Don Davis, d/b/a Davis Ditching & Davis Ditching, Inc.

Plain-English summary

Don Davis contracted to install utility lines at a Colorado industrial park, where OSHA observed three people working around an unprotected trench. Two were unpaid brothers of the property developer who helped when they chose, and the third was a self-employed truck driver hired and paid by the developer. The Commission applied the common-law agency test and found that Davis could not hire, fire, pay, schedule, or assign additional work to any of them. His ability to direct the pipe-laying task did not by itself create an employment relationship. Because the Secretary did not prove that the sole proprietorship had an employee, and abandoned the claim against Davis Ditching, Inc. on review, the Commission reversed the judge and vacated the citations.

Decision snapshot

• Cited standard(s): The decision states that six construction standards were cited but does not identify them.
• Outcome: Citations against the sole proprietorship and corporation vacated.
• Key point: Control over how a task is performed does not establish OSH Act employer status without broader control over the workers, including hiring, firing, compensation, scheduling, and assignments.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
Complainant, :
:
v. :
: OSHRC Docket No. 96-1378
DON DAVIS, d/b/a DAVIS DITCHING :
:
and :
:
DAVIS DITCHING, INC., :
:
Respondents. :
_______:

                                     DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
This case arise s out of an insp ectio n condu cted by the Secretar y of Labor
(“Secretary”) in Colorado Springs, Colorado, where Don Davis, a sole proprietor doing
business under the name Davis Ditching, was excavating a trench and installing sewer pipe.
For purposes of this wo rk, Davis lea sed excav ation equip ment from a corporatio n, Davis
Ditching, Inc., of which he is the president. The Secretary issued a citation alleging that both
the sole proprietorship and the corporation committed serious violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act” or “OSH Act”) by failing
to comply with provisions o f the Secretary’s construction safety standards in 2 9 C.F.R. Part
1926. The only issue before us is whether, at the time the viola tions were alleged to have
occurred, Don Davis as a sole proprietorship was the employer of any of the three persons

                                                                    2001 OSHRC N o. 18

who were working at the site and w as therefore subject to the requireme nts of the A ct.
Administrative Law Judge Sidney J. Goldstein concluded that Davis had sufficient control
over the workers to be held responsible for the hazards to which they were expose d. In
accordance with the pa rties’ stipulation that the violations existed as alleged in the event
Davis were found to be an employer under the Act, 1 he affirmed the citation and assessed a
penalty of $7000. We reverse and vacate the citation.
I. BACKGROUND
The relevant facts are not in dispute. Don Davis for many years had been a friend and
business acquaintance of Jerry Ringler, an individual who owned and operated a sewer
cleaning business known as “Reliable Sanitation,” in which he employed one of his two
brothers, Bobby. Ringler’s other broth er, Ernest, similarly owned and operated a septic tank
cleaning service , “Pike’s Peak Sanitation.” The two companies—Reliable and Pike’s Peak—
shared common office space. In addition to running his sewer cleaning service, Jerry Ringler
occasiona lly engaged in property dev elopmen t. He testified that he entered into a fixed-price
oral contract with Davis to dig a trench and install the water, sewer, gas, and electric lines
for an industrial park Ringler wa s constructing on the land w here he and his brother Ernest
maintained the offices of their respective businesses. The price agreed upon was $180,000,

