D & H PUMP SERVICE, INC.

OSHRC Docket No. 16246

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Cliff Preslar, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed [*2] Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The 29 C.F.R. 1926.650(e) charge should be vacated because the evidence establishes that the employee observed without a protective hat was not an employee of respondent. See Secretary v. Southeast Contractors, Inc., 8 OSAHRC 285 (1974) (dissenting opinion). An employer cannot be held in violation of the Act if his employees are not affected by noncompliance with a standard. Secretary v. City Wide Tuckpointing Service Co., 3 OSAHRC 154 (1973).

The serious citation shold be vacated in its entirety. Judge Blythe erred in granting complainant's motion to amend item 1 of this citation to allege that respondent had failed to comply with 29 C.F.R. 1926.651(q). See Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). However, since he vacated that charge, as amended, that error was not prejudicial to respondent. Moreover, item 2 should be vacated because the evidence establishes [*3] that respondent's employee did not work near the sides of the large excavation and therefore was not exposed to the danger of moving ground as contemplated by the cited standard, 29 C.F.R. 1926.651(c). See Secretary v. Staley & Lawrenz, Inc., OSAHRC Docket No. 4145, October 7, 1976 (dissenting opinion); Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974) (dissenting opinion). Finally, item 3 of the serious citation should be vacated because the evidence establishes that all backhoe operations were performed by another employer at the worksite and that respondent did not create or cause the alleged violative condition and was not otherwise responsible therefor. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion); Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues [*4] are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Blythe's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Harvey M. Shapan, for complainant

Cliff Preslar, for respondent

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought pursuant to 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), contesting two citations issued by the complainant, the Secretary of Labor (the Secretary), against the respondent, D & H Pump Service, Inc., under the authority vested in the complainant by 9(a) of the Act. The citations, issued December 8, 1975, allege on the basis of an inspection on November 25, 1975, of a place of employment located at 1300 block of Airway, El Paso, Texas, the respondent violated 5(a)(2) of the Act by failing to comply with four standards promulgated by the Secretary. The pertinent allegations of the citations are as follows:

Citation No. 1

Item

No.

Standard

Description of alleged violation

 1

29 CFR 1926.650

Employee was not protected with personal

(e)

protective equipment for the protection of

head in 14 feet deep excavation with work

going on above him.

Citation No. 2

1A

29 CFR 1926.650

On November 25, 1975 an employee was permitted

(h) n1

under loads handled by power shovels;

1B

29 CFR 1926.651

And, the walls and faces of service station

(c)

tanks excavation in which employees were

exposed to danger from moving ground were

not guarded by a shoring system, sloping

of the ground, or some other equivalent

means;

1C

29 CFR 1926.651

And, mobile equipment was being utilized

(s)

adjacent to excavation without substantial

stop logs or barricades installed.

[*5]

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n1 The citation and complaint originally alleged a violation of 29 CFR 1926.650(h), but the Secretary moved at the opening of the hearing to amend P VI(a) of the complaint to allege a violation of 29 CFR 1926.651(q) instead of 29 CFR 1926.650(h). This motion was taken under advisement and was granted at the conclusion of the hearing (Tr. 133) in view of the evidence introduced without objection bearing on a 651(q) violation.

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The standards involved are:

29 CFR 1926.650(e): "All employees shall be protected with personal protective equipment for the protection of the head, eyes, respiratory organs, hands, feet, and other parts of the body as set forth in Subpart E [including 29 CFR 1926.100] of this part."

29 CFR 1926.100(a): "Employees working in areas where there is a possible danger of head injury from impact . . . shall be protected by protective helmets."

29 CFR 1926.651(q): "If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near [*6] an excavation, the side of the exvacation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads."

29 CFR 1926.651(c): "The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means."

29 CFR 1926.651(s): "When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed. If possible, the grade should be away from the excavation."

The violation alleged in citation 1 was alleged to be other than serious, and there was no proposed penalty. They violations alleged in citation 2 were alleged to be serious, when considered together, and a penalty of $500 was proposed. A notice of contest (contesting all items in both, citations) was served on December 12, 1975; the complaint was served on December 30, 1975; and the answer was served on January 6, 1976. No employees or representatives of affected employees have appeared or participated in this proceeding. The hearing was held March 26, 1976, at El Paso, Texas; both sides have submitted post [*7] hearing briefs, and respondent has submitted proposed findings of fact and conclusions of law. The matter is now ripe for decision.

