Ronald J. Gottlieb, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor for Occupational Safety & Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC
For the Complainant
Nathalie Monroe, President, Monroe Drywall Construction, Inc.; Panama City Beach, FL
For the Respondent
DECISION AND REMAND
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
Following a fatal accident, the Occupational Safety and Health Administration
(“OSHA”) inspected a worksite in Panama City, Florida. As a result of the inspection, OSHA
issued Monroe Drywall Construction (“MDC”) two citations under the Occupational Safety and
Health Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678. In Citation 1, the Secretary alleges a
serious violation of 29 C.F.R. § 1926.21(b)(2), for failing to instruct employees in the
recognition and avoidance of unsafe conditions at the site, and a serious violation of 29 C.F.R.
§ 1926.416(a)(3), for failing to inquire about the status of exposed circuit wires or warn
employees of an electric shock hazard.
In Citation 2, the Secretary alleges an other-than-serious
violation of 29 C.F.R. § 1910.1200(e)(1), for not having a written hazard communication
program. After a hearing, Administrative Law Judge Stephen J. Simko, Jr., vacated both
citations, finding that the Secretary failed to prove “the workers who were performing drywall
work at the site were employees of MDC.”
For the following reasons, we reverse the judge’s decision and remand the matter for
further proceedings consistent with this opinion.
The accident occurred at a worksite where a large retail store was being remodeled. The
project’s general contractor, The Hatch Group, retained several subcontractors, including GMB
Construction Services (“GMB”), which it hired to complete the framing, drywall installation,
and finishing. GMB, in turn, arranged for MDC to perform drywall work at the project. MDC
admits that its President, Nathalie Monroe (“Monroe”), and Vice-President, Jeremy Monroe,
worked at the site. Besides the Monroes, four other workers were at the site assisting with
On September 27, 2011, one of these drywall workers was electrocuted when he
contacted exposed wiring while clearing an area in which to stack drywall.
On review, the Secretary argues that the judge erred in finding that none of the four
drywall workers were MDC employees. MDC, appearing pro se throughout these proceedings,
did not file a brief on review.
Before the judge, however, MDC argued that it did not employ
the four drywall workers.
To prove a violation of an OSHA standard, the Secretary must show by a preponderance
of the evidence that: (1) the cited standard applies; (2) the employer failed to comply; (3)
employees had access to the violative condition; and (4) the employer knew or could have
known of the violative condition. See, e.g., Astra Pharmaceutical Prods., Inc., 9 BNA OSHC
2126, 2129, 1982 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff’d in pertinent
part, 681 F.2d 69 (1st Cir. 1982). Here, the judge did not reach the elements of the violation
because he concluded that the Secretary did not prove, as a threshold matter, that MDC
employed the four drywall workers.
Specifically, he found that much of the Secretary’s
evidence was either inadmissible hearsay or, in the alternative, outweighed by Monroe’s
testimony that MDC did not employ the four drywall workers.
We find that the judge failed to give appropriate weight to the Secretary’s evidence of an
employment relationship between MDC and three of the drywall workers, whom we find were
employees of MDC.
This evidence includes: (1) the testimony of OSHA Compliance Officer
(“CO”), Jeffrey Lincoln; (2) a signed statement from Thomas Grant, GMB’s on-site supervisor;
(3) deposition testimony from GMB’s President, George Blanchette, and (4) two documents
related to MDC’s scope of work.
The CO interviewed two of the drywall workers, Cesar Torres
and Genaro Angeles-Vincentes. Although Torres primarily speaks Spanish, he told the CO in
English that Monroe hired him to work at the site. With the aid of a translator, Torres and
Angeles-Vincentes confirmed that Monroe hired them, along with the decedent and one
additional individual, to hang drywall at the site and that she directed their work. Torres also
told the CO through the translator that he reported his hours, and those of the other drywall
hangers, to Monroe, who paid all of them in cash.
