UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 7390
GORDON CONSTRUCTION COMPANY,
Respondent.

August 10, 1976

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

OPINION BY: CLEARY, Commissioner:

On April 2, 1975, Administrative Law Judge Harold A. Kennedy issued his decision vacating two citations issued to respondent Gordon Construction Company for violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., [hereinafter cited as “the Act”].[1] The citations were vacated on the ground that respondent was not the “employer” of the employees allegedly exposed to the violations.

Pursuant to section 12(j) of the Act I granted the petition for review filed by the Secretary. It raised the following issues:

(1) Whether the Administrative Law Judge erred in finding that respondent, under the circumstances of this case, was not an “employer” within the meaning of the Act?

(2) If so, whether respondent violated the Act as alleged in the citation.

For the reasons given below, we reverse and remand.

Respondent is a contractor engaged in excavating and trenching. In February 1974, respondent was hired by the North Little Rock, Arkansas, Sewer Department to assist in digging trenches for the replacement of sewer lines. Respondent was hired because of its expertise in digging through solid rock. According to an oral agreement, respondent was to receive costs plus ten percent overhead. Respondent was to provide the department with men and equipment. It assigned three employees, a backhoe operator and two laborers, to the job. Respondent maintained employee records; paid the employees; and was responsible for their workmens’ compensation coverage. When questioned by the compliance officer, these employees identified themselves as employees of respondent.

Mr. Wilson, the backhoe operator, was assigned by respondent to head the crew assigned to the worksite. In that capacity he was responsible for maintaining respondent’s records, including a tabulation of hours worked by himself and the two laborers. It was from these records that respondent charged the sewer department for the labor of the employees.

Although the project was under the supervision and control of the city engineer, Mr. Kimbrough, Mr. Wilson exercised authority to direct the laborers to perform specific tasks incidental to their job. Also, Mr. Kimbrough was often absent from the jobsite, and in his absence Mr. Wilson exercised broad supervisory authority. Indeed, when approached by the compliance officers, Mr. Wilson indicated that he was the person in charge.

In his decision Judge Kennedy concluded that, although the three employees considered themselves to be in respondent’s employ and were paid by respondent, they “looked ... to the sewer department’s field engineer ... as the person in complete charge of their work activities ....” On the basis of this finding he concluded that respondent was not the employer of the three workers for purposes of the Act. No other findings or conclusions were made, and the citation was vacated.

The question of whether an employment relationship exists is answered by considering all the facts in light of the Act’s purpose. The common law definition of “employer” as determined by the so-called “control test” is a term of tort law evolved for the purpose of determining a superior’s liability for the acts of his subordinates. Brennan v. Gilles & Cotting, Inc., 503 F.2d 1255, 1261 (4th Cir. 1974). The scope of the common law definition of “employer” is related to the tort doctrine of respondeat superior and does not take into account the purpose of the Act. It is, therefore, not suitable for determining liability under the Act. Frohlick Crane Service, Inc. v. O.S.H.R.C., 521 F.2d 628, 631 (10th Cir. 1975); Brennan v. Gilles & Cotting, Inc., supra. Instead, we must define employment relationships on a case by case basis, considering both the economic realities of the situation and the remedial purposes intended by Congress. Brennan v. Gilles & Cotting, Inc., supra; Dayton Tire & Rubber Co., 1974-75 CCH OSHD para. 19,246, 2 BNA OSHC 1528 (No. 2719, 1975), petition for review docketed, 75-1316, D.C. Cir., March 27, 1975.

The Commission has considered the following in identifying an “employer” for purposes of the Act: (1) the person whom the employees consider to be their employer; (2) who pays employees’ wages; and (3) who is responsible for controlling employees’ activities. Weicker Transfer and Storage Co., 1974-75 CCH OSHD para. 19,215, 2 BNA OSHC 1493 (Nos. 1362 and 1373, 1975); Bayside Pipe Coaters, Inc., 1974-75 CCH OSHD para. 18,677, 2 BNA OSHC 1206 (No. 1953, 1974). As stated, the employees considered themselves to be employed by respondent. Respondent assigned them to the job, maintained their employee records, and carried their workmens’ compensation insurance. Furthermore, respondent retained the power to remove the employees from the worksite. Respondent also paid the employees’ wages.