THE ISSUES

The issues to be determined are:

1. Whether respondent's vice president was an employee within the meaning of the Act.

2. Whether an equipment operator supplied by the lessor of a backhoe was respondent's employee under the facts of the case.

3. Whether respondent was in nonserious violation of 29 CFR 1926.650(e), and, if so, the appropriate civil penalty therefor.

4. Whether respondent was in serious violation of 29 CFR 1926.651(c) and 29 CFR 1926.651(s), and, if so, the appropriate civil penalty therefor.

JURISDICTION

The respondent concedes in its answer that it is a corporation having a place of business at El Paso, Texas, where it is engaged in business as a service station equipment contractor, and that it is an employer engaged in a business affecting commerce, who has employees, within the meaning of the Act.

DISCUSSION

Respondent, which was under contract to install service station equipment, hired James E. Regan Backhoe & Trenching Service (hereinafter "Regan"), on an hourly basis, to dig an excavation for [*8] three underground tanks. This hole way nearly completed the day prior to the inspection but the backhoe was not able to reach quite deep enough. Overnight, there was some sloughing or caving of the banks of the excavation. Respondent's vice president, Calvin Ray Bishop, rented a small "Bobcat" front end loader to scoop up soft material in the bottom of the hole and pile it within reach of the backhoe. The Bobcat was operated by Donnie Powell, an employee of Regan. Bishop was also in the excavation at the time of inspection.

At the outset, respondent contends that neither Powell nor Bishop was an "employee" within the meaning of 3(b) of the Act n2 and that these were the only persons exposed to the conditions alleged to have been violative of standards codified at 29 CFR 1926 650(e), 651(c), 651(q), and 651(s). Respondent also denies that it otherwise violated these standards.

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n2 "The term 'employee' means an employee of an employer who is employed in a business of his employer which affects commerce."

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[*9] I. Respondent's Vice President as an "Employee"

Mr. Bishop, the evidence showed, could take his pick of three titles of this small corporation: Vice president, general manager in charge of day-to-day operations, and working foreman (Tr. 10, 52). Respondent contends that he was the only D & H Pump Service employee, and in any event its highest ranking officer, present at the workplace, and that he had the responsibility for his own protection.

The statutory definiton of the term "employee" is of little use, being in terms of itself. Neither is the legislative history of the Act very helpful, as pointed out by Judge Chalk in Secretary v. Williams Crane & Rigging, Inc., 15 OSHRC 749 (1975).

Undoubtedly, Bishop was an employee for some purposes. The real question is whether he is a member of the class for which the Congress, according to 2(b) of the Act, sought

". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ."

Corporate officers who are exposed to recognized hazards or violations of OSHA standards have been held to be employees within the meaning of the Act. Secretary v. FEC, Inc., [*10] 1 OSAHRC 389 (1972) (Oringer, J.); Secretary v. Kensington Electric Products Co., Inc., 4 OSAHRC 211 (1973) (Gold, J.).

Despite his high-sounding title, Bishop at the time of the inspection was working with a shovel, levelling the bottom of the excavation. Respondent does not contend that he was doing anything he was not expected to do. He regularly spent 40 hours a week in such work. (Tr. 10.) He was a "working man" entitled to "safe and healthful working conditions."

II. The "Bobcat" Operator as an Employee

Whether Donnie Powell, the operator of the "Bobcat" front end loader in the excavation, was an employee of the respondent was a contested issue at the hearing. However, it may be moot under Secretary v. Anning-Johnson Company n3, Docket Nos. 3694 and 4409, decided May 13, 1976. There, in admitted obiter dictum which it indicated it would follow in future cases the Commission said,

"Thus far we have considered two of the three possible circumstances n20 that would give rise to an employer's liability under the Act for a violation on a multiple employer construction site. Although not an issue in this case, we are constrained to mention this Commission's [*11] position with respect to the third possible situation. Under this third set of circumstances, we are dealing with (1) a contractor that has either created a hazard or controls a hazardous condition and (2) the only employees having access to the hazard are those of different contractors engaged in the common undertaking. We consider such a contractor to have a duty under section 5(a)(2) of the Act to comply fully with the standards. Thus, we agree with the Second Circuit's opinion in Brennan v. O.S.H.R.C. and Underhill Constr. Corp., [513 F. 2d 1032 (2d Cir. 1975)] on this point for the reasons set forth by the Court. Furthermore, we note that typically a general contractor on a multiple employer project possesses sufficient control over the entire worksite to give rise to a duty under section 5(a)(2) of the Act either to comply fully with the standards or to take the necessary steps to assure compliance."

