PAUL HUTCHINSON & SONS

OSHRC Docket No. 3301

Occupational Safety and Health Review Commission

June 11, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

William R. Drescher, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Henry F. Martin, Jr., dated May 10, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, vacated three citations which alleged that the respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. 1926.302(b)(1), 1926.652(b), and 1926.652(h).

1926.302(b)(1) and 1926.652(h) is justified for the reason that follow. Chairman Barnako joins in affirming the vacation of these citations for the reasons stated [*2] hereafter and joins in vacating the remaining citation for the reasons stated in his separate opinion.

All of the aforementioned citations were issued as a result of an inspection of a worksite where the respondent was engaged in excavation work in connection with the installation of a sewer line. On the day of the inspection, the only employee of the respondent that was at the worksite was a backhoe operator who had dug the trench. This employee had no supervisory responsibility. His daties did not require him to enter the trench as his sole function was to operate the backhoe. Two employees of a subcontractor, who had been engaged by respondent to drill and blast a rock ledge at the bottom of the trench, were drilling in the trench with a pneumatic power tool which was not secured "to the hose by a positive means to prevent the tool from being accidentally disconnected" as required by 29 C.F.R. 1926.302(b). The trench was about 22 feet long and varied in depth from 5 to 8 feet. It was 2 1/2 to 3 feet wide at the bottom, and its sides were virtually vertical. Althouth three was no ladder in the trench, one end of the trench was sloped at such an angle that a person could [*3] use it as a ramp to enter and exit the trench without difficulty.

The evidence establishes that the pneumatic power tool being used by the subcontractor's employees was not secured as required by section 1926.302(b). However, this tool "was the property of the subcontractor" and was used exclusively by his employees.

In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1091 (7th Cir. 1975), a decision which we find to be applicable in the instant case, the Circuit Court held that the Secretary of Labor's policy of imposing liability on employers for nonserious violations of occupational safety and health standards which the employers "neither created, caused, nor are otherwise responsible for, does not . . . fulfill the purposes of the Act." Respondent neither created or caused the hazardous condition and had no control over the pneumatic power tool. Under the circumstances, respondent could not reasonably be expected to detect that its subcontractor was improperly using the pneumatic power tool and to take action to correct the violative condition.

Prior to the inspection in this case, 29 C.F.R. 1926.652(h) was amended to provide the following:

"When employees are required [*4] to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel." n1 (Emphasis added.)

This standard had previously provided that:

"Where employees are required to be in trenches 3 feet deep or more, ladders, extending from the floor of the trench excavation to at least 3 feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel." n2 (Emphasis added.)

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n1 37 Fed. Reg. 24345-24346 (1971).

n2 29 C.F.R. 1518.652(h), 36 Fed. Reg. 7390 (1971). Section 1518.652(h) was subsequently redesignated as section 1926.652(h). 36 Fed. Reg. 25232 (1971).

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We hold that the ramp at the end of the trench was "an adequate means of exit" under section 1926.652(h) as it was sloped at such an angle that employees could walk in and out without difficulty. Complainant contends that the standard does not permit the use of a ramp and [*5] that respondent's failure to have a ladder in the trench constitutes a violation of the standard. That contention has no merit whatsoever in view of the amendment of the original standard. If the Secretary of Labor intended that only ladders should be used, he should not have amended the original standard which provided for only the use of ladders so as to permit other "adequate means of exit."

Accordingly, the Judge's decision is affirmed.

CONCURBY: BARNAKO; CLEARY (In Part)

CONCUR:

BARNAKO, Chairman, concurring.

