Docket No. 6688

ARLIE R. HAWK, GENERAL CONTRACTOR

OSHRC Docket No. 6688

Occupational Safety and Health Review Commission

May 19, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

William L. Mitchell, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

The report of Administrative Law Judge Alan A. Wienman, of November 7, 1974, is before the Commission for review pursuant to section 12(j) of the Act. n1 Judge Wienman found that Respondent had employees and was therefore an employer subject to the Act's coverage. The Judge concluded that Respondent had committed a serious violation of the safety standard appearing at 29 C.F.R. 126.651(c). He assessed a penalty of $500. Review was ordered by Commissioner Moran on his own motion on whether the Judge's conclusion was supported by sufficient evidence of record. The Secretary briefed the directed issue; Respondent has not indicated its position.

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n1 Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

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The evidence established that Respondent was the sole owner and operator of a general contracting business [*2] installing underground storage tanks, septic tanks, and sewer lines. On the date of the incident out of which this proceeding arose, two men were present with Respondent at the worksite. Both men were spreading sand in a 13 foot deep excavation when the south wall of the excavation collapsed, killing one of them. The other man was not injured. Thereafter, Respondent was issued a citation for a serious violation of 1926.651(c) for failure to properly shore or slope an excavation.

Respondent contended that the two men were not his employees, and therefore he was not an "employer" as defined by section 3(5) of the Act. Section 3(5) defines an employer as "a person engaged in a business affecting commerce who has employees . . ." The parties presented conflicting evidence on the question of whether the decedent was an employee of Respondent. Judge Wienman weighed the evidence and found against Respondent, stating:

Although the testimony is conflicting, the substantial weight of the credible evidence supports a finding that Frank Brown was working for respondent for compensation in kind if not in cash at the time of the accident. Too many facts belie a theory that the men spreading [*3] sand were merely impromptu volunteers. The men were performing work essential to proper installation of the storage tank for respondent's benefit, and respondent not only suffered them to do so but also supplied shovels for this purpose.

It strains credulity to conclude that two grown men tarried at a construction site for the better part of a day and then leaped into a 13 foot deep excavation to spread sand with shovels merely for the sake of friendship and healthful exercise. (JD at p. 8)

The fact that the Judge had the opportunity to observe the demeanor of the witnesses and evaluate their credibility is entitled to significant weight. Accordingly, we will not disturb a credibility determination where there is no evidence of record to set aside the Judge's finding of fact. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456 (1951).

Having examined the record in its entirety we find that Judge Wienman properly decided [*4] the case for the reasons he assigns.

Accordingly, we affirm Judge Wienman's report and adopt it as a final decision of the Commission. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

It is my opinion that the only correct disposition on the record before us is to vacate the citation because the evidence fails to establish that any employee of respondent was exposed to the alleged hazard. n2

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n2 The majority opinion improperly implies that this case was directed for review on the general issue of whether the Judge's finding of a serious violation was supported by the evidence. In fact, the direction for review was much more specific and questioned whether there was "sufficient evidence of record to support the Judge's conclusion that respondent had employees and was therefore subject to the Act's coverage."

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At the time of the incident in issue, respondent was engaged in preparations for the installation of a gasoline storage tank. Since he was unable to dig a hole large enough for the tank with his small [*5] backhoe, respondent engaged the services of Ralph Bowen, a subcontractor. Using a large backhoe, Mr. Bowen enlarged the excavation. After completing the excavation, he dumped a load of sand into it. Sand was to be placed on all sides of the tank because a covering of sand provides protection against rusting. At that point, two men who had been at the site most of the day, Frank Brown and Bus Wallace, entered the excavation and began smoothing the sand along its bottom. Ten or fifteen minutes later, a wall of the excavation collapsed on the men, only partially covering Mr. Wallace but completely covering Mr. Brown. Mr. Brown did not survive the accident.

According to respondent, he had been giving decedent a place to sleep and food to eat until the decedent could find suitable accommodations through the Welfare Department. Decedent had stayed with respondent a few weeks at a time for the last several years. Respondent testified that he allowed this out of sympathy, not as part of a work arrangement. He also had given decedent money for haircuts and clothing occasionally. Though decedent had frequently wanted to accompany respondent to worksites so that he could watch, respondent [*6] had discouraged the practice.

Bus Wallace, the other man in the excavation when the wall collapsed, was respondent's neighbor. Being unemployed, he had gone to the site that day as a pretext for "getting away from the house." He and Brown were loafing and hanging around the excavation for most of the day. He had watched respondent working on several other occasions so he knew that the sand had to be smoothed along the bottom of the excavation. Wallace and Brown voluntarily assumed the task of smoothing the sand in order to have something to do, and this voluntary gesture was not fully appreciated by respondent. Respondent neither commanded nor encouraged them to enter the excavation, and it came as a total surprise to respondent that this occurred. Wallace's testimony that he had never been employed by respondent is of particular significance. That testimony is corroborated by Mr. Bowen who testified that he had worked with respondent at previous sites where similar work had been done and had not observed any employees.

