SECRETARY OF LABOR,
Complainant,

v.

MLB INDUSTRIES, INC.,
Respondent.

OSHRC Docket No. 83-0231

_DECISION_

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration.  It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor ("Secretary") under the Act and has no regulatory
functions.  _See_ section 10(c) of the Act, 29 U.S.C. § 659(c).

Administrative Law Judge Jerome C. Ditore found that Respondent, MLB
Industries, Inc. ("MLB"), had failed to comply with 29 C.F.R. §
1926.28(a)[[1]] in that three employees were not using safety belts when
they were exposed to a potential fall of 14 feet. The issue on review is
whether the judge correctly found that MLB was the employer of these
employees for purposes of the Act. [[2]]

I.

Crown Zellerbach ("Crown") was the owner of and a general contractor at
a construction project in South Glens Falls Mills, New York.  On
February 28, 1983, MLB was completing some work at a warehouse in the
construction project pursuant to a contract with Crown.  On that day,
Craig Dexter, project engineer for Crown, contacted George Bromley,
project manager for MLB.   Dexter said that he had an "emergency," and
asked Bromley if he could supply manpower to remove sections of a floor
at the "IP" building, which was located about one-quarter mile from the
warehouse.  According to Bromley, Dexter stated that he would tell the
workers what to do, would furnish the tools needed, and would supervise
the work.  Nothing else was discussed between Dexter and Bromley.

At the time of Dexter's request, MLB had a contract with the local union
and therefore had access to union labor, but Crown did not.   Thus,
according to MLB's vice president of operations, MLB served as a
"conduit for labor" for Crown and had done so on at least two previous
occasions.  On those occasions there were no purchase orders; MLB would
supply the laborers, pay them, and bill Crown after the work was
completed.  During the previous transactions, Dexter and others from
Crown had told Bromley that they did not want supervision, just
manpower.  Bromley further testified that, on these occasions, MLB was
not directed or expected to provide safety equipment or safety precautions.

At approximately noon on February 28, Bromley met Paul Stafford at the
warehouse, where Stafford had been performing some work for MLB. 
Bromley told Stafford that he was to break out some concrete and that
Dexter would tell him what to do and would supply the necessary tools. 
Bromley took Stafford to the IP building site, where he introduced
Stafford to Dexter.  Bromley then telephoned Peter Ingleston, a laborer,
and sent him to meet Stafford at the IP building site.

At about 12:30 p.m. on February 28, Dexter took Stafford and Ingleston
to the location where they would do the work.  Dexter showed them
approximately six or seven sections of the concrete floor that had to be
removed, and told them how the sections had to be chopped out.  Dexter
told the workers to use the tools that were there, which consisted of
jackhammers and a compressor. Dexter also told the labors to wear the
hard hats, safety glasses, and ear plugs that the laborers had brought
with them to the worksite, instructions that were consistent with the
arrangements MLB and Crown had made.  Dexter did not mention the use of
fall protection.

Stafford and Ingleston worked about 3 1/2 hours that afternoon and cut
out two sections of the floor.  While they were working, Dexter was in
the area two or three times.  During one of these times, Stafford told
Dexter that one of the jackhammers was not working properly.  Dexter
told Stafford to "go get a hammer from someplace."  Stafford obtained a
jackhammer from MLB's trailer at another job.

When Stafford and Ingleston returned to the worksite at about 7:00 a.m.
on March 1, they were joined by Bob Fletcher, another laborer supplied
by MLB.  Dexter briefly spoke to the workers at the beginning of the
work day.  Dexter also was in the area two other times that morning, for
a total of about 5 to 10 minutes.  On one of these occasions, Dexter
indicated that he planned to send the employers who were working below
to lunch, so that the laborers could continue working without
endangering other employees with falling debris.

At approximately 11:55 a.m., while Ingleston and Fletcher were cutting
out a section of the floor with jackhammers, the concrete on which
Fletcher was standing gave way.  Fletcher fell approximately 14 feet to
the basement and later died of his injuries.