1
The judge’s de cision appa rently affirmed the citation as to both Davis as s ole proprietor and
Davis Ditching, Inc. On review, the Commission specifically requested that the parties
address in their briefs whether each entity was a statutory employer. In her brief before us,
however, the Secretary exp ressly stated that a d etermination of whe ther Dav is Ditching, Inc.
was an employer under the Act is not necessary to the disposition of this case and presented
no argument with respect to that entity. In accordance with our usual practice, we treat the
Secretary as having abandoned her contention that the citation should be affirmed against
Davis Ditching, Inc. Ragnar Benson, Inc., 18 BNA OSHC 1937, 1938, 1999 CCH OSHD
¶ 31,932 , p. 47,371 (N o. 97-167 6, 1999). W e therefore set aside the ju dge’s dec ision with
respect to Dav is Ditch ing, Inc ., and w e vaca te the cita tion as to the corp orate en tity. See
Power Fuels, Inc., 14 BN A OS HC 2 209, 22 15, 199 1-93 C CH O SHD ¶ 29,30 4, p. 39,3 48
(No. 85-166, 1991) (Commission vacates previously affirmed citation item that Secretary had
abandoned o n review).
with Da vis using eq uipment re nted from Davis Ditching, Inc. Ringler and Davis estimated
that this particular project would take between six and nine months.
Two compliance officers for the Secretary, Jack Cain an d Michael K elly, were
assigned to conduct an inspection based on an anonymous complaint which did not identify
by name the individual or business against whom the complaint was ma de. Cain testified that
on March 19, 1996 he observed three workers in a trench that was approximately 8 feet deep
and did not appear to have any protection against cave-in. Davis, who was standing at the top
of the trench, state d that he did not have th e authority to consent to an inspection and directed
Cain to the Ringlers’ office. Cain spoke to Jerry Ringler, who told him that “Mr. Davis was
in charge of the ope ration.” Ringler, howev er, also stated that he was refusing permission to
inspect.
Cain and Kelly returned two days later with an inspection warrant. This time, they saw
two individuals, subsequently identified as Bobby and Ernest Ringler, setting pipe in the
trench. Anothe r worker, L evi Hasw ell, was standing nearby at the top of the trench. Bobby
Ringler told Kelly that he was emp loyed as a truck driver by Reliable San itation, his brother’s
sewer cleaning business, and had about 10 years’ experience in excavation work.2 Both
Ringler brothers gave written statements to the compliance off icers. Bobby Ringler’s
statement said as follows: “I’m employed by Reliable Sanitation. I was not doing anything
today so I decided to come over here and see if I could be of any help. I’m not being payed
[sic] & don’t expect to be payed [sic].” Erne st Ringler w rote on his statement, “I own Pikes
Peak Sanitation. When I am not pumping septic tanks I am not receiving any money for what
I am doing on this job site.” Both said that when they had free time they came ov er to “help
out,” or , as Jerry R ingler sta ted in his testimo ny, “they w as just ki lling time .”

2
Because its employee was exposed to the violative conditions, a citation alleging the same
violations was also issued to Reliable Sanitation. That citation was settled, but the terms of
the settlement were not divulged.
 Furthermore, there is evidence that Davis could perform the job himself. Ringler
testified that so long as Davis was using plastic pipe, Davis could accomplish all the
tasks—excavating with the backhoe, putting in the gravel bed with the front end loader, and
installing the pipe—without any assistance whatever and further said that Davis “always”
worked this way. Simila rly, Davis testified that on the day the inspectors first came to the
worksite, he had been working alone in the excavation for several hours before Ernest and
Bobby Ringler appeared.3
Jerry Ringler de nied that he instructed his brothers to assist Davis, and he insisted that
he did not know how his brothers came to be in the excavation. As Ringler put it, his brothers
did not “need authority” to be at the work site. For his part, Davis testified that he too did not
know why the Ringler brothers came to the worksite, and he testified that he had no
knowledge of “what their deal is w ith their brother” and did not “ge t involved in it.” Both
he and Jerry Ringle r surmised th at the other R ingler brothe rs may have g one into the
excavation because they were curious about the laser Davis was using to grade the trench.
It is undisputed that neither Bob by nor Ernest Ringler was paid or otherwise compensated
for whatever work they did.
Levi Haswell, who owned his own truck, advised the compliance officers as follows:
“I am self-em ployed as a truc k driver un der the nam e of Lev i Haswe ll Enterprises.” 4 In a
subsequent interview, Haswell also stated that he had worked for Davis “on and off” for 30

