Absolute Roofing & Constructio v. OSHRC

Filing

OPINION filed : REVIEW DENIED, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Raymond M. Kethledge, Circuit Judge and Michael H. Watson, U.S. District Judge for the Southern District of Ohio.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0711n.06
Case No. 13-4364
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ABSOLUTE ROOFING &
CONSTRUCTION, INC.,
Petitioner,
v.
SECRETARY OF LABOR,
Respondent.

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FILED
Sep 09, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE OCCUPATIONAL
SAFETY & HEALTH REVIEW
COMMISSION

BEFORE: SILER and KETHLEDGE, Circuit Judges; WATSON, District Judge.*
SILER, Circuit Judge. Absolute Roofing & Construction, Inc. (“Absolute”) seeks review
of an Administrative Law Judge (“ALJ”) decision affirming citations and penalties assessed by
the Occupational Safety and Health Administration (“OSHA”) following a jobsite interview of
Michael Koran by two OSHA Compliance Officers (“COs”). We DENY the petition.
BACKGROUND
In 2011, OSHA inspected an Absolute jobsite where Koran was performing repair work
on a church without certain safety measures in place. Absolute is a roofing contracting company
owned by Michael Kamis, and Koran is a skilled carpenter who does roofing work. The COs

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The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.

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asked Koran a series of questions to determine his employment relationship with Absolute.
Based on Koran’s answers, the COs determined that Koran was an employee of Absolute.
As a result of the inspection, OSHA issued Absolute multiple citations with a total
proposed penalty of $21,120.1 Absolute contested the citations and an ALJ held a hearing on the
merits. The ALJ determined that Koran was not a credible witness because his “testimony
differed in several important respects from the information [he] provided to the COs on the day
of the inspection.” It also found that the subcontract agreement between Koran and Absolute did
not apply to Koran’s work on the church. Then, giving credibility to the COs over Koran, the
ALJ applied the record to the factors outlined in Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323–24 (1992), and found that Koran was an employee of Absolute.
The ALJ also determined that neither Koran nor Koran’s business, Koran Construction,
Inc., was an indispensable party to the litigation. It found that, because Koran was Absolute’s
employee, the complaint correctly named Absolute as the only defendant. It likewise determined
that Koran Construction, Inc. was not involved with Koran’s work at the jobsite and was
therefore not an indispensable party to the litigation.
STANDARD OF REVIEW
We uphold the factual findings of the Occupational Safety and Health Review
Commission (the “Commission”) if they are supported by “substantial evidence on the record

1

Citation 1, Item 1, alleged a serious violation of 29 C.F.R. § 1926.451(c)(2) for not ensuring
that the scaffold at the jobsite rested on base plates. Citation 1, Item 2, alleged a serious violation
of 29 C.F.R. § 1926.451(g)(1) for not ensuring that the employee using the scaffold was
protected from falls by use of fall protection. Citation 2, Item 1, alleged a repeat-serious violation
of 29 C.F.R. § 1926.451(a)(1) for not ensuring that the scaffold positioned below an employee
on a steep-pitched roof was able to support the intended load that could have been applied to it.
Citation 2, Item 2, alleged a repeat-serious violation of 29 C.F.R § 1926.501(b)(11) for not
ensuring that the employee working on the roof was protected from a fall of approximately 13.3
feet by use of fall protection.
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Case No. 13-4364; Absolute Roofing & Constr., Inc. v. Secretary of Labor
considered as a whole.” Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety
and Health Review Comm’n, 579 F.2d 378, 383 (6th Cir. 1978) (quoting 29 U.S.C. § 660(a)).
The Commission’s legal conclusions may be overturned if they are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.” Id. (quoting 5 U.S.C. §
706(2)(A)).
DISCUSSION
I.