The concrete floor that the employees were working on had been poured in
an arch form to give it support, but the floor did not contain rebars or
other reinforcement.  Stafford testified that he had been told that, if
the arch of the floor was cut, the floor would be weakened and would be
unsafe.  Stafford believed that he was told this before the accident,
but he could not recall who had told him this.  The three employees had
not used safety belts or lifelines, nor had they been provided with any
other type of fall protection.  Both Stafford and Ingleston, as well as
the compliance officer, testified that safety belts and lifelines could
have been used by the laborers, since there were beams nearby where the
lines could have been attached.

At the time of the accident, Stafford had worked for MLB for 14 or 15
years.  However, Stafford did not consider MLB to be his employer for
the work at the IP building, since MLB did not supervise the work, but
rather "we were listening" to Dexter of Crown. Ingleston, on the other
hand, considered MLB to be his employer for this work, because Bromley
had told him to go to the worksite and MLB had been his employer for the
past three years.

There was conflicting testimony about Stafford's status on this job. 
Stafford testified that, although his job title was "labor foreman" and
he was paid at a foreman's pay rate, he did not act as a foreman for the
concrete removal work.  Both Stafford and Ingleston considered Dexter to
be the foreman in charge of the project.  However, the compliance
officer testified that, during the inspection, Stafford was identified
as a foreman by an MLB safety supervisor, and that Stafford himself said
he was a foreman.  Ingleston also stated that Stafford was "a foreman
over there," and that he "gets stuff set up for us."

Stafford testified that he believed that Crown could have thrown him off
the worksite if Crown thought that his work was unsatisfactory.  He
stated, however, that Crown would have to notify Bromley or "Mr.
M.L.B.," because "they are the ones that sent me there."  Bromley
testified that he could have laid off Stafford, Ingleston or Fletcher
from the job at the IP building.

MLB paid the three employees for their work at the IP building and sent
Crown a bill, totaling $577, for the work.  That amount equaled the
employees' wages, payments for the employees' pension, welfare, taxes,
and insurance, and a 10% markup for handling the payroll.

II.

In determining whether MLB was the employer responsible for the safety
of the employees performing the work at issue, Judge Ditore considered
the following five factors:

1.  Whom 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; and
5.  Who has the power to fire the employee or to modify the employee's
employment conditions.

The judge observed that in _Del-Mont Construction Co_., 81 OSAHRC
35/E11, 9 BNA OSHC 1703, 1981 CCH OSHD ¶ 25,324 (No. 76-4899, 1981), the
Commission considered these five factors in determining
employer-employee relationships.

The judge found that Stafford, Ingleston, and Fletcher were employees of
MLB, not Crown.  The judge found that MLB paid the employees' wages, had
the ability and the power to control the employees, and could fire them
or otherwise modify their working conditions.  The judge also noted that
Ingleston believed he was MLB's employee, while Stafford considered
himself to be an employee of Crown.  However, the judge found that
Stafford, despite his belief, was MLB's labor foreman on the job and
directed the activities of the other two employees.  In the judge's
view, the supervisory role of Dexter of Crown was limited, since he left
the employees under Stafford's supervision to do the job after telling
them what to do.  The judge concluded that MLB was responsible for the
safety on the jobsite and for the cited violation.  The judge found that
MLB had committed a repeated violation of section 1926.28(a) and
assessed a penalty of $1,540.

MLB contends that the key factor in identifying employment relationships
under the Act is the degree of control and supervision exerted by the
alleged employer.  MLB asserts that the laborers were under the control
and supervision of Crown.  The Secretary contends that the judge
properly applied the five-factor test for determining employment
relationships under the Act and correctly held that the workers remained
employees of MLB.

III.