I concur. As to the pneumatic tool allegation, Commissioner Moran's stated reasons are within the Commission's recent decision in Grossman Steel & Aluminum Corp., Dkt. 12775 (May 12, 1976). I do not agree, however, that Grossman or Anning-Johnson v. OSHRC, 516 F.2d 1081 (7th Cir. 1975) require vacation of the citation alleging a willful violation of 29 C.F.R. 1926.652(b). This standard requires that trenches dug in soft or unstable soil be shored, sheeted, braced, or adequately sloped. In my view, vacation of the citation is proper because the preponderant evidence establishes that the trench was dug in stable rather than unstable soil. Particularly persuasive [*6] in this regard is the testimony of an employee of the subcontractor who observed the trench being excavated. The employee testified that the backhoe operator was required to drop the backhoe bucket and move the teeth three to four times in order to get a solid grip on the soil, and that it took 2-1/2 hours to excavate an 18-foot segment of the trench. Such testimony strongly indicates that the soil was compact. Also significant is the fact that blasting was necessary in order to remove a rock ledge in the trench. Since the soil was not shown to be unstable as alleged, no violation of the cited standard was made out.

Here, neither party has either expressly or impliedly [*7] consented to an amendment. To the contrary, the Secretary insisted both during the hearing and on review that the evidence established the soil to be unstable and that 1926.652(b) applied. The evidence which established the soil to be stable was adduced by Respondent as part of its defense that the cited standard was inapplicable and is thus an inappropriate basis from which to infer that Respondent consented to an amendment of the citation to allege a violation of another standard.

I do not agree to the attachment of the Judge's report.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I join in the vacation of the citation alleging a failure to comply with 29 CFR 1926.652(h) for the reasons stated by Commissioner Moran. Coughlan Constr. Co., BNA 3 OSHC 1636, CCH 1975-76 OSHD para. 20,106 (Nos. 5303 & 5304, October 28, 1975) (concurring opinion).

Although I dissent from the remainder of the disposition, I join with Chairman Barnako in stating that our recent companion decisions in Grossman Steel & Aluminum Corp., No. 12775 (May 12, 1976) and Anning-Johnson Co., Nos. 3694 & 4409 (May 12, 1976) are in no way altered by the text of [*8] the lead opinion. A general contractor is responsible for violations that it could reasonably have been expected to prevent or abate by reason of its supervisory capacity. Grossman Steel, slip op. at 8-9. The problem here lies in the application of the rule to respondent, a general contractor. n3

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n3 The lead opinion's reliance on Anning-Johnson v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975) is misplaced. That decision was expressly limited to subcontractors and is inapposite here. Also, the Commission has decided not to adopt wholly the Seventh Circuit's opinion. Grossman Steel & Aluminum Corp., No. 12775 (May 12, 1976); Anning-Johnson Co., Nos. 3694 & 4409 (May 12, 1976).

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With regard to the pneumatic tool violation (29 CFR 1926.302(b)(1)), it was established that two employees of respondent's subcontractor were using a jackhammer without a positive connecting link to its pressurized hose. n4 The equipment belonged to, and was used only by, the subcontractor's employees. When the compliance [*9] officer informed the subcontractor of the condition, he "went and put [a safety chain] on that afternoon." Tr. 164. In view of respondent's managerial and general contractual control over the jobsite (Tr. 234), I find no basis upon which to conclude that Hutchinson could not have required its subcontractor to abate this condition. I therefore dissent from this disposition.

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n4 Without the link, the hose could have become disconnected from the jackhammer, and would have "whipped" dangerously.

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Concerning all three citations, the lead opinion ignores Commission precedent on the duty of an employer to employees under the Act, and relies only on the author's dissenting opinion in Gilles & Cotting. This has apparently compelled the Chairman to make an independent analysis of the trenching citation.

I have some difficulty with the conclusion from that analysis. The crucial question before us is whether "because of [the] nature of the [earth material] or the influence of related conditions, [the trench walls could have [*10] been] relied upon to remain in place without extra support." 29 CFR 1926.653(q) (defining "unstable soil"). The concurring opinion examines only the evidence indicating that the trench was dug in stable rather than unstable soil. The evidence, however, is conflicting. The experienced compliance officer stated that upon examination the soil was revealed to be silty in nature. The soil sample he took was composed of small, granular particles. He testified that the trench walls were losing moisture and becoming very loose and soft, and that he even saw soil actually slough off into the bottom of the trench. To compound the matter, the soil had recently been subjected to drilling by jackhammer, an operation which creates vibrations and thereby causes cracks, fissures and sloughing off. Moreover, the trench was soon to undergo blasting operations.

