1

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

 OSHRC DOCKET NO. 15-1131 

Peter Nessen, Esq. and Jing Zhang, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, IL 

For Complainant 

Igor Gluzman, pro se

For Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER 

 This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (the Act). The Occupational Safety and Health Administration (OSHA) 

commenced an inspection of a RG Design Express, Inc. (Respondent) worksite at 34420 North 

Converse Lane, Ingleside, Illinois (Worksite) on April 23, 2015. As a result of the inspection, 

OSHA issued a Citation and Notification of Penalty (Citation) to Respondent alleging three 

serious violations of the Act1

 with a penalty of $4,400.00. The Citation was issued on May 27, 

2015. Respondent filed a timely Notice of Contest on June 5, 2015. This case was designated as

a Simplified Proceeding, where the filing of a Complaint and Answer are not required. See 29 

C.F.R. § 2200.200(b). A hearing was conducted in Chicago, Illinois on November 20, 2015. 

The parties have filed post-hearing briefs/statements with the Court.2

 

1

 The first serious citation has two items and alleges a violation of 29 C.F.R. § 1926.304(f). The second serious 

citation has one item that alleges a violation of 29 C.F.R. § 1926.501(b)(13). 

2

 Respondent filed a post-hearing statement with attachments that were not offered during the hearing and were not 

admitted as evidence. Even though the exhibits were not timely submitted, the Court will discuss those attachments 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

RG DESIGN EXPRESS INC.

 

 Respondent.
2

Factual Background 

 RG Design Express, Inc. is a corporation owned and operated solely by Igor Gluzman. 

(Tr. 91–92). Respondent serves as a general contractor licensed to build homes in Chicago. (Tr. 

92). OSHA initiated the inspection at the Worksite after receiving a complaint alleging that there 

were fall hazards at the Worksite. (Tr. 26, 70). Compliance Safety and Health Officer Gary Weil 

(CSHO) was assigned to conduct the inspection which commenced on April 23, 2015. (Tr. 24–

26). 

 The CSHO arrived at the Worksite on the morning of April 23, 2015. (Tr. 26, 72). As the 

CSHO was approaching the house, a man, who was later identified as Marcin Dabrowski, was 

walking out of the garage. (Tr. 27–28). The CSHO introduced himself, explained the nature, 

scope, and purpose of the inspection and presented his credentials. (Tr. 28). Mr. Dabrowski 

could understand and communicate in English and graduated from high school in the United 

States. (Tr. 107–108, 110–111). The CSHO asked to speak to the Project Manager. (Tr. 28). Mr. 

Dabrowski identified himself as the “foreman” for Respondent. (Tr. 28, 29, 47, 57-59, 72, 85). 

Mr. Dabrowski also informed the CSHO that another employee of RG Design, Mr. Vitali 

Doutka, was also at the Worksite. (Tr. 29). According to Dabrowski, Respondent was engaged 

in cabinetry work that day. (Tr. 28). At no time during the inspection did either Mr. Dabrowski 

or Mr. Doutka indicate to the CSHO that they were independent contractors of Respondent. (Tr. 

29–30 and 58). 

 The CSHO observed two portable table saws, a DeWalt saw and a Bosch saw, in the 

garage. (Tr. 33; Ex. C-4, C-8). Neither saw was equipped with the proper guarding for the 

rotating saw blade. (Tr. 33; Ex. C-6, C-8). The DeWalt saw was connected to an extension cord 

that had its power light on, indicating that it was energized. (Tr. 36; Ex. C-4). The DeWalt saw 

had a splitter but was missing an adjustable hood or anti-kickback fingers for the blade. (Tr. 34–

35, 37; Ex. C-6). The Bosch saw was five or six feet away from the DeWalt saw and had a 

splitter but was also missing an adjustable hood and anti-kickback fingers.3

 (Tr. 38–39, 43–44; 

Ex. C-8). The CSHO observed wood pieces4 and saw dust around the two saws, which were 

 

in this Decision as the tendering of those attachments does not alter the Court’s conclusions, which are supported by 

the evidence adduced at hearing. 

3

 Exhibit C-8 does not show the Bosch saw was energized. The CSHO testified he did not test the saw to determine 

if it was energized. (Tr. 38). The CSHO speculated that the employees may have been switching the two saws to the 

extension cord and that is why it does not show that it was energized. The CSHO testified that this is common 

practice in the construction industry. (Tr. 43). 

4

 Exhibit C-6 shows a piece of cabinetry trim that had been ripped. The CSHO testified that this wood material is 
3

consistent with the type of wood that was being cut for cabinetry. (Tr. 36, 44–45 and 52; Ex. C4, C-8). 

 Dabrowski stated to the CSHO that: (i) they had been using both saws to do “finish trim 

cabinetry work” that day; (Tr. 46); (ii) they did not have guards for the saws at the Worksite; and 

(iii) the guards would not allow them to cut the trim pieces that they needed because of the 

narrowness of the cuts. (Tr. 45–46, 47, 89). When the CSHO requested to see what work Doutka 

and Dabrowski were doing that day, Dabrowski led him inside the house where Doutka was 

installing cabinetry with the trim pieces. (Tr. 52; Ex. C-9). 

 The CSHO was next shown the second floor balcony that was the subject of the 

complaint to OSHA. (Tr. 53; Ex. C-10). The second floor balcony had an unfinished railing 

system that consisted only of a top rail. (Tr. 57; Ex. C-10, C-11). Dabrowski informed the 

CSHO that they had installed the partial railing system the day before the inspection. (Tr. 57, 

82). Dabrowski stated that they did not use any fall protection when installing the railing the 

previous day. (Tr. 57). Dabrowski informed the CSHO that there were no fall protection systems 

at the Worksite, and the CSHO did not observe any fall protection systems during the course of 

the inspection.5

 (Tr. 57). The second floor was more than six feet above the first floor, and the 

railing system was missing a mid-rail halfway between the deck and the top rail. (Tr. 55–56, 66–

67; Ex. C-10; C-11). Dabrowski informed the CSHO that the morning of the inspection that they 

had glued the stairs and the deck and therefore the second floor could not be accessed. (Tr. 81). 

