BAYSIDE PIPE COATERS, INC.

OSHRC Docket No. 1953

Occupational Safety and Health Review Commission

September 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Abraham Gold dated June 25, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). The respondent was cited under the Occupational Safety and Health Act of 1970 n1 for two violations of 29 U.S.C. 654(a)(2). The Judge affirmed both citations which alleged the failure to observe the requirements of certain occupational safety and health standards for trenching n2 and handling compressed gas containers. n3

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n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

n2 Codified at 29 C.F.R. 1926.651(h) as adopted by 29 C.F.R. 1910.12.

n3 Codified at 29 C.F.R. 1926.350(a)(9) as adopted by 29 C.F.R. 1910.12.

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Acting under a contract with one Aberdeen Associates, Inc. (hereinafter referred to as "Aberdeen"), the respondent assigned a foreman and two employees to apply waterproof coating to pipes which were then at the bottom of a trench [*2] dug by Aberdeen. The trench was not a safe place for work to be performed because it did not conform to the cited safety standard. Both respondent and Aberdeen were cited for the alleged violations.

Respondent stipulated the existence of the noncomplaint conditions but in its defense submitted the affidavit of an officer and principal of Aberdeen which includes this statement:

The price agreed upon by ABERDEEN and BAYSIDE for said waterproofing work took into consideration the fact that ABERDEEN as General Contractor is to supervise BAYSIDE's employees in the waterproofing operations and therefore become solely responsible for the safety of the said employees of respondent. The issuance of the citations in issue were caused solely as a result of the activities of the General Contractor, ABERDEEN ASSOCIATES, INC.

The affidavit further indicates that Aberdeen "unequivocally acknowledges sole responsibility" for the violations for which the respondent was cited.

An agreement of this kind, while normal business practice in many situations, cannot insulate an employer from the mandate of this Act to protect his employees from work hazards. If an employer knowingly allows [*3] his employee to work in an unsafe trench, he has thereby exposed that employee to a hazardous condition and must bear the responsibility therefor. It is no defense that someone else dug the unsafe trench or someone else agreed to look out for the employee's job safety. Each employer is bound by this Act to look out for the safety of his own employees.

In this regard respondent maintains that it is not the employer here because it loaned the foreman and employees to Aberdeen in the course of a well-established business relationship within which Aberdeen accomplished the specialized task of pipe coating with respondent's employees. In partial consideration therefor, it is urged, Aberdeen undertook sole responsibility for the safety of the employees while they were present at trench worksites which were under Aberdeen's complete control.

If, in fact, the persons in the trench doing the waterproofing work were at the time in question under the direction and control of Aberdeen to such an extent that the law would recognize them as Aberdeen employees, then respondent could not be held for this violation. The evidence of record, however, does not establish such a fact. [*4]

There is no showing that any supervisory personnel of Aberdeen were present at the worksite. All Aberdeen employees had left after excavating the trench. Respondent's foreman was the sole person in charge of the work. And, the record shows that he identified himself as respondent's foreman when questioned by the government safety inspector. The belief of the employee concerning the existing employment relationship is important evidence of that relationship. n4 There is no showing of any other criteria which would establish a borrowed servant situation such as the source of the employees' pay and whether Aberdeen or respondent had the authority to discharge them while at this worksite. The record, in short, contains no objective showing of any actual redistribution of responsibility for the employees at the worksite.

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n4 Secretary v. Southeast Contractors, citing 57 C.J.S. Master & Servant 584 (1948); Restatement (Second) of agency 220 (1957).

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On these facts we must conclude that respondent retained complete control over the employees through its own foreman who was in complete charge of the work at the time of inspection. Respondent therefore retained responsibility for compliance under the Act.

Accordingly, the decision of the Judge is hereby affirmed.

[The Judge's decision referred to herein follows]

GOLD, JUDGE, OSAHRC: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq.; 29 USC 651 et seq. ) and came on for hearing on April 12, 1973, at New York City.

A citation for two nonserious violations was issued by the Secretary of Labor on November 29, 1972, pursuant to Section 9(a) of the Act, and a citation for one serious violation, charging noncompliance with two safety standards, was issued on November 30, 1972.

The workplace was inspected by an officer of the Department of Labor on November 13, 1972 (Tr. 10).

The citation read:

Item Number -- Standard or regulation allegedly violated -- Description of Alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR 126.350(a)(9)(page 7367) as adopted by 29 CFR 1910.12. [*6] -- Failure to secure a oxygen compressed gas cylinder in a upright position. Location: 20th St. and 6th Avenue cylinder laying on bank of excavated trench. -- Immediately upon receipt of this citation.

2 -- 29 CFR 1926.651(h)(page 7389) as adopted by 29 CFR 1910.12. -- Failure to remove excavated dirt fill from the edge of a excavated 7 1/2 Ft. deep, 7 Ft. wide trench. Location: 20th Street N.W. Corner of 6th Avenue 35 Ft. trench area. No shoring. -- Immediately upon receipt of this citation.