Judge Wienman concluded that at least one of the men was an employee of respondent. He supported his conclusion with the observation that he did not believe [*7] "two grown men tarried at a construction site for the better part of a day and then leaped into a 13 foot deep excavation to spread sand with shovels merely for the sake of friendship and healthful exercise." I do not share his belief that this is so surprising. Furthermore, with equal justification, one could wonder why respondent would employ two men to stand around his worksite for the better part of a day just so he would have them there for a few minutes in order to do light sand-smoothing work. n3 Neither of these conjectures, however, is pertinent to the ultimate disposition of this case.

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n3 The only task attributed to the so-called "employees" is smoothing sand, a noncontinuing task which respondent could easily have done himself.

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Only three witnesses had firsthand knowledge as to whether Brown and Wallace were employees of the respondent. Respondent testified that neither of them were his employees. Wallace testified that he had never been employed by respondent and, of course, Brown was unable to testify [*8] because of his unfortunate death. Thus, the evidence is insufficient to establish that an employer-employee relationship existed between respondent and either of the persons that were exposed to the alleged hazard. Such a relationship is necessary in order to impose liability on an employer under the Act. Secretary v. Gilles & Cotting, Inc, 4 OSAHRC 1080 (1973). n4

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n4 The correctness of this decision was examined by the United States Court of Appeals for the Fourth Circuit, and the Commission decision was not reversed on this point. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974).

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Since my colleagues rely entirely on Judge Wienman's decision, the same is attached hereto as Appendix A so that his views may be known.

APPENDIX A

DECISION AND ORDER

JOHN B. RENICK, Office of the Solicitor, United States Department of Labor, for the Secretary of Labor

WILLIAM L. MITCHELL, for the Respondent

Hearing held June 19, 1974, at Hutchison, Kansas, Judge Alan M. Wienman presiding.

STATEMENT [*9] OF THE CASE

Alan M. Wienman, Judge, OSAHRC:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The Citation alleges on the basis of an inspection January 28, 1974, of a workplace located at 25 East 30th Street, Hutchison, Kansas, that the respondent violated the Act by failing to comply with the occupational safety and health standard codified as 29 CFR 1926.651(c).

The Citation for serious violation, issued February 14, 1974, described the alleged violation as follows:

"Employer failed to provide a shoring system or a sloping of the walls in phases of the excavation in which employees were exposed to danger from moving ground."

Regulation 29 CFR 1926.651(c) provides:

"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."

Respondent was also notified by letter dated February 14, 1974, that the complainant [*10] proposed to assess a penalty in the sum of $700 for the alleged violation.

After respondent contested the enforcement action, and Complaint and Answer were filed by the parties, the case came on for hearing at Hutchison, Kansas, on June 19, 1974.

THE ISSUES

The issues for decision include the following:

(1) Whether the respondent was an "employer" within the meaning of the Act;

(2) Whether any person at the worksite was an "employee" of the respondent within the meaning of the Act of January 24, 1974; and

(3) Whether the respondent violated occupational safety regulations as alleged in the Citation and, if so, what penalty is appropriate.

SUMMARY AND DISCUSSION OF THE EVIDENCE

The evidentiary record discloses without any substantial dispute that at about 6:00 p.m., January 24, 1974, the south wall of a 13 foot deep excavation at a Vickers Service Station in Hutchison, Kansas, collapsed while two men were within the trench. The men, Frank Brown and Bus Wallace, had been engaged in leveling sand with shovels on the floor of the trench in preparation for installation of a gasoline storage tank. Brown was completely covered by the cavein (T. 44) and did not survive (T. [*11] 22). The fallen soil reached only midway between Wallace's ankles and knees, and he was pulled from the trench unhurt (t. 45).

The excavation had been opened by the Respondent, Arlie R. Hawk, a Hutchison resident who installs gasoline storage and septic tanks for a living. The walls and faces of the excavation were not shored or sloped (T. 141-42), and this condition constituted a violation of occupational safety regulation 29 CFR 1926.651(c) as alleged in the Citation if -

(1) Arlie Hawk was an "employer" within the meaning of the Act, and

(2) Either man laboring in the excavation was an "employee" of Arlie Hawk.

Both of these propositions were vigorously disputed by respondent who denied that the Act or the standards promulgated thereunder were applicable to him.

Respondent is subject to the provisions of the Act only if on January 24, 1974, he was an "employer" as defined in section 3(5):

"(5) The term "employer" means a person engaged in a business affecting commerce who has employees . . ."