In his decision, the judge determined that the drywall workers’ statements did not
constitute admissions of a party opponent under Fed. R. Evid. 801(d)(2), in effect finding they
were inadmissible hearsay. He acknowledged, however, that MDC never objected to the
statements as hearsay, though he noted that Monroe “appeared unaware” that MDC could make
a hearsay-based objection. But when there is no objection, relevant out-of-court statements are
admissible and entitled to their natural probative weight. See MVM Contracting Corp., 23 BNA
OSHC 1164, 1166, 2010 CCH OSHD ¶ 33,073, p. 54,651 (No. 07-1350, 2010) (finding waiver
in the absence of a timely objection); Power Fuels, Inc., 14 BNA OSHC 2209, 2214, 1991 CCH
OSHD ¶ 29,304, p. 39,347 (No. 85-166, 1991) (same); George Harms Constr. Co. v. Chao, 371
F.3d 156, 164-65 (3d Cir. 2004) (finding that hearsay evidence admitted without objection is to
be considered and given its natural probative weight as if it were admissible in law); Fed. R.
Evid. 103(a)(1), 401, 403. And by waiting to raise the issue sua sponte for the first time in his
decision, the judge deprived the Secretary of an opportunity to introduce other evidence to show
that the statements were not hearsay or that they were admissible under one of the exceptions to
the rule. See Fed. R. Evid. 801, 803, 804, 807. Without any objections, the Secretary had no
reason to present the declarants themselves or to otherwise establish the truth of what they
asserted. See Fed. R. Evid. 103, 801, 804; Regina Constr. Co., 15 BNA OSHC 1044, 1048,
1991-1993 CCH OSHD ¶ 29,354, p. 39,467 (No. 87-1309, 1991) (noting that respondent could
have called out-of-court declarants as witnesses); George Harms, 371 F.3d at 164-65 (same).
Therefore, the judge erred in treating this evidence as inadmissible hearsay.
The judge ruled in the alternative that if the statements of Torres and Angeles-Vincentes
were admissions of a party opponent and thus admissible under Fed. R. Evid. 801(d)(2), they
still should not be given any weight because the Secretary “offered nothing” to show the
translator’s qualifications. This too was error. As an initial matter, not all of the statements
made by Torres required a translator, so the statements he made in English to the CO fall outside
of the judge’s ruling. Moreover, MDC does not claim that the translator erroneously conveyed
what Torres and Angeles-Vincentes said. See Fed. R. Evid. 103(a) (requiring parties to preserve
claims of error). Indeed, Monroe actually corroborated key aspects of the translated statements
by admitting that: (1) on the day of the accident, Torres told “everybody” he worked for her, (2)
she knew Torres from working with him on a past project, and (3) Torres called her after the
accident asking for money. Further, neither MDC nor the judge questioned the accuracy of the
CO’s recollection or his credibility. Id. In this situation, we find that having limited information
about the translator’s qualifications does not justify giving the statements he translated for
Torres and Angeles-Vincentes no weight. See United States v. Nazemian, 948 F.2d 522, 528
(9th Cir. 1991) (finding interpretation reliable despite the lack of evidence regarding the
interpreter’s qualifications); United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir. 1985)
(determining that because the interpreter was a language conduit the translation was not
hearsay); DCS Sanitation Mgmt. Inc. v. OSHRC, 82 F.3d 812, 815-16 (8th Cir. 1996) (same).
With regard to Grant’s written statement and Blanchette’s deposition testimony, the
judge gave this evidence no weight based on his finding that both were motivated to falsely
claim that GMB did not itself employ any of the drywall workers in order to avoid liability. The
judge instead credited Monroe’s “adamant” testimony, even though he described her as
“excitable” at the hearing. According to the judge, her “demeanor … was consistent with that of
a person truthfully testifying and sensing that no one believes her protestations that these
[drywall] workers were not MDC’s employees.”
The record, however, does not support the judge’s weighing of this evidence. See Beta
Constr. Co., 16 BNA OSHC 1435, 1441-42, 1992 CCH OSHD ¶ 30,239, p. 41,649-50 (No. 91-102, 1993) (finding that credibility must be assessed in view of the whole record). Both Grant
and Blanchette denied that GMB hired, employed, or paid any individual drywall workers.
Blanchette asserted that GMB subcontracted all of the drywall hanging and finishing to MDC,
and that Monroe admitted to him she employed the decedent and other drywall workers.
also specified that Monroe employed Torres, the decedent, and two others.
Grant’s statement, we see no difference between his motivation and Monroe’s—she too had an
interest in avoiding liability. As for Blanchette, not only does MDC make no claim that he lied,
there is less to impugn his testimony than there is to impugn Monroe’s. At the time of his
deposition, it was too late for the Secretary to issue GMB a citation under the OSH Act and the
decedent’s workers’ compensation claim had been settled.