The Judge found it unnecessary to resolve the conflict in testimony. In light of his disposition, he did not have to evaluate the evidence of soil conditions. A prudent course of action would be to have the Judge evaluate the conflicting testimony because he saw and heard the witnesses, and make additional findings.

Alternatively, [*11] if my colleagues' course is equally prudent and if the conclusion that the soil was hard and compact is correct, under the facts of this case protection was required because the section involved requires precautions in virtually all soils. Paragraph (c) of section 1926.652 requires shoring, sloping or other means of support for trench walls in hard or compact soil. Because the trench walls here were vertical, the type of soil in which the trench was cut has no legal significance. W.N. Couch Constr. Co., BNA 3 OSHC 1786 (No. 5105, December 8, 1975) (dissenting opinion); n6 The Hammet Co., Inc., BNA 4 OSHC 1072, CCH 1975-76 OSHD para. 20,565 (No. 7777, March 31, 1976) (concurring and dissenting opinion). Under these circumstances, noncompliance with 29 CFR 1926.652(c) could be found in the alternative. And because the test of implied consent should be the absence of prejudice, Morrod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969); D. Federico Co., Inc., BNA 3 OSHC 1970, CCH 1975-76 OSHD para. 20,422 (No. 4395, February 10, 1976), and prejudice has not and could not be reasonably suggested, n7 the objections to an amendment under Fed. R. Civ. P. 15(b) are [*12] groundless.

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n6 There is no Commerce Clearing House citation for the cited opinion.

n7 Vague or generalized fears of prejudice are not enough. Cf. Roberts v. Williams, 456 F.2d 819, 825 (5th Cir.), cert. denied 404 U.S. 866 (1971); Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-48 (5th Cir. 1973) (second part of Rule 15(b)). "This prejudice must 'put the objecting party to some serious disadvantage,' and 'it is not enough that [the objecting party] advances an imagined grievance or seeks to protect some tactical advantage.'" Id. at 48, quoting 6 Wright & Miller, Federal Practice and Procedure: Civil 1495 at 478 (1971).

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APPENDIX A

DECISION AND ORDER

Robert A. Yetman, U.S. Department of Labor, Office of the Solicitor, for the Complainant

William R. Drescher, for the Respondent

MARTIN: Judge

This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651, et seq.), regarding two Citations, one of them serious, issued by [*13] the Secretary of Labor (hereinafter referred to as Complainant) pursuant to Section 9(a) of the Act and the proposed assessment of penalties in connection therewith pursuant to Section 9(a) of the Act.

The Citations grew out of an inspection which was made on May 24, 1973, at Respondent's work site located along Main Street near the Colby Realty Co., in New London, New Hampshire, where Respondent, Paul Hutchinson, doing business as Paul Hutchinson and Sons, was engaged in excavation work in connection with installation of a sewer line.

Citation No. 2 alleges that on the basis of an inspection of the aforesaid work place Respondent violated the Occupational Safety and Health Act of 1970 in the following respect:

Date on which al-

Item

Standard or regulation

Description of alleged

leged violation

Number

allegedly violated

violation

must be corrected

1

29 CFR Section 1926.

Employer failed to secure

Upon receipt of

302, page 27528

pneumatic power tool to the

citation

hose by a positive means to

prevent the tool from be-

coming accidentally dis-

connected (2 men exposed) n1

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n1 29 CFR 1926.302(b)(1) Pneumatic power tools. Pneumatic power tools shall be secured to the hose or whip by some positive means to prevent the tool from becoming accidentally disconnected. * * *

[*14]

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Respondent was also issued Citation No. 2 for a Serious Violation which described the alleged infraction as follows:

Date on which al-

Item

Standard or regulation

Description of alleged

leged violation

Number

allegedly violated

violation

must be corrected

1

29 CFR Section 1926.

Employer did wilfully or

Upon receipt of

652(b)

repeatedly fail to shore

Citation

sheet, brace, slope or

otherwise support a trench

in excess of five feet deep,

to protect employees working

within. (2 employees

exposed) n2

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n2 29 CFR 1926.652(b). Sides of trenches in unstable or soft material, four feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 [following paragraph (g) of this section].

