondent alleging that one

serious violation had occurred on September 12 1991, at the Aquarium construction worksite
at Delaware and FederaI Streets, in Camden, New Jersey. The Secretary proposed a total
penalty of $875.00. l
 By filing a timely notice of contest, Respondent brought this proceeding before the
Occupational Safety and Health Review Commission (“Commission”). A hearing was held
in New York, New York on July 29, 1992. The violation and proposed penalty were
stipulated. Accordingly, the only issue to be decided is whether the ‘correct party was cited.

                              STIPULATED VIOLATION

   Serious Citation 1, item 1, states:

29 C.F.R. §1926.652(a)( 1): Each employee in an excavation was not protected from cave-ins
by an adequate protective system designed in accordance with 29 CFR 1926.652(c). The
employer had not complied with the provisions of 29 C& 1926.652(b)(l)(i) in that the
excavation was sloped at an angle steeper than one and one-half horizontal to one vertical
(34 degrees measured from the horizontal):
Aquarium Construction Site, Delaware and Federal Streets, Camden, N&Company
created hazard to employees of another contractor on site by digging an improperly sloped
and/or unshored trench for installation of electrical conduit in the trench. Trench located
south of Trout Bldg.- 8 ft. deep by 2 l/2 ” wide at bottom. Approximate length 20 feet.
West bank sheer.
HJMMARY AND EVALUATION OF THE EVIDENCE
Respondent, CAbbonizio Contractors, (“Abbonizio”), contracted with the New Jersey

Sports and Exposition Authority, (“NJSEA”), to perform excavation and back fill at the

aquarium worksite. The Occupational Safety and Health Administration, (“OSHA”), cited

Abbonizio for creating the violative excavation. Lehrer McGovern Bovis, (“LMB”), was

NJSEA’s project manager for the job. James O’Neill, the general superintendent for LMB,

was responsible for coordinating the activities of various trade contractors on the site and

verifying the completion of various activities of work. (Tr. 27).

    The aquarium worksite was a 52 million dollar project. (Tr. 37). Mr. O’Neill testified

that with a job of this magnitude it was common practice that items of work had to be

                                            2

changed between the time that the contract was awarded and the time it was completed. (Tr.

37). Mr. O’Neill testified that a change order was entered into whereby LMB authorized

Abbonizio to proceed with an excavation on a time and materials basis so that the electrical

contractor could perform its work. (Tr. 40). LMB and Abbonizio therefore entered into

a change order to the original contract on g/10/91 to include the additional work (Tr.43).

It was part of this additional work that resulted in the OSHA violation. (Tr. 43).

   By the terms of the change order, Abbonizio documented       the labor and equipment
                                                   _-

,used on a daily basis which needed to be verified by Mr. O’Neill. Confusion was created

because the slips used said “rental agreement” on the backside. Abbonizio argued that

there was a rental agreement between the parties as was evidenced by Jim O’Neill’s

signature upon these forms. Mr. O’Neill testified that by signing these documents he was

merely verifying the equipment and labor used by Abbonizio to perform the excavation work

that went beyond the scope of the trade contract. (Tr. 47, 48). He testified that these slips

were extra work orders, which are daily tickets which delineate the size and type of

equipment that applies the amount of hours worked. Thus, by signing he was attesting to

the time, labor, and equipment used. The so-called “rental agreement” terms were listed

on the back of the form. (Tr. 47). O’Neill testified that had he agreed to the rental

agreement he would have initialled the backside, which is normal practice. (Tr. 99).

    Mr. O’Neill testified that he objected to the use of the form earlier on in the job and

discussed it at length with Abbonizio. The discussion came up because Abboniziowas trying

to charge LMB for holiday pay as per the rental agreement. O’Neill testified that he told

Abbonizio that this was not a rental situation. He notified Abbonizio to make another form,

                                           3

but was assured that the term “rental agreement” did not mean anything. He testified that

the parties made a mutual agreement that the form was only for authorization of time and

material and that it was not a rental agreement: “So it was understood between me and the

principals at Abbonizio that this was not a rental agreement that I was signing. It was their

vehicle to document the equipment, and labor man hours. And, that’s what I was doing, was

authorizing that. We do not rent equipment.” (Tr. 96).