This case involves the circumstances under which a particular company
can be considered an "employer" under the Act so as to be held
responsible for the safety of its employees. [[3]]  The Supreme Court
has held, in the context of other statutes, that it is inappropriate to
use varying state common law definitions of an employee and employer in
construing federal legislation.  _United_ _States v. Silk_, 331 U.S. 704
(1974).  Instead of looking at narrow common law definitions, the
Supreme Court has looked to the purpose of the statute involved in
deciding how employment relationships should be defined.  _NLRB v.
Hearst Publications, Inc_., 322 U.S. 111, 124 (1944) (the meaning of the
term "employee" under the National Labor Relations Act is to be
determined primarily from the history, terms, and purposes of the
legislation).  Further, the United States courts of appeals that have
addressed the issue under the Act have held that employment
relationships should be determined by reference to the Act's purpose and
policy. _Clarkson Construction Co. v. OSHRC_, 531 F.2d 451, 457-58 (10th
Cir. 1976); _Frohlick Crane Service, Inc. v. OSHRC_, 521 F.2d 628,
631-32 (10th Cir. 1975); _Brennan v. Gilles & Cotting, Inc_., 504 F.2d
1255, 1261 (4th Cir. 1974).

The express purpose of the Act is to "assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions."  29 U.S.C. § 651(b).  To effectuate this purpose it is
appropriate for the Commission, in considering whether an employment
relationship exists, to place primary reliance upon who has control over
the work environment such that abatement of the hazards can be
obtained.[[4]]  This approach is consistent with the above-cited Supreme
Court and courts of appeals opinions.  It is also in keeping with the
Commission's analysis in the analogous situation of the multi-employer
construction worksite, where the Commission has concluded that the Act's
purpose is best served if an employer's duty to comply with OSHA
standards is based upon whether it created or controlled the cited
hazard.[[5]]

As the judge stated in his decision, the Commission has generally
considered five factors in determining employer-employee relationships. 
_Del-Mont Construction Co_., _supra_; _Sam Hall & Sons, Inc._, 80 OSAHRC
106/A2, 8 BNA OSHC 2176, 1980 CCH OSHD ¶ 24,927 (No. 76-4988, 1980);
_Acchione & Canuso, Inc_., 80 OSAHRC 5/B4, 7 BNA OSHC 2128, 1980 CCH
OSHD ¶ 24,174 (No. 16180, 1980). [[6]]  Three of these factors -- who is
responsible for controlling the employee's activities, who has the power
to control the employee, and who has the power to fire the employee or
to modify the employee's employment condition -- are related to the
issue of who controls the work environment and employees.  Since these
factors give effect to the remedial purpose of the Act, they should be
given particular emphasis in determining who is an employer under the
Act.  The other two factors involve the employees' belief as to who is
their employer and the determination of who pays the laborers' wages. 
Although these latter two factors have some bearing on the employment
relationship, they are not directly related to the issue of control, and
should normally be accorded less emphasis in determining the employment
relationship under the Act.

Although we continue to evaluate those factors set forth in _Del-Mont_
in order to determine who is the responsible employer under the Act, we
note that the Commission has never considered any list of factors to be
all inclusive.  Moreover, in determining the employment relationship,
each situation must be examined on a case-by-case basis and all relevant
factors considered.  _See_ _Griffin_ _& Brand of McAllen, Inc_., _supra_.

Analyzing this case from the standpoint of who had control over the
employees and their activities, we conclude that Crown had both the
responsibility and the power to control the employees' activities. 
Crown's control over the employees' activities was consistent with the
arrangements made between Crown and MLB prior to the beginning of the
work.  In his request for workers, Dexter, Crown's project engineer,
told Bromley, MLB's project engineer, that he would tell the workers
what to do, would furnish the tools and would supervise the work. 
Further, in other instances when MLB furnished Crown with labor, Bromley
was told that Crown did not want supervision, just manpower, and MLB was
not directed or expected to provide safety equipment or safety precautions.

Crown owned the construction project and was the general contractor
responsible for the work at the IP building.  When the employees arrived
at the site, Dexter showed them the sections of concrete floor that had
to be removed and told them how the work was to be done.  He also told
the employees to use the tools that Crown had provided at the worksite,
and to wear their hard hats, safety glasses, and ear plugs.[[7]] 
Although no MLB supervisor was in the area,[[8]] Dexter of Crown
periodically checked the progress of the work.  Thus, the circumstances
under which the work was performed lead to the conclusion that Crown had
the power to direct the employees' activities and to insure the work was
done safely.