 The CSHO conducted a closing conference with Gluzman over the phone on the same 

day of the inspection after the inspection had been concluded. (Tr. 62). Gluzman was at Home 

Depot to buy a new blade for the DeWalt saw when he held this conversation with the CSHO. 

(Tr. 10, 78, 100-101, 103, 105). During the closing conference, Gluzman was informed of the 

nature, purpose, and scope of the inspections, as well as the hazards observed by the CSHO. 

Gluzman and the CSHO discussed how those hazards could be abated. (Tr. 62). Gluzman stated 

that he did not have any guards at the Worksite but would obtain and install them. (Tr. 62–63, 

 

the same wood cabinet material that was being installed inside the home. (Tr. 39–40). This information undermines 

the testimony of Mr. Gluzman that the workers were doing no finishing work and the saw blades that are shown in 

the pictures are not the proper blades for cutting cabinetry finishing. The Court can infer based upon the evidence 

the saws were utilized to cut the cabinetry trim and when the employees could not get the trim correctly cut that is 

when Mr. Gluzman went to Home Depot to purchase the correct blade. Thus, while Mr. Gluzman argues the blades 

shown are not the “right” blades to cut the cabinetry trim does not mean that they were not used to attempt to cut the 

cabinetry trim before it was concluded a different blade was needed. Okland Constr. Co., 3 BNA OSHC 2023, 2024 

(No. 3395, 1976) (reasonable inferences can be drawn from circumstantial evidence). 

5

 This conflicts with testimony that the torn down scaffolding was in the garage. (Tr. 120–122). 
4

65, 103; Ex. C-3). Gluzman told the CSHO until that had been done he would instruct the 

workers not to use the equipment until he obtained the guards. (Tr. 62, 101–103). Gluzman also 

stated he would instruct the workers not to go up to the second floor balcony until the spindles 

were installed. (Tr. 63). During the closing conference, Gluzman did not claim that any of the 

workers at the Worksite were independent contractors nor that the workers owned the two saws 

at issue. (Tr. 63–64). Neither the CSHO nor Gluzman provided testimony that would suggest 

OSHA did not have Respondent’s permission to be on the property—a position taken by 

Respondent for the first time at the hearing. (Tr. 9–10). 

Jurisdiction 

The Commission has jurisdiction over this action pursuant to section 10(c) of the Act by 

the filing of Respondent’s Notice of Contest. 29 U.S.C. § 659(c).

Respondent Is Engaged in Interstate Commerce 

 The Court finds Respondent is engaged in a business affecting interstate commerce 

within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). See Slingluff v. OSHRC, 425 

F.3d 861, 867 (10th Cir. 2005) (noting that economic activity of construction as an aggregate 

affects interstate commerce). Complainant has the burden to establish this element of coverage. 

The use of the term “affecting commerce” indicates a congressional intent to “exercise fully its 

constitutional authority under the commerce clause.” Godwin v. OSHRC, 540 F.2d 1013, 1015 

(9th Cir. 1976); U.S. v. Dye Constr. Co., 510 F.2d 78, 83 (10th Cir. 1975); Brennan v. OSHRC, 

492 F.2d 1027, 1030 (2d Cir. 1974); see also Piping of Ohio, Inc., No. 91-3481, 1993 WL

119649, at *3-4 (O.S.H.R.C.A.L.J. Apr. 5, 1993). Commerce, according to section 3(3) of the 

Act, “means trade, traffic, commerce, transportation, or communication among the several 

States, or between a State and any place outside thereof . . . .” Following the Ninth Circuit in 

Usery v. Franklin R. Lacy, 628 F.2d 1226, 1228-29 “commerce” means it “is in a class of 

activity that as a whole affects commerce.” Clarence M. Jones d/b/a Jones Co., 11 BNA OSHC 

1529, 1530 (No. 77-3676, 1983). In Jones Co., the Commission found “[t]here is an interstate 

market in construction materials and services and therefore construction work affects interstate 

commerce.” Id. (citing NLRB v. Int’l Union of Operating Eng’rs, Local 571, 317 F.2d 638, 643 

n.5 (8th Cir. 1963) (judicial notice taken that construction industry affects interstate commerce)). 

Because Respondent is engaged in construction work as established by Complainant, the Court

finds it is engaged in a business affecting interstate commerce. (Tr. 34, 97). 

Respondent Is an Employer 
5

Only an “employer” may be cited for a violation of the Act. Vergona Crane Co., 15 BNA 

OSHC 1782, 1783 (No. 88-1745, 1992). Respondent argues it is not an employer. (Tr. 9). 

Respondent argues that all the individuals working at the Worksite were subcontractors that had 

their own company and insurance. (Tr. 16). Respondent’s position that Dabrowski and Doutka 

were independent contractors was raised for the first time at hearing. The CSHO was never 

informed by Dabrowski, Doutka or Gluzman during the inspection that there was no 

employer/employee relationship. 

 It is Complainant’s burden to prove coverage under the Act by demonstrating that the 

cited entity is an employer. Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035 

(No. 97-1631, 2005)(holding that an employer controls manner and means of production); Don 

Davis d/b/a/ Davis Ditching, 19 BNA OSHC 1477, 1481 (No. 96-1378, 2001) (citing Timothy 

Victory, 18 BNA OSHC 1023, 1027 (No. 93-3359, 1997)). CSHO Weil testified that Dabrowski 

and Doutka viewed themselves as employees of Respondent. Dabrowski repeatedly affirmed to 

the CSHO that he was the foreman of Respondent and that he “worked for RG Designs.” (Tr. 