   The original contract entered into between the parties provided:

   $3 . The contractor shall provide and furnish all labor, materials, tools, supplies,
   equipment, service, facilities, supervision, administration, and all the items required
   by the Contract Documents for the proper and complete performance                   and
   acceptance of the following work in strict accordance with the Contract Documents.
   (Ex. C-3).

   §S. Contractor acknowledges it has reviewed the Contract Documents and accepts
   them with full responsibility and liability for the performance thereof and neither
   owner nor construction manager shall have responsibility or liability for the
   performance of the work. (Ex. C-3).

    The change order specifically incorporates       all terms and conditions   of the original

contract. Thus, LMB was not “renting” the equipment, as argued by Abbonizio. Rather,

Abbonizio contracted to complete the work with full liability as agreed to in the original

contract.

    Respondent      contends that it was a mere “conduit for labor” for LMB as defined by

h4LB Industries, Inc., 12 OSHC 1525, 1525 (Rev. Comm. 1985). Therefore, respondent

claims that it was not the correct party cited. In MLB Industries, Iizc., supra, Crown

Zellerbach, (hereinafter “Crown”), was the owner and general contractor at a jobsite in

South Glens Falls Mills, New York. Id. at 1525. The project manager for Crown contacted

                                               4

the project manager for MLB and said that he had an “emergency” situation. Id He asked

the project manager for MLB if he could supply manpower to remove sections of a concrete

floor at the “IP” building, which was located about one-quarter mile from the warehouse.

Id According to the project manager for MLB, Crown’s project manager stated that he

would tell the workers what to do, would furnish the tools needed, and would supervise the

work. Id, MLB was not performing any work at the IP building and did not take any role

in determining how the concrete floor was to be removed. Id. at 1529. That the employees

did not have any reason to be at the II? building for MLB is significant because it illustrates

that Crown was the actual employer on the emergency project.

   The fact situation in this case is distinguishable   from that of lMLB Ihdwtries, Inc.

Here, Abbonizio was not called upon to provide laborers for an emergency situation.

Rather it was to perform the very excavation work for which it had been contracted in the

first place. It is not as if LMB rented Abbonizio employees to perform excavation work at

a different construction site where Abbonizio was not performing any work.

   The Review Commission        has considered    a number    of factors when making a

determination as to who is the actual employer:
1) Who the employee considers to be his or her employer;
2) Who pays the employee’s wages;
3) Who is responsible for controlling the employee’s activities;
4) Who has the power as opposed to the responsibility to control the employee;
5) Who has the power to fire the employee or to modify the employee’s employment
conditions.
MLB hdusties, Inc., 12 OSHC 1525, 1526-1527 (Rev. Comm. 1985). See also Del44iont

Cbnstmction Co., 81 OSAHRC 35/Eli, 9 BNA OSHC 1703,198l CCH OSHD 7 25,324 .(No.

76-4899, 1981).
 The MLB decision notes that the Commission has never considered any list of factors

to be all inclusive, and that each situation must ultimately be examined on a case by case

basis. MLB Industries, Inc., at 1528. In our case, the two contracts signed by the parties are

significant in determining the workers actual employer. In the original contract Abbonizio

agreed to provide supervision, and assume liability; the second contract incorporates in all

agreements from the first. Nonetheless, the above cited factors, taken together with the two

contracts clearly demonstrate that Abbonizio was the creating employer, and not a mere

conduit for labor.

   1) Who the employee considers to be his or her employer?

   The respondent offered the testimony of William M. Fredericks to support its position

that he had been leased or rented out to LMB at the time he was involved in the creation

of the violative excavation. He testified that he had been employed by Abbonizio as a

laborer, but that he considered L&II3 to be his employer when he was on a rental to LMB.

Mr. Fredericks testified that it was Mr. Crane, the Supervisor from Abbonizio who informed

him that he was working pursuant to a rental agreement. (Tr. 123). However, in A&LB

Irtdustries, Inc., although one employee testified that he considered Crown and not LMB to

be his employer for the work at the IP building, the court nonetheless found that Crown was

in fact acting as his employer while on that job. MLB Indusnies, Inc., at 1526.

   2) Who pays the employee% wages?