SERIOUS:

Standard or regulation allegedly violated -- Description of Alleged violation -- Date on which alleged violation must be corrected 29 CFR 1926.652(c) (page 7389) as adopted by 29 CFR 1910.12. -- Failure to shore or otherwise support the sides of a trench 35 feet long, 7 1/2 feet deep and 7 feet wide. The trench was not sloped above the 4-foot level to preclude collapse. -- Immediately upon receipt of this citation.

29 CFR 1926.652(e)(page 7389) as adopted by 29 CFR 1910.12. -- The North West (L) extension of the trench did not have sufficient shoring and bracing to prevent slides or cave-ins of the trench subjected to vibrations from street traffic. Location: 20th [*7] Street West of 6th Avenue. -- Immediately upon receipt of this citation.

A $600.00 penalty was proposed for the alleged serious violation, $30.00 for Item No. 1 and $60.00 for Item No. 2 of the citation for nonserious violations.

The second nonserious item was amended to read "1926.651(i)(1) and (2)," rather than "1926.651(h)."

The serious citation and complaint charged that the trench was not sloped above the 4-foot level; at the time of the alleged violation the standard had been amended n1 to "5-foot level," but this error is of no consequence.

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n1 37 Fed. Reg. 3518 (February 17, 1972), effective 30 days from date of publication.

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In an oral stipulation at the hearing Respondent admitted (Tr. 4-5) that it is a New York State corporation located at Whitestone, Queens, New York, and was on November 13, 1972, engaged in the waterproofing of pipes near 6th Avenue and 20th Street, New York City; that the materials used by its employees were manufactured outside the State of New York; and that it is an employer within [*8] the meaning of Section 3 of the Act. In the stipulation Respondent also admitted all the essential allegations of fact in the citation and complaint relating to the alleged violations, and also stipulated that the standards listed in the citations and complaint were violated (Tr. 5-7).

Respondent also admitted (Tr. 7-8) that the violation of the two standards contained in the November 30 citation constituted a serious violation within the meaning of Section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the conditions which existed; that there was a possibility that the trench could collapse, either burying an employee or carrying traffic into the trench and thereby creating a substantial probability that an employee in the trench would be seriously harmed or killed: and that the employer could have known of the existence of these conditions by the exercise of reasonable diligence.

It was also stipulated (Tr. 9-10) that three employees of Respondent were working in the trench on the day of the inspection and were subject to the conditions stipulated as existing at or near the trench on that date.

A [*9] compliance officer of the Department of Labor testified that he arrived at the proposed penalty of $30.00 for the first nonserious item by starting with $100.00, n2 then granting a reduction of 20% for history, 10% for size and 10% for good faith, n3 leaving a sum of $60.00 which was further reduced to $30.00 by a 50% credit for abatement. He started with $200.00 the second nonserious item, and following the same reduction formula he arrived at a final figure of $60.00. For the serious citation, n4 he started with $1,000.00 which was reduced to $600.00 because of the 40% reduction, with no credit granted for abatement. The officer declared that Respondent was entitled to reduction of only 10% for good faith because Respondent's foreman was reluctant to remove his men (Tr. 13, 17).

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n2 Section 17(c) of the Act states that a civil penalty of up to $1,000.00 may be assessed for a nonserious violation.

n3 Under Section 17(j) of the Act, the Review Commission has authority to assess all civil penalties after giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.

n4 Section 17(b) provides that an employer who has received a citation for a serious violation shall be assessed a civil penalty of up to $1,000.00.

[*10]

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In the notice of contest Respondent asserted that its personnel at the workplace were supplied by contract to Aberdeen Associates, Incorporated, and were completely under the supervision of Aberdeen; that therefore the responsibility for Respondent's employees at the workplace was in the general contractor; and that the workplace was not under the operation, ownership, or control of Respondent.

Respondent has submitted an affidavit of one Ralph Trainello, an officer and principal of Abedeen Associates, Inc., who deposed on April 3, 1973, that he engaged Respondent for waterproofing operations on pipes at the site (Exh. R-1). The affidavit also states:

The price agreed upon by ABERDEEN and BAYSIDE for said waterproofing work took into consideration the fact that ABERDEEN as General Contractor is to supervise BAYSIDE's employees in the waterproofing operations and therefore become solely responsible for the safety of the said employees of respondent. The issuance of the citations in issue were caused solely as a result of the activities of the general Contractor, ABERDEEN ASSOCIATES, INC.

[*11] Respondent has provided me with a copy of the complaint and answer in the above entitled matter and after reading same I hereby state that ABERDEEN has also been cited for the very same violations charged against BAYSIDE, and ABERDEEN has elected not to contest same. ABERDEEN unequivocally acknowledges sole responsibility for the violations charged against BAYSIDE, and I, as a officer and the principal of ABERDEEN ASSOCIATES, INC., hereby make this affidavit to induce OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION to dismiss the complaint against the respondent herein.