Thus, we find Grant’s statement
and Blanchette’s testimony to be credible and persuasive evidence that MDC employed the
Our conclusion is further supported by two documents the Secretary submitted into
evidence, both of which the judge erroneously characterized as “not help[ful]” to deciding the
employment issue. The first is a letter from GMB to Monroe about the scope of work, and the
second is MDC’s “invoice” for the project. Granted, neither document speaks directly to
whether MDC hired the decedent and other drywall workers. However, both are relevant in
assessing the contrast between the statements of Grant and Blanchette, who both asserted that
GMB hired MDC to do all the drywall work—including hanging and finishing—and Monroe’s
opposing testimony that MDC contracted to do only the finishing work. GMB’s letter to Monroe
requests the following work for a total cost of $5,500: “hang[,]
tape, bed coat and finish coat
for 338 boards[,] bed coat and skim coat all existing drywall that has already been taped[,] touch
up remainder of existing.” After working at the site for a few days, Monroe faxed GMB a
document labeled “Contractors Invoice,” seeking payment of $5,500 to “Hang - tape - finish”
338 boards, and finish 150 boards, which also specifies that it is “In accordance with our
Agreement.” Contrary to the judge, we find that these two documents corroborate Grant and
Blanchette’s statements that GMB subcontracted both the drywall hanging and finishing work to
MDC, and that GMB therefore had no need to hire drywall workers itself for the project.
In sum, the judge’s assessment of the Secretary’s evidence is unsupported by the record
as a whole. Therefore, his view of Monroe’s credibility does not compel a different result than
the one we reach here.
See C. Kaufman, Inc., 6 BNA OSHC 1295, 1298, 1977-1978 CCH
OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978) (stating that Commission will not defer to a
credibility finding if it is not “made in light of the entire record” or if it is “materially distorted
by an erroneous view of the legal issue.”); Metro Steel Constr. Co., 18 BNA OSHC 1705, 1707,
1999 CCH OSHD ¶ 31,082, p. 46,667 (No. 96-1459, 1999) (finding judge’s reliance on
compliance officer’s testimony was error when the record as a whole contradicted that
testimony); Brickfield Builders, 17 BNA OSHC 1084, 1993-1995 CCH OSHD ¶ 30,696, p.
42600 (No. 93-2801, 1995) (same).
For these reasons, we find that the Secretary’s evidence shows that MDC employed
Torres, Angeles-Vincentes, and the decedent. Accordingly, we reverse the judge’s decision and
remand for him to consider whether the Secretary established the alleged violations by proving
applicability of the cited standards, noncompliance, exposure to the violative conditions, and
Thomasina V. Rogers
Cynthia L. Attwood
Dated: April 19, 2013 Commissioner
SECRETARY OF LABOR,
OSHRC Docket No. 12-0379
MONROE DRYWALL CONSTRUCTION, INC.,
Melanie L. Paul, Esquire, U.S. Department of
Labor, Office of the Solicitor
For the Complainant.
Nathalie Monroe and Jeremy Monroe, Monroe
Drywall Construction, Inc.
Panama City Beach, Florida
For the Respondent, pro se.
Before: Administrative Law Judge Stephen J. Simko, Jr.
DECISION AND ORDER
This proceeding is before the Occupational
Safety and Health Review Commission (Commission) under 29 U.S.C. § 659(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (Act). The Occupational
Safety and Health Administration (OSHA) inspected a worksite of Respondent in late September
and early October of 2011. The worksite was located in Panama City, Florida. The inspection
came about after a worker at the site was electrocuted on September 27, 2011, while engaged in
On January 24, 2012, OSHA issued Respondent a Citation and Notification of Penalty
(Citation). Item 1a of Citation 1 alleged a serious violation of 29 C.F.R. § 1926.20(b)(1), for not
having a safety and health program. The Secretary withdrew this item at the hearing. Item 1b of
Citation 1 alleges a serious violation of 29 C.F.R. § 1926.21(b)(2), for not instructing employees
in the recognition and avoidance of unsafe conditions at the site. Item 2 of Citation 1 alleges a
violation of 29 C.F.R. § 1926.416(a)(3), for not inquiring about the status of exposed circuit
wires or warning employees of the electric shock hazard. Citation 2, Item 1 alleges an other-than-serious violation of 29 C.F.R. 1910.1200(e)(1), for not having a written hazard
communication program. The Secretary has proposed a total penalty of $6,600.00 for the
Respondent, Monroe Drywall Construction (MDC), timely contested the Citation. The
court held a hearing in this matter on June 12, 2012, in Panama City Beach, Florida. MDC
contended at the hearing, as it has since the beginning of this case, that it had no employees at
the site and that the individual who died was not its employee. The Secretary’s contention was
that MDC had several employees performing drywall work at the site and that the individual
who died was in fact an employee of MDC.
