United States of
America
OCCUPATIONAL SAFETY
AND HEALTH REVIEW COMMISSION
1120
20th Street, N.W., Ninth Floor Washington, DC 20036-3457
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SECRETARY OF LABOR,
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Complainant,
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v.
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OSHRC Docket No. 10-1372
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BRIONES UTILITY COMPANY,
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Respondent.
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ON BRIEFS:
Allison Graham
Kramer, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Joseph
M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health;
M. Patricia
Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC For the
Complainant
Edward L. Pina,
Esq.; Edward L. Pina & Associates, PC, San Antonio, TX For the Respondent
DECISION
Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner. BY THE COMMISSION:
The Occupational Safety and Health Administration
issued Briones Utility Company a serious citation alleging
a violation of 29 C.F.R.
§ 1926.652(a)(1) for failing to protect employees working in a trench from
potential cave-ins. Administrative Law Judge John H. Schumacher vacated the
citation, finding that the Secretary failed to establish employee exposure. For
the following reasons, we reverse the judge and affirm the citation.
BACKGROUND
Briones is an
excavation contractor that was exposing underground sewer and gas lines at a
worksite in San Antonio, Texas. An OSHA compliance officer drove past the
worksite and stopped to inspect when he saw an open trench. The CO photographed
a Briones employee working in a trench that was 10 feet long, 3 feet wide, and
7 feet deep, with aluminum hydraulic
shoring installed at one end. A second, uninstalled shore was also at
the worksite. The shoring installed in the trench included two hydraulic
cylinders (one above the other) that spanned the width of the trench and
pressed against vertical rails on either side. Sandwiched between the rails and
trench walls were 4-foot-wide, 8-foot-tall panels. Measured from the center
line of the hydraulic cylinders, the distance to the closer end of the trench
was 2 feet, and the distance to the farther
end was 8 feet. One of the CO’s photographs shows the employee
who was standing
in the trench, bent over,
with the lower part of his body alongside the panel and the upper part of his
body leaning past the panel toward the far end.
The cited standard, § 1926.652(a)(1), requires
“[e]ach employee in an excavation [to] be protected from cave-ins by an adequate
protective system . . . .” In vacating the citation, the judge found: (1) the Secretary failed to establish that the
Briones employee observed in the trench was exposed to a cave-in hazard; and
(2) even if the employee was exposed, it was necessary for the employee to be
in the trench in order to install the second
shore.
DISCUSSION
To establish a violation of an OSHA standard, the
Secretary must prove that: (1) the cited standard applies; (2) its terms were
violated; (3) employees were exposed to the violative condition; and (4) the
employer knew or could have known of the violative condition with the exercise
of reasonable diligence. See Astra Pharm.
Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69
(1st Cir. 1982). The only element of the Secretary’s prima facie case on review
is employee exposure.
I.
Employee Exposure
Regarding the element of exposure, the CO
initially claimed that the protection afforded by the trench’s single installed
shore ended at the panel’s edge, but later stated that the shore’s protection extended
past the edge of the panel by about one foot.
The Secretary maintains that the CO meant that an extended area of protection exists only when two shores have been installed
in
a trench, but the context in which the CO made
these statements does not support the Secretary’s contention. In fact, the CO
testified that “the shoring . . . gives you a good two to three feet of
protection on either side of that one shore,” and that “as you expand out,
there’s nothing there for you,” suggesting a circumstance with only one
installed shore. (Emphasis added.). We agree with the judge that, given this
inconsistent and otherwise unsupported testimony, the Secretary has not
established that the Briones employee in the CO’s photograph—depicted as
leaning past the edge of the panel toward the far end of the trench—was past
the edge of the shore’s protection.
However, the Commission has recognized that
exposure may be established by showing “that it is reasonably predictable
either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger.” Nuprecon LP, 23 BNA OSHC 1817, 1819 (No.
08-1307, 2012). We find it was reasonably predictable that the employee could
have inadvertently strayed into the adjacent, unprotected area of the trench. See
N.
Landing
Line Constr. Co., 19 BNA OSHC 1465, 1471 (No. 96-0721, 2001) (exposure
established where “bracket installation work was so close to . . . energized
parts that minimal upward movement, inadvertent or otherwise, would have placed
some part of [an employee’s] body closer than [the OSHA standard’s minimum
working distance]”). The employee was standing on uneven dirt at the very edge
of the trench’s protected area, leaning over while using a shovel to clear off
a pipe located in the unprotected area. Further, his access to the zone of danger was unobstructed. See Brennan v. OSHRC, 513 F.2d 1032,
1039 (2d Cir. 1975) (employee need not be “teetering” on the edge to be
“exposed” to the fall hazard). In these
circumstances, we find the Secretary has established employee exposure. See N.
