DEL-MONT CONSTRUCTION CO.

OSHRC Docket No. 76-4899

Occupational Safety and Health Review Commission

April 21, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Thomas J. Reilly, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge Henry F. McQuade is before the Commission for review under section 12(j) of the Act, 29 U.S.C. 661(i). Judge McQuade vacated a citation issued to Respondent, Del-Mont Construction Company ("Del-Mont"), concluding that Del-Mont was not the employer of the affected employees for purposes of the Act. The citation alleged a serious violation n1 of the Act for noncompliance with the standard at 29 C.F.R. 1926.21(b)(6)(i). n2 Both Acting Chairman Barnako and Commissioner Cleary granted the Secretary of Labor's petition for discretionary review of the judge's decision in this case. The principal question presented is whether, for purposes of the Act, Respondent was the employer of the affected employees.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation alleges a violation of 29 C.F.R. 1926.21(b)(6)(i) as follows:

Employees under your supervision were permitted to enter a confined space (DELCORA Force Main Manhole) on 6/29/77 without instructions as to the hazards involved, precautions to be taken or required protective and emergency equipment.

n2 The standard provides:

1926.21 Safety training and education.

* * *

(b) Employer responsibility.

* * *

(6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary of Labor ("Secretary") filed a brief on review. Respondent relied on its post-hearing brief and its opposition to the Secretary's petition for discretionary review. After considering the evidence and the record before us, we reverse the judge's decision and conclude that Respondent was an employer of the affected employees for the purposes of the Act. We, therefore, affirm the citation issued to the Respondent.

I

Delaware County Regional Water Control Authority ("DELCORA") was constructing a sewer system on a site in Philadelphia, Pennsylvania. Betz Environmental Engineers ("Betz") was responsible for inspecting the completed work of the contractors to assure compliance with specifications. Joseph Centrone was the Senior Resident Inspector for Betz.

Upon inspecting the completed work, Centrone discovered that the valves in an air release valve manhole had been installed improperly. He reported his finding and was directed by the responsible contractor, D. A. & L. Caruso, to find someone locally to correct the problem. Centrone contacted Alfred Conan, president of Del-Mont, who [*3] agreed to send two men to work on the problem. Centrone told Conan that the men would need a pump and some hand tools. There was no substantial conversation concerning the specifics of the job nor was there any mention of safety instructions or equipment.

Three days later Robert Dimpter, Sr., and Robert Dimpter, Jr., picked up the necessary equipment and reported to the DELCORA site. After Centrone showed them the plans for the manhole, the Dimpters began "pumping it down."

Since they did not complete the job, the Dimpters went to the DELCORA site the next morning after Dimpter, Sr., checked in at the Del-Mont office and spoke briefly to Conan about the job. At that time, Dimpter, Sr., tried to explain the job to Conan but to no avail; neither Conan nor Del-Mont had any experience with manholes or sewers.

After the Dimpters completed the "problem" manhole, Centrone called Conan and asked for permission to use the men on a second manhole. Conan agreed, and after Dimpter, Sr., picked up a second pump from the Del-Mont office, the Dimpters began pumping at the second manhole. The second manhole was installed originally by Miniscalco, another contractor. Centrone told the Dimpters [*4] not to go in the manhole because "it there was a serious problem" he would have to call Miniscalco. Centrone then left the area.

During Centrone's absence, both the Dimpters and a good samaritan truck driver were asphyxiated inside the manhole. As a result of the accident, an OSHA compliance officer inspected the site and cited Del-Mont for allegedly violating the standard at 29 C.F.R. 1926.21(b)(6)(i). A $500 penalty was proposed by the Secretary.

