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DIC-UNDERHILL, a Joint Venture








OSHRC Docket No. 76-4988

Occupational Safety and Health Review Commission

October 29, 1980


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


Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Carr G. Dodson, for the employer




A decision of Administrative Law Judge Cecil L. Cutler, Jr. is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act"). Judge Cutler vacated two citations that were issued by the Secretary of Labor ("Secretary"). The first citation alleged that Respondent, Sam Hall & Sons, Inc., had failed to comply with the standard at 29 C.F.R. 1926.652(c) n2 in that it failed to shore or otherwise support the sides of a trench in hard or compact soil. This was alleged to be a willful, repeated, serious violation and a $5,700 penalty was proposed. The second citation, alleged to be an other than serious violation, charged Respondent with failure to comply with the standard at 29 C.F.R. 1926.651(i)(1) n3 in that it failed to store or retain excavated or other material at least two feet from the edge of excavations. In vacating the two citations, Judge Cutler concluded [*2] that Respondent was not an "employer" within the meaning of the Act because Respondent did not create or control the alleged hazard or worksite. The Secretary's petition for review of this ruling was granted by Chairman Cleary.

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n1 29 U.S.C. 661(i).

n2 This standard provides:

1926.652 Specific trenching requirements.

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(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

n3 This standard provides:

1926.651 Specific excavation requirements.

* * *

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.


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For the reasons that follow, we reverse the judge's conclusion that Respondent is not an "employer" under the Act, and we hold that Respondent has committed a serious violation of section 1926.652(c) and an other than serious violation of section 1926.651(i)(1). We remand the case, however, to the administrative law judge to determine whether the section 1926.652(c) violation is willful and repeated as alleged by the Secretary and to assess an appropriate penalty for each violation.


The evidence establishes that Respondent is a contractor primarily doing grading, hauling and concrete work. In addition to contracting work, the company leases on an hourly basis equipment such as front end loaders, backhoes, cranes, trucks, and boring machines. The leasing business is approximately 20% of Respondent's total business. In the last quarter of 1976, Respondent had 29 leasing contracts. According to its president, Sam Hall, the company has a policy not to lease equipment without also "leasing" someone to operate it. Sam Hall testified that the company has this policy because the lessees "are not familiar [*4] with the equipment and they don't look after the maintenance on the equipment, and it's just much better to have a person on there that's familiar with running it." Hall further testified that Respondent does not inspect the jobsites where the leased equipment is used and that it would be impossible to do so. The company, however, instructs its employees about OSHA regulations.

During the week of November 1, 1976, the City of Warner Robins, Georgia ("City"), opened negotiations with Respondent for a contract to bore a pipeline under Route 247 in Warner Robins. n4 According to Sam Hall, Respondent normally would contract to do an entire boring job itself rather than lease boring equipment. In this instance, however, the City did not have enough money budgeted for the complete job. Therefore, for this project, Respondent furnished the City with the boring machine, a hydrocrane used to place the boring machine in the trench, the track upon which the boring machine rests, and the services of two operators. The City supplied the pipe for the hole, a welder, a water truck used in the boring operation, a backhoe, and supervision.

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n4 The City was not issued a citation in this case. As a subdivision of the state of Georgia, the City is exempt from compliance with the requirements of the Act. See Section 3(5) of the Act; 29 U.S.C. 652(5).

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The agreement was initially made by telephone between Wiley Bowman for the City and Joe Hill Hall, Respondent's vice president. This oral agreement was confirmed by a letter from Respondent, dated November 3, 1976. The letter states that the City would prepare the trench for the boring machine and that the work would be done to Occupational Safety and Health Administration ("OSHA") specifications. According to a stipulation, Mr. Bowman could not recall the exact date of Respondent's letter, but he believed work on the project had already been started. Further, according to the stipulation, nothing was mentioned about OSHA specifications during the telephone negotiations.

Charles Welford, an employee of the City, supervised the preparation of the trench at the worksite. The trench was dug in one day -- Friday, November 3, 1976. The boring machine [*6] and track were assembled in the trench either the following Monday or Tuesday. Welford testified that he did not consider himself to be supervising Wyche and Alexander, Respondent's two operators, since they knew how to do their job. He stated that he had previously supervised boring work but he had not worked with the type of boring machine used by Respondent. He testified that this project was the only time he had supervised the digging of a trench. Welford also admitted that he did not know how to set the boring machine in the trench, and therefore he relied on Respondent's employees for that aspect of the job.