Information relative to the nature of respondent's business was supplied in his testimony. Since 1966 Mr. Hawk has conducted a small contracting business installing underground gasoline [*12] storage tanks, septic tanks and sewer lines (T. 10-12). He has installed tanks for "Champlin, Derby, Vickers, Continental, Texaco and a lot of them like independent oils and co-ops." (T. 11) He owns a winch truck and a backhoe (T. 12).

Hawk's activities have been almost entirely confined to the state of Kansas (T. 10-11) although on one occasion he purchased tanks from a firm located in the state of Missouri (T. 11). This alone would be sufficient to support a finding that Hawk was engaged in a business affecting commerce. However it is also clear that the respondent's activities within the state of Kansas in supplying essential services to major oil companies, which are themselves indisputably engaged in interstate commerce, constitutes being engaged in a business "affecting commerce." See, Brennan v. OSAHRC and John J. Gordon Co., 492 F.2D 1027 (2nd Cir., 2/25/74) wherein J. Friendly noted that the phrase "engaged in a business affecting commerce" is -

". . . a phrase often used when Congress means to signal an intention to go beyond the regulation of businesses engaged "in commerce." Construing essentially the same phrase in the National Labor Relations Act, where Congress [*13] supplied a definition, S2(7), the Supreme Court has held that the Act goes well beyond persons who are themselves engaged in interstate or foreign commerce, NLRB v. Fainblatt, 306 U.S. 601, 604-05 (1939); cf. NLRB v. Vulcan Forging Co., 188 F.20927, 929 (6 Cir., 1951), SUPRA at 1030,"

Respondent must also have had "employees" in order to come within the definition of an employer. "Employee" is defined in frankly tautologous terms in section 3(6) of the Act:

"3(6) The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce."

The nature of the relation between respondent and the men laboring in the excavation at the time of the collapse is the chief source of controversy in the case. The Secretary alleges that one or both of the men were "employees." Respondent contends that he had no employees on January 24, 1974, and that both men were "volunteers."

The evidence is as follows:

Respondent testified that he had no employees in 1974; he employed two men briefly to help him set forms in December 1973 (T. 13-16, 25). Generally respondent does all his work himself (T. 25). According to respondent, Brown and [*14] Wallace were just loafing around the jobsite (T. 21) where a rented backhoe operated by one Ralph Bowen of Contractors Rental and Excavating Work, Inc., was enlarging an excavation to a depth of 13 feet. Respondent began the job with his own backhoe on the previous day, but it had proved too small to dig a hole to accommodate a 10,000 gallon tank (T. 18-19).

A necessary part of the operation was placing sand under and around the tank to prevent rusting (T. 20). Hawk testified he was preparing to enter the trench himself to spread sand when Brown and Wallace volunteered to perform this task and jumped into the excavation (T. 22-23, P. 34-35). Bowen judged the men had been in the trench a period of 10 to 15 minutes when the bank collapsed (T. 43).

Hawk's testimony about the impromptu and voluntary nature of the transaction was both supported and contradicted by other witnesses.

Bus Wallace testified he was an unemployed neighbor of respondent who had never been employed by him. He had spent the biggest part of the day at the job site (T. 60) but was only loafing (T. 63). He entered the excavation against the respondent's wishes (T. 63) and received no instructions from Hawk as [*15] to what he was to do (T. 64). He knew what to do because he had accompanied Hawk on other service station jobs where he had also spent his time "just loafing" (T. 66). He was to receive no pay for helping Mr. Hawk (T. 62) and entered the excavation "just to help him for a few seconds." (T. 61)

Wallace also testified that he entered the excavation wearing a hard hat (T. 65) and used a shovel he found in the hole. He assumed the shovel belonged to Mr. Hawk (T. 61). The hard hat was his own; he always wears a hard hat even around his home (T. 65).

Harvey Brown, decedent's brother, testified he had a discussion with respondent the day after the accident, and Hawk told him that Frank Brown had been working for his room and board (T. 52). Respondent later testified he was shook up and could not recall that conversation clearly (T. 89) but he denied stating that Brown was working for any remuneration (T. 90-91). He admitted that Brown had been living with him "because he didn't have no place to stay or nothing to eat on." (T. 31) Respondent had "given him a little money once in awhile," but there was no arrangement with Brown to help him (T. 32). Brown apparently had ridden to the [*16] job site with Hawk against Hawk's wishes (T. 34).

Robert E. Yoho, a reporter for the Hutchison (Kansas) News arrived at the site at about 6:00 p.m. (T. 68) and talked to Bus Wallace. He asked Wallace who Brown worked for and was told Arlie Hawk (T. 69). He later asked Hawk the name of the company, and Hawk gave him his business card (T. 70).