ALJ’s Employee Determination
A. ALJ’s Credibility Determination
Absolute argues that the ALJ erred in determining that Koran was an employee of

Absolute and not an independent contractor. As a preliminary matter, Absolute contends that the
ALJ’s credibility determination was patently unreasonable in crediting the COs’ testimony over
Koran’s. In First Nat’l Monetary Corp. v. Weinberger, we held that:
[c]redibility determinations . . . are generally not to be set aside unless found to be
inherently incredible or patently unreasonable. Appellate courts defer to the finder
of fact[] because the factfinder has the opportunity to observe the witnesses’
demeanors. However, a reviewing court does not act, even in credibility matters,
as a mere rubber stamp for the administrative action on appeal. A reviewing court
must consider evidence which fairly detracts from the weight of the credibility
determination, and in a case where one witness’s testimony is flatly contradicted
by several others, the court must carefully examine the credibility finding.
819 F.2d 1334, 1339 (6th Cir. 1987) (internal quotation marks and citations omitted).
The ALJ properly assessed Koran as not credible by assessing his demeanor and by
highlighting the portions of Koran’s interview that contradicted his testimony at the hearing, and
we will therefore defer to its adverse credibility determination. There were five key discrepancies
between the statements Koran made during the investigation and during his testimony:
(1) Koran told the COs that he owned only the tools on his tool belt and that Absolute supplied
all of the other equipment, but he later testified that he owned all of the tools on the jobsite.
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(2) Koran told the COs that he had been at a different Absolute jobsite the morning before
reporting to the church jobsite, but he testified that he had been at the church jobsite all day.
(3) Koran told the COs that he was required to report to Absolute’s shop at 7:00 AM and work at
least eight hours per day, but he testified that he set his own hours.
(4) Koran told the COs that Absolute set his wage and paid him hourly and that he did not have
the opportunity to earn any profit on the church job. However, Koran testified that he
submitted an invoice to Absolute for his work on the church job and that he charged an
hourly rate plus overhead.
(5) Koran told the COs that he was an employee of Absolute, that Kamis was his employer, that
he was not an independent contractor, and that Kamis controlled the church job. However,
Koran testified that he subcontracted from Absolute to do the church job, that he controlled
the site and was responsible for the completion of the church project, and that he was also
responsible for not having fall protection at the site.
These discrepancies, coupled with the fact that “Koran’s substantial and ongoing work
relationship with [Absolute] appear[ed] to have influenced his testimony,” led the ALJ to
determine Koran’s testimony was not credible. Further, because the COs’ testimony relied on
Koran’s interview answers during the OSHA investigation, we reject Absolute’s argument that
Koran’s testimony merely contradicts the testimony of the COs, as Koran’s testimony actually
contradicts his own prior statements during the investigation.
B. The Darden Factors
Next, Absolute argues that the ALJ erred in finding that Koran was an employee of
Absolute and not an independent contractor because it improperly applied the Darden test to the

