Docket Nos. 1096; 1261 (Consolidated)

HORNE PLUMBING AND HEATING COMPANY

OSHRC Docket Nos. 1096; 1261 (Consolidated)

Occupational Safety and Health Review Commission

October 9, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Paul L. Brady dated February 9, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE (In Part)

DISSENTBY: VAN NAMEE (In Part)

DISSENT:

VAN NAMEE, COMMISSIONER, concurring in part and dissenting in part: Respondent was engaged in digging a trench and installing a sewer pipe. On May 19, 1972, following a cave-in of the trench and the deaths of two employees, Complainant's representative conducted an inspection of the worksite. As a result of the inspection, Respondent was cited on June 8, 1972, for a single serious violation of 29 C.F.R. 1926.652(a-c), n1 for failure to shore or slope a 17 foot deep trench, and 1926.651(i)(1) n2 for failure to store excavated material at least two feet from the edge of the trench. Respondent filed a timely notice of contest.

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n1 Judge Brady affirmed the citation for violation of 29 C.F.R. 1926.652(b), and vacated as to 1926.652(a) and (c). 29 C.F.R. 1926.652(b) states in relevant part;

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

n2 29 C.F.R. 1926.651(i)(1) states in relevant part:

(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least two feet or more from the edge of the excavation.

[*2]

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On June 13, 1972, Complainant's representative conducted a second inspection of the same worksite. As a result of this inspection, Respondent was cited again. However, this time Complainant issued a separate citation for a serious violation of 29 C.F.R. 1926.651(i)(1) for failure to store excavated material more than two feet from the edge of the trench. n3 The trench involved in the last noted citation was an extension of the trench involved in the first citation.

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n3 Respondent was also cited with a second serious violation of 29 C.F.R. 1926.652(a-c). However, Complainant withdrew the citation at the hearing.

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The Judge affirmed the first citation for violation of 29 C.F.R. 1926.652(b) and 1926.651(i)(1), and the second citation for violation of 1926.651(i)(1). My colleagues have adopted the Judge's decision. While I agree that the June 8th citation should be affirmed, I must dissent from my colleagues' decision [*3] to affirm the second citation for violation of 29 C.F.R. 1926.651(i)(1).

First, the trench was the same trench involved in the first citation. The Secretary argues that because Respondent had backfilled the portion involved in the earlier citation facts relating to a continuation of the trench involve a new violation. Under this theory, which my colleagues apparently accept, a contractor may be liable for penalties of up to $1,000 per day when he digs a trench because whenever he backfills his next dig is of a new trench. On the other hand I suppose he could avoid this potential liability by leaving the original cut open. But then he may violate local ordinances or suffer the consequences of a private tort action when somebody falls into the trench at night.

Secondly, Respondent herein contested the first citation and was not under a duty to abate so long as the contest was filed in good faith. 29 U.S.C. 659(b). Since the trench was a continuation, my colleagues and the Secretary have imposed a duty of abatement where the law does not.

Finally, it should be clear that the potential liability involved in this situation is like that involved in a failure to abate case. Here [*4] the Secretary conducted a follow up inspection within the period prescribed for contesting the first citation. Chairman Moran writing for the majority in Kesler and Sons Construction Company, S. & H. Guide para. 18,165 (Rev. Com'n., July 8, 1974) has said that a reinspection during such period is "without force and effect." Today's decision gives it force and effect if a new citation is issued; presumably Kesler controls when a notification for failure to abate issues. Clearly, the decisions are inconsistent.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This is a consolidated proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to contest three citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citations which were issued June 8, 1972, and July 27, 1972, respectively, allege that as the result of certain inspections of the respondent's workplace located at 5303 New Peachtree Road, Chamblee, Georgia, respondent [*5] violated section 5(a)2 of the Act by failing to comply with specific Occupational Safety and Health Standards promulgated by the Secretary pursuant to Section 6 thereof. A notice of proposed penalty was issued with each citation.

The Secretary alleges that on May 22, 1972, respondent violated the standards codified in 29 CFR 1926.652(a)(b)(c), and 29 CFR 1926.651(i)(1). It is also alleged that on June 13, 1972, respondent violated 29 CFR 1926.651(i), and 29 CFR 1926.652(a)(b)(c).