Only the Secretary has filed a post-hearing brief. For the reasons that follow, the court
finds the Secretary has not met her burden of proving the workers who were performing drywall
work at the site were employees of MDC. The citation items noted above are vacated.
This case was initially designated for the
Commission’s Simplified Proceedings, under Commission Rule 203(a). On March 14, 2012, the
Secretary filed a motion to remove the case from Simplified Proceedings. On March 21, 2012,
the court issued an order granting the motion, rescheduling the hearing for June 12, 2012, and
directing Respondent to file an answer on or before April 9, 2012. On May 2, 2012, the
Secretary’s counsel (counsel) filed a motion to dismiss MDC’s notice of contest and grant a
default judgment arguing that she had not received an answer and was not able to reach
Respondent’s owners. On June 8, 2012, the court held a telephone conference to discuss the
hearing set for June 12, 2012. During that conference, counsel stated she first learned at that
time, that MDC had faxed the court a letter on May 12, 2012, reiterating its intent to contest the
Citation. Also during the conference, the court advised that it was deeming the May 12 letter to
be MDC’s answer. Counsel informed the court she was unaware of the letter and had not
received a copy of it. The court faxed counsel a copy of the letter. Stating she had not
previously received the letter and had not initiated discovery, counsel made an oral motion for a
continuance during the telephone conference. The court denied the motion and ordered the
parties to appear for the hearing as scheduled. Later that same day, counsel faxed to the court
her “Emergency Motion for Reconsideration of Motion to Continue Hearing Date” (Motion).
At the beginning of the hearing, the
Secretary’s counsel argued her Motion and gave the reasons why she felt she had been
prejudiced by not being able to conduct discovery. The court found the Secretary had not been
prejudiced and denied the Motion. The court then provided the parties a brief recess so that they
could discuss the case and possibly reach agreement on some issues. After the recess, the
Secretary’s counsel advised that she was withdrawing Item 1a of Citation1 and that the parties
had stipulated to jurisdiction and coverage under the Act.
During the hearing, all of the exhibits
offered by the parties were admitted except for MDC’s exhibit R-3. R-3, entitled “Amended
Verified Petition for Attorney Fees and Costs,” which relates to the worker compensation claim
filed on behalf of the deceased worker. MDC offered R-3 because the claim information set out
on the first page of the document shows the employer of the deceased employee as “GMB
Construction Services/The Hatch Group, LLC,” rather than Respondent. The Secretary’s
counsel objected to R-3 being admitted. The court deferred ruling on the admissibility of R-3.
The court also left the record open for 30 days to give the Secretary the opportunity to develop
the record in regard to the employer/employee relationship at issue in this case.
On July 10, 2012, the Secretary conducted a
post-hearing deposition of George Blanchette, the owner of GMB Construction Services. On
August 7, 2012, the Secretary filed a motion seeking the admission of Blanchette’s deposition
testimony. Attached to the deposition are several exhibits. The deposition testimony of
Blanchette and the attached exhibits are admitted as the Secretary’s exhibit C-16. Exhibit R-3 is
The worksite was a store located in a strip
mall in Panama City, Florida, that was being remodeled to become a Big Lots store. The Hatch
Group (THG) was the general contractor on the site, and Paul Kidder was THG’s superintendent.
