“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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor (\”Secretary\”) under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Jerome C. Ditore found that Respondent, MLBIndustries, Inc. (\”MLB\”), had failed to comply with 29 C.F.R. ?1926.28(a)[[1]] in that three employees were not using safety belts whenthey were exposed to a potential fall of 14 feet. The issue on review iswhether the judge correctly found that MLB was the employer of theseemployees for purposes of the Act. [[2]]I.Crown Zellerbach (\”Crown\”) was the owner of and a general contractor ata construction project in South Glens Falls Mills, New York. OnFebruary 28, 1983, MLB was completing some work at a warehouse in theconstruction 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,\” andasked Bromley if he could supply manpower to remove sections of a floorat the \”IP\” building, which was located about one-quarter mile from thewarehouse. According to Bromley, Dexter stated that he would tell theworkers what to do, would furnish the tools needed, and would supervisethe work. Nothing else was discussed between Dexter and Bromley.At the time of Dexter’s request, MLB had a contract with the local unionand 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 previousoccasions. On those occasions there were no purchase orders; MLB wouldsupply the laborers, pay them, and bill Crown after the work wascompleted. During the previous transactions, Dexter and others fromCrown had told Bromley that they did not want supervision, justmanpower. Bromley further testified that, on these occasions, MLB wasnot directed or expected to provide safety equipment or safety precautions.At approximately noon on February 28, Bromley met Paul Stafford at thewarehouse, where Stafford had been performing some work for MLB. Bromley told Stafford that he was to break out some concrete and thatDexter would tell him what to do and would supply the necessary tools. Bromley took Stafford to the IP building site, where he introducedStafford 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 Inglestonto the location where they would do the work. Dexter showed themapproximately six or seven sections of the concrete floor that had to beremoved, and told them how the sections had to be chopped out. Dextertold the workers to use the tools that were there, which consisted ofjackhammers and a compressor. Dexter also told the labors to wear thehard hats, safety glasses, and ear plugs that the laborers had broughtwith them to the worksite, instructions that were consistent with thearrangements MLB and Crown had made. Dexter did not mention the use offall protection.Stafford and Ingleston worked about 3 1\/2 hours that afternoon and cutout two sections of the floor. While they were working, Dexter was inthe area two or three times. During one of these times, Stafford toldDexter that one of the jackhammers was not working properly. Dextertold Stafford to \”go get a hammer from someplace.\” Stafford obtained ajackhammer 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 suppliedby MLB. Dexter briefly spoke to the workers at the beginning of thework day. Dexter also was in the area two other times that morning, fora total of about 5 to 10 minutes. On one of these occasions, Dexterindicated that he planned to send the employers who were working belowto lunch, so that the laborers could continue working withoutendangering other employees with falling debris.At approximately 11:55 a.m., while Ingleston and Fletcher were cuttingout a section of the floor with jackhammers, the concrete on whichFletcher was standing gave way. Fletcher fell approximately 14 feet tothe basement and later died of his injuries.The concrete floor that the employees were working on had been poured inan arch form to give it support, but the floor did not contain rebars orother reinforcement. Stafford testified that he had been told that, ifthe arch of the floor was cut, the floor would be weakened and would beunsafe. Stafford believed that he was told this before the accident,but he could not recall who had told him this. The three employees hadnot used safety belts or lifelines, nor had they been provided with anyother type of fall protection. Both Stafford and Ingleston, as well asthe compliance officer, testified that safety belts and lifelines couldhave been used by the laborers, since there were beams nearby where thelines could have been attached.At the time of the accident, Stafford had worked for MLB for 14 or 15years. However, Stafford did not consider MLB to be his employer forthe work at the IP building, since MLB did not supervise the work, butrather \”we were listening\” to Dexter of Crown. Ingleston, on the otherhand, considered MLB to be his employer for this work, because Bromleyhad told him to go to the worksite and MLB had been his employer for thepast three years.There was conflicting testimony about Stafford’s status on this job. Stafford testified that, although his job title was \”labor foreman\” andhe was paid at a foreman’s pay rate, he did not act as a foreman for theconcrete removal work. Both Stafford and Ingleston considered Dexter tobe the foreman in charge of the project. However, the complianceofficer testified that, during the inspection, Stafford was identifiedas a foreman by an MLB safety supervisor, and that Stafford himself saidhe was a foreman. Ingleston also stated that Stafford was \”a foremanover there,\” and that he \”gets stuff set up for us.