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Citation No. 3 for Serious Violation alleges that on the basis of the aforementioned inspection Respondent [*15] violated the Act as follows:

Date on which al-

Item

Standard or regulation

Description of alleged

leged violation

Number

allegedly violated

violation

must be corrected

1

29 CFR Section 1926.

Employer did wilfully or re-

Upon receipt of

652(h), page 27555

peatedly fail to provide a

Citation

ladder, steps or any other

means of exit from a trench

more than four deep deep.

(2 employees exposed) n3

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n3 29 CFR 1926.652(h). Where employees are required to be in trenches three feet deep or more, ladders, extending from the floor of the trench excavation to at least three feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.

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With respect to the penalties which were proposed by Complainant, it is noted that the sum of $40.00 was proposed for the alleged nonserious violation referred to in Citation No. 2. With respect to the Citation for Serious Violation, wherein Respondent was charged with failing to sheet, [*16] shore, brace, or slope a trench which was in excess of five feet deep, the sum of $4,000.00 was proposed since it was alleged that Respondent "wilfully or repeatedly" failed to properly support the trench in order to protect employees working therein. In this connection it should be pointed out that at the opening of the hearing Complainant was permitted to delete the word "repeatedly" from the Citation and Complaint. The sum of $4,000.00 was also proposed in connection with the other alleged serious violation referred to in Citation No. 3, which dealt with Respondent's failure to provide a ladder, steps or other means of exit from the trench. This amount was proposed because of Complainant's allegation of a willfull or repeated violation. Complainant's attorney was also permitted to amend his Citation and Complaint by deleting the word "repeatedly".

The aforementioned Citations were issued by Complainant's area director on June 1, 1973 and the Notification of Proposed Penalty form was issued on the same date. On June 15, 1973, Respondent advised that he wished to exercise his right to contest the Citations and proposed penalties on behalf of the firm of Paul Hutchinson and [*17] Sons. Following Respondent's Notice of Contest, Complainant filed a formal Complaint with the Review Commission in Washington, D.C., setting forth substantially the same facts regarding the alleged violations as had been described in the Citations. The Complaint was filed with the Review Commission on July 5, 1973, and Respondent, through his attorney, Mr. William R. Drescher, filed his Answer generally denying all of the allegations of the Complaint.

In addition to generally denying the factual allegations in the Complaint, Respondent contested the jurisdiction of the Occupational Safety and Health Administration as well as the constitutionality of the legislation enabling the Commission to act as it has undertaken to do and states that the regulations promulgated pursuant to this Act violate Respondent's constitutional right to due process of law. Respondent neither admitted nor denied that he was engaging in interstate commerce or a business affecting commerce. Respondent also contended that no safety hazard was created by reason of the activities carried on at the work site and further stated that even if the activities of Respondent constituted a violation the penalties assessed [*18] are excessive, unreasonable and punitive in nature.

The Review Commission assigned this case to the undersigned Judge for hearing pursuant to the provisions of Section 10(c) of the Act. A formal hearing was held in Concord, New Hampshire, on October 17, 1973, at which time Complainant was represented by Mr. Robert A. Yetman, a member of the Regional Solicitor's staff at Boston, Massachusetts, and Respondent was represented by his attorney, Mr. William R. Drescher, of Milford, New Hampshire. No other parties expressed a desire to intervene or participate in the hearing. Subsequent to the hearing counsel for both parties submitted for consideration Findings of Fact and Conclusions of Law, together with a memoranda in support thereof.