Several other companies had been contracted to perform work at the site. GMB Construction
Services (GMB) had been contracted to do framing and drywall work. It subcontracted with an
Orlando-based company to do framing work, and allegedly subcontracted with MDC to do
drywall work. GMB subcontracted with MDC because Thomas Grant, the superintendent of
GMB at the site, had recommended MDC; Grant was the ex-husband of Nathalie Monroe,
MDC’s president, and he was familiar with her work. GMB also subcontracted with MDC
because GMB is based in the Orlando area and it wanted to defray its costs by utilizing a local
drywall company. George Blanchette, GMB’s owner, sent a proposal of the work to be done to
MDC on September 19, 2011. MDC sent a document entitled “Contractor’s Invoice” to GMB
on September 21, 2011. Natalie Monroe asserted this was not an invoice for completed work,
but rather the respondent’s proposal using this form. On September 17, 2011, Grant began
working at the site, acting as a liaison between GMB’s framers and THG. Grant was also
supervising GMB’s subcontract with MDC. MDC began working at the site about that same
date. Nathalie Monroe and her husband, Jeremy Monroe, MDC’s vice-president, both worked at
the site. Four Hispanic laborers were performing drywall work on the building. GMB’s framers
were also doing some drywall work. In addition, there was also an electrical contractor working
at the site. On September 27, 2011, one of the Hispanic drywall workers contacted wiring
protruding from conduit on the job site, while preparing to stack drywall boards. He was
The accident took place at about 9:00 a.m.
on September 27, 2011. Nathalie and Jeremy Monroe were not at the site at that time. Nathalie
Monroe arrived shortly after the accident, after the deceased had been taken away by ambulance.
Law enforcement officials were still there when she arrived. When they questioned her, she
stated that she did not know the deceased worker and that he did not work for her. Later that
day, Blanchette of GMB sent Nathalie Monroe an e-mail. The e-mail informed her that no
employees of MDC would be allowed back on the worksite.
On September 28, 2011, OSHA Compliance
Officer Jeffrey Lincoln conducted an inspection at the site. He had spoken with the local
medical examiner’s office and police department before going to the site. He met with Nathalie
Monroe in the parking lot and arranged with THG for her to enter the site. She told him she felt
it was unfair for her to be barred from the site for not having worker compensation coverage as
the deceased worker was not her employee. During the inspection, Lincoln also spoke to Kidder,
THG’s superintendent, and to Grant, GMB’s superintendent. They both told him that the
subcontract was for MDC to hang and finish the drywall but that MDC was disputing the scope
of the subcontract. On September 29, 2011, Lincoln interviewed two of the Hispanic workers
with the help of a local interpreter, and he wrote down what they said. Lincoln took photographs
of what he saw at the site. He also obtained photographs the police department had taken.
Based on what he learned, Lincoln determined the Hispanic workers were employees of MDC.
He recommended the issuance of the Citation.
To prove a violation of an OSHA standard, the Secretary must show by a preponderance
of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the
terms of the cited standard; (3) employees had access to the violative condition; and (4) the cited
employer either knew or could have known with the exercise of reasonable diligence of the
violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). In this
case, the Secretary must first prove that MDC was properly cited as the employer of the four
Hispanic workers at the site. See, e.g., Joel Yandell, 19 BNA OSHC 1623, 1628 n.8 (No. 94-3080, 1999) (citation omitted).
The Secretary relies on statements Lincoln obtained during the inspection. Exhibits C-3
and C-4 are Lincoln’s notes from what Cesar Torres and Genaro Angeles-Vicentes, two of the
Hispanic drywall workers, stated to him. Lincoln used a local interpreter when he took the
statements. Based on the statements of Cesar Torres and Genaro Angeles-Vicentes, Lincoln
concluded that they, along with the deceased worker and one more person, worked for Nathalie
Monroe at the site and were paid in cash. The court gives no weight to these statements.
Federal Rule of Evidence 801(d)(2)(D) provides that a statement is not hearsay if it is
offered against an opposing party and “was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.” The threshold question is whether the
statements were made by employees of MDC. The Secretary made no initial showing that Cesar
Torres and Genar Angleles-Vicentes were employees of MDC other than their statements. The
Secretary asks this court to assume these workers were MDC employees. She relies on the
statements of these workers to establish an employer/employee relationship. These statements
alone are insufficient to prove these workers are MDC employees. The Secretary must also
produce credible independent evidence of an employment relationship. Assuming, for the sake
of argument, these workers were employees on the date of the alleged violations, they were not
employees when they gave their statements to the OSHA compliance officer, Mr. Lincoln. As a
former employee is no longer an agent of the company or corporation, a statement made after
employment has ended is not an admission attributable to the organization. Cruz v. Aramark
Serv., Inc., 213 Fed. Appx. 329, 333 (5th Cir. 2007); Walsh v. McCain Foods Ltd., 81 F.3d 722
(7th Cir. 1996). GMB sent Nathalie Monroe an e-mail on September 27, 2011, barring
employees of MDC from the site. See C-16, Exh. 6. Lincoln did not take the statements of two
of the Hispanic workers until September 29, 2011. Even if these individuals had been
employees of MDC, there is no evidence they were employees of MDC when Lincoln
interviewed them. At most, they were former employees at that time. Their statements are thus
not admissions attributable to MDC.