The judge found that Dexter's role was a "limited one," and that control
of the employees' activities was left to Stafford as MLB's foreman at
the jobsite.  We conclude that these findings are not supported by a
preponderance of the evidence.  Both Stafford and Ingleston testified
that they considered Dexter to be in charge of the project. 
Additionally, as discussed above, Crown did not request supervision from
MLB for the work.  Although Stafford's job title was "laborer foreman"
and he was paid at a foreman's pay rate, he testified that he did not
act as a foreman on this job.[[9]]  Further, there is no evidence that
Stafford had disciplinary authority, instructed the other workers in
safety, enforced safety rules, or in any other respects acted as their
supervisor on this job. _Cf_. _Daniel International Corp. v. OSHRC_, 683
F.2d 361 (11th Cir. 1982) ("leadman" at construction site is not a
supervisor for purposes of employer's defense of isolated employee
misconduct).  Rather, Dexter's role in explaining the work to the
employees, instructing that they wear hard hats, safety glasses, and ear
plugs, determining when employees were to take lunch breaks, and
checking the progress of the work establishes that he was the supervisor
in charge of the work.

In contrast to Crown's direct control over the employees' activities
through Dexter's supervision, MLB's power to control the employees and
to modify their working conditions was largely indirect or theoretical. 
Although MLB selected and contacted the employees about the job, there
was no showing that MLB's initial contact with the employees had an
impact upon how they performed their work or their safety.[[10]] 
Although MLB may have had the authority to withdraw the laborers from
the worksite, to fire them, and to assign other laborers to do the work,
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.  Further
there is no indication that MLB knew of any circumstances that would
have required it to take action with respect to the workers' employment,
either for safety purposes or for any other reason.  Therefore, MLB did
not have sufficient control of the work environment or employee's
activities to support a finding that it was an employer under the Act.

The other factors that have been considered by the Commission in
determining employer-employee relationships do not support a finding
that MLB was the employer of the employees in this case.  With respect
to who the employees considered their employer to be, we note that
Stafford considered Crown to be the employer based upon Dexter's role in
supervising the work.  However, Ingleston considered MLB to be his
employer because MLB had been his regular employer for three years and
Bromley had contacted him about the work.  Thus, the evidence is
inconclusive with respect to whom the employees considered their employer.

With respect to who paid the employees' wages, it is clear that,
although the initial payment of the wages was made by MLB, Crown was
billed and ultimately responsible for payment.  MLB was merely serving
as a "conduit for labor" for Crown, since MLB had a contract with the
local union but Crown did not.  MLB billed Crown for the employees'
wages, their benefits, and a 10% markup for handling the payroll.  Thus,
while MLB technically paid the workers, it appears that it assumed this
responsibility primarily as a matter of convenience and that it was
Crown who actually was responsible for the cost.  Accordingly, we do not
consider this payment of the employees to be significant in determining
who was their employer.

Having reviewed the circumstances surrounding the employment
relationship in this case, we conclude that Crown, not MLB, was the
employer of the three employees for purposes of the cited violation.
[[11]]  In reaching this conclusion, we attach particular importance to
the fact that Crown assumed responsibility for the employees'
activities, had control of the worksite, and provided the supervision of
the work.  Therefore, Crown was in a better position than MLB to assure
the safety of the workers in removing sections of the concrete floor.[[12]]

Accordingly, the citation in this case is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  October 31, 1985

WALL, Commissioner, concurring:

I concur with the majority opinion in that the indicia of
employer/employee relationships should be viewed consistently with the
intent of the statute rather than to track "employee" analysis derived
from other statutes, and that the indicia of employment should be
analyzed in the context of the facts of each case.  However, I would
absolve MLB of responsibility for safety in this case, and assign it to
Crown irrespective of which company was the "employer" of the three
laborers.  Even if these employees were those of MLB under any
construction of the term employer, then these employees were "loaned" to
Crown.  In my view, the paramount consideration under the Occupational
Safety and Health Act is who had control of the workplace, and under the
facts of this case it would clearly reside in Crown.  While it would not
always be appropriate to assign safety responsibility to the "loanee
employer" as opposed to the "loaner employer"[[13]] as is brought out in
the majority opinion, Crown's project engineer told Bromley, MLB's
project engineer, that he would tell the workers what to do, would
furnish the tools and would supervise the work.  Further, in other
instances when MLB furnished Crown with labor, Bromley was told that
Crown did not want supervision, just manpower, and MLB was not directed
or expected to provide safety equipment or safety precautions.  When the
employees arrived at the site, Dexter showed them the sections of
concrete floor that had to be removed, and told the employees what tools
to use and what protective devices to wear.  The situs was Crown's
workplace.  No MLB supervisor was in the area, and MLB cannot reasonably
be held accountable for the employees' safety in these circumstances. 
Notwithstanding the employer/employee relationship, Crown should have
been held responsible for the safety of the employees, and, in fact, was
the only employer in a position to provide for safety.   Accordingly, I
concur.

------------------------------------------------------------------------


FOOTNOTES:

[[1]] The standard provides:

§ 1926.28 _Personal protective equipment_.

(a) The employer is responsible for requiring the wearing of appropriate
personal protective equipment in all operations where there is an
exposure to hazardous conditions or where this part indicates the need
for using such equipment to reduce the hazards to the employees.

[[2]] MLB does not argue on review that §1926.28(a) was not violated;
MLB only argues that it should not be held responsible for the violation.

[[3]] The Act defines the term "employer" as "a person engaged in a
business affecting commerce who has employees, but does not include the
United States or any State or political subdivision of a State."  29
U.S.C. § 652(5).  However, the Act does not set forth criteria for
determining under what circumstances a "person" shall be considered the
employer of particular employees.

[[4]] The Tenth Circuit has observed that "[i]n order to accomplish [the
Act's] purpose, it is necessary to look to an employer who controls the
working environment.  Whether the employer controlling work environment
(sic) is also the employer for wage or tort purposes should not be a
governing factor."  _Clarkson Construction Co. v. OSHRC_, _supra_ at
458, quoting _James E. Roberts Co_., 74 OSAHRC 21/B6, 1 BNA OSHC 1684,
1973-74 CCH OSHD ¶ 17,659 (No. 103 & 118, 1974) (Commissioner Cleary,
dissenting).

[[5]] In such cases, the Commission has held that a general contractor
at a construction site, by reason of its general supervisory authority,
may be responsible for hazardous conditions to which a subcontractor's
employees have access.  Further, a subcontractor who did not create or
control hazards to which its employees are exposed may defend against
the Secretary's charge by showing that it took realistic measures to
protect its employees.  _Lewis & Lambert Metal Contractors, Inc._, 84
OSAHRC __/___ , 12 BNA OSHC 1026, 1984 CCH OSHD ¶ 26,294 (No. 80-5295,
1984); _Grossman Steel & Aluminum Corp._, 76 OSAHRC 54/D6, 4 BNA OSHC
1185, 1975-76 CCH OSHD ¶ 20,691 (No. 12775, 1976); _see_ _also_ _De Trae
Enterprises v. OSHRC_, 645 F.2d 103 (2d Cir. 1981) (per curiam);
_Anning-Johnson v. OSHRC_, 165 F.2d 1981, 1988 (7th Cir. 1975); _Brennan
v. Underhill Construction Corp_., 513 F.2d 1032 (2d Cir. 1975)

[[6]] In earlier cases, the Commission considered the following three
factors in identifying an "employer" for purposes of the Act: (1) the
person whom the employees consider to be their employer; (2) who pays
the employees' wages; and (3) who is responsible for controlling
employees' activities.   _See_, _e.g_., _Gordon Construction Co._, 4 BNA
OSHC 1581, 1976-77 CCH OSHD ¶ 20,968 (No. 7390, 1976).  _See_ _also_
_Griffin & Brand of McAllen Inc._, 78 OSAHRC 48/C13, 6 BNA 1702, 1978
CCH OSHD ¶ 22,829 (No. 14801, 1978) (seven-factor test applied to
determine whether workers were employees of the respondent or were
independent contractors).