II

In his decision Judge McQuade found that Del-Mont was not the employer of the deceased employees for the purposes of the Act. He found that Del-Mont had loaned the Dimpters to Betz without retaining supervisory control over them. The judge applied the test found in Gordon Construction Company, 76 OSAHRC    , 4 BNA OSHC 1581, 1976-77 CCH OSHD P20,968 (No. 7390, 1976) ("Gordon"), n3 and found that Betz, not Del-Mont, had supervisory authority over the Dimpters.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 In Gordon, the Commission applied the following criteria to determine the employer-employee relationship: (a) whom the employees consider to be their employer; (b) who pays the employees their wages; and (c) who is responsible for controlling the employees' activities.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The judge concluded that Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975) ("Frohlick"), n4 was distinguishable from the instant case on the grounds that the deaths of the Dimpters were not connected to the operation of a machine and the work had not been completed at the time of the accident. Further, he found that Betz did not supervise adequately, give any safety instructions, or provide safety equipment. Accordingly, the judge vacated the citation issued to Del-Mont.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Frohlick was in the business of leasing cranes and operators. There was a clause in the lease agreement absolving the lessor, Frohlick, from any responsibility for the employees for the term of the lease. The lessee outlined the work to be done, but left the method to the operator. As the crane was being removed from the jobsite, it struck a power line, causing the death of one of the lessee's employees. The court found the lessor to be an employer of the operator for the purposes of the Act. The court reasoned that although the lessee company indicated the work to be done, the operator determined how to perform the actual job assigned.

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

III

On review, the Secretary argues that for the purposes of the Act the Dimpters were the employees of Respondent at the time of the violation. The Secretary contends that the judge erred in his interpretation of Frohlick. The Secretary maintains that the decision in Frohlick did not rest on the presence or absence of a machine or the stage of completion of the assigned job, but rather on the lack of supervision of the site supervisor. He argues that Betz only directed the Dimpters where to pump, relying on them to perform the job. The Secretary contends that Betz's failure to provide safety instructions or equipment does not absolve Del-Mont of its duty to comply with the Act.

The Secretary also disagrees with the judge's application of the criteria set forth in Gordon. Pointing out that the determination of an employment relationship under the Act must be made "on a case by case basis considering both the economic realities of the situation and the remedial purpose intended by Congress," the Secretary contends that, under the Gordon test, Del-Mont is the employer. He notes that [*7] the Dimpters, Sr. and Jr., had worked for Del-Mont for twenty years and for two years, respectively. He contends that the Dimpters would have considered Respondent their employer. Further, Del-Mont paid their wages, withheld for taxes, maintained their employment records and supplied their equipment. Finally, the Secretary argues that Respondent leased its employees for a fifteen per cent fee and, as evidenced by Centrone asking for Conan's permission to use them on the second manhole, retained the power to remove them from the worksite. The Secretary maintains that it would be totally inconsistent with the remedial purpose of the Act to permit an employer to send its employees into a potentially dangerous situation without providing, or at least insuring that the lessee would provide, safety equipment and safety instructions.

The Secretary reasons that an employer should not be absolved of its responsibility to comply with occupational safety and health standards because of an unfounded assumption that someone else would take over the responsibility. Del-Mont admitted that it had not worked on manholes prior to the accident. It had no knowledge of any potential danger or of [*8] the safety equipment needed to work in confined spaces. The Secretary notes that Conan did not even ask Centrone if the job was potentially dangerous. The Secretary relies on Springfield Steel Erectors, Inc., 78 OSAHRC 7/A4, 6 BNA OSHC 1313, 1978 CCH OSHD P22,498 (No. 15388, 1978), for the proposition that an employer has a duty to ascertain the nature of hazards associated with the worksite and to give specific safety instructions to employees so those hazards can be avoided.

Del-Mont argues that Betz was the sole employer of the Dimpters at the time of the accident based on the Gordon criteria and the Frohlick decision. It contends that only Betz controlled and supervised the Dimpters. Respondent argues that its lack of knowledge of the job to be done -- the type of manhole, its location and condition -- and the fact that its president had not seen the job demonstrates clearly that Del-Mont was not the employer.