Berry Concrete Corp., 13 BNA OSHC 2055,
2056 (No. 86-163,
1989) (“[E]mployees walked close enough
to the floor opening that they
could have fallen through.”); compare
Delek Ref., Ltd., 25 BNA OSHC 1365, 1374-75 (No. 08- 1386, 2015) (rejecting
argument that employee could be in zone of danger of unguarded shaft by
“accidentally trip[ping]
and fall[ing],” when testimony did not “show how close employees actually came
to the equipment, and no evidence was adduced regarding conditions on the floor
that would make a trip-and-fall reasonably predictable”), appeal docketed, No. 15-60443 (5th Cir.
June 22, 2015); Buffets,
Inc., 21 BNA OSHC 1065, 1067 (No. 03-2097, 2005) (no exposure
based on “potential slip hazards” where “employees wore slip-resistant
shoes and kept the floors swept and cleaned”).
II.
Necessity
The judge agreed
with Briones’s contention that the employee’s presence in the trench was “necessary” because in order to install
the second shore,
Briones had to further excavate
the trench, which required
uncovering the sewer and gas lines. On review, the Secretary contends
that: (1) an employer cannot avoid complying with
OSHA standards by claiming that employee exposure is somehow necessary; and (2)
even if that were so, this argument is an affirmative defense that Briones
waived by failing to timely raise it below. We need not reach the Secretary’s
claim that this argument is not a valid defense, however, because even if it
were, it is an affirmative defense for which Briones bears the burden of proof,
which it has not satisfied.
Such a defense, if valid, is an affirmative
defense because proof that employee exposure was “necessary” to install safety
equipment would defeat the citation even if the Secretary established his prima
facie case. See Starcraft Co. v. C.J.
Heck Co. of Tex., 748 F.2d 982, 990
n.11 (5th Cir. 1984) (affirmative defense requires defendant to “rely
on new matters to extinguish the
plaintiff’s claim”); U.S. Postal Serv., 24
BNA OSHC 2067, 2068 (No. 08-1547, 2014) (affirmative defense “rais[es] arguments
or new facts that, if proven, defeat a plaintiff’s claim even if the
allegations in the complaint are true”). As an affirmative defense, Briones
bears the burden of proving that its employee needed to be in the trench to
install the second shore. The CO’s unrebutted testimony in explaining the
installation process, however, establishes that the shoring Briones used is
specifically designed to be installed from outside the trench.
With respect to the company’s contention that the
employee “descended into the trench briefly to clear dirt off the pipe and most
importantly to pick up the chain that was being used to lower the second shore into place,”
the record lacks
any evidence showing
that the pipes had to be
uncovered or cleaned in order to expand the excavation to install the second
shore. In fact, Briones’s owner testified that the company’s excavator had a
“plate in the front” to avoid “br[eaking] the utility,” which suggests that
Briones could use the excavator to deepen the trench without first uncovering
the pipes. In short, contrary to the
company’s claim, the record does not show that it was necessary for the
employee to uncover the pipes in order to install the second shore.
As to retrieval of the chain, there is no
evidence that the chain was located in the unprotected area of the trench—indeed, Briones
does not even assert where in the trench the chain
was located—so there is no evidence that the employee needed to be at the edge
of the protected area to retrieve it. Nor is there any evidence that Briones could
not have used another chain to install the second shore. In sum, the record
fails to show that it was necessary for Briones’s employee to be in the trench
at all, let alone that he needed to be at the edge of the first shore so as to
install the second shore. Therefore, we reject the judge’s necessity finding
and affirm the citation.
III.
Characterization
and Penalty
The Secretary characterized the violation as
serious. Under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678,
a violation is serious “if there is a substantial probability that death or serious physical
harm could result from” a violative condition. Section 17(k), 29
U.S.C. § 666(k). The CO testified that the 7-foot-deep trench with
inadequate cave-in protection created a substantial probability of serious
injury, such as “fractures, broken bones, and death.” There is no record
evidence contradicting this testimony. Accordingly, we affirm the serious
characterization of the violation.