[[7]] Bromley testified that this instruction concerning the wearing of
safety equipment was consistent with the arrangements made between MLB
and Crown.

[[8]] The workers for the most part worked without any supervisors in
the area.   However, even if these laborers had been Crown's regular
employees, Crown's supervisors might have concluded that, because of the
employees' experience and the repetitious nature of the work, a constant
supervisory presence in the area was not necessary.  Therefore, the
inference that MLB was responsible for these employees cannot be drawn
from the fact that Crown did not maintain a constant supervisory presence.

[[9]] According to the compliance officer, during the inspection
Stafford was identified as a foreman by an MLB safety supervisor, and
Stafford himself said he was a foreman.  Ingleston also stated that
Stafford was "a foreman over there" and that he "gets stuff' set up for
us."   However, it is unclear whether this testimony concerning
Stafford's role as a foreman referred to the particular work at the IP
building or to Stafford's work during his usual employment by MLB. 
Accordingly, we find the testimony by the compliance officer and by
Ingleston is insufficient to establish that Stafford acted in a
supervisory role and thus had control over the employees' work
activities and safety.

[[10]] Ingleston and Stafford only were told by Bromley that they would
be breaking out some concrete, and they were given no other instructions
about how the work would be performed.  In addition, Stafford was told
that Dexter, Crown's project engineer, would tell him what to do.

[[11]] The circumstances of this case are different from _Del-Mont
Construction Co_., _supra_, where the Commission found that the cited
company (Del-Mont) was the employer for purposes of the Act.  Del-Mont
had loaned employees to another company (Betz) for performance of valve
installation work in a sewer system.  Unlike this case, where Dexter of
Crown told Bromley that he would tell the workers what to do and would
supervise the work, in _Del-Mont_ there was no discussion prior to the
start of the work with respect to who would control the workers'
activities.  Further, in _Del-Mont_, Betz's supervisor at the worksite
did not consider himself to be the supervisor of the loaned employees
and did no more than show the employees the location of the work, while
in this case Dexter of Crown acted as the supervisor of the loaned
employees.  Finally, while Del-Mont like MLB did not have any
supervisors present at the worksite, Del-Mont took a more active role
than MLB with respect to the work being performed. Del-Mont supplied all
of the equipment needed for the work, one of the leased employees
reported to Del-Mont's president on the second day of the job and
discussed the work with him, and Betz's supervisor asked Del-Mont's
president for permission to use the employees on a second manhole.

This case can also be distinguished from _Sam Hall & Sons, Inc_.,
_supra_; _Acchione & Canuso, Inc_., _supra_; and _Gordon Construction_
_Co_., _supra_.  In those cases, the companies that borrowed the
employees' services did not have the expertise to supervise the leased
employees' work and did not supervise the employees with respect to how
their work was performed.  In this case, Dexter of Crown was the
supervisor in charge of the work, and there was no showing that Crown
did not possess sufficient expertise to supervise the work.  Rather, the
evidence indicates that Dexter was familiar with the work since he was
project engineer for the general contractor at the construction site,
and he told the employees how the floor sections were to be removed.

[[12]] We also reject the conclusion that, under the circumstances of
this case, both MLB and Crown should be considered the employer of the
laborers for purposes of the Act.   As the Seventh Circuit observed in
_Anning-Johnson Co. v. OSHRC_, duplicative liability does not
necessarily promote the purposes of the Act, since "[p]lacing
responsibility in more than one place is . . . likely to cause confusion
and disruption in normal working relationships on a construction site .
. . [and] might in effect prove to be counterproductive."  516 F.2d at 1089.

[[13]] For example, when loaned employees have expertise in a field not
possessed by the loanee employer, or where the loanee employer has no
reason to supervise the employees, _e.g_., employees delivering
construction materials to a project.