\”Stafford testified that he believed that Crown could have thrown him offthe worksite if Crown thought that his work was unsatisfactory. Hestated, however, that Crown would have to notify Bromley or \”Mr.M.L.B.,\” because \”they are the ones that sent me there.\” Bromleytestified that he could have laid off Stafford, Ingleston or Fletcherfrom the job at the IP building.MLB paid the three employees for their work at the IP building and sentCrown a bill, totaling $577, for the work. That amount equaled theemployees’ 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 safetyof the employees performing the work at issue, Judge Ditore consideredthe 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 theemployee; and5. Who has the power to fire the employee or to modify the employee’semployment conditions.The judge observed that in _Del-Mont Construction Co_., 81 OSAHRC35\/E11, 9 BNA OSHC 1703, 1981 CCH OSHD ? 25,324 (No. 76-4899, 1981), theCommission considered these five factors in determiningemployer-employee relationships.The judge found that Stafford, Ingleston, and Fletcher were employees ofMLB, not Crown. The judge found that MLB paid the employees’ wages, hadthe ability and the power to control the employees, and could fire themor otherwise modify their working conditions. The judge also noted thatIngleston believed he was MLB’s employee, while Stafford consideredhimself to be an employee of Crown. However, the judge found thatStafford, despite his belief, was MLB’s labor foreman on the job anddirected the activities of the other two employees. In the judge’sview, the supervisory role of Dexter of Crown was limited, since he leftthe employees under Stafford’s supervision to do the job after tellingthem what to do. The judge concluded that MLB was responsible for thesafety on the jobsite and for the cited violation. The judge found thatMLB had committed a repeated violation of section 1926.28(a) andassessed a penalty of $1,540.MLB contends that the key factor in identifying employment relationshipsunder the Act is the degree of control and supervision exerted by thealleged employer. MLB asserts that the laborers were under the controland supervision of Crown. The Secretary contends that the judgeproperly applied the five-factor test for determining employmentrelationships under the Act and correctly held that the workers remainedemployees of MLB.III.This case involves the circumstances under which a particular companycan be considered an \”employer\” under the Act so as to be heldresponsible for the safety of its employees. [[3]] The Supreme Courthas held, in the context of other statutes, that it is inappropriate touse varying state common law definitions of an employee and employer inconstruing federal legislation. _United_ _States v. Silk_, 331 U.S. 704(1974). Instead of looking at narrow common law definitions, theSupreme Court has looked to the purpose of the statute involved indeciding how employment relationships should be defined. _NLRB v.Hearst Publications, Inc_., 322 U.S. 111, 124 (1944) (the meaning of theterm \”employee\” under the National Labor Relations Act is to bedetermined primarily from the history, terms, and purposes of thelegislation). Further, the United States courts of appeals that haveaddressed the issue under the Act have held that employmentrelationships should be determined by reference to the Act’s purpose andpolicy. _Clarkson Construction Co. v. OSHRC_, 531 F.2d 451, 457-58 (10thCir. 1976); _Frohlick Crane Service, Inc. v. OSHRC_, 521 F.2d 628,631-32 (10th Cir. 1975); _Brennan v. Gilles & Cotting, Inc_., 504 F.2d1255, 1261 (4th Cir. 1974).The express purpose of the Act is to \”assure so far as possible everyworking man and woman in the Nation safe and healthful workingconditions.\” 29 U.S.C. ? 651(b). To effectuate this purpose it isappropriate for the Commission, in considering whether an employmentrelationship exists, to place primary reliance upon who has control overthe work environment such that abatement of the hazards can beobtained.[[4]] This approach is consistent with the above-cited SupremeCourt and courts of appeals opinions. It is also in keeping with theCommission’s analysis in the analogous situation of the multi-employerconstruction worksite, where the Commission has concluded that the Act’spurpose is best served if an employer’s duty to comply with OSHAstandards is based upon whether it created or controlled the citedhazard.