Should the statements be deemed admissions, the Commission has held that the judge
hearing the case must decide the reliability of such statements and the weight to give them.
Regina Constr. Co., 15 BNA OSHC 1044, 1047-48 (No. 87-1309, 1991). There are two
significant problems with Exhibits C-3 and C-4. As noted above, Lincoln interviewed the
workers with the help of a local interpreter, and he wrote down what they said. The Secretary
offered nothing to show the interpreter’s qualifications or that the interpretation was accurate.
Even more important, the statements are not signed. Exhibits C-3 and C-4 are found to be
unreliable and are accorded no weight.
Finally, even if Exhibits C-3 and C-4 were accorded some weight, the judge, in
determining the agency or employment relationship and its scope, is to consider the contents of
the statement but must also find other supporting evidence independent of the statement. Krause
v. City of La Crosse, 246 F.3d 995, 1002 (7th Cir. 2001). In other words, the Secretary cannot
prove that the Hispanic workers in this matter were employees of MDC by means of Exhibits
C-3 and C-4 alone; she must also present persuasive supporting evidence.
The Secretary’s other evidence regarding who the Hispanic employees worked for is not
persuasive. As indicated above, Kidder, THG’s superintendent, and Grant, GMB’s
superintendent, told Lincoln that MDC’s subcontract was to hang and finish the drywall; at the
same time, they said that MDC was disputing the scope of the subcontract. Lincoln did not take
a written statement from Kidder. He did take one from Grant, and Grant signed his statement.
In Exhibit C-14, Grant said that MDC had hired Torres and the other Hispanic employees to
hang drywall. There is reason to question the reliability of Grant’s statement. Grant indicated in
Exhibit C-14 that GMB had hired him as its superintendent at the site because he knew
Blanchette, GMB’s owner. Nathalie Monroe testified that Grant and Blanchette had grown up
together, which was confirmed by Blanchette during his deposition. The court also notes
Nathalie Monroe’s testimony that when she arrived at the site shortly after the accident, Grant
ran out of the building, holding a rotor and saying, “here’s the tool of your hanger.” He then
indicated she was going to be in trouble because “one of your [guys] just got killed.” (Tr. 91-92). It was Ms. Monroe’s impression that by the time she arrived, Grant had told everyone the
employee was hers, which was not true, and that no one would take her word he was not. Ms.
Monroe’s testimony, and that of Jeremy Monroe, indicates the Hispanic employees worked for
As to the deposition testimony, Blanchette testified he had no employees at the site and
that the drywall work was subcontracted to MDC. He even denied employing Grant, contrary to
Exhibit C-14, and stated that Grant was just “helping [him] out” for a couple of weeks, in return
for room and board, because he (Blanchette) could not be at the site to check on the work.
(Exbibit C-16, pp 10-12). In light of this testimony, which conflicts with Grant’s statement, the
court gives no weight to Blanchette’s deposition testimony on the point. The court also gives no
weight to Grant’s hearsay statement. It appears, due to their long acquaintance, that Grant may
have been attempting to help Blanchette by reporting, after the accident occurred, that the
Hispanic workers were MDC’s employees.
Nathalie Monroe was adamant in her testimony at the hearing that MDC has never had
any employees and that the Hispanic employees did not work for MDC. Ms. Monroe has been
very consistent in this regard. After the accident, she told law enforcement officials and OSHA
that she did not know the deceased employee and that he had not been working for MDC. At
the hearing, Ms. Monroe presented Exhibits R-1 and R-2, Certificates of Election to be Exempt
from Florida Workers’ Compensation Law for herself her husband and Jeremy Monroe. She
explained that such certificates are available to employers who own their own companies and do
not hire any employees. Ms. Monroe also testified that she and Jeremy Monroe do their own
work. This testimony was supported by Blanchette, who stated that on one of his early visits to
the site, both Nathalie and Jeremy Monroe were doing drywall work and no one else was there.