Del-Mont contends that it had no responsibility to train an employee for a job to which he was not assigned. Finally, Respondent maintains that it must have actual knowledge of the hazard in order to be held liable as the employer.

IV

Both parties agree [*9] that the requirements of the standard were not met and that the Dimpters were exposed to the hazardous conditions. Thus, the primary issue on review is whether Respondent is an employer for the purposes of the Act.

At the outset, we note that the factors considered by the Commission in Gordon for determining employer-employee relationships under the Act are not allinclusive. In the most recent cases, the following factors have been considered:

1. whom the employee considers to be his or her employer;

2. who pays the employee's wages;

3. who is responsible for controlling the employee's activities;

4. who has the power, as opposed to the responsibility, to control the employee; and

5. who has the power to fire the employee or to modify the employee's employment conditions.

Sam Hall & Sons, Inc., 80 OSAHRC    , 8 BNA OSHC 2176, 1980 CCH OSHD P24,927 (No. 76-4988, 1980); see also Acchione & Canuso, Inc., 80 OSAHRC 5/B4, 7 BNA OSHC 2128, 1980 CCH OSHD P24,174 (No. 16180, 1980); Griffin and Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD P22,829 (No. 14801, 1978). Applying these five factors to the facts of this case, we find [*10] that Del-Mont was an employer of the Dimpters for the purposes of the Act.

Although there is no method of positively determining who the Dimpters considered to be their employer, we can infer that they considered their employer to be Del-Mont. Respondent had employed Robert Dimpter, Sr., for twenty years and Robert Dimpter, Jr., for two years immediately prior to the accident. The Dimpters were long-term employees. Conan, president of Del-Mont, ordered the men to report to the DELCORA site. On the morning of the second day, Dimpter, Sr., reported to Conan at Del-Mont's office and attempted to explain the job to Conan. Each of these facts leads to the inference that the Dimpters thought of Del-Mont as their employer.

Secondly, Del-Mont paid the Dimpters their wages. In addition, Del-Mont kept their employment records and withheld for taxes. Third, as to the responsibility for controlling the employee's activities, Del-Mont apparently assumed Betz would be responsible for the Dimpters. However, no conversations took place between Del-Mont and Betz concerning this responsibility. Further, Del-Mont did not check to see if Betz was performing the function of an on-site supervisor. [*11] On the other hand, Centrone, Betz's Senior Resident Inspector, denied that he was the Dimpters' supervisor. It is clear, then, that neither Del-Mont nor Betz considered itself re ponsible for supervising the Dimpters.

The fourth factor is ability to control the employees' activites. It is clear that Conan, Respondent's president, had such control. He directed them to report to the DELCORA site. Respondent supplied the pump, tools and truck for the Dimpters to use at the site. Dimpter, Sr., reported to Conan on the morning of the second day. Further, Del-Mont leased the employees at a fifteen per cent charge over their wages.

As for Betz's ability to control the employees, it is significant that Centrone asked Conan's permission to use the Dimpters on the second manhole. In fact, when asked on cross-examination whether he was the supervisor of the Dimpters, Centrone denied it. Centrone went on to say that all he did was to show them the manhole; then he left. On the other hand, Centrone did tell the Dimpters not to go into the second manhole because he wanted to call the contractor if there was a serious problem. At the very least Respondent shared control of the Dimpters [*12] with Betz. In the context of this case, Del-Mont retained the power to control the employees.

Finally, Respondent also had the power to fire the Dimpters or to modify their employment conditions. Conan demonstrated this when he questioned Dimpter on the second morning concerning the status of the work. When Centrone asked to use them on the second manhole, Conan was pleased. If not for the extra work, Conan stated that he would have had to send the Dimpters home. On the basis of this five-factor test, Del-Mont was the employer of the Dimpters for the purposes of the Act. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Respondent argued that the common law concept of Master/Servant controls. It has been long established that this tort concept is not applicable under the Act. Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628 at 631 (10th Cir. 1975); Gordon Constr. Co., 76 OSAHRC    , 4 BNA OSHC 1581, 1976-77 CCH OSHD P20,968 (No. 7390, 1976). See also National Realty and Constr. Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1972 CCH OSHD P15,188 (No. 85, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973).

