ALL UNITED RENT

OSHRC Docket No. 3660

Occupational Safety and Health Review Commission

April 30, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: In this matter the administrative law judge determined that Respondent, an equipment lessor, is not obligated by the Occupational Safety and Health Act (29 U.S.C. 651, et seq. ) to comply with the Secretary's standard requiring that the sidewalls of trenchs dug in unstable soil be braced or sloped. * Rather, he found that an equipment lessor's obligation is limited to furnishing safe and adequate equipment for the job, a qualified operator, and to comply with such collateral standards as may be involved with use of the equipment. Secondly, he determined on the facts that Respondent could have done little to prevent the violation. He vacated, and review was directed on the issues thus presented.

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* 29 C.F.R. 1926.652(b).

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On review the Secretary takes exception to the judge's conclusion concerning the obligations of an equipment lessor. Nevertheless, he concedes that the judge has correctly determined the case. [*2] He indicates that the circumstances considered violative herein have been shown to be an unpreventable isolated occurrence. We will affirm the judge's disposition for that reason. Brennan v. OSAHRC (Hendrix d/b/a Alsea Lumber Co.), 511 F.2d 1139 (9th Cir., 1975).

Accordingly, the decision of the judge is affirmed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in this disposition because the Secretary of Labor by his letter of September 16, 1974, has expressly abandoned his opposition to the Judge's decision.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE: This is a proceeding pursuant to 29 USC 659(c) for an adjudication under the Occupational Safety and Health Act of 1970, (29 USC 651, et seq, hereafter called the Act). Respondent is contesting a citation issued by Complainant under the authority vested in Complainant by 29 USC 658.

The citation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondent and described as a trench for a sewer connection and located in Ogden, Utah.

It is further alleged that on the basis of the inspection at the above workplace [*3] Respondent violated 29 USC 654(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by Complainant, pursuant to 29 USC 655. Abatement on day from receipt of the citation was proposed. The contested citation was issued on June 29, 1973 and it is alleged that the standard violated was published in the Code of Federal Regulations at 29 CFR 1926.652(b).

The description of the serious violation alleged in Citation Number one states as follows:

One employee was at the bottom of a trench approximately 13 feet deep and approximately 10 feet wide. The sides of the trench were not sloped, shored or otherwise supported to preclude collapse.

The foregoing standard as promulgated by the Secretary provides as follows:

1926.652 Specific trenching requirements. (b) Sides of trenches in unstable or soft material, 5 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).

Pursuant to the enforcement procedure as set forth in 29 USC 659(a) of the Act, the Respondent was notified [*4] by letter dated June 29, 1973 from the Area Director for the Occupational Safety and Health Administration, U.S. Department of Labor; said Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $600.

After Respondent contested this enforcement action, and a complaint and an answer having been filed by the parties, the case came on for hearing in Ogden, Utah on December 4, 1973. No parties desired to intervene in the proceedings. Notice of the hearing was duly posted.

As to the jurisdiction of the Occupational Safety and Health Review Commission: the parties stipulated that the tractor owned by Respondent and involved in this case was manufactured outside of the state of Utah. The Respondent is an individual in the rental business and the operator of the backhoe is an employee of Respondent. Previous decisions have thoroughly reviewed the applicable law and the above factual situations constitutes a prima facie case as to coverage under the Act and absent contrary evidence from an employer he is ruled to be within the coverage of the Act. See Secretary v. Ray Lien d/b/a Ray Lien Masonry, et al, Docket No. 1626 [*5] and 1627, BNA 1 OSHR 3078; CCH Employ S & H Guide, Par. 16, 213.

In view of the foregoing it follows that the Occupational Safety and Health Review Commission has jurisdiction of the subject matter involved in this litigation.

STATEMENT OF THE EVIDENCE

COMPLAINANT'S EVIDENCE

On the date in question Bosley, and employee of Miller Realty and Construction Company, (hereafter called Miller), was doing plumbing work at Bosley's home that Miller was building. The developer had agreed to provide a storm sewer system to tap into the main in the street. The sewer connection at the street had not been made and Bosley called All United Rent and requested that they dig the trench for the sewer line. Bosley "leased equipment and a knowledgeable operator." Bosley further told the operator what had to be done, but did not tell him how to shape the trench or how to operate the backhoe.

The only person present at the worksite from the Respondent's business was the backhoe operator. No one came out from Respondent's place of business to supervise the work and it was not a subcontract, but a hiring on a per hour basis. Three employees of Miller were at the jobsite and they were [*6] probing to locate the sewer connection when the cave-in occurred.

Just prior to the cave-in occurring the ditch was 18 feet deep, 6 feet wide and 15 feet long. The side walls were sloped approximately 80 to 85 degrees from the horizontal. The soil was a silty type with some rock aggregate and some hard shale type loam toward the bottom. It was somewhat sandy and damp.