Regarding penalty, the Act requires that “due
consideration” be given to the employer’s size, the gravity of the violation, the good faith
of the employer, and any prior history
of violations.
Section 17(j), 29 U.S.C. § 666(j); Jim Boyd Constr., Inc., No. 11-2559, slip op. at 8 (OSHRC
Nov. 16, 2016); Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322,
2001), aff’d, 34 F. App’x 152
(5th Cir. 2002) (unpublished). In determining the $1,225 proposed penalty
here, the Secretary calculated a gravity-based penalty of $3,500, and then gave
Briones a 40-percent reduction for size, a 15-percent reduction for good faith because
the violation was abated
during the inspection, and a 10-percent reduction for lack of prior history.
We find that a $1,000 penalty is appropriate. In
reaching this conclusion, Chair Attwood relies on all of the circumstances in
light of the statutory factors, including the gravity of the violation,
Briones’s small size, and good faith in instructing employees to remain inside
the protected area as it also prepared to install the second shore. See Aviation Constructors, Inc., 18 BNA
OSHC 1917, 1920 (No. 96-0593, 1999) (finding good faith for penalty purposes
where employer “clearly intended that employees be protected by shoring” and
“selected a system configured for the particular worksite in accordance with
one of the options permitted under the standard”).
Additionally,
regarding the gravity of the violation, Commissioner MacDougall further notes
that only one employee was exposed for a short duration, the likelihood of
serious injury was low given that the employee was not physically in the
unprotected area of the trench at the time of the violation, and even if he
were to momentarily transgress into the unprotected area, he could return to
the protected area with a low likelihood of injury. See Capform, 19 BNA OSHC at 1378 (gravity is the primary consideration and is
determined by the number of employees exposed, the duration of the exposure,
the precautions taken against injury, and the likelihood of an actual injury).
ORDER
We affirm Citation
1, Item 1 as serious, and assess a penalty of $1,000.
SO ORDERED.
/s/
Cynthia L. Attwood
Chairman
/s/
Heather
L. MacDougall
Commissioner
Dated:
December 14, 2016
UNITED STATES
OF AMERICA
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR,
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Complainant,
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v.
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OSHRC DOCKET NO. 10-1372
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BRIONES UTILITY COMPANY,
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Respondent.
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Appearances:
Elizabeth
M. Kruse, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas,
Texas For Complainant
Edward
L. Piña, Esq., Edward L. Piña & Associates, P.C., San Antonio, Texas For
Respondent
Before: Administrative Law Judge John H.
Schumacher
DECISION AND ORDER
PROCEDURAL
HISTORY
This proceeding is before the
Occupational Safety and Health Review Commission (“the Commission”) pursuant to
Section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §651 et seq. (“the Act”). The Occupational
Safety and Health Administration (“OSHA”) conducted an inspection of a Briones
Utility Company (“Respondent”) worksite in San Antonio, Texas on May 12, 2010.
As a result of the inspection, OSHA issued a Citation and Notification of
Penalty (“Citation”) to Respondent alleging two (2) violations of the Act and
proposed a total penalty of $1750.00. Respondent filed a timely notice of
contest, bringing this matter before the Court. A hearing was held on January
5, 2012 in San Antonio, Texas. Both parties have filed post-trial briefs.
JURISDICTION
Based
upon the record, I find that Respondent was engaged in a business affecting
commerce and was an employer within the meaning of sections 3(3) and 3(5) of
the Act. Therefore, I
conclude that the Occupational Safety and Health Review Commission has
jurisdiction over the parties and subject matter
in this case pursuant to Section 10(c) of the Act.
DISCUSSION
On May
12, 2010, Compliance Safety and Health Officer (“CSHO”) Raul Carillo drove past
Respondent’s worksite, which was located near a car lot at the intersection of
Perrin Beitel and Vespero in San Antonio, Texas. (Tr. 19). As he drove by, the
CSHO observed an open trench. (Tr. 19). Due to the potentially deadly hazards
posed by trenches, OSHA has a National Emphasis Program regarding trenching and
excavations. (Tr. 19). Pursuant to that program, it is OSHA’s policy for a
compliance officer to conduct an inspection when he observes trenching
operations taking place. (Tr. 19–20). In this particular case, the CSHO
conducted an inspection of Respondent’s worksite, which resulted in the
Citation at issue in this matter.