Respondent, however, argues that it was not the “employer” because it lacked control of the worksite. Although the “control” element is an important factor in determining whether an employment relationship exists under the Act, it is, by no means, conclusive. See Brennan v. Gilles & Cotting, Inc., supra. In any event, the evidence establishes that respondent maintained a significant degree of control over the employees. Although the worksite was under the supervision and control of the sewer department, Mr. Wilson directed the laborers in the performance of tasks related to the operation of the backhoe and the process of laying pipe. Also, as indicated above, during Mr. Kimbrough’s frequent absences from the job, Mr. Wilson exercised broader authority.

Furthermore, respondent was hired specifically because of its experience and expertise in digging through solid rock. When questioned about the reasons for hiring respondent, Frank Murphy, the manager of the North Little Rock Sewer Department, testified:

I contacted Mr. Gordon as I had in the past about many other jobs, because he had the expertise on dynamite and the handling of explosives, plus, all the Federal permits to handle the thing.

He also testified as follows:

Under our arrangement, Mr. Gordon furnished some equipment and some employees. And expertise and many things.

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 its work. See Frohlick Crank Service, Inc. v. O.S.H.R.C., 521 F.2d 628, 631 (10th Cir. 1975); Lidstrom, Inc., 1975-76 CCH OSHD para. 20,564 (No. 3433, 1976)

Respondent’s argument that it had loaned its employees to the sewer department and that, under the common-law principle of the “borrowed employee,” the department had become their employer is inapposite. As is the case with the term “employer,” the term “borrowed employee” is a term of tort law and has no place in an administrative proceeding brought under remedial legislation designed to provide a safe place to work for every working man and woman in the Nation. Frohlick Crane Service, Inc. v. O.S.H.R.C., supra at 631.

The facts of this case reveal that the prerequisites to an employment relationship between respondent and the three workers have been satisfied. Although the “control” element is satisfied only in part, with the sewer department and respondent sharing different aspects of control over the employees, it is clear that respondent, for purposes of the Act, is the employer of the backhoe operator and the two laborers.[2]

Although a hearing was conducted by the Judge, he made no findings of fact concerning the alleged violations. Much of the evidence adduced at; the hearing is contradictory and requires credibility findings which the Judge is best qualified to make. See Paul L. Heath d/b/a Paul L. Heath Contracting Co., 1975-76 CCH OSHD para. 20,006, 3 BNA 1550 (No. 5467, 1975). Also, on review neither party has briefed the issue of whether respondent was in violation of the Act, and both parties have requested that the case be remanded for findings in the event the Judge’s decision is reversed.

Finally, we note that the city sewer department had substantial control over the worksite. Thus, the situation may be analogous to the control problem commonly found at multiple employer construction sites. Therefore, respondent may be able to raise certain defenses available to subcontractors at multiple employer construction sites. See Anning-Johnson Co., 1975-76 CCH OSHD para. 20,690, 4 BNA OSHC 1193 (Nos. 3694 & 4409, 1976); Grossman Steel & Aluminum Co., 1975-76 CCH OSHD para. 20,691, 4 BNA OSHC 1185 (No. 12775, 1976). Because these defenses were not available to respondent at the time of the hearing we will allow them to be raised on remand.[3]

It is ORDERED that the Judge’s decision is reversed and the case is remanded.

DISSENT BY: MORAN

MORAN, Commissioner, Dissenting:

Judge Kennedy vacated the citations in this case on the ground that respondent was not an “employer” within the meaning of the Act and could therefore not be held accountable for the alleged violations. His decision, which is attached hereto as Appendix A, is eminently correct and should be affirmed in all respects.

Although we have held that employment relationships are not to be construed according to technical concepts of the common law, and that the question of whether such a relationship exists is to be determined on the facts of each case, we have nevertheless consistently recognized that control over a worker is an important consideration in ascertaining such a relationship under the Act. Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), remanded on other grounds sub nom Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974). Under the circumstances of this case, where respondent ceded all supervisory control of the workers to the North Little Rock Sewer Department, control is the paramount consideration. When a respondent has neither exercised control over nor retained the right to control a “loaned” employee, and the lessee has full control over him, the respondent is not an employer with respect to that employee.

