Barker Bros. Const. v. Bureau of Safety and Regulation

• Decision Date: 14 July 1995
• Docket Number: Docket No. 151397
• Citation: 212 Mich.App. 132,536 N.W.2d 845
• Parties: BARKER BROTHERS CONSTRUCTION, Petitioner-Appellant, v. BUREAU OF SAFETY AND REGULATION, Construction Safety Division, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 845

536 N.W.2d 845

212 Mich.App. 132

BARKER BROTHERS CONSTRUCTION, Petitioner-Appellant, v. BUREAU OF SAFETY AND REGULATION, Construction Safety Division, Respondent-Appellee.

Docket No. 151397.

Court of Appeals of Michigan.

Submitted Feb. 23, 1995, at Lansing.

Decided July 14, 1995, at 9:00 a.m.

Released for Publication Sept. 15, 1995.

Robert W. Townsend, Grayling, for petitioner.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Gregory T. Taylor, Assistant Attorney General, for respondent.

Before HOLBROOK, P.J., and JANSEN and O'CONNELL, JJ.

PER CURIAM.

Respondent issued three citations to petitioner for alleged violations of the Michigan Occupational Safety and Health Act (MIOSHA), M.C.L. § 408.1001 et seq.; M.S.A. § 17.50(1) et seq. The citations were affirmed by the Board of Health and Safety Compliance and Appeals, and the decision of the board was affirmed by the Ingham Circuit Court. Petitioner appeals as of right, and we affirm.

I

Petitioner Barker Brothers Construction is a small construction business owned and operated by brothers Daniel and David Barker, who have not formalized the business as either a partnership or a corporation. The business primarily installs private and public water mains. In addition to the owners, one or two employees are generally present at the work sites, but these employees are instructed not to go into trenches that do not comply with MIOSHA standards.

During the summer of 1988, petitioner was involved in a water main project in Genesee County. Respondent's compliance officer conducted inspections of petitioner's work site on June 27 and 30 and July 28, 1988, resulting in three citations being issued alleging eight separate MIOSHA violations. In this appeal, petitioner challenges four of these violations.

Item 4 of Citation No. CS 311-18-1893 alleged a serious violation by petitioner of 1979 AC, R 408.40933(2), which provides:

An excavation that an employee is required to enter shall have excavated and other material stored and retained not less than 2 feet from the excavation edge.

The citation alleged that petitioner had excavated a trench to a depth of seven to eight feet and that the excavated spoil was "piled about 5 feet high right up to the edge of the trench." The compliance officer saw one of the Barker brothers in the trench operating a boring machine. The penalty assessed was $80.

The three remaining challenged violations stemmed from 1979 AC, R 408.40941(1), which provides, in pertinent part:

The side of an excavation more than 5 feet deep shall be sloped as prescribed in table 1, unless supported as prescribed in this part.

Item 5 of Citation No. CS 311-18-1893 alleged that, on June 27, 1988, petitioner had committed a serious violation by excavating two trenches to a depth of six to eight feet that were not properly supported on their sides and not properly sloped. The noncomplying trenches were allegedly "occupied by employees operating a boring machine and preparing to lay watermain pipe." During the inspection of one of these trenches, the compliance officer saw an employee, not one of the Barker brothers, got out of the trench. The assessed penalty was $120.

Item 1 of Citation No. CS 311-18-1894 and Item 1 of Citation No. CS 311-18-1901 alleged that, on June 30 and July 28, 1988, respectively, petitioner had again violated Rule 408.40941(1) by excavating noncomplying trenches that were "occupied by [an] employee." The employee occupying the trench in each case was alleged to be one of the Barker brothers. Both citations were deemed to be for serious wilful violations and a penalty of $1,200 was assessed for each violation.

Petitioner contested these citations, which were affirmed following a hearing by a hearing referee of the Board of Health and Safety Compliance and Appeals. Petitioner then petitioned for judicial review, and the Ingham Circuit Court affirmed. Petitioner now appeals as of right to this Court.

II

Petitioner challenges each of the four citations on the ground that only its two owners were permitted to enter noncomplying trenches and that, as owners, the Barker brothers could not also be considered "employees" so as to require compliance with MIOSHA standards. While we perceive some logic to this argument, we are not persuaded that such an interpretation is consistent with the general purposes of the act.