28–29). Dabrowski informed the CSHO that there was another employee (Doutka) at the 

Worksite on the day of the inspection doing cabinetry work. (Tr. 29). Testimony indicated that 

there was no language barrier with Dabrowski—he communicated and understood English and 

finished high school in the United States. (Tr. 107–108, 110–111). Gluzman affirmed that it is 

unlikely that Dabrowski and the CSHO would have a misunderstanding as Dabrowski finished 

high school and knew English. (Tr. 111). 

 The Act places duties on “employers” to protect the health and safety of “employees.” 29 

U.S.C. § 654(a). The Act requires each employer to comply with occupational safety and health 

standards and regulations promulgated under the Act. Id. An employer is a “person engaged in a 

business affecting commerce who has employees.” 29 U.S.C. § 652(5). “Person” means “one or 

more individuals, partnerships, associations, corporations, business trusts, legal representatives, 

or any organized group of persons.” 29 U.S.C. § 652(4). An employee is defined as “an 

employee of an employer who is employed in a business of his employer which affects 

commerce.” 29 U.S.C. § 652(3). As the Commission noted in Davis Ditching, this definition is 

“unhelpfully circular.” See 19 BNA OSHC at 1480.

 The Act’s definitions of “employer” and “employee” incorporate longstanding masterservant principles that were developed under the common law of agency. See Froedtert Mem’l

Lutheran Hosp., 20 BNA OSHC 1500, 1505 (No. 97-1839, 2004) (citing Nationwide Mut. Ins. 
6

Co. v. Darden, 503 U.S. 318 (1992)). Those principles, as applied to the determination of 

whether a person is an owner or an employee, focus on the person’s legal and actual ability to 

exert control over the organization. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 

U.S. 440, 448 (2003)(“[T]he common-law element of control is the principal guidepost that 

should be followed . . . .”). “Being remedial and preventative in nature, the [OSH] Act must be 

‘construed liberally in favor of the workers whom it was designed to protect[.]’ ” Bristol Steel & 

Iron Works, Inc. v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979) (internal citation omitted).

 In determining whether Complainant has satisfied his burden to establish a cited entity as 

an employer under the Act, the Commission has applied the common law agency doctrine 

enunciated in Darden.

6

See, e.g., All Star Realty Co., Inc., d/b/a All Star Realty & Construction, 

Co., 24 BNA OSHC 1356, 1358 (No. 12-1597, 2014) (applying Darden factors and noting that 

the Secretary carries the burden of proof) ; Summit Contractors, Inc., 23 BNA OSHC 1196, 1204 

(No. 05-0839, 2010)(discussing Darden factors as a function of muti-employer liability) aff’d.,

442 Fed.Appx. 570 (unpublished) Sharon & Walter Constr. Co., 23 BNA OSHC 1286, 1289 

(No. 00-1402, 2010) (reciting Darden factor application); AAA Delivery Servs., Inc., 21 BNA 

OSHC 1219, 1220 (No. 02-0923, 2005)(same). In Darden, the Court considered primarily “the 

hiring party’s right to control the manner and means by which the product is accomplished.” 

Darden, 503 U.S. at 323. See also Froedtert Mem'l Lutheran Hosp., Inc., 20 BNA OSHC at 1506 

(citing Clackamas, 538 U.S. at 448) (recognizing the company’s control over the worker is the 

“principal guidepost” to determine the existence of an employment relationship). Other factors 

 

6

 Prior to 1992, the Commission applied the “economic realities test” to such cases. Griffin and Brand of McAllen, 

Inc., 6 BNA OSHC 1702 (No. 14801, 1978). In applying that test, questions to be considered are: (i) whom do the 

workers consider their employer; (ii) who pays the workers’ wages; (iii) who has the responsibility to control the 

workers; (iv) does the alleged employer have the power to control the workers; (v) does the alleged employer have 

the power to fire, hire, or modify the employment condition of the workers; (vi) does the workers’ ability to increase 

their income depend on efficiency rather than initiative, judgment, and foresight; and (vii) how are the workers’ 

wages established. Griffin and Brand, 6 BNA OSHC at 1703. In Griffin and Brand, the Commission found a farm 

owner was the employer of a crew of migrant workers, overturning the judge’s finding that the crew leader was an 

independent contractor. In so holding, the Commission drew a distinction between an entity’s “legal right” to control 

the workers, and its “practical power” to do so. Id. Where an entity has the power to control the workers as to the 

manner in which they accomplish their work, that entity may be found the employer under the economic realities 

test. 

Following the Supreme Court’s decision in Darden, the Commission modified its prior position that the term 

“employer” is not limited to common law principles but may take into account the economic realities of the 

relationship. See Timothy Victory, 18 BNA OSHC at 1026, citing Vergona Crane, 15 BNA OSHC at 1784. Current 

Commission precedent holds the term “employee” should be interpreted consistent with common law principles. 

The Commission has also noted those common law principles are less inclusive than the economic realities test. 

Timothy Victory, 18 BNA OSHC at 1026, n. 3. Applying the “economic realities test” to this set of facts, the Court 

would still find Respondent was an “employer” under the Act. 
7

relevant to the 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. 

Darden, 503 U.S. at 232–24, n. 3 (citing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 

751–52 (1989)). 

A. Respondent and Work Location 

 RG Design Express, Inc. is a corporation owned and operated solely by Igor Gluzman. 