Respondent
is owned by Alfredo Briones and its primary business is underground utility
excavation and trenching. (Tr. 19, 22, 133). On the day of the inspection,
Respondent was excavating a trench to expose a sewer and gas line conflict for
San Antonio Sewer and Water (“SAWS”) and City Public Service (“CPS”). (Tr. 97,
133, 135–36). In order to uncover the conflicting pipes, Respondent had
excavated a ten-foot long trench. (Tr. 136–37).
When the CSHO arrived at Respondent’s worksite, he got out of his car and began
to take photographs of the trench and surrounding conditions. (Tr. 20–21). The
pictures reveal that shoring had been installed for approximately four feet
along the ten-foot long trench. (Tr. 23, 55, C-2, C-7). The remaining portion
of the trench did not have shoring installed, but Respondent had rented
additional shores, which were located in close proximity to the trench. (Tr.
21, 146). At the end
of the
trench protected by shoring, Respondent had installed a ladder to access and
exit the trench. (Tr. 78, C-2).
At the
time of the CSHO’s arrival on the site, Respondent’s employee, Armando Briones,
was working in the trench. (Tr. 103–104,
121). Although there was some disagreement as to what Armando was doing in the
trench, the weight of the evidence suggests that he was using a shovel to
uncover the sewer and gas lines. (Tr. 121,
124, 149). Even though he was standing between the shoring panels in the
trench, Armando was observed leaning just outside of the panels while using the
shovel. (C-7). Once he had taken pictures of the trench, the CSHO instructed Armando
to get out of the trench, identified himself as a compliance officer
for OSHA, and proceeded to
conduct an opening conference. (Tr. 21). At the conclusion of the opening
conference, the CSHO took some more pictures, measured the trench,
and collected a soil sample from the spoil pile. (Tr. 22). The
CSHO identified potential violations, including the violation that led to the present
Citation, and gave Respondent the opportunity to abate those
violations during the
inspection, which Respondent did. (Tr. 23, 147). The CSHO ended the inspection
with a closing conference and notified Respondent of the potential for the
issuance of a citation and monetary penalties. (Tr. 23).
THE
ALLEGED VIOLATION – 29 C.F.R. § 1926.652(a)(1)
Complainant
alleges in Citation 1, Item 1 that:
On or about 5/12/10,
at the worksite, employees were exposed to a cave in hazard while they worked inside a trench
which measured 7 feet deep, 3 feet wide, and 20 feet long. The company had only
one shore and was not adequate to prevent a cave in from occurring.
The
cited standard provides:
(a)
Protection of employees in excavations. (1) Each employee in an excavation shall be protected
from cave-ins by an adequate protective system designed in accordance with
paragraph (b) or (c) of this section except when:
(i)
Excavations are
made entirely in stable rock; or
(ii)
Excavations are
less than 5 feet (1.52m) in depth and examination of the ground by a competent
person provides no indication of a potential cave-in.
FINDINGS OF FACT AND CONCLUSIONS OF
LAW
To establish a prima facie violation of the Act, the Secretary must prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the
employees had access to the cited condition; and (4) the employer knew, or with
the exercise of reasonable diligence
could have known, of the violative condition. Ormet Corporation, 14 BNA OSHC 2134, 1991 CCH OSHD ¶ 29,254 (No.
85-0531, 1991).
To establish
employer knowledge, an employer does not have to possess
knowledge that a condition
violated the Act, just knowledge that the condition existed. Shaw Construction, Inc., 6 BNA OSHC
1341, 1978 CCH OSHD ¶ 22,524 (No. 3324, 1978). Further, the Secretary need not
show that “an employer understood or acknowledged that the physical
conditions were actually
hazardous.” Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148,
1995), aff’d
without
published opinion,
79 F.3d 1146 (5th Cir. 1996).
A violation
is “serious” if there is a substantial probability that death or serious
physical harm could result from the violative condition. 29 U.S.C. 666(k).
Complainant need not show that there is a substantial probability that an
accident will occur; she need only show that if an accident occurred, serious
physical harm could result. If the possible injury addressed by the regulation is death or serious physical
harm, a violation of the regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984);
Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-
0523, 1993).
Applicability of the Standard
There
is no dispute that the trench found at Respondent’s worksite is an excavation
covered by the regulations found in Subpart P. Further, the evidence clearly
establishes that the exceptions to the standard do not apply. First, although
there was some dispute as to whether the soil was properly classified as Type B
or Type C, the trench was clearly not made in stable rock. (Tr. 28, 49). Second, the CSHO measured
the trench and found it to be approximately seven
(7) feet deep. (Tr. 26). Alfredo
testified that he also believed that the trench was approximately seven feet
deep. (Tr. 138). Accordingly, the Court finds that the cited standard applies
to the condition indicated in Citation 1, Item
1.