Bosley and another Miller employee were trapped in the cave-in; Respondent's employee was also in the trench when the cave-in occurred.

The compliance officer determined the violation to be serious; he entered a 10% credit for good faith; the maximum credit for size and history; and arrived at a net proposed adjusted penalty of $600 (Compl's. Ex. 2).

RESPONDENT'S EVIDENCE

R. F. Weaver Respondent d/b/a All United Rent was contacted by Bosley who indicated that he needed a "big" backhoe with an operator. No request was made that Respondent supervise the job or control the project. Respondent is in the rental business and the initial backhoe, a 3960 International rents for $28 per hour with operator and the second (smaller) machine sent to the project rented for $17.50 an hour with operator.

Respondent was [*7] aware of the dangers of improperly dug and unshored trenches. The evidence generally indicates that Respondent is in the rental business and he had been renting such equipment for about 8 years (Resp's. Ex. A). Respondent's backhoe operator at this jobsite was experienced. Respondent had no information as to how the equipment was to be operated nor any information as to the depth or length of the excavation nor any information as to the soil conditions at the jobsite.

ISSUE PRESENTED

Respondent's brief argues that the lessor was not in violation of the established standard and cites in connection therewith the general proposition of law that where there is no control or right of control over a servant or employee the principle is not liable for acts of the servant or employee. Citing Dowsett v. Dowsett 207 P 2d 1809, 116 Utah 12; Wall v. Penn Lumber and Mill Works, 90 A 2nd, 273, 171 Pa Super 512. Complainant relies on the case of Secretary v. Weicker Transfer and Storage Company, Docket No. 1362 and 1373 (1973). A fair reading of Weicker indicates that a Review Commission Judge ruled that the lessor of equipment can be responsible for a violation [*8] of the Act when on a jobsite under the control of another. Weicker is now pending on review. The writer is of the opinion that under the circumstances as in this case there is no liability for a violation of the Act on this Respondent lessor. The Occupational Safety and Health Act of 1970 indicates no intent by the Congress to transfer a lessor of equipment furnishing an operator to the status of a contractor or subcontractor with the liabilities attendant thereto. A lessor of equipment furnishing an operator fully complies with the Act if he leases equipment safe and adequate for the effort to be undertaken (and about which he has advised) and furnishes an operator for the equipment that is experienced in its operation and further complies with such other collateral standards as may be promulgated by the Secretary in connection with the use of such equipment. The case of Secretary of Labor v. Winslow Crane Service, Inc., The facts therein indicate that the lessor owner of the equipment gave specific crane safety instructions to its employees. The equipment had been rented with an oiler and [*9] operator. With the oiler to serve as a signal man, it was held that the owner lessor fully complied with 29 CFR 1926.550(a)(15)(iv) by furnishing a person to observe clearances and give timely warnings. It was further noted that the owner lessor in Winslow could have done little to prevent the violation except furnishing an additional supervisory employer to further oversee the activities of the operator and oiler. It was ruled that such additional supervisory effort is not required by the Act. The reasoning, as stated in Winslow Crane, is likewise applicable here and by reason thereof the citation and proposed civil penalty of $600 are to be vacated.

In the instant case there is some indication that the smaller backhoe was inadequate to dig to a depth of 11 to 12 feet and still slope the banks to meet OSHA requirements; however this issue is resolved in favor of Respondent as it is apparent that the initial machine that went out on the project was the larger machine.

FINDINGS OF FACT

1. The sides of the trench were unstable and soft material being silty, sandy and damp (Resp's. brief, page 1).

2. The trench was 18 feet deep, 6 feet wide, and 15 feet long.

3. [*10] The side walls of the trench were sloped approximately 80 to 85 degrees from the horizontal and there was no shoring or bracing in the trench.

4. At the time of the cave-in the owner of the property, an employee of the contractor, and Respondent's employee were in the trench.

5. Respondent is in the rental business and he rented a backhoe with operator to the owner of the property (Resp's. Ex A).

6. No request was made for Respondent to supervise the job or control or subcontract the project.

7. The backhoe operator that went out with his equipment was experienced and the rented equipment was adequate.

CONCLUSIONS OF LAW

1. A violation 29 CFR 1926.652(b) occurred at the jobsite (Facts 1, 2, 3, 4).

2. Respondent is not responsible for violation of the aforesaid standard (Facts 5, 6, 7).

3. The citation for the alleged serious violation of 29 CFR 1926.652(b) as to this Respondent should be vacated and the proposed penalty of $600 should be vacated.

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby ADJUDGED AND ORDERED:

1. Citation number 1 for the alleged serious violation of 29 CFR 1926.652(b) is vacated.

2. The proposed civil penalty [*11] of $600 for the violation alleged in the preceding paragraph is vacated.

SO ORDERED.