3
Compliance officer Cain testified that Don Davis gave a statement to the effect that he “on
occasion hired casual labor or tempora ry-type labor.” Th e Secretary issu ed a subp oena to
Davis Ditching, Inc. to disclose the identity of and payroll records for all employees working
at the trench. The corporation did not respond to this subpoena, and the Se cretary appare ntly
did not pursue the matter. T here is no in dication that the Secretary attem pted to asce rtain
whether Davis as sole proprietor had ever hired labor, or that any such hiring would be
relevant to the time period at issue here.
4
The Secretary in her review brief concedes that Bobby Ringler was employed by Jerry
Ringler and that Ernest Ringler and Levi Haswell are self-employed in their own businesses.
years and that he operated the front-end loader at the site because he was one of the few
individuals whom Don D avis trusted w ith his equip ment. 5 The dec ision to hire H aswell,
however, was made by Jerry Ringler, not Davis, because Ringler thought the job was
progressing too slowly and wanted to give Davis some assistance. Ringler selected Haswe ll
because he had known Haswell for the past 20 years and was aware that Davis would allow
Haswe ll to use Da vis’ equipm ent. If for som e reason R ingler beca me dissatisf ied with
Haswell’s work, he had the authority to tell Haswell that his services were no longer
required. Davis, on the other hand, could not have dismissed Haswell. If he did not want
Haswe ll on the job, Davis would have to speak to Ringler, who would make the decision
whether or not to terminate Haswell’s services.
Haswell’s involvement at the worksite here was on an occasional basis; he worked at
the trench a few times f or short periods and only w hen need ed to delive r or move material.
Haswe ll was paid by Jerry Ringler, not by Davis, and was responsible for his own taxes and
insurance. Haswe ll would su bmit to Ringler his claim for the nu mber of hours worked except
during those times when Ringler was not present at the site. Ringler did not tell Haswell how
to perform his assigned tasks, and H aswell would have been free to hire someone else to help
him if he wished. During the time that Ringler assigned Haswell to assist Davis, Ringler also
gave Haswell permission to perform wo rk at other locations using D avis’ front end loader.
Notwithstanding Ringler’s intention that sending Haswell to the site would expedite the
work, Davis testified that the interruptions when H aswell w ent to other site s occasion ally
resulted in delays on Davis’ project. Davis also testified that he had no ability to compel
Haswell to com e to work at any particular time. H aswell did not always repo rt for work

5
Don Davis testified that he had em ployed Haswell som e 35 years earlier, at which time he
taught Haswell how to operate construction equ ipment, and that for a 5-year period H aswell
worked for Davis’ brother. There is no indication, and the Secretary does not argue, that
these prior relationships are relevant to the events in question here.
when, or stay as long as, Davis wanted him to, and sometimes Haswell did not show up at
all. Both Davis and R ingler considered Ha swell an independ ent contractor.
Although Bobby and Ernest Ringler informed the compliance officers that they too
were complete ly free to come and go as they wished, and that Davis could not instruct them
to report for work, they also stated that Don Davis was in charge of the excavation and
directed the work. Haswell similarly stated that Don Dav is was in charge of th e job. Jerry
Ringler likewise testified that Davis directed the operation of the backhoe and the placement
of the pipe. Although Davis emphasized that the work tasks at the site were so routine and
well-established that little if any direction or instruction was required, Davis conceded that
after the Ringler brothers had set the pipe in the excavation he would check to make sure they
had plac ed it p rope rly.
II. APPLICABLE CASE LAW
The sole issue before us is whethe r Don D avis is an employer as the Act defines that
term. As the Commission noted in Vergona Crane Co., 15 BNA OSHC 1782, 1783, 1991-93
CCH OSHD ¶ 29,775, p. 40,495 (No. 88-1745, 1992), “only an ‘employer’ may be cited for
a violatio n of the Act,” although the bare minimum of one single emp loyee is sufficien t to
invoke coverage under the A ct. Poughkeepsie Yacht Club, Inc., 7 BNA OSHC 1725, 1727,
1979 CCH OSH D ¶ 23,888, p. 28,968 (No. 76-4026, 1979). If Davis was not the employer
of at least one of the three workers at the site, he cannot be held liable under the Act, for the
Secretary does not claim that Davis had any other emplo yees. Althoug h the evide nce supp orts
the judge’s finding that Davis controlled the performance of the work itself, control over the
“means and methods” by which a task is accomplished is not dispositive of employment
status unde r the Act.
Section 3 of the Act, 29 U.S.C. § 652, defines an “employer” as “a person engaged
in a business affecting commerce who has employees” and defines “employee” as “an
employee of an employer who is employed in a business o f his emplo yer which af fects
commerce.”As the Ninth C ircuit pointed out in Loomis Cabinet Co. v. OSHRC, 20 F.3d 938,
941 (9th Cir. 1994), such unhelpfully circular definitions, which are found in several other
statutes as well as th e OSH Act, have led the Sup reme Co urt to look be yond the statuto ry
language for guidance on the meaning of those terms. In Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 326 (1992), the Court reiterated its prior precedent that “when Congress has used
the term ‘employee’ without defining it, we have concluded th at Congre ss intended to
describe the conventional master-servant relationship as understood by common-law agency
doctrin e.” Id. at 322-23 (quoting Comm unity for Cr eative No n-Violenc e v. Reid, 490 U.S.
730 (1989)). The exercise of, or the right to exercise, control over those performing service
determines whether a master-servant relationship exists at common law. Under the so-called
“control” test, the master, or employer, has the right, not only to specify the objectives of a
subordinate’s service, but a lso “to control the physical conduct of the other in the
performance of the service.” R ESTATEMENT (S ECOND) OF A GENCY § 2. The Supreme C ourt
in Darden set out the following test for the existence of a common law employment
relationship:
In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party’s right to control the
manner and means by which the product is accomplished. Among the other
factors relevant to this inquiry are the skill required; the source of the
instrumentalities and tools; the location of the work ; the duration of the
relationship between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the hired part y’s
discretion over when and how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the work is part of the
regular business of the hiring party; whether the hiring party is in business; the
prov ision of em ploye e ben efits ; and the ta x treatme nt of the h ired party.
503 U.S. at 323-24.
The Darden test originates in the common law, which looks to the element of control
by the hiring party over the hired party. The test also includes w ithin the rubric of “contro l”
factors that address the economic and financial aspects of the relationship between the
parties, such as matters of compensation, taxation, working hours, and provision of tools and
equipme nt. As the Court n oted, “[s]ince the co mmon -law test con tains ‘no sho rthand for mula
or magic phrase that can be app lied to fin d the an swer, . . . all of the incidents of the
relationship must be assessed an d weighed w ith no one factor being decisive.’”Id. at 324
(quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)) (ellipsis in original).
The Commission’s approach to determining the existence of an employme nt relationship is
consistent with Darden. Under Comm ission case law, the alleged employer must exercise
control over the workers, but the element of control extends to economic facto rs as well as
the “means and methods” by which the wo rk is perf ormed . Vergona Crane, 15 BNA OSHC
at 1784, 1991-93 CCH OSHD at p. 40,496 (citing Van Buren-Madawaska Corp., 13 BNA
OSHC 2157, 2158, 1987-90 CCH OSHD ¶ 28,504, p. 37,780 (No. 87-214, 1989)). As the
Comm ission has observed with respect to the Supreme Court’s opinion in Darden, “many
of the factors in the Commission’s economic realities test appear in the Darden test as
well. . . . [and] the inquiry central to both tests is the question of whether the alleged
employer controls the workplace.” Loomis Cabinet Co., 15 BNA OSHC 1635, 1638, 1991-93
CCH OSH D ¶ 29 ,689, p. 4 0,256 ( No. 88 -2012 , 1992) , aff’d, 20 F.3d 938 (9th Cir. 1994).
Likewise, the Tenth Circuit, wh ere this case arises, recognizes Darden as the test for
determining whether employment status exists under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e, which contains definitions of “employer” and “em ployee” similar to those
of the OSH A ct. Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024, 10 28 (10th Cir.
1996). 6

