BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by McDonald’s-Van Ness (Employer), makes the following decision after reconsideration.

JURISDICTION

On November 23, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted a referral inspection at a place of employment maintained by Employer at 600 Van Ness Avenue, San Francisco, California (the site).

On March 6, 2000, the Division cited Employer for a repeat/serious violation of section 1670(a) [fall protection] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations1 and proposed a civil penalty of $5,250.

Employer filed a timely appeal contending that the classification was incorrect, and the proposed civil penalty was unreasonable.

On November 15, 2000, this matter came on regularly for hearing before Bref French, Administrative Law Judge (ALJ) for the Board, in Oakland, California. Syed Ali Husain, Owner, represented Employer. Cora Gherga, District Manager, represented the Division. Oral and documentary evidence was introduced by the parties and the record was held open for the Division to seek judicial enforcement of a subpoena for witness Adam Kelecija, who failed to appear at the hearing.

The hearing was re-scheduled for March 8, 2001, at which time Employer was represented by Mike Wilde (Wilde), Director of Operations and the Division by Cora Gherga, District Manager. The Division failed to perfect its petition for judicial enforcement, and the record was closed on March 8, 2001, after the same witness failed to appear at the hearing after service of a second subpoena on him.

On March 30, 2001 the ALJ issued a decision denying Employer’s appeal from the citation.

Employer filed a petition for reconsideration on May 1, 2001. The Division did not file an answer. On June 20, 2001 the Board issued an order taking Employer’s petition under submission.

EVIDENCE

Employer was cited for failing to provide fall protection to a painter working from a ledge of a building.

Division Compliance Engineer Michael Frye (Frye) testified that while conducting an investigation initiated by a Division referral, he observed a worker2 on the ledge of a building, painting the McDonald’s sign without a fall protection system in place.

Frye asked the painter, who identified himself as Adam Kelecija (Kelecija), to direct him to the manager. Kelecija gave him the name of Mr. Joy, who subsequently introduced Frye to Moussa Aftihy (Aftihy), who identified himself as the area supervisor. Frye testified that during an opening conference Aftihy told him that Wilde, Employer’s operation manager, hired Kelecija to paint. When Frye interviewed Kelecija, he said that Wilde had sent him to paint the McDonald’s sign but his boss - “Ali” - would pay him.

Aftihy testified that he has worked for McDonald’s for 15 years and currently supervises six McDonald’s locations. He testified that Kelecija worked as an assistant cashier at the McDonald’s Ocean Avenue restaurant from September 24, to November 20, 1999 but did not work for McDonalds on November 23, 1999 and was never an employee of McDonalds-Van Ness. He did not instruct Kelecija to paint the McDonald’s sign.

On November 23, 1999, when he first arrived at the site, Aftihy observed someone working on a ladder at the front of the restaurant. He denied that he told Frye that operations manager Mike Wilde assigned Kelecija to paint the McDonald’s sign. According to Aftihy, Wilde was responsible for coordinating repairs, and arranging equipment for the cleaning department. When Aftihy asked Kelecija if Wilde sent him up on the ladder to paint, Kelecija said “no.”

Mike Wilde testified that he has worked for McDonald’s since 1968. He is the director of operations for Ali Husain, who owns McDonald’s Van Ness. Wilde stated that Kelecija, who he had never seen before, showed up at McDonald’s Van Ness, about one week before the Division’s inspection. Kelecija told Wilde that “Ali Husain sent him to work for him.” When Wilde asked Kelecija if he was the painter, Kelecija said “yes,...[that] Ali had sent him to do the painting.” Wilde was expecting a painter since the painting contractor crew, that had been painting the building, stopped working. Wilde had asked Husain to send the painting crew back to finish the job.