Whether the Terms of the Standard Were Violated
If the
exceptions to the standard do not apply, 29 C.F.R. § 1926.652(a)(1) requires an
employer to use an “adequate protective system,” designed in accordance with
subsections (b) or (c), to protect employees from a cave-in.
Whether a particular protective system is considered
adequate depends on the type of system an employer chooses. If the employer
utilizes sloping or benching, then the employer refers to subsection (b) to
determine the proper design parameters. If the employer utilizes shoring or
shield systems, then it must refer to subsection (c), which provides the design
parameters for such systems depending on soil type. There are four design criteria
options available to employers if they utilize the protections provided in
subsection (c): (1) OSHA tabulated data; (2) tabulated data from the
manufacturer of the protective system; (3) tabulated data approved by a
professional engineer; or (4) tabulated data
created by a professional engineer. (Tr. 60–70, C-5). This data includes the minimally acceptable measurements for
installing shoring, including: (1) the depth of the trench; (2) the vertical
distance of the shore (measured from the floor to the hydraulic cylinder); and
(3) the horizontal distance between hydraulic cylinders. (Id.). The determination of which set of data to use is contingent
upon the type of soil present within the trench. (Tr. 61, C-5).
Respondent
implemented a shoring system that utilized hydraulic cylinders or pistons that
were oriented vertically and exerted pressure on opposite sides of the trench
wall. These cylinders were pressed against vertical piece of aluminum, known as
a waler. (Tr. 53). The walers, in turn, were placed in the center of composite
sheets,
known as fin forms, which
measured four feet in width by approximately 8 feet in height. (Tr. 50, 55, C-2, C-7).
The cylinders are placed in
the center of the fin forms and do most of the work of holding up the trench
walls; however, the fin forms serve to disperse the pressure of the cylinders
across a greater area and prevent sloughing and raveling of the walls. (Tr.
55). At the time of the inspection, only one set of cylinders and fin forms were
in Respondent’s trench. (Tr. 65).
Based
upon his on-site observations, the CSHO determined that the trench was dug in
Type B soil, which was also the determination of Respondent. (Tr. 29, 153). He also took a sample
of the soil from the spoil pile, which was sent in to OSHA’s Technical Center
in Salt Lake City, Utah. (Tr. 31, 37). The subsequent lab tests revealed that
the soil was, in fact, Type C. Type C
soil is the most unstable of the soil types and, therefore, typically requires
rather strict design parameters in the construction of a shoring or shield
system. In fact, with respect to the particular shoring system utilized by
Respondent, OSHA does not provide tabulated data. Accordingly, it was incumbent
upon Respondent to utilize the manufacturer’s tabulated data to determine the
proper measurements for the shoring system used in its trench. (Tr. 67–71). No
evidence was introduced at trial as to what the manufacturer’s recommendations were.
Complainant
contends that Respondent violated 29 C.F.R. § 1926.652(a)(1) because Respondent
had not installed an adequate protective system in the cited trench. Respondent
only had one shore in the ten-foot long trench, which, according to
Complainant, left eight feet of open, unprotected trench. (Sec’y Brief at p. 9
n. 9). In order to comply with the standard,
Complainant
argues that Respondent needed to install a second shore such that the hydraulic
cylinders were spaced approximately four to six feet apart (horizontal
distance). Although the manufacturer’s data was not introduced into evidence,
the CSHO testified that, for Type B soil, OSHA requires a horizontal distance
of eight feet. (Tr. 63–64, 69). See also 29
C.F.R. 1926.652 tbl. D. He further testified that he has seen manufacturer’s tabulated
data for Type C soil and that it typically requires a horizontal distance of
approximately four to six feet. (Tr. 67).
Respondent
argues that it did not violate trenching standard because it was still in the
process of installing additional shoring
at the time of the OSHA inspection. The primary thrust
of Respondent’s argument is that the slope at the unprotected end of the
trench prevented the fin forms from fitting
properly and that additional material
needed to be removed before
the shoring could be
installed. Respondent further points out that it had sufficient additional
shores available on sight and that the second shore was ready to be installed.
(Tr. 147, 158).