Aaron Wyche testified that he operated the boring machine in the trench and that Alexander was responsible for "removing the dirt from the machine against the bank." He stated that on this job he was supervised by Welford. Although Welford did not tell him how to place the boring machine in the trench or how fast to work, Welford gave Wyche directions concerning the welding of the pipe as well as such things as when to take lunch breaks. Wyche testified that he informed Welford that the trench was not sloped in accordance with OSHA standards. According to Wyche, Welford [*7] told him the trench was "stout enough," and Wyche did nothing further because he believed he was under Welford's supervision. Wyche did not inform Respondent's management about this conversation until after the inspection.

The evidence is unclear as to the role of Charles Wertz, a foreman of Respondent, in connection with the project. His activities were described by other witnesses because he died from injuries sustained in an automobile accident before the hearing. According to Welford and Alexander, Wertz assisted in placing the boring machine in the trench. n5 The evidence is in conflict as to the length of Wertz's stay at the worksite -- whether he was there for most of the day, according to Welford, or for just a few minutes, as indicated in the testimony of Wyche and Alexander. In any event, Wertz left the pipeline project to go to a job he was supervising at a brewery. It further appears from the evidence that the initial placement of the boring machine in the trench was not acceptable because the floor of the trench was not level. The boring machine was removed, the trench bottom leveled, and the machine repositioned. According to Welford, Wertz was the one who informed [*8] him that the trench needed to be leveled. Alexander's testimony, however, indicates that Wertz was not present when the boring machine was repositioned in the trench. Wertz returned that evening to pick up the two employees but remained in his truck and signalled them by honking the truck's horn.

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n5 Wyche did not recall whether Wertz was present during the placement operation.

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On November 10, 1976, Matthew Henry, an OSHA compliance officer, inspected the jobsite. According to Henry, the trench was 6 feet wide, approximately 26 feet long, and ranged in depth from 6 feet, 6 inches, to 8 feet, 10 inches. The Soil was "clay-type" with rocks in it. The clay was wet and some water was in the bottom of the ditch. The walls were almost vertical. Excavated soil was stored right to the edge of the trench. Wyche and Alexander were in the trench at the time of the inspection.

Sam Hall testified that, following the inspection, the company's employees were told not to go back into the trench until it was sloped properly. [*9] He stated that the day after the inspection the trench was sloped properly and the employees resumed work.


The parties did not dispute, and Judge Cutler concluded, that the cited conditions did not comply with the terms of the cited standards. He also found the conditions cited in the first citation to be serious in nature; the conditions in the second citation were found to be other than serious.

Judge Cutler also found that, under common law principles, Respondent was the employer of Wyche and Alexander since it hired the employees, paid their wages, and the employees considered themselves employed by Respondent. However, he noted that under Commission precedent other substantive standards are applied in determining whether an employer is responsible for a violation under the Act. Judge Cutler examined two additional factors: (1) Respondent's control over the worksite, and (2) the supervision of the employees involved. He concluded that the City of Warner Robins, rather than Respondent, created and controlled the cited hazard. He also found that Charles Welford, an employee of the City, was supervisor of the project and controlled the activities of all workers including [*10] those of Respondent. Judge Cutler rejected the argument that Wyche acted as a supervisor over Alexander, or that Wrtz assumed a supervisory role. n6 He found that both Wyche and Alexander were essentially performing common labor, and he concluded that Wertz's assistance with the original installation of the boring machine did not place him in a supervisory capacity at this worksite. In concluding that Welford was the supervisor, Judge Cutler relied upon the following facts: (1) Wyche's complaint about the failure to slope the trench was directed to Welford, (2) Wyche deferred to Welford as his supervisor, and (3) Wertz apparently was supervising another project during the time in question. Judge Cutler, therefore, vacated the citations on the basis that Respondent was not an employer under the Act.

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n6 Neither party argues on review that Wyche acted as a supervisor over Alexander. Further, we agree with Judge Cutler that Wyche did not act in a supervisory capacity. Our disposition on the issue of whether Respondent is an employer under the Act, therefore, is not based on a finding that Wyche acted in a supervisory capacity.

With respect to the role of Wertz, Judge Cutler found that Wertz assisted in the initial placement of the boring machine at the worksite. This finding by the judge concerning Wertz's role in the placement operation is supported by a preponderance of the evidence. Armor Elevator Co., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973 CCH OSHD P16,958 (No. 425 & 426, 1973). As noted by the judge, testimony was conflicting concerning the length of time Wertz spent at the worksite and whether Wertz assisted in repositioning the boring machine in the trench. We need not resolve the conflict in this testimony since such a determination is not necessary to our disposition of this case.


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On review, the Secretary argues that Respondent should be considered an employer for purposes of the Act for the following reasons: (1) the workers considered themselves to be Respondent's employees; (2) Respondent paid the workers' wages, maintained the record of hours worked, and was responsible for workman's compensation coverage; and (3) Respondent exercised a significant degree of control over the workers' activities. While conceding that Respondent did not control all aspects of the workers' activities, the Secretary nevertheless contends that Respondent shared control with the City.

