HARTWELL EXCAVATING COMPANY

OSHRC Docket No. 3841

Occupational Safety and Health Review Commission

May 21, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Associate Regional Solicitor, USDOL

Franklin N. Smith, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A report of Administrative Law Judge Henry C. Winters, dated November 18, 1974, is before the Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970. n1 The report vacated a citation for a repeated violation alleging failure to comply with the trench requirements specified by 29 C.F.R. 1926.652(b).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C. 651 et seq.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The order for review was issued on his own motion by Commissioner Cleary. It stated the following issue:

Whether the Administrative Law Judge committed reversible error in vacating the citation alleging a failure to comply with the standard at 29 C.F.R. 1926.652(b)?

Neither party petitioned for review, hence there has been no appeal to the full Commission. Furthermore, the parties have not indicated any interest, whether by letter, brief, or other [*2] means, in having the judge's report reviewed.

In these circumstances and in the absence of any compelling public interest, we decline to address the directed issue or any other aspect of the judge's report. Abbott-Sommer, Inc., Docket No. 9507 (R.C., February 17, 1976). Further, because of our disposition herein we accord the judge's report the same precedential value as an unreviewed judge's decision, i.e., it is not binding on OSHRC judges.

Accordingly, the judge's report is affirmed. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

This disposition is improper because it fails to address the issues in dispute between the parties to this case. When a Commission member directs review of a decision rendered by a Review Commission Judge within the time-period authorized by the Act, the members must thereafter consider the issues in dispute in that case and render a decision on the same.

Less than 90 days ago, Chairman Barnako submitted identical statements to the Appropriations Committees of both the House and Senate which contained the following undisputed declaration:

"Hearings are held locally by Administrative Law Judges who decide the issues in dispute. Their decisions [*3] must then pend for 30 days before the three members of the Commission. If a member directs review of such a decision during that 30-day period, the three member tribunal must examine the record of trial and the legal briefs submitted and render a decision on the case either affirming, modifying or vacating the ALJ's decision" [emphasis supplied].

This statement was submitted as part of the justification for this agency's budget request for fiscal year 1977. Presumably it was carefully drafted so that Congress would know exactly what functions the members of this Commission performed in order that the members of Congress would be in a position to make an informed judgment on the amount of money needed to finance those activities. It was, in fact, a complete and accurate statement of what the law requires.

Nevertheless, despite his words to the Congress, Mr. Barnako now joins Mr. Cleary to declare:

". . . we decline to address the directed issue or any other aspect of the judge's report" [emphasis supplied].

Which of these two conflicting statemets can be relied upon? On the one hand, Congress is told that the Commission members "must" render a decision "on the case" [*4] as initially decided by the Judge. But, in actual practice, it isn't quite that way. In fact, it's just the opposite.

I submit that the foregoing raises genuine cause for doubt as to the credibility of the two quoted statements and that this is bound to reflect adversely on future declarations. What can be relied on? My conclusion from the above discussion is that I doubt if anything can be relied upon.

The same holds true for the Barnako-Cleary ipsedixitism - repeated again in this case - concerning the status of an unreviewed Judge's decision. Not once have they ever cited any authority for that assertion. The Act itself states that such a decision is "the final order of the Commission." 29 U.S.C. 661(i). My colleagues seem to believe that there are two different types of "final orders of the Commission" recognized by the law. If so, where in the law is that stated? The answer, of course, is that it is stated nowhere. There is only one type of final order. Every court that has ever considered an unreviewed Judge's decision - and there have been many - has treated it exactly as it has treated decisions written by the members of the Commission. I could list them [*5] all here but why bother? When a majority of the Commission members refuse to heed the words of the Act and, indeed, assert opposing propositions, referring them to court decisions is a futile exercise.

Their credibility is in question on this point, too. In their opinion in this case, Messrs. Barnako and Cleary say that an unreviewed ALJ disposition "is not binding on OSHRC judges." In many other cases, the same two members have based findings of "repeat" violations on exactly the same type of dispositions. If such a disposition is "not binding," how can it form the basis for a "repeat" violation? This, too, remains unexplained.