Most of the facts are not in dispute. On May 24, 1973, Respondent was engaged in the installation of a sewer line along Main Street in New London, New Hampshire. During its business operations Respondent purchased materials and equipment from outside the state of New Hampshire and such equipment was used by Respondent's employees during their work activity. Respondent, who does business under the name of Paul Hutchinson and Sons, does general excavation [*19] work in connection with the laying of sewers and pipe lines and on the date in question had dug a trench from five to eight feet in depth and approximately 22 feet in length. The width at the bottom of the trench was about 2-1/2 to 3 feet while the width at the top was 3-1/2 to 4 feet. The trench was not sheeted, shored, braced or sloped. There was no ladder in the trench at the time of the inspection.

At the time of the inspection by Complainant's compliance safety and health officer, Mr. Joyce, Respondent had one employee on the work site, Mr. Kenneth Tobey, who was the operator of the backhoe. He performed no work in the trench. When Mr. Joyce arrived on the scene about 9:20 a.m., there were two men in the trench, Mr. Wayne Daniels and Mr. Frederick Lightfoot, who were employees of the Daniels Drilling and Blasting Co., Inc. of New Boston, New Hampshire. They were engaged in drilling holes for the purpose of inserting dynamite caps to blast a ledge which was running along the bottom of the trench. In talking to Mr. Daniels, Mr. Tobey and Respondent, Mr. Joyce received the impression that Mr. Daniels and Mr. Lightfoot were employees of Respondent. However, the testimony [*20] of Mr. Daniels and Respondent's exhibits 1 through 10, clearly show that these two men were in fact employees of the Daniels Drilling and Blasting Co., Inc. which concern was a subcontractor engaged by Mr. Hutchinson to blast out the ledge preparatory to laying the sewer line. According to Mr. Daniels vouchers were submitted for payment to Mr. Hutchinson on a monthly basis. Mr. Daniels indicated that he was the vice-president of the Daniels Drilling and Blasting Co. and owned a five percent interest in the business. In drilling holes in the ledge Daniels and Lightfoot were using a pneumatic power tool which was not properly secured to its hose to prevent it from being accidentally disconnected. This tool was the property of the subcontractor, the Daniels Drilling and Blasting Co. The truck used by Daniels and Lightfoot bore the name of the Daniels firm.

Mr. Joyce took a sample of the soil from the top of the bank which might be characterized as "disturbed" soil. He referred to it as "silty" and described it in the terminology of the cited standard as "soft and unstable". Mr. Daniels was of the opinion that the soil in the trench was "hard pan" or solid, with the exception [*21] of the top layer, about six inches from the surface, which was soft, or in his words "like you would put on your front lawn". Mr. Hutchinson, who was not on the scene on the morning of the inspection, stated that he had previously left instructions for all employees to abide by all standards. Mr. Hutchinson, disagreeing with Mr. Joyce, found no giving away or "sloughing off" on the sides of the trench. Regarding the failure to use ladders in the trench, Mr. Hutchinson stated that he prefers to slope the ends of the trench because he feels that this affords a better means of egress. Mr. Daniels testified that he walked out the end of the trench when it was necessary for him to leave it.

The factual issues for resolution in this proceeding are whether Respondent violated 29 CFR 1926.652(b) by not having the trench sheeted, shored, braced or sloped to the angle in repose; whether Respondent violated 29 CFR 1926.652(h) by not having a ladder in said trench; whether Respondent violated 29 CFR 1926.302(b)(1) by not having the pneumatic tool properly secured to the hose; whether Respondent's violations of 29 CFR 1926.652(b) and 29 CFR 1926.652(h) can be termed willful violations within [*22] the purview of Section 17(a) of the Act; and whether the penalties proposed for the alleged violations are appropriate. n4

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n4 Although Respondent did not admit that he was engaged in a business affecting commerce, the evidence herein clearly indicates that he was so engaged and brings him within the purview of the Act.