Respondent does not dispute that it hired and paid the employees in question and that these employees considered themselves to be employed by Respondent. However, it contends that the City, rather than Respondent, had control of the worksite. Respondent, in making this argument, notes first, that the City dug the trench and placed excavated material up to the edge of the trench; second, that the City, under written contract, was to supervise the jobsite and operate within OSHA specifications; and third, that [*12] Wyche's complaint about the lack of slope of the trench was directed to Welford. Additionally, Respondent argues that the City controlled the work area, the work schedule, the length of the bore, the welding equipment, pipe, and the employees of Respondent. For these reasons, Respondent contends that it should not be held responsible as an employer under the Act.

The Commission has considered several factors in determining whether an employment relationship exists in the context of the remedial purposes of the Act. These factors include: (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 distinguished from the responsibility, to control the employee; and (5) who has the power to fire the employee or to modify the employee's employment conditions. Acchione & Canuso, Inc., 80 OSAHRC    , 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); Gordon Construction Co., 76 OSAHRC    , 4 BNA OSHC 1581, 1976 CCH OSHD P20,968 (No. [*13] 7390, 1976); Weicker Transfer and Storage Co., 75 OSAHRC 29/A2, 2 BNA OSHC 1493, 1974-75 CCH OSHD P19,215 (Nos. 1362 & 1373, 1975).

Applying these factors to this case, we agree with the Secretary that an employment relationship existed for purposes of the Act between Respondent and the employees, Wyche and Alexander. First, the judge found and the record establishes that these employees considered themselves to be employed by Respondent. Second, Respondent paid the wages of both Wyche and Alexander. Third, although the worksite was under the supervision of the City, the employees were capable of operating the leased machinery without any assistance or supervision by the City. Indeed, the evidence reveals that these employees did not receive any supervision from the City regarding the operation of the machinery. Welford, the supervisor for the City, testified that he lacked experience in such operations and relied upon the expertise of these employees, especially for the placement of the boring machine in the trench. Welford also testified that he had no prior experience supervising the digging of trenches. On the other hand, Wyche informed Welford that the trench was [*14] not properly sloped. Fourth, Respondent retained the power to remove its employees from the worksite and did so following the inspection. Respondent's action in this respect is consistent with the terms of the contract between Respondent and the City, which provided that the trench would comply with OSHA specifications. The statement of respondent's president that Respondent has a policy not to lease certain equipment without also "leasing" operators also suggests that Respondent relied upon the expertise of its own employees, rather than the expertise of the City, to ensure that proper work procedures were observed. When an employer is hired for its expertise and that expertise is relied upon, that employer is responsible for the actions of its employees relevant to the work. See Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628, 631 (10th Cir. 1975); Gordon Construction Co., supra; Lidstrom, Inc., 76 OSAHRC 40/E6, 4 BNA OSHC 1041, 1975-76 CCH OSHD P20,564 (No. 3433, 1976). Finally, the record does not establish where the authority to fire the employees rested.

Accordingly, while we agree with the judge that Respondent did not create the cited conditions, [*15] we reject his finding that the City had sole control over the worksite. n7 Rather, we conclude that the control element was shared between the City and Respondent such that either could have prevented the employees from entering the cited trench. Therefore, we conclude that the facts of this case support the finding that an employment relationship existed between Respondent and the boring machine operators, Wyche and Alexander, such that Respondent is an employer for the purposes of the Act. n8

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n7 Respondent, in arguing that it did not have control over the worksite, contends that it did not have knowledge of the violative conditions. However, as discussed above, the evidence establishes that Respondent's foreman Wertz visited the jobsite and assisted in the original placement of the boring machine in the trench. See note 6 supra. Further, the condition of the trench remained unchanged between the time Wertz arrived at the worksite and the time of the inspection. The knowledge of such a supervisory employee is properly imputed to Respondent. F. H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (Nos. 15472 & 15760, 1978). The fact that Wertz did not act as the supervisor responsible for the cited worksite does not preclude the imputation of his knowledge to Respondent.

n8 In Gordon Construction Co., supra, as in the present case, the cited employer loaned employees to a municipal employer. The municipality in both cases provided the direct supervision at the worksite. In Gordon, the Commission determined that the cited employer shared control over the employees with the municipality and that the cited employer was responsible as an "employer" under the Act. In its brief in opposition to the Secretary's petition for review, Respondent attempts to distinguish Gordon on the following grounds: (1) in Gordon, the municipality "hired" Respondent's employees while here the city "leased" the employees; (2) here, unlike in Gordon, the foreman for the City admitted it was responsible for the trench and its sloping; (3) the trench in Gordon was dug by Respondent's employees while here the trench was dug before Respondent's employees arrived on the job; and (4) while in Gordon the municipality relied on Respondent's expertise in digging the trench, here the expertise of Respondent extended only to the boring operation, which is independent of the trenching hazard.