The case before the Commission at this time fully warrants the disposition ordered by Judge Winters. That decision, which is attached hereto as Appendix A, should be affirmed on the basis of the following findings by the Judge:

"The standard allegedly violated, namely, 29 CFR 1926.652(b) involves trenching requirements in soft and unstable soil. Although the evidence is conflicting as to the stability of the soil, this Judge, after having considered the documentary evidence and having viewed the witnesses, observed their demeanor and manner of testifying, [*6] concludes that the weight of the evidence is that the trench was not in soft or unstable soil. This case was not tried on the issue of whether there was a violation of 29 CFR 1926.652(c). Therefore, there is no rational basis for considering the citation and complaint amended under Rule 15(b) of the Federal Rules of Civil Procedure. Also, the Secretary has not up to now sought such an amendment." (Footnote omitted.)

Furthermore, the evidence fails to establish that respondent's trench was not sloped in accordance with 29 C.F.R. 1926.652(c) which provides that the sides of trenches is hard or compact soil "shall not be steeper than a 1-foot rise to each 1/2-foot horizontal" above the 5-foot level.

APPENDIX A

DECISION AND ORDER

Mildred L. Wheeler, for Complainant

Frank M. Smith, Jr., for Respondent

Henry C. Winters, Judge

STATEMET OF THE CASE

This is an action under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq) to affirm a citation and proposed penalty of $1,800.00.

The citation was issued July 10, 1973 following an inspection on July 25, 1973 of a worksite at Idaho Falls, Idaho where Respondent was engaged in the construction of an [*7] underground sewer line.

Citation Number One, issued July 10, 1973 described the type of violation as "Repeated" and, as pertinent, further alleged:

Standard, regulation or section

of the Act allegedly violated

Description of alleged violation

29 CFR 1926.652(b)

An employee was working in a trench.

A section of the trench was 25 feet

long and 14 1/2 feet deep. The width

was 6 feet from the bottom to a

height of 9 feet and then was sloped

to a width of 18 feet at ground level.

Trench was not shored, sheeted, braced,

or properly sloped.

The citation required that the alleged violation must be corrected "Immediately upon receipt of citation."

Notification of Proposed Penalty, issued July 10, 1973, by the Secretary proposed a penalty of $1,800 for Citation Number One, and described the violation as "Repeated".

By Notice of Contest, dated July 20, 1973, and received at the Secretary's Portland, Oregon office on July 23, 1973, the Respondent contests the citation issued July 10, 1973.

By complaint, filed August 15, 1973, the Secretary seeks to have the citation and proposed penalty affirmed. Paragraph VII of the complaint avers as follows:

The violation alleged in [*8] the aforesaid Citation and charged in paragraph IV above, was a serious violation within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the conditions alleged to exist, or the practices, means, methods, operations or processes which are alleged to have been adopted or in use at the aforesaid worksite, and the respondent knew, or could with the exercise of reasonable diligence have known, of the presence of the violation.

The aforesaid Citation failed to designate the alleged violation as a serious violation within the meaning of section 17(k) of the Act, and the Secretary of Labor hereby amends the aforesaid Citation (specifically section 6 thereof) to allege that the violation set forth therein is "Serious" as well as "Repeated". The purpose of the amendment is to accurately reflect in the Citation the nature of the violation at issue in this proceeding.

Paragraph VIII of the complaint avers as follows:

The worksite conditions and practices alleged in the aforesaid Citation and charged in paragraph IV above are of such similarity in fact, import and character to the worksite conditions [*9] and practices present on March 29, 1972 at a worksite located in Moore, Idaho, under the operation and control of the respondent, for which worksite conditions and practices citations were issued to the respondent, as to constitute repeatedly violative behavior and conduct within the meaning of section 17(a) of the Act.