6
Several circuits in add ition to the Tenth Circuit in Lambertsen have analogized Darden to
a “hybrid” which combines the common law element of control with an inquiry into the
econom ic realities of the relationship, with the Tenth Circuit noting that “there ‘is little
discernible difference between the hybrid [approach] and the common law agency
[approach].’” 79 F.3d at 1028 (quoting Frankel v. Bally, 987 F.2d 86, 90 (2d Cir. 1993))
(ellipses in origin al). See Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 & n.3 (9th Cir.),
cert. denied, 528 U.S . 816 (199 9); Mangram v. General Motors Corp., 108 F.3d 61, 62-63
(4th Cir. 1997); Wilde v. County of Kandiyohi, 15 F.3d 1 03, 106 (8 th Cir. 1994 ); see also
Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979) (concluding tha t in addition to
control over the means and methods of performing the work, a number of factors, including
elements of an economic nature, determine employment status under Title VII of the Civil
Rights Act).
 Based on the evidence regarding Davis’ control over the work environment, including
control over the ec onomic a spects of th e relationship between Davis and the three workers,
we conclude that the Secreta ry, who h as the b urden o f proo f, Timothy Victory, 18 BNA
OSHC 1023, 1027, 1995-97 CCH OSHD ¶ 31,431, p. 44,450 (No. 93-3359, 1997), has failed
to establish that D avis is the employer of Haswell or the two Ringler brothers, Bobby and
Ernest.
III. ANALYS IS
With respect to H aswell, the record p lainly shows h e had spe cialized skill bo th as an
equipment operator and a truc k driver and that he utilized these skills in w orking no t only
with Davis but on other jobs for which R ingler permitted him to take time off from his w ork
on the trench. In terms of the relevant criteria, Davis lacked any control whatever over
significant aspects of Haswell’s work activities. Davis could not assign additional projects,
Haswell had d iscretion over his work h ours and was empowered to hire his own assistants
if he so desire d, and Rin gler—n ot Davis— would a pprove H aswell’s req uests to leave the s ite
to do wo rk elsew here. See Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1146, 1153 (10 th
Cir. 1999) (employment relationship cannot be found where putative employer lacks the right
to designate and assign a worker and has no control over the worker’s schedule). Ringler not
only paid Haswe ll but determined how much Haswell should be paid, and Davis provided
no insurance for Haswell nor withheld or otherwise paid any taxes on behalf of Hasw ell. See
Zinn v. McKune, 143 F.3d 1353, 1357 (10th Cir. 1998) (discussion of compensation and
other benefits as bearing on the employme nt relationship ); Spirides v. Reinhardt, 613 F.2d
826, 833 (D .C. Cir. 1979) (benefits such as leave and retirement and payment of social
security taxes as material factors in determining the existence of an employment
relationship). While D avis provid ed the tools a nd equipm ent, Hasw ell—w ith Ringler’s
consent—was free to take th e front-end loader to oth er work s ites. It is clear that Haswell
could and did increase his income by using initiative and independent judgment. The casual
nature of Hasw ell’s attachme nt to the workplace; Davis’ inability to control his time; and the
fact that Ringle r—not Davis—hire d Hasw ell, paid him, an d had the a bility to fire him
outweigh the factors that argue for an employment relationship: that Davis supplied the tools,
directed the tasks at the worksite, and was in the excavation business. Accordingly, we
conclude that the Secretary has not established that Davis is an employer of Haswell for
determinin g coverag e under the Act.
As in the case o f Hasw ell, Davis had not requested the assistance of Bobby or Ernest
Ringler. Moreo ver, the evid ence estab lishes that the b rothers did nothing more than help out
on an occasional basis at their own discretion. The record does not establish specifically how
or for what reason they came to be working in the trench. Other than B obby Ringler’s
statement that he had prior exper ience in exc avation w ork, the reco rd is silent as to whether
he or his brother brought any particular skill or expertise to the work. Furthermore, except
for the compliance officers’ brief observation of Bobby and Ernest Ringler, there is no
evidence to show the extent or duration of the services they performed for Davis. 7 Moreover,
not only did D avis not hire th e Ringler b rothers, but h e could no t fire them o r modify their
working conditions. He had no control over the duration of the Ringler brothers’ work or
their daily work hours, as they were free to come and go as they pleased. Nor are there any
other indicia of an employme nt relationship . The Rin glers were not paid for their work, and
there is no evidence that they were otherwise compensated.
The Secretary argues that Davis’ control over the performance of the work overrides
all other considerations. In the Secretary’s view, because D avis controlled the “manner and
means” of accomplishing the pipe-laying project, he necessarily is the statutory employer of
the others who did the work. We are aware of no case that goes this far, and we think the
Secretary misunderstands Darden and the common law of agency. Control over the “manner
and means of accomplishing the work” must include control over the workers and not just
the results of their work. One who cannot hire , discipline, or fire a worke r, cannot ass ign him