It is
clear that a portion of the trench was unprotected and, thus, insofar as the
standard is concerned, a complete “system” of shoring had not yet been
installed. That said, the Court believes that a work in progress cannot be
viewed in the same way as the finished product. If work was being conducted in
the unprotected end of the trench, then there would clearly be a violation, as
the worker would not be “protected from cave-ins” as the standard requires.
However, to the extent that Complainant is arguing that Respondent violated the
standard because it failed to have a complete
shoring system in the trench—which was being prepped
for the installation of additional shores—regardless of whether any
employees were actually exposed, the Court refuses to find that a violation occurred. That being said, the Court is mindful
of the fact that
Armando was in the trench at the time of the inspection. Thus, we have a case
where the elements of violating the terms of the standard
and exposure to the hazard/condition cannot be resolved
independently of one another. See Ormet,
14 BNA OSHC 2134 (listing the elements of a prima
facie violation of the Act). In order to answer the question of whether
Respondent’s employees were protected from cave-ins and thus, whether a
violation occurred, the Court must address Armando’s position in the trench and
the effectiveness of the existing shoring.
As noted
earlier, Armando was in the trench in order to identify the location of the sewer and gas pipes. (Tr. 121, 124, 129).
The pictures taken by the CSHO clearly show that Armando was standing
at the threshold of the existing shoring
with his upper torso leaning
slightly outside of the fin
form. (C-7). Complainant contends that Armando’s position exposed, at the very
least, his upper body to the potential of a trench
cave-in because he was outside
the protective area of
the shoring. Further, Complainant argues that Armando
was exposed to the condition for at least five minutes, which represents the
length of time between when the CSHO arrived on site and when he asked Armando
to exit the trench. (Tr. 59). Respondent argues that Armando was not outside
the protective area of the shoring, and if he was, it was only for a few
seconds while he responded to the CSHO’s request that he pick up the shovel.
According to Complainant, Respondent’s trench was unprotected or “open” for a distance of eight feet. (Tr. 65, Sec’y Brief at p. 9). This is based upon the fact that the trench extended
eight feet beyond the
first, and only, hydraulic cylinder. This point is well-taken because the CSHO testified that “one shore itself cannot
retain anything outside
of it without another support system.” (Tr. 76). In other words,
the second shore applies pressure to the trench wall at the point where the
pressure from the first shore ends. The CSHO also testified, however, that “the
shoring, it gives you a good two to three feet of protection on either side of
that one shore, for that area.” (Tr. 76). Thus, the pressure from the shore in
this case was effective at least to the extent of the fin forms, which extended
two feet on either side of the cylinder. (Tr.
57–58).
Determining
the effective area of the shoring is further complicated by the fact that no
evidence was introduced as to what the manufacturer’s tabulated data required
in terms of the horizontal spacing of the cylinders. As stated earlier, OSHA
requires a maximum horizontal distance of eight feet between cylinders in Type
B soil. In other words, OSHA has determined that for shores used in trenches
dug in Type B soil, the effective area of protection provided by shores is approximately four feet in either direction. The soil at Respondent’s worksite, however, was determined to be Type C. (Tr. 31, 49,
C-1). The CSHO’s testimony and common sense dictate that the effective area of
protection provided by shores in Type C soil would be less. (Tr. 67). How much
less, however, is determined by the manufacturer’s tabulated data, which was
not introduced into evidence. The CSHO testified that the manufacturer’s
tabulated data for shoring of the type used by Respondent typically requires a
maximum horizontal distance between four and six feet. (Tr. 67). This comports
with the CSHO’s understanding that the
shoring
“gives you a good two to three feet of protection on either side of that one
shore . . . .” (Tr. 76).
Without
a more definitive understanding of the protective area of the existing shoring,
the Court cannot find that Complainant has proven, by a preponderance of the
evidence, that Armando was outside
the protective area of the existing shoring.
If the manufacturer’s tabulated
data required a horizontal spacing of four feet, then the protective area of
the shoring would be approximately two feet on either
side; however, if the data required spacing
of six feet, then the protective area would be
approximately three feet on either side. The photographs submitted by
Complainant illustrate that Armando was making a point to position his body
within the existing shoring, which confirms the testimony of Alfredo, who
stated that “I never send boys because, if no shore, they can no be inside.”
(Tr. 154). Based upon the testimony regarding the width of the fin forms, and
considering the evidence regarding the protective range of the shoring, the
Court cannot find that Complainant proved that Armando’s position at or near
the threshold of that protective range exposed him to the potential for a cave-in.