By answer, filed September 4, 1974, Respondent denied the allegations of violation and averred the following six affirmative defenses: (1) The inspection was unauthorized and exceeded the authority granted to the Secretary under the Act; (2) The soil in the involved trench was hard or compacted and was properly sloped as required by 29 CFR 1926.652; (3) The Secretary's agent neglected and refused to make comparative measurements of the trench and thereby was in violation of section 8(e) of the Act and of the Secretary's Compliance Operations Manual; (4) The alleged violation was not a serious violation within the meaning of section 17 of the Act; (5) The Respondent has not been adjudged guilty of prior violations, its conduct could not constitute repeatedly violative behavior within the meaning of section 17(a) of the Act, the proposed assessment of severe punitive [*10] damages is unconstitutional and Respondent should be reimbursed for legal expenses; and (6) the proposed amendment in paragraph VII of the complaint is not permitted by the Federal Rules of Civil Procedure nor by this Commission's Rules of Procedure.

Hearing was held before this Judge at Pocatello, Idaho on December 6, 1973. No employee or employee representative participated as a party.

At the opening of the hearing, the Judge announced that he was taking under advisement the Secretary's motion to amend the citation as set forth in paragraphs VII and VIII of the complaint.

By letter, dated February 4, 1974, counsel for the Secretary advised this Judge as follows:

Please be advised that the Secretary of Labor has refined his position with respect to "repeat" violations under Section 17(a) of the Occupational Safety and Health Act and it is now his position that a "repeat" violation will not be charged before the first alleged violation has become a final order of the Occupational Safety and Health Review Commission. Therefore the Secretary will agree to a finding in this case that no repeat violation occurred.

However, it is the Secretary's position that a serious violation [*11] under Section 17(k) was properly alleged in paragraph VII of the Complaint and this issue still remains for determination in this matter. Since a serious violation was alleged in the Complaint and the issue tried at the hearing on December 6, 1973, I do not feel that a Motion to Amend need be filed on this point and trust that this letter will suffice.

Briefs were filed by the parties. In the Secretary's initial brief to the Judge, filed May 21, 1974, the following statement is made:

. . . Since the original Notification of Proposed Penalty in this case proposed a penalty of $1800 for the "repeated violation" the Secretary now proposes that a penalty of $850 is more appropriate for the serious violation charged.

DISCUSSION, FINDINGS, AND CONCLUSIONS

The Respondent at all times herein pertinent was and is engaged in a business affecting commerce. This Commission has jurisdiction of the parties and of the subject matter of this action.

The citation as originally issued was vague, ambiguous and otherwise defective in that it did not describe with particularity the nature of the violation, including a reference to the provision of the Act alleged to have been violated. The [*12] citation by designating the type of violation as "repeated" did not clearly describe the type of violation. One might speculate upon a first reading of the citation as originally issued that the Respondent was being charged pursuant to the provisions of section 17(a) (29 U.S.C. 666(a)) with repeatedly violating a standard promulgated by the Secretary. But this would necessarily be speculation because 17(a) of the Act is not mentioned in the citation. One then would wonder how one could be repeatedly violation a standard by only doing it once. The adjective "repeated" and the adverb "repeatedly" convey a plain meaning of "more than once". But the citation only refers to one alleged violation.

The citation is further vague in that it does not clearly allege when that one violation is supposed to have occurred. One can conclude that the allegation of violation is based upon an inspection made on June 18, 1973, but one cannot definitely conclude that the violation is alleged to have occurred upon that date.

The complaint, which was filed some 59 days after the inspection, removes some of the uncertainty of the citation in that the Respondent is advised that the recent [*13] violation is alleged to have occurred on June 18, 1973, the date of the inspection. The Respondent is also advised for the first time that the Secretary believes that a violation of Section 17(a) has occurred in that "the worksite conditions and practices" alleged in the citation are "of such similarity in fact, import and character to the worksite conditions and practices present on March 29, 1972 . . . for which . . . citations were issued to the respondent. . .". Although the foregoing language is somewhat vague, at least the Respondent is able to glean from it that Respondent is accused of committing the same violation on June 18, 1973 as it was previously alleged to have committed on March 29, 1972.