Although the testimony is conflicting, the substantial weight of the credible evidence supports a finding that Frank Brown was working for respondent for compensation in kind if not in cash at the time of the accident. Too many facts belie a theory that the men spreading sand were merely impromptu volunteers. The men were performing work essential to proper installation of the storage tank for respondent's benefit, and respondent not only suffered them to do so but also supplied shovels for this purpose.

Whether Frank Brown was an "employee" of respondent's under the traditional common law rules [*17] governing "master" and "servant" may be a close question, but the courts have rejected the common law definitions in construing the Occupational Safety and Health Act. See, Brennan v. Gilles & Cotting, Inc., and OSAHRC (4th Cir., decided 10-18-74) wherein J. Winter declared:

". . . in determining the precise contours of the word "employer" and thus the reach of the Act, we do not believe . . . that proper statutory interpretation involves uncritical wholesale adoption of the common law definition of "master" or "employer" determined under the so-called "control" test . . . the scope of the common law definition of employer is determined by reference to the purposes of the tort law doctrine of respondent superior, and not the purposes of OSHA."

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"Over the years, Congress had enacted much social legislation similar to OSHA, imposing duties on "employers" for the benefit of their "employees." Since an employment relationship is the predicate of all these statutes, the Court has had to consider the proper definition of employer and employee to determine the reach of these statutes. In a line of cases involving the delineation of the outer parameter of statutes' coverage [*18] through the definition of employer and employee, the Court has established the purpose of the statute and not the technical distinctions of the common law as the referent of decision."

Congress expressly declared in section 2(b) that the purposes of the Act are "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources."

Consistent with that avowed purpose and with the substantial weight of the credible evidence we find Frank Brown was an employee of the respondent while laboring in an excavation where he was exposed to the danger of moving ground without benefit of shoring or sloping in violation of regulation 29 CFR 1926.651(c).

The aforesaid violation was a serious violation within the teaning of section 17(k) of the Act. Having given due consideration to the gravity of the matter in terms of brief exposure versus fatal consequences and also to the employer's tiny size, we conclude that a penalty of $500 is appropriate under the total circumstances. Also considered but accorded less weight in the penalty determination was the record insofar as it relates to respondent's good faith and safety [*19] history.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that the following facts are true and that the substantial evidence in the record considered as a whole supports the following Findings of Fact:

1. The respondent, Arlie Hawk, has been engaged as a contractor since 1966 installing underground gasoline storage tanks and other equipment for gasoline service stations and septic tanks and sewer lines in Hutchison, Kansas, and other parts of Kansas.

2. Respondent has purchased gasoline storage tanks from a supplier outside the state of Kansas.

3. Respondent in the regular course of his business has performed work for gasoline service stations which distribute the products of Champlin, Derby, Vickers, Continental, Texaco and other oil companies.

4. On January 23, 1974, respondent began work on the installation of an underground gasoline storage tank at the OK Service Station, 25 East 30th Street, Hutchison, Kansas. The OK Service Station sells products of the Vickers Oil Company.

5. Respondent began the excavation with his own backhoe which proved too small to complete the digging. Ralph Bowen of Contractors Rental [*20] and Excavating Work, Inc. was hired by respondent to complete the excavation on January 24, 1974.

6. The excavation, when completed, was approximately 13 feet deep, 15 feet wide and a little over 20 feet long. The walls or sides of the excavation were practically vertical and were not shored or braced.

7. At approximately 6:00 p.m. on January 24, 1974, the south wall of the excavation caved in or collapsed.

8. At the time of the collapse two men, Frank Brown and Bus Wallace, were in the bottom of the excavation leveling sand with shovels, an operation necessary for proper installation of the tank. They had been working in the excavation approximately fifteen minutes when the collapse occurred. Frank Brown was buried in the cave-in and did not survive.

9. Respondent had supplied Frank Brown with lodging, food and some money, and on January 24, 1974, Frank Brown was an employee performing work for respondent in return for compensation.

10. Respondent was present at the job site at the time of the cave-in and had full knowledge that the walls or sides of the excavation were practically vertical and were not shored or braced in any manner.

CONCLUSIONS OF LAW

1. Respondent [*21] is, and at all times material hereto was, an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

2. On January 24, 1974, respondent violated section 5(a)(2) of the Act by failing to comply with the occupational safety regulation codified as 29 CFR 1926.651(c). The violation constituted a serious violation within the meaning of section 17(k) of the Act, in that there was substantial probability that death or serious physical harm could result and the respondent knew of the presence of the violation. A penalty of $500 is appropriate for said violation.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that the Citation for serious violation issued to respondent on February 14, 1974, is hereby affirmed and a penalty of $500 assessed thereon.

Alan M. Wienman, Judge, OSAHRC

Date: NOV. 7, 1974