(Tr. 91-92). Respondent serves as a general contractor licensed to build three-story homes in 

Chicago. (Tr. 92). Mr. Gluzman has been a general contractor for over thirty years and has been 

serving in that role in the United States since 2001. (Tr. 93). Gluzman served as the general 

contractor for the work being done at the Worksite. Respondent provided the workplace for 

Dabrowski and Doutka to perform their duties. The work performed by Dabrowski and Doutka is 

an integral part of the regular business of Respondent, which is a long-standing corporate entity 

that has provided general contracting services in the Chicago area for 15 years. That Respondent 

has continuously provided the place where the work must be performed during that time supports 

a finding that the professional working relationship between Respondent and Dabrowski and 

Doutka was that of employer-employee. 

B. Duration of Business Relationship with Dabrowski and Doutka 

 Respondent considers Dabrowski and Doutka each to be an “independent entity” or 

“independent contractor” with which Respondent has a contractual relationship. Gluzman 

testified that if it is a big job like the one at the Worksite he would do a contract. (Tr. 97). 

However, at the hearing and given the opportunity to provide a copy of that contract after 

hearing in conjunction with its post-hearing submission, Respondent failed to produce the 

contract. It is undisputed that Respondent, Dabrowski and Doutka had a long-standing 

professional working relationship. Gluzman testified that Dabrowski and Doutka work for 

Respondent nine to ten months every year. (Tr. 94). He testified that Doutka has worked for 

Respondent for seven years. (Tr. 97). Dabrowski has worked for Respondent for nine or ten 

years. (Tr. 114). Dabrowksi and Doutka were free to work on other non-Respondent projects 

when Respondent does not have any work for them to perform. (Tr. 95-96). So in this regard, 
8

they were not exclusive to Respondent. However, the Court finds that Dabrowski and Doutka 

had a long-term relationship with Respondent, which supports a finding that their professional 

working relationship was that of employer-employee. 

C. Selection, Payment, Benefits and Tax Treatment 

 There was no testimony at the hearing regarding the establishment of wages, i.e., what 

factors determined their rate of pay and whether any benefits were paid to Dabrowski and 

Doutka by Respondent. Dabrowski and Doutka were hired and selected by Gluzman to perform 

finishing, flooring, drywall, and cabinetry work at the Worksite—jobs which they were hired to 

perform over the years at other Respondent projects. (Tr. 94, 99-101). Gluzman testified that he 

would write checks to the company of Dabrowski7 and Doutka and every year he would do a 

10998 for them. (Tr. 94–97). Respondent determined the rate and amount of payment which 

Dabrowski and Doutka would receive under their arrangement. Dabrowski and Doutka received 

their compensation only from Respondent for the work performed at this Worksite. (Tr. 95-96). 

 The Court notes Respondent was provided the opportunity to address the independent 

contractor issue by providing a copy of the contract with them which defines their contractual 

relationship as it relates to this Worksite and to provide copies of Form 1099 issued to 

Dabrowski and Doutka. When Respondent submitted its post-hearing statement, it did provide 

copies of Form 1099’s issued for 2012 – three years before the year in which this inspection took 

place. The production of 2012 Form 1099s for Dabrowski and Doutka does not convince the 

Court that this same type of arrangement was in place in 2015 when the inspection occurred. 

The Court gives the 2012 Form 1099s no weight as they do not bear on the type of relationship 

which existed in 2015. Employment arrangements and relationships change over time. It could 

well be the relationship of Dabrowski and Doutka started out as independent contractors in 2012; 

however, there is no evidence except Mr. Gluzman’s testimony that this relationship continued to 

exist in 2015. See, e.g., KSP Enters., Inc., 24 BNA OSHC 2250, 2259 (No. 13-0647, 2014) (ALJ 

Calhoun) (holding 1099 forms were inconclusive on matter of employment relationship because, 

amongst other things, respondent did not submit 1099 forms for the time period at issue in the 

case). 

 

7

 Respondent provided a letter in its post-hearing submission which established an EIN number for Mr. Dabrowski 

which did not indicate he had a separate business entity from his individual status. This letter from the IRS does not 

provide any new information on which is can be concluded that Dabrowski was not an employee of Respondent. 

8

 The Court takes judicial notice of the term “1099” as referring to IRS Form 1099-MISC which is used to “report 

payments made in the course of trade or business to a person who is not an employee or to an unincorporated 

business.” See www.irs.gov. 
9

 Respondent’s failure to provide a contract on which to assess its business relationship 

with Dabrowski and Doutka and its failure to provide the most recent Form 1099 that would 

have been issued to Dabrowski and Doutka for 2014 undermines its claim of an independent 

contractor relationship.9 At the time of the inspection, Dabrowski and Doutka viewed 

themselves as employees of Respondent and were paid directly by Respondent. Dabrowski 

repeatedly affirmed to the CSHO that he was the foreman of Respondent and that he “worked for 

RG Designs.” (Tr. 28–29). Dabrowski informed the CSHO that there was another employee 

(Doutka) at the Worksite on the day of the inspection doing cabinetry-type of work. (Tr. 29)

(emphasis added). Testimony indicated that there was no language barrier with Dabrowski—he 

communicated and understood English and finished high school in the United States. (Tr. 107–

108, 110–111). Gluzman affirmed that it is unlikely that Dabrowski and the CSHO would have a 

misunderstanding as Dabrowski finished high school and spoke English. (Tr. 111). Respondent’s 

tax treatment of Dabrowski and Doutka does not establish the existence of an independent 

contractor relationship. Dabrowski and Doutka were selected and paid according to the terms 

established by Respondent. These facts support a finding that their professional relationship was 

that of employer-employee. 