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facts of this case. In Darden, the Supreme Court adopted the common-law agency test for
determining whether a worker is an employee or an independent contractor:
[W]e consider the hiring party’s right to control the manner and means by which
the product is accomplished. Among the other factors relevant to this inquiry are
the skill required; the source of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the extent of the
hired party’s discretion over when and how long to work; the method of payment;
the hired party’s role in hiring and paying assistants; whether the work is part of
the regular business of the hiring party; whether the hiring party is in business; the
provision of employee benefits; and the tax treatment of the hired party.
503 U.S. at 323–24 (internal quotation marks and citation omitted).
Absolute argues that it provided uncontroverted evidence for eight factors favoring
independent contractor status. It relies on Koran’s testimony at the hearing, but ignores Koran’s
statements from the investigation. Because the ALJ properly determined Koran’s testimony to be
not credible, we only give credit to the facts provided in the COs’ testimony and in the
handwritten notes from their interview of Koran during the inspection.
The “skill required” factor does not weigh in favor of a finding that Koran was an
employee because he acquired his highly specialized skill outside of working for Absolute. See
Weary v. Cochran, 377 F.3d 522, 526–27 (6th Cir. 2004). Koran was a skilled carpenter with
over 30 years of experience prior to working for Absolute. Therefore, this factor weighs in favor
of independent contractor status.
The government concedes that the factors of “the provision of employee benefits” and
“the tax treatment of the hired party” suggest an independent contractor relationship between
Koran and Absolute rather than an employer-employee relationship. Because Absolute gave no
employee benefits to Koran and because Koran only received a Form 1099, a federal tax form
for independent contractors, these factors weigh in favor of independent contractor status.
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Nevertheless, the three factors that weigh in favor of independent contractor status must be
balanced with the remaining ten factors, which weigh in favor of an employer-employee
relationship between Absolute and Koran. See Darden, 503 U.S. at 324.
Absolute argues that “the source of the instrumentalities and tools” factor weighs in favor
of Koran’s independent contractor status, but relies solely on Koran’s discredited testimony to
support its position, stating that Koran testified to supplying all the tools used on the church
jobsite. While the fact that a hired party works with all of his own tools would support a finding
of independent contractor status, see, e.g., Trs. of Resilient Floor Decorators Ins. Fund v. A & M
Installations, Inc., 395 F.3d 244, 250 (6th Cir. 2005), Koran told the COs that the ladder,
scaffold, slide cutter, and other tools onsite were the property of Absolute. Therefore, this factor
weighs in favor of a finding that Koran was an employee of Absolute.
In regard to “the duration of the relationship between the parties” factor, Absolute argues
that, because the relationship between it and Koran lasted approximately four months, and
because Koran performed work for Absolute only when called, this factor weighs in favor of
independent contractor status. Evidence of an indefinite duration favors employee status rather
than independent contractor status. See FM Home Improvement, 22 BNA OSHC 1531, at *8
(2009). Even though Koran only worked for about four months at the time of the investigation,
he had worked on approximately twelve different projects for Absolute, and he continued to
work for Absolute for almost one year after the inspection. Therefore, these facts favor a finding
that Koran was an employee of Absolute.2

2

The record is unclear as to whether Koran stopped working almost one year after the inspection
or if he worked up to the date of the hearing and potentially thereafter. Regardless, the fact that
Koran did not have a set period of employment reveals him to be Absolute’s employee.
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Moreover, the subcontract agreement did not indicate a definite employment relationship
between Koran and Absolute. One of the COs testified that subcontractors normally sign a
different subcontract agreement for each job. However, the subcontract agreement between
Absolute and Koran makes no reference to the church job. The CO testified that this type of
subcontract is indicative of a blanket subcontract that covers all work for an indefinite period of
time, which, in his experience, is used to “skirt the system” and avoid the responsibilities of an
employer-employee relationship. Therefore, the indefinite nature of the subcontract favors
Koran’s employee status. See FM Home Improvement, 22 BNA OSHC 1531, at *8.
Absolute argues that the “whether the hiring party has the right to assign additional
projects to the hired party” factor also weighs in favor of a finding that Koran was an
independent contractor because, even though it had the right to assign additional projects, Koran
was under no obligation to accept these jobs. However, Absolute assigned tasks to Koran on a
daily basis, Koran reported to Absolute at 7:00 each morning to receive his job assignments, and
Absolute called Koran on the day of the inspection to send him to the church jobsite from a
different Absolute jobsite. Koran also told the COs that Absolute had the right to assign him
additional duties. Therefore, this factor favors a finding that Koran was an employee. See Sharon
& Walter Constr., 23 BNA OSHC 1286, at *3 (2010) (finding in part that a worker was an
employee because the company required him to report back to headquarters for additional
assignments if he finished his work before the end of his shift).
Next, Absolute argues that the “when and how long to work” factor weighs in favor of
Koran’s independent contractor status because Koran “determined the scope of the job, how long
it would take to complete, and what was needed to complete the job.” However, these facts stem
from Koran’s discredited testimony. Unlike an independent contractor who has complete