The pertinent facts of this case are as follows. The North Little Rock Sewer Department was in the process of digging an excavation for the purpose of replacing a sewer line when it “went into solid rock.” Although the Sewer Department had originally undertaken to replace the sewer line with its own men and equipment, upon hitting the solid rock the Department decided to seek the aid of respondent, which had the skill and equipment to dig through such rock. Accordingly, the Department and respondent reached an agreement, whereby respondent agreed to furnish to the Department a backhoe with an operator and certain men and equipment. Respondent’s president then informed Mr. Wilson, a backhoe operator, and two laborers that they were going to “do a city job.” Soon thereafter the three workers began reporting for work directly to the Department’s job site.

Regarding the issue of supervisory control, respondent’s President, Mr. Gordon, testified that Mr. Kimbrough, the job superintendent for the Sewer Department, exercised supervisory authority over the employees and could hire and fire them without Mr. Gordon’s consent. Mr. Gordon also stated that he had no right to exercise any authority over the workplace and that, if he saw anything improper at the site, he could do no more than bring the matter to the attention of Superintendent Kimbrough.

The Sewer Department’s manager, Frank Murphy, also acknowledged Kimbrough’s authority and in response to the Court’s question as to who exercised “total control and dominion over the alleged employees of Mr. Gordon, the City or Mr. Gordon,” responded:

“Under our arrangement, Mr. Gordon furnished some equipment and some employees. And expertise and many things.

Originally to start out, this was just a blasting job. We plowed up some rock where we are talking about where this whole case is based on, they would have to follow Mr. Kimbrough’s instructions on the job.”

In response to complainant’s questions during cross-examination, Murphy testified that Kimbrough exercised direct supervision over respondent’s alleged employees in the following manner:

A. Well, I’ve been using the term he told them exactly what to do. I think you would find he told them how many beddings to put under the pipe where they were working around the pipe; he told Mr. Wilson exactly how deep to dig it in the ditch; he told Mr. Wilson where to dig and what he wanted to accomplish. He was there all of the time, if he wasn’t there, he would be back shortly.

* * *

Q. He was in charge of giving them directions or instructions?

A. Yes, sir.

* * *

Q. But did Mr. Kimbrough tell these two laborers?

A. Yes, I think one of the laborers testified that he, Mr. Kimbrough, told him to put a little more rock under the pipe.

Q. Could Mr. Kimbrough hire and fire these employees?

A. If Mr. Kimbrough didn’t like — not only the city employees we have intermixed with these other employees, if he didn’t like what Wilson was doing, he could, yes, he could tell Bill Wilson he’s through on that job.

* * *

Q. What about the two laborers; could he tell them?

A. If he didn’t like it, he could run them off.”

Superintendent Kimbrough corroborated the testimony of Mr. Gordon and Mr. Murphy, stating that he was the one who determined how the trenches and excavations were dug and that he directed the activities of all the workers. Specifically, he testified as follows:

“Q. Did you have total control of these employees?

A. Yes, sir.

Q. Who decided how the trench would be dug, how the excavation would be dug, any questions relating to the safety of the trench or the excavation, and anything else in sloping, this type of thing?

A. I did.

Q. And the employees did that at your direction?

A. Yes, sir.”

In regard to Gordon’s authority as compared to his, Kimbrough answered as follows:

“Q. In the event you have a situation where Mr. Gordon came and wanted to suggest a certain way be done to perform the work, who had the firm decision-making authority as to what method would be followed?

A. I would. If yours was a better way than mine, I would do it, but I would have the decision to make whether to do it or not.

Q. Was it your final decision as far as what safety requirements were [met]?

A. Yes, sir.

During cross-examination, Kimbrough explained that he meant by “directed the employees” that he “was in charge of everything that needed to be done or the way it was to be done.” Furthermore, he relayed these instructions both to Wilson and the laborers on different occasions. Finally, in response to complainant’s question as to whether he considered them city employees, Kimbrough stated, “As far as I know, they were. If I could hire or fire them, they were city employees or Sewer Department employees.”