D. Source of Instrumentalities and Tools 

 Gluzman testified Respondent does not own tools, nor did it provide tools to Dabrowksi 

or Doutka. (Tr. 97). Respondent argues that, as independent contractors, Dabrowski and Doutka 

owned their own tools, drove their own cars, and bought their own gas. (Tr. 95–96). Those 

arguments are not persuasive upon close examination of the evidence. All witnesses testified 

that on the morning of the inspection Gluzman was at Home Depot buying a new blade for the 

DeWalt saw. (Tr. 10, 78, 100–101, 103, 105). Dabrowski, whom Gluzman testified owned the 

DeWalt saw, did not pay him back for the blade.10 (Tr. 97, 110). Based on these facts, the Court 

finds that it is reasonable to infer that Dabrowski did not own the saw—not only did Gluzman 

pay for the new saw blades, but he also told the CSHO that he would outfit both saws with the 

required guards. Accordingly, the Court finds that Respondent provided the DeWalt and Bosch 

saws used by Dabrowski and Doutka. 

 In a true independent contractor relationship, the skilled tradesman provides all the tools 

 

9 While Dabrowski and Doutka could have started out as independent contractors, due to the length of time of their 

relationship with Respondent, it may have changed over time to an employer-employee relationship. 

10 Normally a businessman purchasing supplies on behalf of another expects that he will be repaid, unless, of course, 

the individual making the purchase owns the equipment for which the supplies were intended. 
10

and equipment necessary to do their job. The record is replete with Respondent providing 

Dabrowski and Doutka tools and equipment to do their work. Gluzman testified that the scaffold 

used to secure the top railing and spindles was provided and owned by Respondent. (Tr. 122). 

Respondent ordered and provided the wood and cabinets used by Dabrowski and Doutka to 

perform their jobs. (Tr. 102). Gluzman told the CSHO that he would buy guards for the two 

saws. (Tr. 62-63, 65, 103; Ex. C3). Again, in a true independent contractor relationship, a 

general contractor usually does not purchase tools and equipment for use by the independent 

contractor. Respondent bought and owned equipment that it controlled and permitted Dabrowski 

and Doutka to use in the course of their employment. This arrangement supports a finding that 

the relationship was employer-employee. 

E. Assignment of Additional Duties 

 The Court turns its attention to the conflict between Dabrowski’s statement to the CSHO 

that he was the foreman on the Worksite and Respondent’s contention that he was not a foreman. 

If Dabrowski was Respondent’s foreman, this suggests that Respondent was authorized to assign 

additional duties to Dabrowski, which is not the case in a typical independent contractor 

relationship, wherein the duties of the independent contractor are defined by contract.11 

Dabrowski repeatedly told the CSHO he was the foreman. (Tr. 28, 29, 47, 57–59, 72 and 85).12

 When an OSHA inspection is commenced, the CSHO typically requests to speak to the 

superintendent, project manager, foreman, or other person with authority on the worksite. The 

CSHO in this case followed that procedure after he introduced himself to Dabrowski, who 

represented that he was the foreman. Dabrowski showed knowledge of the Worksite, the tools 

being used, other employees on the Worksite, and work that had been performed. Skilled 

tradesman contracted for one specific job would normally not be knowledgeable on these 

matters. Yet, Dabrowski illustrated extensive knowledge of the project and was able to answer 

the questions of the CSHO. 

 Gluzman, responding to whether or not he could offer a reason why Dabrowski would 

hold himself as the foreman, indicated that Dabrowski had worked for Respondent for five or six 

 

11 Also, establishing whether Dabrowski was the foreman at the Worksite will assist in the resolution of issues to be 

discussed infra on knowledge and consent to the inspection. 

12 As part of Respondent’s post-hearing statement a purported unwitnessed statement signed by Dabrowski attempts 

to convince the Court that Dabrowski did not make these statements and was not the foreman. The Court gives no 

weight to the unwitnessed statement as it contradicts the CSHO’s testimony, which the Court finds credible on this 

issue. The statement also is undermined by Gluzman’s own testimony about Dabrowski’s ability to deal with 

inspectors discussed in the narrative. 
11

years, and that he knew from past jobs that inspectors would come to the worksite to inspect 

work for permits. In those instances, Gluzman testified that he gave Dabrowski permission to 

deal with the inspectors, show the inspector the blueprints, what work had been done, and take 

the inspector wherever he wants. Based upon Dabrowski having this role in the past, Gluzman 

concluded that is why Dabrowski stated to the CSHO that he was the foreman. (Tr. 107–108). 

 Clearly, Dabrowski was assigned additional duties to deal with inspectors in the past. 

This grant of authority to deal with inspectors was not revoked, and Dabrowski exercised that 

authority in the present case just as he had done in the past. The authority to speak and act on 

behalf of Respondent is indicative of an employee-employer relationship, because these types of 

duties are normally not given to contractors hired for one specific job aspect. Accordingly, the 

Court finds Dabrowski was Respondent’s foreman. 

F. Ability of Respondent to Control and Discretion over When and How Long to Work 

 As Darden and its progeny underscore, it is the ability to control work that is the most 

important consideration in determining whether an employer/employee relationship exists. The 

Court concludes Respondent retained significant and close control over Dabrowski and Doutka 

to render them employees. Respondent, through Gluzman, during the closing conference with 

the CSHO, demonstrated control. Gluzman said he would instruct the workers not to use the 

equipment until he obtained the guards. (Tr. 62). In addition, Gluzman testified that if he saw 

them (Dabrowski or Doutka) doing anything unsafe on the Worksite he would stop the job. (Tr. 

98–99). While Respondent did not mandate a specific start and end time for the workday, i.e., 

from 8:00 a.m. to 5:00 p.m., it did establish a preferred starting time (no later than 8:00 a.m.) and 

a maximum daily hour total (no more than six hours), because completion of the project was 

time sensitive. Gluzman testified that he needed the “term of their time”. (Tr. 97–98). 