While the charges were clarified to some extent by the complaint, there was also further muddying of the waters in that the complaint alleges for the first time that the violation alleged to have occurred on June 18, 1973 was, in addition to being a "repeated" violation, a "serious violation" as defined in section 17(k) of the Act (29 U.S.C. 666(k)). The Respondent is left to speculate as to how it would be penalized $1800 for a "serious violation," when section 17(b) (29 U.S.C. [*14] 666(b)) provides for a maximum penalty of $1000 for such a violation.

At the opening of the hearing, it was disclosed that the citation alleging the prior violation of March 29, 1972 had been contested and at the time of the alleged subsequent violation as well as at the time of the instant hearing was pending before this Commission. Counsel for the Secretary then stated (TR 8):

Well, it is our position that a repeated violation could be charged in a situation where a first violation was charged, and because of the process of contesting it, having the case decided and going to appeal has not yet become a final order, it is our position that a second citation which charges a repeat violation, could not be decided until the first one either becomes a final, either affirming the violation or disapproving it. This particular case will have to wait until a final order of the Commission is entered in the first case, either upholding the first one or throwing it out, in which case this instant case we are talking about will either be a repeat or it will not be a repeat.

It was further the position of the Secretary at the opening of the hearing that merely inserting the word "repeated" [*15] in describing the type of violation in the citation is sufficient to notify the Respondent that the penalty provisions of section 17(a) are called into play and that adding the word "serious" does not invoke any other penalty provision.

It was the position of the Respondent at the opening of the hearing that the current citation was invalid because it did not as required by section 9(a) of the Act (29 U.S.C. 658(a)) state with particularity the nature of the alleged offense, including a reference to the standard or section of the Act violated. It was further the reiterated position of the Respondent that there could not be a "repeated violation" when the first alleged violation has not become a final order of the Commission. The Respondent urged that the Secretary's change of position in midstream is prejudicial to the Respondent.

As he indicated at the opening of the hearing, this Judge considered the "amendments" to the citation purportedly made by paragraphs VII and VIII of the complaint to be proposed amendments, which he took under advisement to be decided with the writing of this decision. The case was tried on the basis that the amendments may or may not be allowed. From [*16] the standpoint of the Secretary's theory of the case, if the amendments were not allowed, the Respondent would stand charged with repeatedly committing violations of 29 CFR 1926.652(b) contrary to the provisions of section 17(a) of the Act; and if the amendments were allowed, the Respondent would stand charged with repeatedly committing serious violations of 29 CFR 1926.652(b) contrary to the provisions of 17(a) of the Act. Irrespective of the allowance or disallowance of these amendments to the citation, the Secretary's position was that the proposed penalty of $1,800 should be imposed upon Respondent pursuant to the penalty provisions of section 17(a).

After the hearing and some 196 days after the inspection which led to the issuance of the citation, the Secretary announces by letter of February 4, 1974 for the first time an essentially different position in that he is no longer asserting that there has been a violation of section 17(a) of the Act. It is the new position of the Secretary that there has been one "serious" violation, as defined in section 17(k) of the Act. No specific amendments to the citation or to the complaint was proposed by the letter of February 4. The [*17] letter did not mention what penalty provision the Secretary now believed to be applicable. The penalty provision applicable to serious violations, as defined in section 17(k), is section 17(b) of the Act (29 U.S.C. 666(b)) which provides for a mandatory penalty not to exceed $1,000. The letter did not propose a new or different penalty than the $1,800 previously proposed.

Then on May 21, 1974 some 302 days after the violation was alleged to have occurred, the Secretary for the first time proposes a penalty for the one alleged serious violation namely, the sum of $850. The Notification of Proposed Penalty, issued July 10, 1973, concerned a penalty proposed for a "repeated" violation. The Secretary has not specifically sought to have the original notification of proposed penalty amended.