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n3 Which will be called "Anning-Johnson II hereafter to distinguish it from Anning-Johnson Co. v. O.S.H.R.C. and Brennan, 516 F. 2d 1081 (7th Cir. 1975), hereafter called "Anning-Johnson I"

n20 "The two situations expressly dealt with are as follows: (1) a respondent who either created or controls a particular hazard to which its employees had access, and (2) a respondent whose employees have access to a hazard neither created nor controlled by their employer."

[*12]

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Arguably, the hazardous condition here involved may have been created by Regan, but certainly respondent was in control of the condition, thus meeting the first requirement of Anning-Johnson II quoted above. The second requirement also is met, since Regan and respondent were engaged in a common undertaking and only their employees had access to the hazard. Thus respondent was responsible for Powell's safety, regardless of those employee he was.

However, Powell may very well be classified as a joint employee of Regan and respondent. Among the elements to be considered in determining whether an employment relationship exists are (1) the employee's belief as to his employer's identity, (2) who pays his wages, and (3) who is responsible for controlling his activities. Secretary v. Weicker Transfer and Storage Co., 15 OSHRC 80 (1975). The first and second of these elements point to Regan as the employer, the third to both Regan and respondent. Bishop said he did not tell Regan or Powell how to do their job (Tr. 50), but Compliance Officer David Garcia said he heard Bishop give orders to [*13] Regan, who was operating the backhoe. (Tr. 110) Bishop rented the Bobcat from another firm (Tr. 57, 130) and had it lowered into the excavation by the backhoe. (Tr. 132) Bishop was in the hole with Powell, doing levelling work with a shovel in the southwest corner (Tr. 14). The compliance officer heard shouted communications between Bishop and Powell but couldn't understand what they were saying. (Tr. 118) It is difficult to believe that Powell was not subject to Bishop's direction and control, regardless of whether Bishop actually gave him specific orders.

III. The "Hard Hat" Violation

Citation 1 alleges a violation of 29 CFR 1926.650(e), which incorporates subpart E, including 29 CFR 1926.100. Together, these standards require wearing of protective helmets by

"[e]mployees working in areas where there is a possible danger of head injury from impact."

Respondent concedes on brief that Donnie Powell was working without a protective helmet in an excavation which was 14 feet deep but denies he was its employee. The employment issue has been determined above. Since Powell was to some extent at least under respondent's direction and control, it should have required him [*14] to wear a helmet if there was a "possible danger."

Respondent was charged in another item (now withdrawn) with exposing Powell to the hazard of working under loads handled by a power shovel. Whether or not he actually got under such loads, there was a "possible danger" that he would do so. He testified that he and the backhoe operator, having worked together for five years, were able to time the movements of their respective machines so that he would not be under the backhoe bucket at anytime. (Tr. 124) Nevertheless, there was a danger from this source and also from possible cave-ins of the bank.

Respondent's Mr. Bishop recognized these dangers; he himself wore a "hard hat" and should have required Powell to do likewise.

IV. The 29 CFR 1926.651(q) Citation.

Paragraph VI(a) of the complaint, as amended, alleges that respondent violated 29 CFR 1926.651(q), which requires shoring, sheet-piling a bracing of the side of an excavation "as necessary to resist the extra pressure due to . . . superimposed loads" caused by operation of heavy equipment nearby.

The backhoe here involved was a large one, weighing some 40,000 pounds. (Tr. 24) It was operated in close proximity to the [*15] excavation at the time of inspection an the day before had been driven down a ramp partially into the excavation to enable it to reach some points therein. (Tr. 24, 39)

Complainant introduced no expert testimony regarding the extra pressure on the bank of the excavation due to the weight of the backhoe. Obviously, this depended on the distribution of its weight. Bishop testified that the machine operated on caterpillar-type treads measuring some 14' X 30" which distributed the weight so that the pressure per square inch was less than would be exerted by a Volkswagen car or even a person walking. (Tr. 40, 42) Their testimony was not refuted.