The backhoe operator, Mr. Wilson, testified that he received his instructions from superintendent Kimbrough and that the only instructions he received from Mr. Gordon were that he would be working for Kimbrough and to follow his instructions. Similarly, the two laborers, Mr. Leach and Mr. Toney, testified that Kimbrough was in charge. On cross-examination Mr. Leach testified as follows:

“Q. And you were working under the control of the City’s job superintendent, were you not?

A. He was there, yeah.

Q. Mr. Kimbrough?

A. He was there.

Q. He was the man that had the ultimate authority as to what you did, and where you were assigned and what type work you were doing on that day, wasn’t he?

A. Right.

Q. He had complete control and authority over you?

A. Right.

Q. And directed your work?

A. Right.”

Mr. Toney likewise testified as to this subject as follows:

“Q. You knew this was a city job, didn’t you?

A. Yes, sir.

Q. Who had control of the job?

A. Mr. Kimbrough.

Q. Mr. Kimbrough?

A. Yes.

Q. He was the boss?

A. Right.

Q. On this job?

A. To my knowledge.

Q. Right. It wasn’t Mr. Wilson, was it?

A. No, he was operator.

* * *

Q. I’ll ask you the same question I asked Mr. Leach: what do you understand by the term “city” employees?

A. Well, my understanding was at the beginning of going on the first day, was, my boss that I worked for, Mr. C. D. Gordon, told me we was going down and do a job for the city down on Camp Robinson by the shopping center. ‘You work under Mr. Kimbrough because it is a city job.’ I said, ‘Okay.’ He say, ‘It is way down there across 47th Street.’

I know approximately how to get to the job because I hauls the men to work. I had the transportation.

Q. Could Mr. Kimbrough fire you?

A. Yes, he could.

Well, that is my understanding because we was doing a job for the City. We had to abide by the city rules.”

Despite all of the foregoing testimony, Messrs. Cleary and Barnako conclude that “the evidence establishes that respondent maintained a significant degree of control over the employees.” They base this conclusion on two findings: firstly, that Mr. Wilson “directed the laborers in the performance of tasks related to the operation of the backhoe and the process of laying pipe;” and secondly, that “during Mr. Kimbrough’s frequent absences from the job, Mr. Wilson exercised broader authority.”

Although there is some evidence that Wilson gave a few minor directions to his co-workers, particularly when Mr. Kimbrough was not present, the evidence is overwhelming that such direction was pursuant to Wilson’s job as the backhoe operator and not as a supervisor or foreman. Furthermore, the evidence clearly shows that whatever authority Wilson exercised came either from his own assumption of such authority, or from Mr. Kimbrough, not from Mr. Gordon. On cross-examination Mr. Wilson testified as follows:

Q. Who were you receiving your instructions from?

A. Mr. Kimbrough.

Q. Any from Mr. Gordon?

A. Nothing except that’s who I would work for all the time, you know.

Q. Did he tell you to follow the instructions of city employees?

A. He did. And me and him talked on the phone of a night to do it and all.

Q. Did you give instructions to the laborers, Mr. Leach and Mr. Toney? Did you give them supervisory instructions?

A. At times I would if Mr. Kimbrough wasn’t around and I seen something that had to be done or needed to be done to keep me from having to get off the machine to do it, yes.”

On redirect, he continued as follows:

“Q. At the time you were working on this particular job, whose control and direction were you actually under?

A. Mr. Kimbrough.

Q. You knew it was a City job?

A. I did.

* * *

Q. Now there was some discussion on cross-examination about supervisory instructions. What type of instructions are you referring to?

A. You know, like if the foreman ain’t around, I’m not afraid on the job, I’m an operator on the job, and I have got more authority than anybody else.

Q. This is the normal authority of an operator?

A. Normal everyday stuff.

Q. Well, what kind of instructions would you give? Would they be instructions for, you know, to leave the job and go someplace, or would they be instructions along the line of, ‘You can move this pipe.’ ‘Put it over here.’

A. That’s right.

Q. What’s right?

A. The pipes, something like that.

Q. Installation of pipes?

A. Yeah.

Q. Did you have any authority on the job site, the one in question, to make any decisions such as the type of safety precautions that would be necessary or anything like that?

A. No, sir, I didn’t have the authority to do that.

Q. Didn’t have the authority to hire or fire?

A. No.

Q. Did you have the authority to discipline somebody?

A. No, sir.

Q. Did you have the authority to have somebody stay overtime?

A. I sure didn’t.

Q. Would it be fair to say that your authority was principally routine instructions of the crew members in getting the job done that you were assigned?