A

Legal rulings of administrative agencies will be set aside only if they violate the constitution or a statute, or are affected by substantial and material errors of law. M.C.L. § 24.306(1)(a) and (f); M.S.A. § 3.560(206)(1)(a) and (f); Lehmann v. State Employees Retirement System, 207 Mich.App. 453, 455, 526 N.W.2d 28 (1994). Longstanding and invariant administrative agency interpretations of a statute that the agency is empowered to administer are entitled to great deference by the courts, absent a contrary logical reading of the statute. Manufacturers Nat.'l Bank of Detroit v. Dep't. of Natural Resources, 420 Mich. 128, 145, 362 N.W.2d 572 (1984); Majurin v. Dep't of Social Services, 164 Mich.App. 701, 704, 417 N.W.2d 578 (1987).

B

In § 9 of the act, the Legislature has declared the general purpose and intent of the MIOSHA:

The safety, health, and general welfare of employees are primary public concerns. The legislature hereby declares that all employees shall be provided safe and healthful work environments free of recognized hazards. [M.C.L. § 408.1009; M.S.A. § 17.50(9).]

The act sets forth the following pertinent definitions:

(1) "Employee" means a person permitted to work by an employer.

(2) "Employer" means an individual or organization ... which employs 1 or more persons. [M.C.L. § 408.1005; M.S.A. § 17.50(5).]

Consequently, in order for a business to come within the scope of the MIOSHA, it must have employees; business size is irrelevant as long as there is at least one employee. In this case, Barker Brothers Construction, as a business entity, employed nonfamily members as employees to assist its owners at the work sites. Therefore, petitioner, as an employer, comes within the ambit of the act.

We reject petitioner's attempt to obviate this result by arguing that it was not formally organized into either a partnership or a corporation. The statutory definition of "employer" is extremely broad and clearly does not require such formality.

C

The Construction Safety Standards Commission has promulgated certain construction safety standards that "pertain to all employers and employees on a construction site." 1979 AC, R 408.40101. Petitioner is alleged to have violated two standards that pertain "to the digging of excavations and trenches which an employee is required to enter and the supporting systems used on construction operations." 1979 AC, R 408.40901. Petitioner asserts that the standards for which it was cited are inapplicable because only its owners were allowed to enter the trenches. In other words, petitioner asserts that David and Daniel Barker, as owners, could not also be considered employees for purposes of the MIOSHA. We disagree.

This argument, and ones analogous to it, have been raised before and summarily rejected. See the decision of the Board of Health and Safety Compliance and Appeals in Dep't of Public Health v. Hankinson's Radiator Shop (Docket Nos. NOA 88-4526, 88-4527, August 3, 1988) (six working partners were employees for purposes of the MIOSHA). See also Secretary of Labor v. Howard M. Clauson, d/b/a Howard M. Clauson Plastering Co., 5 OSHC 1760 (1977) (the federal Occupational Safety and Health Act (OSHA) does not exclude business owners or their families from coverage); Secretary of Labor v. Horning's Chair Shop, 1986-1987 OSHD 36,345 (1986) (under liberal construction of definition of "employee," working partners who were generally treated as employees were covered under the federal OSHA); Secretary of Labor v. Nat'l Window Cleaning, 12 OSHC 1532 (1985) (small company that employed only family members was not precluded from the broad coverage of the federal OSHA); Secretary of Labor v. Mangus Firearms, 3 OSHC 1214 (1975) (silent partner in business who occasionally substituted for principal owner was an employee for purposes of bringing the employer within coverage of the federal OSHA). We find these decisions highly persuasive in light of our deferential stance toward administrative expertise and discretion in interpreting the OSHA and the MIOSHA. ¹ Majurin, supra.

As remedial legislation, both the federal OSHA and the MIOSHA are to be liberally construed to accomplish their purposes. 29 C.F.R. § 1975.3. See generally 61 Am.Jur.2d, Plant and Job Safety, § 7, [212 Mich.App. 139] pp. 646-648. Were we to accept petitioner's argument that its owners, who performed tasks that an employee would generally perform, were not "employees" under the act, we would undermine the broad objective of the act to provide all employees with a work site free from recognized hazards. In Howard M. Clauson Plastering Co., supra at 1760, the Occupational Safety and Health Review Commission stated:

Both the employer and the Secretary raised the collateral issue of whether the employer and members of his family are covered by the Occupational Safety and Health Act. Both the employer and his family are covered. Coverage of family members is implied by 29 C.F.R. § 1975.3 which states that the legislative history clearly indicates that no employees were to be exempted from the provisions of the Act. Coverage of the employer is also required since, as held in Ellenville Handleworks, Inc, 1 OSHC 3121 (1973), any individual receiving financial return from a business for work performed is an employee. The employer would be included in this definition if he worked for the company on the jobsite and so would be included in the Act's coverage.

Accord Bragg v. Mobilhome Co., 145 Cal.App.2d 326, 302 P.2d 424 (1956) (a roofing contractor who performed the...