7
Davis testified that on March 19, when the com pliance officers first came to the trench, the
Ringler brothers returned from one of their regular plumbing service calls and came over to
the trench app roximately 90 minutes af ter Davis h ad started w orking, and they had bee n in
the trench intermittently for no more than 15 or 20 minutes b efore the complianc e officers
appeared.
additional projects, and does not set the worker’s pay or work hours can not be said to control
the worker. Accordingly, we reject the Secretary’s argument, and we conclude that on the
facts established in this record, none of the three workers was an employee of Don D avis.
For the reasons stated, the judg e’s decision is reversed, an d the citation is vacated.

                                                      /s/
                                                      Thomasina V . Rogers
                                                      Chairman

                                                      /s/
                                                      Ross Eisenbrey
                                                      Commissioner

Dated: July 30, 2001
 SECRETARY OF LABOR,
Comp lainant,

                        v.

DON DAVIS d/b/a DAVIS DITCHING OSHRC DOCKET N O. 96-1378
and DAVIS DITCHING, INC.,
Respon dent.

APPEARANCES:

   For the Co mplainant:
            Dewey P. Sloan, Jr., Esq., Office of the Solicitor, U.S. Department of Labor,
               Kansas C ity, Missouri.

   For the Re sponde nt:
            William G. Webb, Esq., Strand, Meadows and Webb, LLP, Colorado Springs, Colorado.