A. Absolutely right.

Mr. Wilson’s testimony as to his authority over the laborers, is corroborated by the previously quoted testimony of Mr. Toney. Further corroboration is contained in the testimony of Mr. Leach who testified on cross-examination as follows:

Q. Mr. Leach, there was some testimony on redirect a moment ago about instructions from Mr. Wilson. What type of instructions were you talking about when the term ‘instructions’ was used? Were you talking about just generally how, where he wanted you to lay the pipe and this type of thing?

A. Something like that, yes.

Q. They [weren’t] supervisory instructions along the lines he was going to discipline you, or he was going to fire you or anything like that, were they?

A. No.

Q. Mr. Wilson wasn’t ‘the man’ on this job on February the 11th that granted you time off to leave the job early or anything like that, that was Mr. Kimbrough, wasn’t it?

A. That’s right.

Q. Mr. Wilson was — the three of you worked as a team and he might have at times indicated where he was going to be using this machinery, where you could be out of way and this type of instruction; right?

A. Right.

Q. In other words, sort of a lead-man type instruction, is that correct?

A. Leader and backhoe operator.

* * *

Q. Your instructions from Mr. Wilson were of a routine nature, dealing with the operations in between the two pipe layers, or theirs and the machine operator’s, correct?

A. Right.

Q. They were not supervisory in nature as far as lay-off time or anything of that nature, disciplinary action or anything?

A. Right.

The foregoing makes crystal clear that any authority Wilson exercised could not be deemed “supervisory” by any stretch of the imagination. Furthermore, Mr. Gordon and Mr. Wilson both testified that no authority was granted to Wilson by Mr. Gordon. Accordingly, if any supervisory authority was granted to Wilson at all, it was granted by Mr. Kimbrough. Although the evidence is unclear on this point, if, in fact, Kimbrough granted such authority to Wilson, it is manifest that it cannot be concluded that respondent retained any supervisory control. On the contrary, this is more evidence that Wilson was an employee of the Sewer Department and not the respondent.

Although the foregoing makes abundantly clear the absurdity of the holding by Messrs. Cleary and Barnako, I would like to make one additional point. In the lead opinion my colleagues cite Frohlick Crane Service, Inc. v. OSAHRC, 521 F.2d 628, 631 (10th Cir. 1975) for the proposition that “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 its work.” The complete quotation from the Tenth Circuit’s decision in Frohlick does not support the stated proposition. That case involved the issue of whether a crane operator was the employee of the respondent, Frohlick (the lessor) or the lessee. The court stated as follows:

In this regard the Judge concluded that Frohlick was the employer, with the comment that where, as here, the lessee of the crane relies upon the expertise of the crane operator and gives no particular direction as to the operation of the crane, then it is the duty of Frohlick, the actual employer of the crane operator, to comply with the minimum safety requirements as set forth in the standards. The Commission agreed with this conclusion and the rationale in support thereof, and so do we. (Emphasis added.)

If the Frohlick case has any relevancy here, it supports the disposition reached below by Judge Kennedy - for the Sewer Department gave particular directions to the employees provided by respondent in the instant case.

[No copy of the ALJ decision has been found.]

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[1] Citation no. 1 alleged “nonserious” violations of the excavation standards published at 29 CFR § 1926.651(m), (p), and (t). Total penalties of $ 160 were proposed.

Citation no. 2 alleged “repeated serious” violations of the excavation and trenching standards published at 29 CFR § 1926.65(i)(1) and § 1926.652(b), (e), and (h). Total penalties of $ 1600 were proposed for these violations.

[2] We would note that if respondent is not the employer, the employees would not benefit from any of the protections afforded by the Act. The city sewer department, as a subdivision of the State of Arkansas, is exempt from compliance with the requirements of the Act. See section 3(5) of the Act.

[3] We would observe that even if respondent can show that the sewer department had responsibility for safety under the terms of their agreement, respondent, as an employer subject to the requirements of the Act, had a duty to take measures which were reasonable under the circumstances to protect its employees. Anning-Johnson Co., supra; Grossman Steel & Aluminum Co., supra.