While one bank of the excavation did cave in, this happened at night while the backhoe was not in operation. Also, the cavein was on a side of the excavation away from the backhoe.

The Secretary has not shouldered his burden of proof on this item.

V. The 29 CFR 1926.651(c) Citation

Respondent is charged with violating 29 CFR 1926.651(c) by failing to shore or slope the sides of the excavation.

The hole measured, roughly, 36' X 24' X 14' deep, the upper 10' being caliche and the lower 4' being "sugar sand." (Tr. 14, 19, 20) When [*16] the excavation was opened the day before the inspection the sand was moist and tended to stay in place. Due to the dry El Paso climate, the sand dried rapidly during the night and sloughed off, allowing the caliche layer on the south wall to cave off in large chunks. (Tr. 18, 23)

Caliche is a clay-like formation common to the soil of the region. It varies considerably in hardness and in its ability to sustain itself if support from underlying soil is removed. (Tr. 74)

The sides of the excavation, though irregular, were essentially vertical when dug, but the sloughing of the sand at the bottom caused an overhang of one to two feet around most of the cavity. (Tr. 17, 20-23, 84) It was this overhang which caved off on the south side.

Respondent contends that, due to the size of the excavation, there was no danger from caveing to employees working in the center of the cavity, that there was no necessity for any employee to go near the sides, and that even if there was a cavein the soil would slide into the hole rather than falling over from the top.

A soil sample taken from the spoil pile by the compliance officer was analyzed by Harley Shofner, a soil expert whose qualifications [*17] were conceded. (Tr. 59-78). This material was mostly sand from the bottom of the hole. He described it as "gravelly sand or sandy gravel", of a silty nature, containing very few fines, with 3% moisture content and "zero" plasticity. He said that when not confined this material would have a tendency to flow or by free-moving and should be sloped one foot for each foot of depth. Mr. Shofner did not analyze a sample of the caliche layer, although a few caliche particles were in the sample he tested.

The photographic evidence (Ex. C-2) shows that the caliche fell into the hole in large chunks. Mr. Bishop admitted that serious injury could result from being caught under such a cavein (Tr. 27). The photograph (Ex. C-2) shows him near the fallen material. He and Powell were lowered into and removed from the hole in the backhoe bucket, which could reach the bottom only at its adjacent side of the cavity. (See photograph Ex. C-4.) To this extent they were exposed to the hazard of a cavein; in addition, some exposure would attend the removal of the fallen material. Their exposure lasted about 30 to 45 minutes (Tr. 16, 109).

The excavation was too near property lines on the north [*18] and east sides to be sloped sufficiently to meet the requirements of the standard (Tr. 28). These sides should have been shored, sheet-piled or braced. The other sides easily could have been sloped (Tr. 98).

VI. The 29 CFR 1926.651(s) Citation

The Secretary alleges that respondent violated 29 CFR 1926.651(s) by failing to install substantial logs or barricades between the backhoe and the side of the excavation. Respondent, while admitting that no stop logs or barricades were used, contends that such barriers were unnecessary and would have been futile. Powell, who normally operated the backhoe (and had done so the day prior to the inspection), testified that the operator would have to "pass out" to lose control and that in that event the machine would be stopped by hydrostatic controls (Tr. 129). However, Bishop admitted it was possible to drive the backhoe accidentally into the hole (Tr. 35). This is the hazard at which 29 CFR 1926.651(s) is directed. Its language is not qualified; it is mandatory:

"When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed." (Emphasis supplied.)

Thus respondent's [*19] contentions go only to the gravity of the violation.

VII. The Appropriate Penalty

The Secretary proposes no penalty for nonserious citation 1 and a penalty of $500 for the three violations alleged in citation 2, which are alleged, in combination, to be serious.

After weighing the factors specified in 17(j) of the Act, I determine that a penalty of $350 is appropriate. Respondent is small in size, the gravity of the violation was moderate, and respondent has no history of previous violations. Its good faith is open to question, since the violations were continued in the face of the compliance officer's warning, but apparently Bishop misunderstood the compliance officer's statement to the effect that he could not order him to desist unless there was imminent danger (Tr. 34, 89).