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Although Respondent in his pleadings has contended that the enactment of this Act was illegal and in violation of the Constitution, Respondent has presented no argument to support this contention. Moreover, the Review Commission does not have the authority to determine the constitutionality of the Act. n5

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n5 See Stack Construction Co., OSHRC No. 323, November 20, 1972, and Panitz v. District of Columbia, 112 F(2d) 39, (1940). In the Panitz case the court stated: "It has been held that an administrative agency invested with discretion has no jurisdiction to entertain constitutional questions where no provision has been made therefor."

[*23]

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For two reasons it is unnecessary to determine whether or not the violations of the specified sections of the Code of Federal Regulations have been established by Complainant. First, there has been no showing that Respondent exposed any of his employees to any of the alleged hazards on the 24th day of May 1973. Secondly, it has not been established that Mr. Daniels or Mr. Lightfoot were "employees" of Respondent on the date in question.

The evidence discloses that Respondent had only one employee at the excavation site on the day of the inspection, Mr. Kenneth Tobey, who had opened up the trench preparatory to the entry of Daniels and Lightfoot (employees of the Daniels Drilling and Blasting Co.) to blast the ledge. Mr. Tobey, according to the testimony of accord, did not enter the trench and had no instructions to enter it. His sole function was to operate the backhoe and therefore, he was not subjected to any "trenching" hazard. In fact, no claim has been made that Mr. Tobey was endangered in any way.

It is Complainant's contention that Daniels and Lightfoot were "employees" within the meaning [*24] of the Act and that it was Respondent's duty to protect them from any hazardous condition which he may have created. There the Review Commission stated:

"The difficulty with Complainant's position is that it imposes liability outside the employment relationship. That is, it makes any employer who subcontracts while retaining control of the job site, responsible for the safety and health of working men and women who do work for him, who are not subject to his direction and control, who are not on his payroll and who cannot be discharged by him. We do not think Congress intended the Act to go so far. * * *

"It is Hornbook law that the right to direct and control the activities of employees is vested in their employer. Accordingly, Complainant's position would create a limited employment relationship for the purposes of this Act. As we said above, the terms used in this Act contemplate an existing employment relationship. Nowhere do we find an indication that Congress [*25] intended the creation of a relationship where it does not exist in fact."

In the Dore case the Review Commission reversed the decision of a Judge and held that an employer could not be held responsible for the violation of its subcontractor's employees. In that case a Citation was issued alleging a violation of 29 CFR 1926.102(a)(1), which is the standard requiring the use of eye protection, and said Citation was vacated because the employee observed by the inspector worked for a subcontractor, not the contractor being inspected. There was no evidence that Respondent exercised control or supervision over this employee and there was no evidence that any employee or Respondent was exposed to a hazard caused by the alleged violation. (See C.N. Harrison Construction Co., OSHRC No. 413, decision dated May 26, 1972).

In two very recent cases the Review Commission affirmed without comment two decisions of its Judges which vacated citations against general contractors because of [*26] the lack of an employer-employee relationship between the cited employer and the employees who were exposed to the hazards. n6 While, as pointed out by Complainant's counsel, that facts in the instant case are not identical to those in the Gillis and Cotting, Inc. case, the fact remains that no employer-employee relationship existed between Daniels and Lightfoot and the Respondent. As stated by the Review Commission in Gilles and Cotting, Inc. case, wording of the Act contemplates an existing employment relationship and unless such a relationship can be established, then there can be no violation.

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n6 See the cases of J.E. Roupp and Co., Inc., OSHRC No. 146, decided April 15, 1974, and James E. Roberts Co., OSHRC No. 103, decided April 16, 1974. In each case it was found that employees of the subcontractor who were exposed to the hazards cited against the prime contractor were not employees of the prime contractor within the meaning of the Act. In neither case was it shown that any employees of the prime contractor were exposed to the cited hazards.