[[5]]As the judge stated in his decision, the Commission has generallyconsidered five factors in determining employer-employee relationships. _Del-Mont Construction Co_., _supra_; _Sam Hall & Sons, Inc._, 80 OSAHRC106\/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 CCHOSHD ? 24,174 (No. 16180, 1980). [[6]] Three of these factors — who isresponsible for controlling the employee’s activities, who has the powerto control the employee, and who has the power to fire the employee orto modify the employee’s employment condition — are related to theissue of who controls the work environment and employees. Since thesefactors give effect to the remedial purpose of the Act, they should begiven particular emphasis in determining who is an employer under theAct. The other two factors involve the employees’ belief as to who istheir employer and the determination of who pays the laborers’ wages. Although these latter two factors have some bearing on the employmentrelationship, they are not directly related to the issue of control, andshould normally be accorded less emphasis in determining the employmentrelationship 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, wenote that the Commission has never considered any list of factors to beall inclusive. Moreover, in determining the employment relationship,each situation must be examined on a case-by-case basis and all relevantfactors considered. _See_ _Griffin_ _& Brand of McAllen, Inc_., _supra_.Analyzing this case from the standpoint of who had control over theemployees and their activities, we conclude that Crown had both theresponsibility and the power to control the employees’ activities. Crown’s control over the employees’ activities was consistent with thearrangements made between Crown and MLB prior to the beginning of thework. In his request for workers, Dexter, Crown’s project engineer,told Bromley, MLB’s project engineer, that he would tell the workerswhat to do, would furnish the tools and would supervise the work. Further, in other instances when MLB furnished Crown with labor, Bromleywas told that Crown did not want supervision, just manpower, and MLB wasnot directed or expected to provide safety equipment or safety precautions.Crown owned the construction project and was the general contractorresponsible for the work at the IP building. When the employees arrivedat the site, Dexter showed them the sections of concrete floor that hadto be removed and told them how the work was to be done. He also toldthe 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 Crownperiodically checked the progress of the work. Thus, the circumstancesunder which the work was performed lead to the conclusion that Crown hadthe power to direct the employees’ activities and to insure the work wasdone safely.The judge found that Dexter’s role was a \”limited one,\” and that controlof the employees’ activities was left to Stafford as MLB’s foreman atthe jobsite. We conclude that these findings are not supported by apreponderance of the evidence. Both Stafford and Ingleston testifiedthat they considered Dexter to be in charge of the project. Additionally, as discussed above, Crown did not request supervision fromMLB 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 notact as a foreman on this job.[[9]] Further, there is no evidence thatStafford had disciplinary authority, instructed the other workers insafety, enforced safety rules, or in any other respects acted as theirsupervisor on this job. _Cf_. _Daniel International Corp. v. OSHRC_, 683F.2d 361 (11th Cir. 1982) (\”leadman\” at construction site is not asupervisor for purposes of employer’s defense of isolated employeemisconduct). Rather, Dexter’s role in explaining the work to theemployees, instructing that they wear hard hats, safety glasses, and earplugs, determining when employees were to take lunch breaks, andchecking the progress of the work establishes that he was the supervisorin charge of the work.In contrast to Crown’s direct control over the employees’ activitiesthrough Dexter’s supervision, MLB’s power to control the employees andto modify their working conditions was largely indirect or theoretical. Although MLB selected and contacted the employees about the job, therewas no showing that MLB’s initial contact with the employees had animpact upon how they performed their work or their safety.