 The Court finds that Respondent exercised significant control over Dabrowski’s and 

Doutka’s work. Gluzman testified that sometimes he relies on the expertise of subcontractors to 

do their work without direction and sometimes he does not. (Tr. 112). This last comment 

undermines the finding of an independent contractor relationship since in most contractual 

relationships, the general contractor does not question the expertise of the individual to interfere 

in the end work product. Nevertheless, Gluzman made the call on the appropriate types of blades 

to do the finishing job that would normally be left to the tradesman. In addition, Gluzman 

bought new blades for saws he claimed not to own, promised to purchase new guards for those 

saws, and ensured that the scaffolding was used to place the spindles on the second floor. These 
12

actions are more indicative of an employer exerting control over the manner and means of how 

his employees carry out their respective job duties than that of a general contractor relying on the 

judgment and expertise of hired tradesmen to do the job. 

 For the foregoing reasons, the Court finds that Dabrowski and Doutka were employees of 

Respondent for the purpose of coverage under the Act. 

Consent Was Provided For the Inspection 

 Respondent contends the CSHO had no right to be on his property and he did not consent 

to the inspection.13 (Tr. 9–10). The Supreme Court has held that provisions of the Act violate the 

Fourth Amendment to the extent that they purport to authorize warrantless inspections over the 

refusal of an employer. Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978). To determine 

whether a party has consented to a search, a court must look to the circumstances surrounding 

the event. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).. No one factor is necessarily 

decisive, but the Supreme Court has held that knowledge by the party challenging the search of 

its right not to consent is “highly relevant” to the evaluation. United States v. Mendenhall, 446 

U.S. 544, 559 (1980). The manifestation of assent, no matter how casual, can reasonably be 

accepted as waiver of a warrant. U.S. v. Thriftimart, 429 F.2d 1006, 1010 (9th Cir. 1970). See 

also Kropp Forge Co. v. Sec’y of Labor, 657 F.2d 119, 122 (7th Cir. 1981) (“Since Kropp's 

representatives were present at all times during those inspections and did not raise any objections 

when informed of the intended sampling, any Fourth Amendment objection to those surveys was 

waived.”); Marshall v. W. Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977) 

(finding valid consent given); Dorey Elec. Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977) 

(noting permission to inspect given by foreman). 

 Upon arriving at the Worksite, the CSHO introduced himself; stated the nature, purpose, 

and scope of the inspection; and asked to speak to the project manager. Dabrowksi identified 

himself as the foreman, proceeded to answer questions of the CSHO, and accompanied the 

CSHO around the Worksite. (Tr. 28–29, 45–48). Dabrowski had the opportunity to object to the 

inspection, as he had dealt with inspectors in the past. There was no testimony that the CSHO 

warned Dabrowski of his right to insist upon a warrant, and there is the possibility that 

Dabrowski was not aware of the precise nature of Respondent’s rights under the Fourth 

Amendment. However, the lack of such evidence does not render Dabrowski’s consent 

unknowing or involuntary. 

 

13 This argument was raised by Respondent for the first time at the hearing. (Tr. 9–10). 
13

 Also, in the present case the violations discovered were in plain sight and at no time 

during or after the inspection did Dabrowski question the inspection. Likewise, Gluzman did not 

question the inspection or the authority of the CSHO during the closing conference after the 

inspection, at which time Gluzman indicated what actions he would take to abate the violations. 

 To the extent that Respondent is alleging a violation of its rights under either section 8(a) 

of the Act or the Fourth Amendment, such arguments are foreclosed by Respondent’s consent to 

OSHA’s inspection and failure to allege that the inspection exceeded the scope of its consent. 

Cody-Zeigler Inc., 19 BNA OSHC 1410, 1412 (No. 99-0912, 2001) (consolidated) (holding 

employer’s consent to inspection precluded any probable cause challenge under Fourth 

Amendment, and finding it unnecessary to address selection issue because “section 8(a) does not 

require the Secretary to obtain evidence of any particular sort to support his decision to seek a 

consensual inspection”) (citation omitted), aff’d per curiam, No. 01-1236, 2002 WL 595167 

(D.C. Cir. March 15, 2002) (unpublished). 

Controlling Case Law Applicable to Citations 

To establish a prima facie violation of section 5(a)(2) of the Act, Complainant must 

prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; 

(3) one or more of the employees had access to the cited condition; and (4) the employer knew, 

or with the exercise of reasonable diligence could have known, of the violative condition. Ormet 

Corp., 14 BNA OSHC 2134, 2135 (No. 85-0531, 1991). Proof of a hazard in most instances is 

unnecessary because the promulgation of a standard presupposes the existence of a hazard when 

its terms are not met. Duane Smelser Roofing Co., 9 BNA OSHC 1530, 1532 (No. 4773, 1981). 

 A violation is classified as serious under section 17(k) of the Act if “there is substantial 

probability that death or serious physical harm could result” if an accident occurred. 29 U.S.C. 

§ 666(k); Compass Envtl., Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 2010), aff'd, 663 F.3d 

1164 (10th Cir. 2011). Substantial probability “refers not to the probability that an accident will 

occur but to the probability that, an accident having occurred, death or serious injury could 

result.” Ill. Power Co. v. O.S.H.R.C., 632 F.2d 25, 28 (7th Cir. 1980). If the harm the regulation 

was intended to prevent is “death or serious injury, a violation of the regulation is serious per 

se.” Phelps Dodge Corp. v. O.S.H.R.C., 775 F.2d 1237, 1240 (9th Cir. 1984). 

1. Citation 1, Item 1 

 Citation 1, Items 1a and 1b allege serious violations of 29 C.F.R. § 1926.304(f), which 
14

states that “[a]ll woodworking tools and machinery shall meet other applicable requirements of 

American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery.” 