On August 23, 1972 the proceedings in dockets 1096 and 1261 were consolidated. The hearing was held October 12, 1972, at Atlanta, Georgia. No additional parties sought to intervene in the proceeding.

STATEMENT OF THE CASE

Respondent is a sole proprietorship doing business at 913 Bernina Avenue, N.E., Atlanta, Georgia. It is engaged in the business of pipelaying and plumbing, employing approximately 11 employees (Complaint and Answer) (Tr. 194). Some of the supplies used in the business are manufactured outside the State of Georgia (Tr. 12-16).

On May 19, 1971, respondent was engaged in digging a trench and installing a sewer line on the premises of the First Baptist Church of Chamblee, [*6] 5303 New Peachtree Road, Chamblee, Georgia (Tr. 26). At the aforesaid time and place James V. Ellison was operating a backhoe to excavate a trench approximately 30 inches wide and 175 feet long (Tr. 21). Mr. Ellison was digging the trench under the instructions of Mr. J. W. Chupp, foreman of the job (Tr. 22, 24). As the digging of the trench progressed, shoring was put in place and thereafter pipe was installed by respondent's employees (Tr. 167, 168, 183). At approximately 2:30 p.m. on said date a cave-in of the trench occurred which caused the deaths of Mr. Chupp the foreman, and Mr. Sam Cox (Tr. 25-26). At the time of the occurrence the two men were working about 10 to 15 feet in front of the shored area (Tr. 175). The backhoe was being operated approximately 50 feet ahead of the bracing, and the cave-in began at the back of the backhoe and continued to the point of the first bracing (Tr. 176).

Immediately after the accident on May 19, 1972, Compliance Officer Harold E. Gier of the Occupational Safety and Health Administration commenced a two day inspection of respondent's workplace at the First Baptist Church of Chamblee (Tr. 35). Subsequent to the inspection, on June [*7] 8, 1972, complainant issued a citation alleging a serious violation, and a notification of proposed penalty (Tr. 143).

On June 13, 1972, Wilbur R. Turner Jr. a compliance officer with the Occupational Safety and Health Administration, conducted an inspection at a different location on the aforementioned work site (Tr. 57). This was another excavation project for the laying of sewer pipe (Tr. 58) As a result of this inspection complainant issued citations numbered two and three July 27, 1972, alleging serious violations, and issued notices of proposed penalties (Tr. 145) Prior to the commencement of the hearing the Secretary withdrew the Citation for Serious Violation number two (Tr. 6)

ISSUES

The principal issues to be determined relate to whether the aforementioned standards have been violated. If such a violation has occurred, the question arises as to whether the violation or violations were of a serious nature under the criteria of Section 17(k) of the Act. If respondent is adjudged in violation of any of the standards as alleged, then a determination must be made as to whether the penalties proposed for each of the violations is appropriate.

THE CONSTRUCTION STANDARDS [*8]

Prior to deciding the substantive issues in this case, it is necessary to resolve an issue relating to the Secretary's promulgation of the construction standards. It is contended by respondent that the construction standards prescribed in 29 CFR Part 1926 (formerly 29 CFR Part 1518), and adopted by the Secretary as Occupational Safety and Health Standards pursuant to section 6(a) of the Act, are invalid and therefore are of no force or effect in this proceeding. Respondent argues that although section 6(a) allows the Secretary to promulgate "established Federal standards," such standard must have been in effect on the day of enactment of the Occupational Safety and Health Act.

The standards in question were established by the United States Department of Labor, and became effective April 24, 1971, prior to the effective date of the Occupational Safety and Health Act, but subsequent to its enactment.

Section 3(10) of the Act defines the phrase "established federal standard" as meaning "any operative occupational safety and health standard established by an agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment [*9] of this Act." In questioning the validity of the standards which form the basis of this proceeding, respondent places an erroneous interpretation on the phrase "presently in effect," as contained in section 3(10) of the Act. Although the phrase "presently in effect" is not defined in the Act, it must be construed to mean standards in force and effect on the effective date of the Act, April 28, 1971. Reading section 3(10) in context with related sections of the Act provides ample support for this view. Section 4(b)(2) provides ". . . Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be Occupational Safety and Health Standards issued under this Act, as well as under such other Acts." Accordingly, section 4(b)(2) shows the Congressional intent that the effective date of the Act governs in determining whether Federal Standards are "established" within the meaning of the Act. Also, in the latter part of section 3(10) it is stated that standards in any act of Congress would be effective "on the date of enactment of this Act," distinguishing from those standards established by any agency of the [*10] United States "presently in effect." Further, Section 6(a) of the Act, which provides the statutory authority for the Secretary to promulgate standards, states that the Secretary may promulgate such standards commencing with the effective date of the Act. Therefore, it would be a gross inconsistency to hold that the Secretary cannot promulgate standards "in effect" on the effective date of the Act, but require that such standards be in effect on the date of enactment of the Act only.