[[10]] Although MLB may have had the authority to withdraw the laborers fromthe 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 anyrole in determining how the concrete floor was to be removed. Furtherthere is no indication that MLB knew of any circumstances that wouldhave required it to take action with respect to the workers’ employment,either for safety purposes or for any other reason. Therefore, MLB didnot have sufficient control of the work environment or employee’sactivities to support a finding that it was an employer under the Act.The other factors that have been considered by the Commission indetermining employer-employee relationships do not support a findingthat MLB was the employer of the employees in this case. With respectto who the employees considered their employer to be, we note thatStafford considered Crown to be the employer based upon Dexter’s role insupervising the work. However, Ingleston considered MLB to be hisemployer because MLB had been his regular employer for three years andBromley had contacted him about the work. Thus, the evidence isinconclusive 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 wasbilled and ultimately responsible for payment. MLB was merely servingas a \”conduit for labor\” for Crown, since MLB had a contract with thelocal 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 thisresponsibility primarily as a matter of convenience and that it wasCrown who actually was responsible for the cost. Accordingly, we do notconsider this payment of the employees to be significant in determiningwho was their employer.Having reviewed the circumstances surrounding the employmentrelationship in this case, we conclude that Crown, not MLB, was theemployer of the three employees for purposes of the cited violation.[[11]] In reaching this conclusion, we attach particular importance tothe fact that Crown assumed responsibility for the employees’activities, had control of the worksite, and provided the supervision ofthe work. Therefore, Crown was in a better position than MLB to assurethe safety of the workers in removing sections of the concrete floor.[[12]]Accordingly, the citation in this case is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: October 31, 1985WALL, Commissioner, concurring:I concur with the majority opinion in that the indicia ofemployer\/employee relationships should be viewed consistently with theintent of the statute rather than to track \”employee\” analysis derivedfrom other statutes, and that the indicia of employment should beanalyzed in the context of the facts of each case. However, I wouldabsolve MLB of responsibility for safety in this case, and assign it toCrown irrespective of which company was the \”employer\” of the threelaborers. Even if these employees were those of MLB under anyconstruction of the term employer, then these employees were \”loaned\” toCrown. In my view, the paramount consideration under the OccupationalSafety and Health Act is who had control of the workplace, and under thefacts of this case it would clearly reside in Crown. While it would notalways be appropriate to assign safety responsibility to the \”loaneeemployer\” as opposed to the \”loaner employer\”[[13]] as is brought out inthe majority opinion, Crown’s project engineer told Bromley, MLB’sproject engineer, that he would tell the workers what to do, wouldfurnish the tools and would supervise the work. Further, in otherinstances when MLB furnished Crown with labor, Bromley was told thatCrown did not want supervision, just manpower, and MLB was not directedor expected to provide safety equipment or safety precautions. When theemployees arrived at the site, Dexter showed them the sections ofconcrete floor that had to be removed, and told the employees what toolsto use and what protective devices to wear. The situs was Crown’sworkplace. No MLB supervisor was in the area, and MLB cannot reasonablybe held accountable for the employees’ safety in these circumstances. Notwithstanding the employer\/employee relationship, Crown should havebeen held responsible for the safety of the employees, and, in fact, wasthe only employer in a position to provide for safety. Accordingly, Iconcur.————————————————————————FOOTNOTES:[[1]] The standard provides:? 1926.28 _Personal protective equipment_.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor 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 abusiness affecting commerce who has employees, but does not include theUnited States or any State or political subdivision of a State.\” 29U.S.C. ? 652(5). However, the Act does not set forth criteria fordetermining under what circumstances a \”person\” shall be considered theemployer of particular employees.[[4]] The Tenth Circuit has observed that \”[i]n order to accomplish [theAct’s] purpose, it is necessary to look to an employer who controls theworking environment. Whether the employer controlling work environment(sic) is also the employer for wage or tort purposes should not be agoverning factor.\” _Clarkson Construction Co. v. OSHRC_, _supra_ at458, 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 contractorat a construction site, by reason of its general supervisory authority,may be responsible for hazardous conditions to which a subcontractor’semployees have access. Further, a subcontractor who did not create orcontrol hazards to which its employees are exposed may defend againstthe Secretary’s charge by showing that it took realistic measures toprotect its employees. _Lewis & Lambert Metal Contractors, Inc._, 84OSAHRC __\/___ , 12 BNA OSHC 1026, 1984 CCH OSHD ? 