Believing that Kelecija was from the painting crew, Wilde went with him around the building and showed him what spots to paint. Wilde told him “not to do any high points” and showed him the paint to use. Wilde stated that he did not tell Kelecija to use a ladder, and would not have done so, since he was aware that Employer had been previously cited for a “ladder violation.” Kelecija said that he would come back when he had his tools with him, but Wilde did not see him again until he heard from Frye that Kelecija had been up on a ladder, painting the McDonald’s sign. Wilde stated that he told Frye that if Employer hires anyone, Ali gets those workers since he has connections in the construction business.

Syed Ali Husain testified for Employer as the owner of the McDonald’s - Van Ness. Kelecija was not employed by Employer at the Van Ness McDonald’s. Husain does not hire employees or individuals to do repair work since the franchise agreement requires him to hire licensed contractors for repair work. Kelecija never presented himself to Husain as a painter or independent contractor.

ISSUE

Did the Division present evidence sufficient to prove that Kelecija was an employee of McDonald’s Van Ness?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer has filed a petition for reconsideration seeking review of the decision of the ALJ issued on March 30, 2001, alleging that the Board acted without or in excess of its powers.

Employer contends that:

This is a case of an unbalanced, severely emotionally disturbed individual who had been terminated from employment and who took it upon himself to present at McDonalds with a story that he had been hired to perform painting work for the employer. The court then saddles the Employer with the burden of picking up the pieces of a sorely lacking investigation and hearing.

Employer further contends that the decision fails to establish a reasonable test as to whether or not Mr. Kelecija is an employee or an independent contractor. Employer suggests that the “20 point independent contractor checklist” used by the IRS should have been used in this case to resolve the issue of whether or not Mr. Kelecija was an employee or an independent contractor.

We have exhaustively reviewed the record in this case and conclude that the Board has acted within the jurisdictional limits set by law. The Board is an independent adjudicatory agency responsible for resolving appeals from citations. (Rick’s Electric, Inc. v. California Occupational Safety and Health Appeals Board, (2000) 80 Cal.App.4th 1023). The ALJ in this case conducted a hearing in which competing claims of the parties were considered and decided. The ALJ made credibility determinations, which we will not disturb under the circumstances presented to us. An ALJ’s findings, based on witness credibility, are entitled to great weight because he or she was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand. Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Company, OSHAB 80-315, Decision After Reconsideration (Apr. 23, 1981).

We have examined the ALJ’s recitation of the facts and the findings and reasons for decision. We find the findings of facts to be appropriate and the analysis to be in-depth and insightful.

The only logical conclusion to be drawn from the facts presented at the hearing is that Mr. Kelecija was an employee of McDonald’s Van Ness. We find Employer’s argument not believable that Mr. Kelecija stopped working at McDonalds on Ocean Boulevard on November 20, 1999 and just happened to show up to paint a sign at McDonalds Van Ness on November 23, 1999 without some direction from the principals of McDonalds Van Ness.

We have previously set forth the factors we consider in determining whether a worker is an employee or an independent contractor in several Decisions After Reconsideration including Jesse Ramirez Drywall, OSHAB 93-489, Decision After Reconsideration (Mar. 23, 1999) and Abel Lopez, OSHAB 80-1143, Decision After Reconsideration (Aug. 28, 1986). In both of these cases we used the right of control test3. In Ramirez, we held that where a license is required, which appears to be the case here4, and the worker does not have a license, he is presumed to be an employee. (See also Labor Code § 2750.5).

It is clear from the facts of this case that Mr. Kelecija was an employee under any relevant control test. He clearly was under the direction and control of McDonald’s Van Ness personnel.

We therefore affirm the decision of the ALJ and adopt that decision in its entirety and incorporate it herein by reference.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a repeat/serious violation of section 1670(a) and assessing a civil penalty of $5,250.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 26, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 The contention in this case, as more fully explained later, is that this worker was not an employee of McDonald’s Van Ness.
3 The California Supreme Court adopted the six factors test in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. We find the six factors test to be appropriate in determining employee versus independent contractor status.
4 In this case no evidence was presented that Mr. Kelecija had a license or that he held himself out to have a license, facts which are held to be relevant and which Employer would have the obligation to establish under the affirmative defense that Mr. Kelecija was employed by someone else.