Before: Administrative Law Judge Sidney J. Goldstein

                                     DECISION AND ORDER


   This is an action by the Secretary of Labor to affirm six items of a serious citation issued to

the Respondent by the Occupational Safety and Health Administration. The matter arose after two
compliance officers for the Administration inspected a worksite of the Respondent, concluded that it
was in violation of the regulations and recommended that the citation be issued. The Respondent
disagreed with this determination and filed a notice of contest. After a complaint and answer were
filed with this Commission, a hearing was held in Denver, Colorado.
The basic facts in this controversy are not in substantial dispute and may be briefly
summarized. Don Davis is in the business of underground construction; he also is president, chief
stockholder and manager of Don Davis Ditching, Inc. The corporation owns construction equipment,
including a backhoe and front end loader. This equipment was leased to Don Davis as an individual.
Mr. Davis entered into a contract with the owner of a land tract whereby, in consideration of
$180,000.00, Mr. Davis was to perform underground construction for a period of approximately seven
months.
 During an inspection of the worksite, compliance officers for the Administration observed two
people working in a trench approximately 8 feet deep and 25 feet long. The trench was not shored or
otherwise supported although in type C soil. It is undisputed that the trench proportions were in
violation of the trenching regulations adopted under the Occupational Safety and Health Act of 1970.
A third person operated the front end loader. There were five other safety violations related to
construction.
Citations for the alleged infractions of the standards were issued to the landowner, Mr. Davis,
and Don Davis Ditching, Inc. The former settled with the Administration, but the latter two units filed
a notice of contest which led to this hearing.
It is admitted that the violations of the OSHA regulations occurred, but the Respondents deny
they were employers within the meaning of OSHA regulation and therefore not subject to penalties
for any violations.
The main issue in this case is whether Don Davis as general contractor who created the hazard
was responsible for ensuring that workers in the excavation were protected.
The question whether a contractor may be held in violation of a safety regulation although it
had no employees at the jobsite has been before the Commission in the past. On this point the
Commission rejected the idea that liability under the Occupational Safety and Health Act of 1970
should be based solely on the employment relationship. And in the case of Brennan v. Occupational
Safety and Health ReviewCommission (UnderhillConstruction Corporation), 513 F2d 1032, the court
held that employer’s specific duty to comply with the Secretary’s standards is in no way limited to
situations where a violation of a standard is linked to exposure of his employees to the hazard. It is
a duty over and above his general duty to his own employees.
General contractors normally have the responsibility and means to assure that other contractors
fulfill their obligations with respect to employee safety. The Commission has stated that it will hold
a general contractor responsible for safety standard violations which it could have reasonably have
been expected to prevent or abate by reason of supervisory capacity. The duty of a general contractor
is not limited to the protection of its own employees from safety hazards, but it extends to the
protection of all employees engaged at the worksite. Both the Commission and the courts have held
that overall responsibility for the safety of all workers on the project is in the general contractor’s
province.

                                              13

In the current matter, the three individuals performed services for Don Davis. Whether he is
described as the general contractor or subcontractor to the owner of the land is immaterial. It is
undisputed that the workers in the trench and the operator of the front end loader were performing
services for Don Davis who was under contract to perform trenching operations. Also there is no
doubt that Mr. Davis had control over the work and decided who could perform services in the trench.
Since the workers in the trench performed services for Mr. Davis, and since they were subject to his
direction and control, he was responsible for assuring them a safe workplace. This he did not do, and
therefore the citation is AFFIRMED.
As previously noted, Don Davis Ditching, Inc. also denies that it had any employees. The facts
disclose that Don Davis is the president, chief stockholder and principal official of the corporation
which owned the equipment. According to Mr. Davis, he, on behalf of the corporation, leased
equipment to himself as an individual proprietor. Someone in the corporation had to represent it in
these dealings. Since Mr. Davis is the only person with authority to act on its behalf in the leasing of
the equipment, he was an employee of the corporation. Also, he was the only person authorized to
represent the corporation in receipt of payment for the leasing arrangement. Since Mr. Davis was the
only person with authority to lease the equipment and to collect the rental fee, he performed services
for the corporation and therefore was an employee of Don Davis Ditching, Inc.
In sum, I find that the Respondent was in violation of the six regulations as shown in the
citation, and it is therefore AFFIRMED.
The parties agreed that if the citation were affirmed, the penalty should be assessed at
$7,000.00. I find no reason to dispute this suggestion. A penalty of $7,000.00 is therefore assessed.

/s/
Sidney J. Goldstein
Judge, OSHRC

Dated: April 2, 1998

                                              14