FINDINGS OF FACT

1. The respondent, D & H Pump Service, Inc., is a corporation with a place of business at El Paso, Texas, engaged in the business of installing service station equipment. It admits that it is an employer engaged in a business affecting commerce and that it has employees within the meaning of the Act. (Respondent's answer.)

2. On November 25, 1975, respondent was engaged [*20] as a subcontractor in the installation of gasoline tanks and lines at 1300 Montana, El Paso, Texas. During this operation a hole approximately 36 feet long, 24 feet wide and 14 feet deep was dug with a backhoe (Tr. 14, 38).

3. Said backhoe, complete with an operator, Donnie Powell, was hired by respondent on an hourly basis from James E. Regan Backhoe and Trenching Service (Regan) (Tr. 15). Powell dug most of the hole on November 24, 1975, but was unable to get it quite deep enough with the backhoe. Respondent rented (from another source) a small front-end loader, called a "Bobcat," to deepen the hole on November 25, and Powell operated the Bobcat while Mr. Regan operated the backhoe (Tr. 15, 57, 130, 132).

4. Calvin Ray Bishop, respondent's vice president, general manager in charge of operations, and working foreman, was in charge of the operation. He was in the excavation, together with Powell, when complainant's compliance officer made an inspection (Tr. 10, 14, 52).

5. The sides of said excavation were essentially perpendicular, but there was an overhang of one to two feet due to drying and sloughing of a layer of sand in the lower four feet of the hole. On the night [*21] of November 24-25, while the hole stood open, the south wall of the cavity collapsed, causing large chunks of earth to fall to the bottom (Tr. 17, 18, 20-23, 84).

6. The upper 10 feet of the sides of the excavation were composed of caliche, a clay-like substance which varies in hardness but is not equivalent to rock. In this instance, it could not be relied upon to remain in place without sloping, shoring, or equivalent means because of the drying and sloughing of the underlying four feet of sand. Bishop and Powell were exposed at least 30 minutes to this hazard from which serious injuries could have resulted (Tr. 14, 16, 19, 20, 27, 74, 98, 109).

7. Powell was also exposed to the possible danger of head injury from the impact of material falling from the backhoe bucket, or the bucket itself. He was not wearing a protective helmet (Tr. 15, 82, 124).

8. The backhoe, a large self-propelled machine weighing approximately 40,000 poinds, was operated from a position adjacent to the excavation without the installation of stop logs or barricades. Bishop and Powell were exposed to serious injury from this hazard at least 30 minutes (Tr. 16, 24-26, 35, 109).

9. The backhoe's weight [*22] was borne by two caterpillar-type treads, each measuring about 15 feet by 30 inches (Tr. 40, 42). The complainant failed to establish by credible evidence that the use of sheet piling, shoring or bracing of the side of the excavation was necessary to resist the extra pressure of the super-imposed load of the backhoe.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction of the parties and of the subject matter of this action.

2. Calvin Ray Bishop and Donnie Powell at all times material to this proceeding were employees of respondent within the meaning of the Act.

3. Alternatively, respondent and James E. Regan Backhoe & Trenching Service were different contractors engaged in a common undertaking, and their respective employees, Bishop and Powell, were exposed to hazardous conditions created or controlled by respondent.

4. On November 25, 1975, respondent was in nonserious violation of 29 CFR 1926.650(e), for which no penalty should be assessed.

5. On November 25, 1975, respondent was in serious violation of 29 CFR 1926.651(c) and 29 CFR 1926.651(s), and the appropriate civil penalty therefor is $350.

6. On November 25, 1975, respondent was not in violation [*23] of 29 CFR 1926.651(q).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1 for nonserious violation of 29 CFR 1926.650(e) be and it hereby is affirmed, and that no penalty be assessed therefor.

2. Item 1A of citation 2, as amended, for serious violation of 29 CFR 1926.651(q) be and it hereby is vacated.

3. Items 1B and 1C of citation 2 for serious violation of 29 CFR 1926.651(c) and 29 CFR 1926.651(s) be and they hereby are affirmed, and that a civil penalty of $350 be and it hereby is assessed therefor.

4. All proposed findings of fact and conclusions of law submitted by the respondent which are inconsistent herewith be and they hereby are denied.

5. This proceeding be and it hereby is terminated.

DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE

June 28, 1976