26,294 (No. 80-5295,1984); _Grossman Steel & Aluminum Corp._, 76 OSAHRC 54\/D6, 4 BNA OSHC1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976); _see_ _also_ _De TraeEnterprises v. OSHRC_, 645 F.2d 103 (2d Cir. 1981) (per curiam);_Anning-Johnson v. OSHRC_, 165 F.2d 1981, 1988 (7th Cir. 1975); _Brennanv. Underhill Construction Corp_., 513 F.2d 1032 (2d Cir. 1975)[[6]] In earlier cases, the Commission considered the following threefactors in identifying an \”employer\” for purposes of the Act: (1) theperson whom the employees consider to be their employer; (2) who paysthe employees’ wages; and (3) who is responsible for controllingemployees’ activities. _See_, _e.g_., _Gordon Construction Co._, 4 BNAOSHC 1581, 1976-77 CCH OSHD ? 20,968 (No. 7390, 1976). _See_ _also__Griffin & Brand of McAllen Inc._, 78 OSAHRC 48\/C13, 6 BNA 1702, 1978CCH OSHD ? 22,829 (No. 14801, 1978) (seven-factor test applied todetermine whether workers were employees of the respondent or wereindependent contractors).[[7]] Bromley testified that this instruction concerning the wearing ofsafety equipment was consistent with the arrangements made between MLBand Crown.[[8]] The workers for the most part worked without any supervisors inthe area. However, even if these laborers had been Crown’s regularemployees, Crown’s supervisors might have concluded that, because of theemployees’ experience and the repetitious nature of the work, a constantsupervisory presence in the area was not necessary. Therefore, theinference that MLB was responsible for these employees cannot be drawnfrom the fact that Crown did not maintain a constant supervisory presence.[[9]] According to the compliance officer, during the inspectionStafford was identified as a foreman by an MLB safety supervisor, andStafford himself said he was a foreman. Ingleston also stated thatStafford was \”a foreman over there\” and that he \”gets stuff’ set up forus.\” However, it is unclear whether this testimony concerningStafford’s role as a foreman referred to the particular work at the IPbuilding or to Stafford’s work during his usual employment by MLB. Accordingly, we find the testimony by the compliance officer and byIngleston is insufficient to establish that Stafford acted in asupervisory role and thus had control over the employees’ workactivities and safety.[[10]] Ingleston and Stafford only were told by Bromley that they wouldbe breaking out some concrete, and they were given no other instructionsabout how the work would be performed. In addition, Stafford was toldthat Dexter, Crown’s project engineer, would tell him what to do.[[11]] The circumstances of this case are different from _Del-MontConstruction Co_., _supra_, where the Commission found that the citedcompany (Del-Mont) was the employer for purposes of the Act. Del-Monthad loaned employees to another company (Betz) for performance of valveinstallation work in a sewer system. Unlike this case, where Dexter ofCrown told Bromley that he would tell the workers what to do and wouldsupervise the work, in _Del-Mont_ there was no discussion prior to thestart of the work with respect to who would control the workers’activities. Further, in _Del-Mont_, Betz’s supervisor at the worksitedid not consider himself to be the supervisor of the loaned employeesand did no more than show the employees the location of the work, whilein this case Dexter of Crown acted as the supervisor of the loanedemployees. Finally, while Del-Mont like MLB did not have anysupervisors present at the worksite, Del-Mont took a more active rolethan MLB with respect to the work being performed. Del-Mont supplied allof the equipment needed for the work, one of the leased employeesreported to Del-Mont’s president on the second day of the job anddiscussed the work with him, and Betz’s supervisor asked Del-Mont’spresident 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 theemployees’ services did not have the expertise to supervise the leasedemployees’ work and did not supervise the employees with respect to howtheir work was performed. In this case, Dexter of Crown was thesupervisor in charge of the work, and there was no showing that Crowndid not possess sufficient expertise to supervise the work. Rather, theevidence indicates that Dexter was familiar with the work since he wasproject 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 ofthis case, both MLB and Crown should be considered the employer of thelaborers for purposes of the Act. As the Seventh Circuit observed in_Anning-Johnson Co. v. OSHRC_, duplicative liability does notnecessarily promote the purposes of the Act, since \”[p]lacingresponsibility in more than one place is . . . likely to cause confusionand 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 notpossessed by the loanee employer, or where the loanee employer has noreason to supervise the employees, _e.g_., employees deliveringconstruction materials to a project.”