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authority over when and how long to work, Koran’s hours were controlled by Absolute, so this
factor favors employee status. Cf. Weary, 377 F.3d at 527 (finding in part that, because the hired
party controlled his hours and was “free to take vacation at his leisure and did not report his
hours to anyone,” the hired party was an independent contractor).
Lastly, Absolute contests “the method of payment” factor. Absolute contends that Koran
“is not paid on a strict hourly basis, but instead was paid based on a formula he established that
includes and [sic] hourly rate, overhead, and profit.” But Koran told the COs that Absolute set
his wage and paid him by the hour. A hired party is more likely an independent contractor when
he is paid solely upon a commission basis and does not earn a salary. See Weary, 377 F.3d at
527. Koran’s set hourly wage weighs in favor of employee status. See Daniel Crowe Roof Repair
and Its Successors, 23 BNA OSHC 2011, *13 (No. 10-2090, 2011) (ALJ).
Absolute summarily asserts that “the location of the work” and the “hired party’s role of
hiring assistants” factors are not relevant to this case and therefore should not be analyzed. We
disagree. Koran reported to work at Absolute jobsites every day, which favors a finding that he
was an employee. Cf. Weary, 377 F.3d at 527 (finding in part that a hired party was an
independent contractor because he worked from an office rented at his expense, not at the hiring
party’s offices). Also, Koran told the COs that he had no authority to hire or fire anyone, and he
worked alone at the church jobsite, further revealing his employee status. Cf. id. (finding in part
that a hired party who had the sole discretion in hiring assistants was an independent contractor).
Absolute concedes that the “whether the work is part of the regular business of the hiring
party” and “whether the hiring party is in business” factors both weigh in favor of a finding that
Koran was an employee of Absolute. Finally, each of the factors favoring employee status
bolster the first factor, “the hiring party's right to control the manner and means by which the

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product is accomplished.” This factor is “a broad consideration that is embodied in many of the
specific factors articulated in Darden.” Weary, 377 F.3d at 525. Therefore, the ALJ properly
assessed the Darden factors in determining that Koran was an employee of Absolute because ten
of the thirteen factors weigh heavily in favor of an employee-employer relationship.3
II.

Indispensable Parties
Absolute argues that the ALJ erred in not naming Koran, the individual, and Koran

Construction, Inc. as indispensable parties to the litigation. It contends that Koran’s testimony
indicates he was solely responsible for not adequately securing the scaffolding and for not having
fall protection and was therefore an indispensable party. It also argues that Koran Construction,
Inc. performed work for Absolute during the time of the investigation and was therefore an
indispensable party to the litigation.
Pursuant to Federal Rule of Civil Procedure 19(a)(1)(A), a person must be joined as a
party to a proceeding if, “in that person’s absence, the court cannot accord complete relief among
existing parties.” Koran was not an indispensable party to the litigation because he was an
employee of Absolute. Koran told the COs during the inspection that he was an employee of
Absolute. Koran testified that he signed the subcontract agreement and worked for Absolute as
Koran, the individual, and not on behalf of Koran Construction, Inc. Likewise, Koran
Construction, Inc. was not an indispensable party to the litigation because it was not involved in
the Absolute jobsite. The Form 1099 that Absolute provided to Koran was issued to Koran the
individual. Also, no bids or invoices by Koran Construction, Inc. were addressed to Absolute.

3

Absolute urges us to use a twenty-factor list acknowledged by Darden and used by the Internal
Revenue Service (“IRS”) to determine Koran’s employment status. See Darden, 503 U.S. at 324.
We decline to make this inquiry because we find the Darden test to be comprehensive. Also,
Darden does not suggest that we should supplement its common-law test with the IRS factors,
see id., and we will not expand the test without such a directive.
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And though Koran’s testimony was determined to be not credible by the ALJ, the one consistent
part of his testimony was that Koran Construction, Inc. was not involved in the church jobsite.
III.

Opportunity to Participate
Absolute argues for the first time on appeal that, because the COs failed to give Kamis

the opportunity to participate in OSHA’s inspection, its citations should be dismissed. “No
objection that has not been urged before the Commission shall be considered by the court, unless
the failure or neglect to urge such objection shall be excused because of extraordinary
circumstances.” 29 U.S.C. § 660(a). Absolute did not raise this issue in its post-hearing brief or
in its petition for discretionary review to the Commission, and it has failed to argue that
extraordinary circumstances prevented it from raising the issue. Therefore, we do not have
jurisdiction over Absolute’s argument that OSHA should have given it an opportunity to
participate in the inspection. 29 U.S.C. § 660(a); Nat'l Eng'g & Contracting Co. v. Herman,
181 F.3d 715, 720 (6th Cir. 1999).
REVIEW DENIED.

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