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It is clear from the testimony and the exhibits introduced into evidence that Daniels and Lightfoot were on the payroll of the Daniels Drilling and Blasting Co. and that this firm was a subcontractor of the Respondent. It is also apparent from Respondent's exhibits that the names of Daniels and Lightfoot do not appear as employees. (See Respondent's Quarterly Federal Tax Returns identified as Respondent's Exhibits 4 through 9). No supervision or control was exercised over Daniels or Lightfoot by Respondent or any of his personnel.

In his brief Complainant's counsel took the position that it was Respondent's responsibility to comply with all standards without reference to whose employees were exposed and that his duty in this respect was not limited merely to his own employees. It is contended that it is the duty of Respondent in the public interest to provide a safe and healthful work place for all employees without reference to who the employer is. This argument cannot be accepted in view of the Review Commission's decision in the Gilles and Cotting, Inc. case.

Attention is here directed to the definitions in Section [*28] 3 of the Act wherein the term "employer" means a person engaged in a business affecting commerce who has employees * * * and the term "employee" is defined as an employee of an employer who is employed in a business of his employer which affects commerce. (Underlining for emphasis) Attention is also invited to Section 5 of the Act which provides in part as follows:

"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. (underlining for emphasis)

It is apparent from reading the aforementioned Sections of the Act, that Congress intended that an employer should only be charged with the responsibility of protecting his own employees. It is readily apparent that the Act contemplates an employer-employee relationship since the words employee and employer are used extensively throughout the Act. If a broader interpretation was intended by the Congress it is felt that some general or less restrictive terminology would be used such as "workmen" or "persons engaged in doing work at a work site".

Mr. Daniels has worked [*29] for his father for approximately 15 years. The evidence in the record discloses that Respondent had a contractual arrangement with the Daniels Drilling and Blasting Co. to handle all of their blasting operations. Statements were rendered to Respondent by the Daniels Drilling and Blasting Co., apparently on a monthly basis, and checks were issued by Respondent and payable to the Daniels Drilling and Blasting Co. for the services rendered according to the daily work reports. The vouchers varied in amount depending on the number of hours spent by the workmen, as well as for the use of the drilling equipment, and for the value of the dynamite and caps used in the project.

Inasmuch as Respondent had no employee in the trench at the time of inspection it must be concluded that Complainant has failed to establish that any employee on Respondent's payroll was "affected" by any hazard. No Citation was issued against the Daniels Drilling and Blasting Co. Since the Citations must be vacated because there has been no showing of exposure to any employee of Respondent, it is not necessary to discuss any of the evidence submitted relative to the standards allegedly violated.

FINDINGS AND [*30] CONCLUSIONS

1. That Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. That the Respondent is, and at all times material herein was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder and the subject matter herein.

3. That Respondent is an unincorporated business engaged in excavation work, principally in the installation of pipelines and sewer lines in the New Hampshire area.

4. That Respondent on May 24, 1973, was engaged in the excavation of a trench for the installation of a sewer line along Main Street in New London, New Hampshire, and at that time employed approximately eight persons.

5. That Complainant has not established by reliable and provative evidence that the workmen, Daniels and Lightfoot, were employees of Respondent within the purview of Sections 3 and 5 of the Act.

6. That Complainant has not established by reliable and probative evidence that Respondent had any employee who was exposed to a hazard by virtue of the aforesaid trenching operation.

7. That it has [*31] not been established by reliable and probative evidence that Respondent violated Sections 29 CFR 1926.302(b)(1), 29 CFR 1926.652(b) and 29 CFR 1926.652(h).

ORDER

Based upon the foregoing Findings and Conclusions and the entire record IT IS ORDERED that the aforementioned Citations and proposed penalties therefor be and the same are hereby vacated and this proceeding is hereby dismissed.

HENRY F. MARTIN, JR., JUDGE, OSHRC

DATE: MAY 10, 1974