In support of her position, the Secretary points to Exhibit C-2, the proposal GMB sent to
Nathalie Monroe on September 19, 2010, and Exhibit C-13, a document entitled “Contractor’s
Invoice,” that Ms. Monroe sent to GMB on September 21, 2010. The Secretary asserts that these
documents show that MDC was to both hang and finish the drywall, contrary to Ms. Monroe’s
indicating at the hearing that MDC was only finishing the drywall at the site. The court finds
that no determination in this regard need be made. The Secretary has not proved that the
Hispanic workers were employees of MDC, and Exhibits C-2 and C-13 do not help the Secretary
in this regard.
The Secretary also points to evidence in the record that Nathalie Monroe had known
Torres before this job and had contacted him and asked him to work for her at the subject site.
Ms. Monroe agreed she had known Torres prior to this job, as they had worked on some of the
same job sites before. She categorically denied that he worked for her on this job. She also
denied she had paid him or any other employees any money for working on this job.
Finally, as noted above, Exhibit R-3 was received in evidence after the hearing. Exhibit
R-3, entitled “Amended Verified Petition for Attorney Fees and Costs,” pertains to the worker
compensation claim (WCC) filed on behalf of the deceased employee. MDC offered Exhibit R-3 as the claim information on the first page shows the employer of the deceased employee as
“GMB Construction Services/The Hatch Group, LLC,” instead of Respondent. To rebut Exhibit
R-3, one of the Secretary’s exhibits attached to Exhibit C-16, Blanchette’s deposition, shows the
employer of the deceased employee as both GMB and MDC. (See Exhibit 7.), entitled
“Employer/Carrier’s Response to Request to Produce,” which was filed in the WCC proceeding
relating to the deceased employee. As the Secretary herself pointed out at the hearing, however,
WCC documents are not relevant in determining whether an entity was properly cited as the
employer under the Act. The court finds Exhibit R-3 and Exhibit 7 of Exhibit C-16 are not
probative in that regard.
Complainant’s case rests totally on hearsay. She produced no witnesses at the hearing
with direct knowledge of the facts surrounding the incident at issue. Her only witness at the
hearing relied on unreliable hearsay. Respondent appeared pro se through its president Natalie
Monroe and her husband Jeremy Monroe. Both were unfamiliar with legal proceedings and
appeared unaware that they could object to the introduction of hearsay evidence by the
Secretary. Natalie Monroe’s testimony was generally consistent and that testimony was
generally consistent with her out of court statements. Minor inconsistencies were explained to
the Courts satisfaction. Ms. Monroe testified that she was French Canadian and had some
difficulty in her flow of testimony. She consistently asserted, however, that she and her husband
were the only employees of MDC on this jobsite, that the workers on the job were not MDC
employees and that she arrived on site on September 27, 2011 after the occurrence of the fatal
incident. I find her testimony consistent. Her demeanor, while excitable, was consistent with
that of a person truthfully testifying and sensing that no one believes her protestations that these
workers were not MDC’s employees. I find her testimony credible and convincing.
The Secretary was given the opportunity to produce post trial evidence regarding MDC’s
employment relationship with these workers on the jobsite. She chose to depose George
Blanchette with GMB. She offered no other evidence during the 30 day period following the
While the Court did not observe Mr. Blanchette’s demeanor, reading his deposition
testimony reveals inconsistencies with the hearsay statement of Mr. Grant as to whether Mr.
Grant even worked for GMB. Both Blanchette and Grant appear to be motivated to show that
GMB was not the employer of the deceased worker or three other workers on the site. At most,
if accepted, Blanchette’s testimony goes to whether GMB is the employer of these workers. It
does not establish that MDC is the employer. Neither Blanchette’s testimony nor Grant’s
statement are found to be consistent or credible. They are accorded no weight regarding the
identity of the employer of the four Hispanic workers on this jobsite.
For all of the foregoing reasons, the court finds that the Secretary has failed to meet her
burden of proving that MDC was the employer of the Hispanic workers at the jobsite. The
citation items issued to MDC are VACATED.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the
findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of
Based upon the foregoing decision, it is
2. Item 1a of Serious Citation 1, alleging a violation of 29 C.F.R. 1926.20(b)(1),
4. Item 1b of Serious Citation 1, alleging a violation of 29 C.F.R. 1926.21(b)(2),
6. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. 1926.416(a)(3),
8. Item 1 of Other Citation 2, alleging a violation of 29 C.F.R. 1910.1200(e)(1),
STEPHEN J. SIMKO, JR.
Date: November 20, 2012