[*13]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The decision in Frohlick does not support the opposite result, and Frohlick cannot be distinguished on the basis of the stage of completion of the work. In both cases, Frohlick and here, the employees were on the worksite and working on a job they were sent to complete. The fact that Betz did not adequately supervise, instruct on safety, or provide safety equipment does not absolve Del-Mont. Even the existence of a clause in the lease, which purported to hold Frohlick free of responsibility, was found not to absolve it of liability under the Act. There was no such clause in this case. The Dimpters were operating independently of on-site supervision, performing a specific task for which they were chosen by Del-Mont. Under the Frohlick test the Dimpters were the employees of Del-Mont for the purposes of the Act.

Del-Mont's contention that it had no responsibility to train employees for a job to which they were not assigned n6 is without merit. To put it simply, the Dimpters were assigned to pump out manholes and adjust the manhole valves.

- - - - - - - - - - - - - - - [*14] - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Respondent cites Republic Creosoting Co., 73 OSAHRC 3/D6, 1 BNA OSHC 1124, 1971-73 CCH OSHD P15,466 (No. 22, 1973), for this proposition. In Republic, the employee was not assigned to the job he was performing. In the instant case the Dimpters were assigned to the job that resulted in their deaths.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Finally, Del-Mont argues that since it had no knowledge of the potential dangers it should not be held accountable. This contention is also without merit. It is well-settled that under the Act an employer has a duty to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent exposure to such hazards. Automatic Sprinkler Corporation of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD P24,495 (No. 76-5089, 1980). Del-Mont leased out two men to operate a pump, knowing they would be working on a manhole. An employment relationship existed between the Dimpters and Del-Mont. It is clear from the record that Centrone did not discuss supervision or safety with either the Dimpters or [*15] Del-Mont, and Del-Mont's president did not raise the subjects of supervision or safety with Centrone, much less make any inquiries as to the potential hazards of a job. Del-Mont failed to take any steps directed toward protecting the safety and health of its employees. In short, Respondent failed to exercise reasonable diligence to discover the hazardous conditions.

Accordingly, we hold that Respondent is an employer for the purposes of the Act under the circumstances of this case and affirm a serious violation of the Act for Respondent's failure to comply with the standard at 29 C.F.R. 1926.21(b)(6)(i). n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Acting Chairman Barnako agrees with his colleagues that Respondent is an employer for purposes of the Act. However, he would not place a duty on an employer to train its employees with respect to all hazards which the employees may encounter while working at the workplace of another employer away from the premises of their employer. Such training should be limited to those hazards which are directly involved with the employees' work and which the employer should expect to be encountered at the workplace of the other firm. See N.L. Industries, Inc., Baroid Div., 79 OSAHRC 45/A9, 7 BNA OSHC 1466, 1979 CCH OSHD P23,660 (No. 16096, 1979) (concurring opinion). See also Acchione & Canuso, Inc., 80 OSAHRC 5/B4, 7 BAN OSCH 2128, 1980 CCH OSHD P24,174 (No. 16180, 1980) (concurring opinion). Applying this test, Acting Chairman Barnako agrees with his colleagues that the citation should be affirmed.

[*16]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

V

A penalty of $500 was proposed by the Secretary for the serious violation in this case. The propriety of the amount of the penalty was not argued on review. Applying the penalty factors in section 17(j) of the Act, 29 U.S.C. 666(i), we find the gravity of the violation to be high but recognize that Respondent has no history of prior violations. Further, Respondent is a small company and has displayed good faith. On balance, we find the amount of $500 to be an appropriate penalty.

Accordingly, we reverse the decision of the judge and affirm a serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1926.21(b)(6)(i). We assess a $500 penalty.

SO ORDERED.