29 C.F.R. § 1926.304(f). Citation 1, Item 1a alleges Respondent did not comply with section 

4.1.2(a) of ANSI 01.1-1961, which requires hand-fed rip saws to be guarded by an automatically 

adjusting hood which completely encloses that portion of the saw above the table and above the 

material being cut. Citation 1, Item 1b alleges Respondent did not comply with section 4.1.2(c) 

of ANSI 01.1-1961, which requires circular hand-fed rip saws to have non-kickback fingers or 

dogs so located as to oppose the thrust or tendency of the saw to pick up the material and throw it 

back toward the operator. 

 For the following reasons the Court finds both the DeWalt saw and Bosch saw violated 

these two ANSI standards because both were missing the automatic adjusting hood (hood guard) 

and non-kickback fingers (anti-kickback fingers). 

i. DeWalt Saw 

a. Standard Applies and was Violated

 The standard applies because Respondent was engaged in construction. (Tr. 97). The 

DeWalt saw is a woodworking tool or machine that was used to cut trim pieces for cabinetry 

being installed in the residence. (Tr. 46). 

 The CSHO observed the DeWalt saw without and adjustable hood guard or anti-kickback 

fingers in the garage. (Tr. 33; Ex. C-4). Dabrowski informed the CSHO that they did not have 

guards for the saw at the Worksite. (Tr. 46). When the CSHO spoke to Gluzman during the 

closing conference, he also stated that there was no guard for the saws and that he would get 

some as soon as he could. (Tr. 62–63, 103). Because the DeWalt saw was missing the adjustable 

hood and anti-kickback fingers, it did not meet the requirements of ANSI 01.1-1961 and 29 

C.F.R. § 1926.304(f). 

b. Employees Were Exposed to the Hazard 

Dabrowski informed the CSHO that employees at the Worksite had been using the 

DeWalt saw the day of the inspection to cut trim pieces for cabinetry. (Tr. 46). He stated that 

they could not use the guards on the blade because a guard would not allow them to cut the 

narrow trim pieces that they needed. (Tr. 46). The CSHO also observed pieces of wood trim and 

saw dust around the DeWalt saw. He determined that the wood pieces and saw dust around the 

saw was consistent with the type of wood being cut for cabinetry at the time of the inspection. 

(Tr. 36; Ex. C-4). The CSHO also observed that the DeWalt saw was energized because it was 
15

plugged into a power cord. (Tr. 36; C-4). The power cord was powered on as indicated by a 

shining light on the power cord. (Tr. 36; C-4). The Court finds that employees were exposed to 

the hazardous conditions. 

c. Respondent had Knowledge

Both Mr. Gluzman, the owner of Respondent, and Dabrowski, the foreman, had actual 

knowledge. Both individuals knew the saw was missing hood guards and anti-kickback fingers. 

Dabrowski told the CSHO that using the guards would not allow them to cut the narrow pieces 

required for the trim. (Tr. 46). Gluzman also advised the CSHO that he had seen the condition of 

the saw that day, which led him to go out and buy a new blade for the DeWalt saw. (Tr. 101-

102). The Court finds that Respondent had actual knowledge of the hazard. 

d. Violation was Serious 

The Court finds the violation is properly classified as serious. In the event of an accident 

resulting from the violation, there is a substantial probability of serious injuries, including 

lacerations, amputations and internal injuries. (Tr. 48–49). 

ii. Bosch Saw

a. Standard Applies and was Violated

 The standard applies to the Bosch saw as Respondent was engaged in construction and 

employees were using the Bosch saw to cut trim pieces for cabinetry being installed in the new 

residence. (Tr. 46, 97). The Bosch saw also violated the cited standard because it was missing a 

hood guard and anti-kickback fingers for the blade. The CSHO observed during the inspection 

the absence of a hood guard or anti-kickback fingers on the Bosch saw. (Tr. 33; C-8). Gluzman 

and Dabrowski stated during the inspection and the closing conference that there were no guards 

at the Worksite for the Bosch saw. (Tr. 46, 62–63). 

b. Employees Were Exposed to the Hazard 

 The Court finds employee exposure to the hazard. Dabrowski stated employees had used 

the unguarded Bosch saw that day to cut trim pieces for cabinetry. (Tr. 46). The Bosch saw was 

approximately five or six feet away from the DeWalt saw and was also surrounded by saw dust 

and wood pieces. (Tr. 36, 44). The pieces of wood and the saw dust around the Bosch saw was 

consistent with the type of wood Respondent used for cabinetry at the worksite on the day of the 

inspection. 

c. Respondent had Knowledge of the Hazard

 Gluzman and Dabrowski had actual knowledge that the Bosch saw was missing a hood 
16

guard and anti-kickback fingers. Dabrowski used the Bosch saw on the day of the inspection to 

cut pieces of trim that he claimed were too narrow to cut while using the guard. (Tr. 46). 

Gluzman also observed the unguarded blade of the Bosch saw earlier in the day and determined 

that the blade was not properly installed. (Tr. 101). 

d. Violation was Serious

The Court finds the violation is properly classified as a serious citation. In the event of 

an accident resulting from the violation, there is a substantial probability of serious injuries,

including lacerations, amputations and internal injuries. (Tr. 48–49). 

 The Court AFFIRMS Citation 1, Item 1a and Item 1b as a serious violation of the Act. 

ii. Citation 1, Item 2 

a. Standard Applies 

Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(13), which states 

that each “employee engaged in residential construction activities 6 feet (1.8 m) or more above 

lower levels shall be protected by guardrail systems, safety net systems, or personal fall arrest 

systems.” 29 C.F.R. § 1926.501(b)(13). 