It is evident from the foregoing that the Secretary had not, prior to the hearing, advised Respondent of the matters of fact and law to be asserted as required by section 554 of the Administrative Procedure Act (5 U.S.C. 554). As the issues were stated at the time of the commencement of the hearing until its conclusion, Respondent could and did successfully defend against the charges under section [*18] 17(a) of the Act merely by showing that the alleged prior violation was not a final violation and therefore it could not be guilty of repeatedly violating. Defending against a single charge of a serious violation of 29 CFR 1926.652(b) requires a completely different defense both as to facts and law. To allow such a drastic amendment to the citation at this late stage of the proceedings would be highly prejudicial to the Respondent and would unlawfully deny it due process. The Secretary may not change theories in midstream without giving the Respondent reasonable notice of the change. Rodale Press, Inc. v. F.T.C. 1968, 407F 2d 1252, 132 U.S.App. D.C. 317. The citation must be vacated.

There are other reasons why the citation must be vacated. The first involves the failure to prove a violation of the standard cited. The second involves the failure to timely advise Respondent of the penalty proposed for a single alleged serious violation of a standard.

The standard allegedly violated, namely, 29 CFR 1926.652(b) involves trenching requirements in soft and unstable soil. Although the evidence is conflicting as to the stability of the soil n1, this Judge, after having considered [*19] the documentary evidence and having viewed the witnesses, observed their demeanor and manner of testifying, concludes that the weight of the evidence is that the trench was not in soft or unstable soil. This case was not tried on the issue of whether there was a violation of 29 CFR 1926.652(c). Therefore, there is no rational basis for considering the citation and complaint amended under Rule 15(b) of the Federal Rules of Civil Procedure. Also, the Secretary has not up to now sought such an amendment.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Over objection of counsel for the Secretary, the compliance officer was required to produce his investigative report (Exhibit 13). The report revealed that the compliance officer originally recommended to the area director that a violation of 29 CFR 1926.652(c) be charged involving trenching requirements in hard and compact soil (Exhibit 14). The compliance officer first testified (TR 88-90) that he originally believed the trench to be in hard and compact soil but later changed his mind because of discussion with the area director and "the photographs". After the lunch recess, the compliance officer resumed the stand and gave a different reason for originally recommending a charge under 1926.652(c) rather than 1926.652(b). He testified (TR 105) that he now remembers that the reason he cited subparagraph (c) was that he felt that the charge would be easier to prove because if the trench had to be shored in compact soil it was obvious that it would have to be shored in soft or unstable soil. He apparently gave no consideration to the fact that paragraph (b) requires shoring or sloping from the bottom of the trench, whereas paragraph (c) requires sloping only from the five foot level (TR 121, 122). The compliance officer judged the stability of the soil making up the sides of the trench by looking at a pile of it after it has been excavated (TR 123).

It was the area director who first decided to charge a violation of 1926.652(b) the same as had been charged in a previous citation against this Respondent and who decided to describe the type of violation as "repeated".

[*20]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Finally, if one were to assume for the sake of argument that the aforementioned letter of February 4, 1974 accomplished a proper amendment to the citation, the citation must nevertheless be vacated because the Secretary to the prejudice of the Respondent has failed to comply with the mandatory requirements of section 10(a) of the Act (29 U.S.C. 659(a)) in that the Secretary has failed within a reasonable time after the termination of the inspection to notify the Respondent by certified mail of the penalty, if any, proposed to be assessed under section 17(b) of the Act (29 U.S.C. 665(b)) for the one serious violation alleged in such amended citation nor to advise Respondent by certified mail that it has fifteen working days in which to notify the Secretary that it wishes to contest such citation as amended or proposed penalty. The statement made in the Secretary's brief, filed May 21, 1974, does not satisfy the clear Congressional mandate.

Accordingly, IT IS ORDERED that Citation Number One, issued July 10, 1973, and Notification of Proposed Penalty, issued July 10, 1973, be and they are hereby vacated; [*21] and the Complaint be and it is hereby dismissed.

Dated at Seattle, Washington this 18 day of November 1974.

HENRY C. WINTERS, Judge