Notwithstanding
the above, Complainant also seems to argue that Armando’s mere presence inside
a trench that has incomplete shoring exposed him to the hazard of a potential
cave-in. This line of argument addresses the question of what constitutes an
“adequate protective system” pursuant
to 29 C.F.R. 1926.652(a)(1). The term “protective system” is defined
as a “method of protecting employees
from cave-ins from material that could fall or roll from an excavation face or into an excavation .
. . . Protective systems include support systems, sloping and benching
systems, shield systems,
and other systems
that provide the necessary protection.” 29 C.F.R. 1926.650(b). More
specifically, a “shoring system” is defined as “a structure such as metal
hydraulic, mechanical, or timber shoring system that supports the sides of an
excavation and is designed to prevent cave-ins.” Id. These definitions can apply with equal force to both an
individual shore as well as a series
of them; the key to any “protective system,” as it were, is that
it protects employees from a cave-in. The Court finds that the shoring
installed by Respondent constituted such a system. The fact that the entire
trench was not shored does not mean that it is a violation to have an
individual standing within the protective area of a single shore. See General Motors Corp., 12 BNA OSHC
1324 (No. 80-5439, 1985) (“Inasmuch as the employees in the north-south leg
were either working in a part of the trench that had already been shored or
were engaged in installing the shoring in that leg, GM did not violate the
standard in the north- south leg.”); see
also Adams & Mulberry Corp., 3 BNA OSHC 1077 (No. 2548, 1975) (“[I]f
the two employees had been working from the braced portion of the trench, we
would vacate.”). Although the violations in these two cases involved a
different version of the present standard, the Court finds that the standards
address the same hazard and the methods to protect against that hazard. See Occupational Safety and Health
Standards—Excavations 54 Fed Reg. 45,894, 45,928 (Oct. 31, 1989).
It
should be pointed out that the General
Motors case cited above also stands for the proposition that an employer’s
failure to “limit employee access to the trench so as to eliminate the
unnecessary exposure of employees to the unshored walls” constitutes a
violation. General
Motors, 12 BNA OSHC 1324. Those
circumstances are arguably present here, where Armando was not physically prevented
from accessing the unshored portion
of the trench. However, there are some key distinctions to be
made. First, the only way to access and exit the trench in the General Motors case involved traveling
through an unprotected portion of the trench. Id. In this case, however, the ingress/egress point was well within
the protection of the existing shoring. (C-2). Secondly, although no physical
barrier was in place at the end of the existing shoring, it seems clear that it
was Respondent’s policy that employees do not work in a trench without proper
protection. (Tr. 154, 158). Based upon the position of Armando’s body in
Exhibit C-7, it appears as if that
policy was followed. (C-7). Finally, even if the Court were to find the
slightest hint of exposure, it cannot say that such exposure was unnecessary as
the Commission determined in General
Motors, wherein employees were exposed to cave-ins at the access/egress
point. See General Motors, 12 BNA
OSHC 1324 (“[T]he question is whether employee presence in the trench is
needless.”). Alfredo testified that Armando was uncovering the sewer
and gas pipes because further
excavation was needed
to install additional shoring. (Tr. 149,
166). Thus, the actions of Armando were calculated to facilitate the
installation of shoring that was readily available and would provide additional protection.
At
bottom, although Complainant showed that Respondent’s employee was leaning just
beyond the threshold of the fin form, the Court finds that Complainant failed
to establish that Respondent’s employee was outside of the protective area of
the existing shoring system such that he was exposed to the hazard of a cave-in.
The presence of additional shoring near the trench indicates that Respondent was taking appropriate measures to protect
its employees from the
hazard of a trench cave-in,
and the testimony
of Respondent’s witnesses
indicates that
Respondent stressed the
importance of working within existing shoring. Accordingly, the Court finds that Complainant has failed to establish, by a preponderance of the evidence, a violation of 1926.652(a)(1).
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1.
Citation 1, Item
1 is VACATED.
/s/
John H. Schumacher Judge, OSHRC
Date: July 9, 2012 Denver, Colorado
Indeed, the CO failed to explain the basis of his
opinion on the issue of whether the protection afforded by the shoring extended
past the panel. See Hurlock Roofing Co.,
7 BNA OSHC 1108, 1111 (No. 76-357, 1979) (declining to credit opinion testimony
that was not explained and for which no basis was given). Additionally, as the
judge noted, the record lacks the shoring manufacturer’s tabulated data.