    In the MLB case, MLB paid the three employees for their work at the II? building

and sent Crown a bill for the work done. The amount billed not only included the

employees’ wages, but also payment of the employees’ pension, welfare, taxes, and insurance,
as well as a 10% markup for handling the payroll. Basically, MLB extended the money for

Crown and then Crown reimbursed MLB along with a service charge for the cost of having

fronted the money. In this case there is no evidence to show that Abbonizio charged LIB

a markup for handling the payroll. Mr. O’Neill also testified that Abbonizio was paid

pursuant to the agreed upon rates. The rates did not change between the original contract
and the subsequent arrangement. Therefore, if the original contract rates were all-inclusive
(i.e, with respect to supervision, etc.), the subsequent rates should also be all-inclusive. If
the subsequent work was not all inclusive the rates charged
-- should have been lower to
reflect the fact that supervision and liability were not included in the price. LMB paid
Abbonizio for the time and material used to perform the work which was not within the
scope of the original contract. When asked whether Abbonizio was paid for supervision, Mr.
O’Neill testified: “In our base contract, we described what the work implies; what the work
means...And work means that it includes all supervision, maintenance, all of the
appurtenances. It’s all inclusive; a lump sum hourly rate.” (Tr. 92). Furthermore, Mr.
Fredericks testified that h& O’neill “has nothing to do with my wages.” (Tr. 129). These
facts do not support the Respondent’s contention that LMB was the employer of these
leased employees.
3) Who is responsible for controlling the employee’s activities?
In the present case, both O’Neill and Fredericks testified that O’neill never told
Fredericks or any other Abbonizio employee the manner in which he was to perform his
work. (Tr. 49). In fact, the original contract specifically states that “neither the owner not
construction manager shall have the responsibility for the performance of the work.” (Ex.
C-3 p.1, 58). Mr. O’Neill testified that LMB never leases equipment because they are
construction managers, not contractors. As managers, they contract out the various phases
to people with the expertise, such as Abbonizio. The evidence in our case shows that
Abbonizio was responsible for the management of it’s employees.
4) Who has the power as opposed to the responsibility to control the employee?
Although Mr. Fredericks testified that Mr. Crane informed him that he was
in a rental situation, Mr. O’Neill testified that he told Abbonizio that LMB does not rent
equipment. (Tr. 120,90). Nothing in the record discloses any evidence that Mr. O’Neill had
the power to control the employees. Although LMB was responsible for delineating the
scope of the work to be completed, this was necessary since Abbonizio’s work had to be
coordinated with that of the electrical contractor. This explains why Abbonizio’s employees
were given the day’s agenda in the morning from Mr. O’Neill. (Tr. 115). He testified
“Since it was an ongoing process over a period of several days, the arrangement was made,
Battaglia laid out the work, Abbonizio excavated the work--that Abbonizio excavated what
was required in that given time period.” (Tr. 71-72).
5) Who has the power to fire the employee or to modi@ the employee’s employment
conditions?
Mr. O’Neill never modified the employment conditions of the employees. He testified
that Abbonizio was to perform an excavation pursuant to a change order in the contract.
(Tr. 87). O’Neill assumed that Abbonizio would provide the necessary supervision, labor,
and equipment to perform the specified task. (Tr. 89). Also, Mr. O’Neill’s testimony reveals
that he was not involved in choosing the individual employees from Abbonizio who would
perform the work. ’
The evidence supports the conclusion that Abbonizio, and not LMB, was the
employer who controlled the employees who created the violative condition at the aquarium
worksite. There was no lease agreement between LMB and Abbonizio. The contractual
obligations of the parties were clearly set out in the original contract and the change order.
The contention that Abbonizio was the employer of the employees is further supported by
applying the factors which the Review Commission considers in order to determine who is
the actual employer. Therefore, the Secretary properly cited this Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF’LAW

    Findings of fact and conclusions of law relevant and necessary to a determination       of

the contested issues have been made above. Fed. R. Civ. I? 52(a). All proposed findings
of fact and conclusions of law inconsistent with this decision are hereby denied.
 Serious Citation No. 1, item no. 1, is AFFIRMED and a penalty of $875.00 is

ASSESSED.

                                       n


                                      Judge, OSHRC


                                                  s_
        May 14, 19’93

Dated:
Boston, Massachusetts