 Respondent’s employees were engaged in residential construction activities and were 

exposed to falls more than six feet above the first floor level when they worked on the second 

story floor deck. (Tr. 55, 57; C10). The CSHO testified that based upon his observation and 

experience the second floor was in excess of six feet above the first floor. (Tr. 55-56; C10). The 

Court finds that the standard applies. 

b. Employees were Not Exposed on the Date of the Inspection

 The second floor balcony had an unfinished railing system that consisted only of a top 

rail. (Tr. 57; Ex. C10, C11). Dabrowski informed the CSHO that they had installed the partial 

railing system the day before the inspection. (Tr. 57, 82). Dabrowski informed the CSHO that the 

morning of the inspection that they had glued the stairs and the deck and therefore the second 

floor could not be accessed. (Tr. 54-55, 81). 

 In Citation 1, Item 2, Complainant specifically alleges that, on the date of the inspection, 

“Employees were exposed to the hazard of falling where a guardrail on a second story deck was 

not equipped with a mid-rail.” The narrative of the citation item does not include an allegation 

that the standard was violated at any time prior to the date of the inspection. Accordingly, the 

Citation must be read to allege that Respondent violated the standard on the date of the 

inspection. The evidence is unconverted that on the day of the inspection, employees were not 
17

engaged in a work activity which exposed them to a fall hazard. On the morning of the 

inspection, Dabrowski told the CSHO they had glued the stairs and the deck, which prevented 

access to the second floor. Thus, on the day of the inspection, employees could not install deck 

railing as alleged in the Citation. 

 To support the allegation that employees were exposed to a fall hazard, the CSHO 

testified that the work on the deck was done the day prior to the commencement of the 

inspection. There was absolutely no testimony, however, that the work performed the morning 

of the inspection placed the employees in the zone of danger. The evidence indicates no one was 

on the second story on the day of the inspection. (Ex. C-10). The stairs, which are shown in 

Exhibit C-10, are enclosed within two walls and would not expose an employee to falls hazards 

of six feet. (Ex. C-10). While there was testimony that the deck was glued there is no testimony: 

of (i) how the deck was glued; (ii) whether the employees worked near the rail to put them in the 

zone of danger; and (iii) what activities the employees engaged in when gluing the deck. Thus, 

there appears to be a disconnect between the testimony offered to support a finding of exposure 

to the hazard and what actually occurred on the date of the inspection. Complainant assumes 

activities not alleged in the Citation and facts which are not in the record to argue employees 

were exposed. Complainant has failed to prove exposure of any employee to the hazard alleged 

in the Citation. 

c. Citation 1, Item 2 Does Not Provide Fair Notice 

Citation 1, Item 2 must also be vacated as it does not provide fair notice to Respondent. 

For a citation to meet the requirements of fair notice it must at a minimum fulfill the 

requirements of notice pleading applicable to Commission proceedings. Del Monte Corp., 4 

BNA OSHC 2035, 2038 (No. 11865, 1977) (“In notice pleading an essential consideration is 

whether there is fair notice of the circumstances of the alleged violation that will permit a fair 

defense”). Therefore, a citation, in addition to setting forth the penalty, should state with 

particularity the location, time, place, and circumstances of each alleged violation. 29 C.F.R. 

§ 2200.34(2). The Citation in this case does not include an allegation that the violation took 

place prior to the date of the inspection. The activity being cited was work involving the 

installation of the railing which took place before the inspection commenced.14 Citation 1, Item 2 

 

14 It is permissible to cite violations which are alleged to have occurred within six months of the issuance of the 

citation. 29 U.S.C. § 658(c). Complainant commonly engages in this practice by stating on a “particular date and 

prior to” certain activities were engaged in. However, in this case it did not. Accordingly, Respondent was deprived 

of fair notice that Complainant’s allegations included activities that occurred prior to the commencement of the 
18

is also VACATED on the grounds of failure to provide fair notice to Respondent. 

Penalty 

 In determining the appropriate penalty for affirmed violations, section 17(j) of the Act 

requires the Commission to give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration 

and is determined by the number of employees exposed, the duration of the exposure, the 

precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 15 

BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and its 

judges conduct de novo penalty determinations and have full discretion to assess penalties based 

on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel Co., 2 

BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-

0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995). 

 In this case, OSHA adjusted the penalty to take into consideration the probability of the 

injury, gravity of the violation, the size of Respondent’s business, good faith, and Respondent’s 

violation history. For Citation 1, Item 1, the CSHO testified that there was a greater probability 

of hazard because employees’ hands were in close proximity to the blade when using the DeWalt 

and Bosch saws without proper guarding. (Tr. 49). The gravity of the violation was classified as 

moderate because any injuries would have had a limited period of disability. (Tr. 49). The CSHO 

testified that a sixty (60) percent reduction based on Respondent’s size was applied. (Tr. 50). No 

penalty adjustment was given based upon history because there were no previous inspections of 

Respondent’s worksites and no reduction was given for good faith because Respondent had 

limited health and safety programs. (Tr. 50). Therefore, a penalty of $2,400 was proposed for 

Citation 1, Item 1. The Court finds the proposed penalty and the considerations given by 

Complainant to the amount of the penalty to be supported. Therefore, the Court will assess a 

penalty of $2,400.00 for Citation 1, Item 1. 

ORDER 

 The foregoing present the Findings of Fact and Conclusions of Law in accordance with 

Rule 52(a) of the Federal Rules of Civil Procedure. Accordingly, based on the foregoing, it is 

ORDERED that: 

1. Citation 1, Item 1a is hereby AFFIRMED as a Serious violation and a corresponding 

 

inspection. 
19

penalty of $2,400.00 is ASSESSED. 

2. Citation 1, Item 1b, is hereby AFFIRMED as a Serious violation and a corresponding 

penalty of zero dollars is ASSESSED. 

3. Citation 1, Item 2 is VACATED. 

SO ORDERED. 

 /s/ Patrick B. Augustine 

Patrick B. Augustine

Judge, OSHRC

Date: March 16, 2016 

Denver, Colorado