Commissioner MacDougall notes that her conclusion
in this regard is limited to the facts before the Commission and that she views
the holding in this case as a narrow one. In particular, she notes that the
company placed no visual or physical barrier (such as caution tape, a cone, a
barricade, or the like) between the protected and unprotected areas of the
trench.
4 As to waiver, both parties elicited testimony at
the hearing regarding why the employee was in the trench, and the Secretary
specifically introduced evidence that the shoring system can be installed from
outside the trench. See Fed. R. Civ.
P. 15(b)(2) (“When an issue not raised by the pleadings is tried by the
parties’ . . . implied consent, it must be treated in all respects as if raised
in the pleadings . . . .”); Texland Drilling Corp., 9 BNA OSHC 1023, 1026 n.8 (No. 76-5307, 1980) (finding implied consent where the
party claiming waiver introduced evidence relevant to the unpleaded affirmative
defense). Therefore, we reject the Secretary’s
claim.
Briones
also claims that the judge improperly admitted evidence regarding the
classification of the trench’s soil, and “coached”
the Secretary’s counsel
at the hearing in the means by which such evidence could be admitted. However,
given that soil type is relevant to whether a protective system is necessary, see 29 C.F.R. § 1926.652(a) & app.
D, and Briones does not argue that a protective system was unnecessary, these
evidentiary objections are moot.
Only one of the
violations is at issue in the present case. On December 9, 2011, the parties
filed a Joint Notice of Partial Withdrawal of Citation. The Secretary withdrew
Citation 1, Item 2. Accordingly, only Citation 1, Item 1 is before the Court.
The Commission has held that construction
activity, even a small project, affects interstate commerce. Clarence
M. Jones,
11 BNA OSHC 1529, 1531 (No. 77-3676, 1983). In this case, evidence was
introduced that Respondent leased shoring equipment that was produced outside
of the state of Texas from a company called National Trench Safety.
Respondent did not
dispute that it is an employer under the Act, nor did it dispute that the
Commission has jurisdiction in this matter.
The Citation
originally indicated that the trench at issue was twenty feet long. (R-1). The
CSHO clarified that this measurement was inaccurate and that the length of the
trench was actually ten feet. (Tr. 27).
Armando Briones is the brother of
Respondent’s owner, Alfredo Briones. For the purposes of clarity, the Court
shall refer to them individually as Armando and Alfredo.
At one point, Armando testified
that the CSHO told him to pick up a shovel that was resting on the ground in
the unshored portion of the trench. (Tr. 109). Later in his testimony, however,
he indicated that he was using the shovel to uncover the sewer and gas lines.
(Tr. 121, 124). This was later confirmed by Alfredo, who stated that Armando
was “touching the pipe [to] be sure it’s there.” (Tr. 149). The photograph
taken by the CSHO appears to support this description of Armando’s actions
within the trench. C-7).
The CSHO testified that the sheets
were made out of plywood, whereas Alfredo stated that they were made of
something more substantial. (Tr. 50, 139). The determination of what the fin forms were made of is of no consequence
to this matter; however, the Court accepts the testimony of Alfredo that the
fin forms were made of something more substantial than plywood, as he was the
individual who rented the shoring equipment.
The lab report was admitted into
evidence over Respondent’s objection on the basis of hearsay. The Court found
and still holds that the report fell under one of two exceptions to the hearsay
rule: FRE 803(6) and 803(8). Further, the Court finds
no issue with the fact that the CSHO used a sampling
sheet entitled “Air Sampling Worksheet” because the CSHO testified that sheet is routinely used for such
samples.
For the reasons
previously mentioned, the Court finds that the CSHO did not ask Armando to pick
up the shovel. The Court agrees that it would not make sense for the CSHO to
ask Armando to engage in an activity that could potentially expose him to a
safety hazard. (Tr. 171).
At one point, both Armando and Alfredo testified that the unprotected portion of the wall on Armando’s right
side in Exhibit C-7 was covered in concrete, which Respondent argues
provided additional support. (Tr. 117, 160). The CSHO testified that he made no
such observation. That being said, even if the Court found that one of the
walls was concrete, the other wall was still previously disturbed, Type C soil.
Because it only takes the collapse of one wall to cause injury, this fact plays
no part in the Court’s decision.