Respondent has admitted that the cited standards were violated, but contends that he was not responsible for the safety of his employees at the workplace, since that responsibility was assumed by the general contractor.

Section 5(a)(2) of the Act commands each employer to comply with occupational safety and health standards promulgated under the Act. This statutory duty of a subcontractor cannot be nullified by the terms of his contract with a general contractor who agrees to assume sole responsibility for complying with the standards. While the general contractor accepted overall responsibility for the safety [*12] of its own employees and the employees of Respondent at the workplace, it was still the duty of Respondent to prevent its employees from working at the site until the requirements of the applicable standards were met.

The claim of Respondent that the site was not under its ownership, operation, or control is without basis in fact. Three employees of Respondent were engaged at the site; one of these employees was a foreman who was in charge of the group. As a foreman, this employee represented management, and his conduct and knowledge of the violative conditions are imputed to Respondent. The three workmen sent to the site by Respondent remained the employees of Respondent, and they retained their identity as a group working with, rather than for, the general contractor. Director supervision over the group was still vested in Respondent's foreman, and thereby the site was, to that extent, under the operation and control of Respondent.

The general contractor was cited for violation of the same standards, and elected not to contest, but this has no bearing on the instant case; both the general contractor and Respondent may be citable for the same violation. Even if Respondent [*13] did not create the violative conditions Respondent, acting through its foreman, knew or with the exercise of reasonable diligence could have known of the presence of the conditions, and permitted its employees to be exposed to the hazards.

Based on this record, Respondent is in violation of Section 5(a)(2) of the Act for failure to comply with the cited standards in both citations. A penalty of $30.00 for the first nonserious item, $60.00 for the second nonserious item, and $600.00 for the serious violation are deemed appropriate, after taking into account the factors listed in Section 17(j) of the Act.

FINDINGS OF FACT

1. Respondent is and at all times pertinent herein was a New York State corporation, with its principal office at Whitestone, Queens, New York, and is engaged in waterproofing of pipes.

2. Materials used by employees of Respondent were manufactured outside the State of New York and have moved across state lines in interstate commerce.

3. Respondent had under its operation or control a workplace located near 6th Avenue and 20th Street, New York City, where three of Respondent's employees, including a foreman, were engaged in waterproofing operations [*14] on pipes.

4. Said workplace was inspected on November 13, 1972, by a compliance officer of the Department of Labor.

5. In a contractual agreement with Respondent, Aberdeen Associates, Inc., the general contractor at the workplace, assumed sole responsibility for the safety of Respondent's employees at the site, but this assumption of responsibility by the general contractor in no way lessened the duty of Respondent, is a subcontractor employer, to comply with the safety and health standards promulgated under the Act.

6. On November 13, 1972, at said workplace, Respondent failed to secure an oxygen compressed gas cylinder in an upright position.

7. On said date and at said place Respondent failed to remove excavated dirt fill from the edge of an excavated 7 1/2 foot deep, 7 foot wide trench.

8. On said date and at said place Respondent failed to shore or otherwise support the sides a trench 35 feet long, seven feet deep, and seven feet wide; nor, in lieu of shoring, were the sides of the trench about the 5-foot level sloped to preclude collapse.

9. On said date and at said place Respondent failed to sufficiently shore and brace the northwest "L" extension of said trench [*15] to prevent slides or cave-ins of a trench subjected to vibrations from street traffic.

10. The combined violations listed in Findings 8 and 9 constituted a serious violation, because of the substantial probability that death or serious physical harm could result from these violative conditions and Respondent, through its foreman at the site, knew or with the exercise of reasonable diligence could have known of their existence.

11. A penalty of $30.00 for the first nonserious item, $60.00 for the second nonserious item, and $600.00 for the serious violation are appropriate, considering the gravity of each violation, the size of the employer's business, the good faith of Respondent, and the history of previous violations.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On November 13, 1972, Respondent was in violation of Section 5(a)(2) of the Act, as alleged in the citation of November 30, 1972, for serious violation, by its failure to comply with the safety standards at 29 CFR 1926.652(c) [*16] and 29 CFR 1926.652(e).

3. These violations, in combination, constituted a serious violation under Section 17(k) of the Act.

4. A penalty of $600.00 for the serious violation is appropriate, in accordance with Sections 17(b) and 17(j) of the Act.

5. On November 13, 1972 Respondent was in violation of Section 5(a)(2) of the Act, as alleged in the amended Citation of November 29, 1972, for other than serious violations, by failure to comply with the safety standards at 29 CFR 1926.350(a)(9) and 29 CFR 1926.651(i)(1) and (2).

6. The following penalties for the nonserious violations are appropriate in accordance with Section 17(c) and (j) of the Act:

Item No. 1 -- $30.00

Item No. 2 -- $60.00

ORDER

IT IS ORDERED that the Citation for a serious violation and the Notification of Proposed Penalty therefor be and the same are hereby AFFIRMED; and that the amended Citation for the two other than serious violations and the penalties proposed therefore be and the same are hereby AFFIRMED.