We conclude that these distinctions do not mandate a different result in this case. Whether a contract involving the use of employee services uses the words "hired" or "leased" is a technical distinction not suitable for determining liability under the Act. As the Commission noted in Weiker Transfer and Storage, supra, an employer may not escape liability by reaching an understanding with a lessee that a leased employee would be under the lessee's "exclusive jurisdiction, supervision, and control."

Further, the fact that the City dug the trench and was responsible for its sloping is not crucial to the disposition of this case. As the Commission stated in Bayside Pipe Coaters, Inc., 74 OSAHRC 67/B14, 2 BNA OSHC 1206, 1974 CCH OSHD P18,677 (No. 1953, 1974), "[i]t is no defense that someone else dug the unsafe trench or someone else agreed to look out for the employee's job safety. Each employer is bound by the Act to look out for the safety of its own employees." Although Respondent neither dug the trench here nor supervised the worksite, it possessed the authority to prevent its employees from entering the trench. Because it permitted its employees to perform boring operations in the trench under such unsafe conditions, Respondent is responsible as an employer under the Act. Finally, we note that although it did not dig the trench here, Respondent had performed such work on other occasions. Therefore, Respondent's claim that the expertise of Respondent extended only to the boring operation is not supported by the record.


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As noted previously, the parties did not dispute and the judge concluded that the conditions in the trench did not comply with the cited standards. The judge also found that the conditions cited in the first citation were serious in nature; the conditions cited in the second citation were found to be other than serious. We adopt the judge's conclusions in these respects. Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979). It is also undisputed that the employees, Wyche and Alexander, were in the trench at the time of the inspection. On this basis, we find that these employees were exposed to the hazard created by the violative conditions. Accordingly, we find Respondent to have been in serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1926.652(c) and in other than serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1926.651(i)(1).

Because Judge Cutler concluded that Respondent was not an employer under the Act, he did not reach the issues of whether the violation of 29 C.F.R. [*17] 1926.652(c) was willful n9 and repeated n10 as alleged by the Secretary and he did not assess penalties. Therefore, we remand the case to the judge to make such determinations and to assess penalties as appropriate.

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n9 The citation characterized the alleged violation as "willful repeat serious." The complaint alleged that the violation was repeated and serious; however, the complaint did not contain an allegation that the violation was willful. The complaint also stated that "to the extent that this complaint may be inconsistent with the citations and proposed penalties, . . . the citations and proposed penalties are deemed to be amended accordingly." However, the Secretary's pretrial listing of issues, as well as the briefs of both the Secretary and Respondent, addressed the willfulness issue.

The principles to be applied and the factors to be considered in determining whether a violation should be classified as willful have been set forth in our prior decisions. See, e.g., Titanium Metals Corp., 80 OSAHRC    , 7 BNA OSHC 2172, 1980 CCH OSHD P (No. 14080, 1980); P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979); Ford Motor Co., 77 OSAHRC 167/A2, 5 BNA OSHC 1765, 1977-78 CCH OSHD P22,106 (No. 13682, 1977); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977), aff'd, 595 F.2d 309 (5th Cir. 1979); Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (Nos. 9483, 9485 & 9522, 1977), aff'd, 593 F.2d 368 (10th Cir. 1979); Intercounty Construction Corp., 73 OSAHRC 59/E9, 1 BNA OSHC 1437, 1973-74 CCH OSHD P17,044 (No. 919, 1973), aff'd, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976).

n10 Since the judge issued his decision, the Commission has identified the circumstances under which a violation is properly classified as repeated. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch").

This case was tried prior to the issuance of our decision in Potlatch. In cases tried prior to Potlatch but decided under the Potlatch test, when the Commission has concluded that the Secretary established a prima facie case that a violation is repeated in nature the Commission has considered whether it is appropriate to afford the employer the opportunity to present additional evidence relevant to the repeated issue. On remand in this case, if the judge determines that the Secretary made out a prima facie case that the violation is repeated, he should, in a similar manner, determine whether to offer Respondent the opportunity to present additional evidence. See Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979); Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), pet. for review docketed, No. 79-2148 (D.C. Cir. Sept. 27, 1979).

In Potlatch, Commissioner Barnako set forth his test for determining the circumstances under which a violation is properly characterized as repeated. That test differs in some respects from that of the Commission majority. Commissioner Barnako continues to adhere to the position set forth by him in Potlatch.


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