The Federal Standards in effect regarding construction were legally promulgated by the Secretary as Occupational Safety and Health Standards pursuant to Section 6(a) of the Act. Hence, the standards alleged to have been violated by the Respondent were in effect on the date of the inspections herein.

Citation No. 1. -- Alleged Violation of 29 CFR 1926.652(a)

Alleged Violation of 29 CFR 1926.652(a)

Section 1926.652(a) provides in pertinent part, as follows:

(a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. . .

The alleged violation was described [*11] in the citation for serious violation in pertinent part as:

Failure to shore or slope the sides of the angle-of-repose and to store excavated material at least 4 feet from the edge of an approximately 3 feet wide by 17 feet deep by 90 feet long trench located. . .

In the complaint it was similarly stated "that respondent failed to shore or slope the sides of a trench to the angle-of-repose and further failed to store excavated material at least two feet from the edge of the excavation." The allegations in both the citation and complaint specifically refer to respondent's failure to shore or slope "sides". For the purpose of the Act "sides" is defined under section 1926.653 as "the vertical or inclined earth surfaces formed as a result of excavation work." A "bank" as used in section 1926.652 is defined as "a mass of soil rising above a digging level." The Secretary has clearly defined the terms which relate to trenching requirements under the Act. From the foregoing it is quite apparent that section 1926.652(a) is specifically limited to the shoring and sloping of banks of excavated material and not to sides of trenches, or the distance excavated material is stored from [*12] a trench, as alleged in the citation and complaint. It therefore must follow that the respondent is not in violation of section 1926.652(a), as the allegations fail to describe a violation in the terms applicable to this section as specifically defined by the Secretary.

Alleged Violation of Section 1926.652(b)

Section 1926.652(b) of 29 CFR provides as follows:

Sides of trenches in unstable or soft material, 8 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2, (following paragraph (g) of this section).

The alleged violation is described in the citation as:

Failure to shore or slope the sides of the angle-of-repose, and to store excavated material at least 4 feet from the edge of an approximate 3 feet wide by 17 feet deep by 90 feet long trench. . .

The complaint charges that "respondent failed to shore or slope the sides of a trench to the angle-of-repose and further failed to store excavated material at least two feet from the edge of the excavation."

There is uncontroverted testimony that the trench in question was measured to be approximately [*13] 17 feet deep, and 30 inches wide (Tr. 37). The record also contains testimony that the trench was braced in some portions with vertical timbers used with screw jacks, approximately 3 to 4 feet apart (Tr. 28, 42, 166). However, the testimony varied as to the size of the timbers which were either 2 X 4's, 4 X 4's and possibly some 4 X 6's (Tr. 24, 89, 66).

Table P-2, contained in this section of the regulations captioned, "Trench Shoring-Minimum Requirements," provides that the shoring of trenches 15 to 20 feet in depth with uprights, shall have a minimum dimension of 3 X 6 inches for each upright, and used as close sheeting.

Although the cave-in which resulted in two fatalities occurred outside the shored area, and stopped at the point of bracing, it cannot be held that the shoring was of sufficient strength to protect the employees working within the shoring provided (Tr. 167, 168, 183). Table P-2 is specific in setting forth minimum requirements for the shoring of the type of trench involved here, which respondent has failed to meet. In addition, excavated soil was piled to the edge of the trench, about 5 feet high (Tr. 41). Expert testimony was adduced which showed [*14] the increased danger created by the added weight on the sides of the trench in the type of situation presented (Tr. 111). Therefore, on the basis of the evidence of record, respondent clearly was in violation of section 1926.652(b) of the regulations, as alleged by complainant.

Alleged Violation of 1926.652(c)

Section 1926.652(c) of 29 CFR provides in pertinent part as follows:

This paragraph obviously pertains to sides of trenches in hard or compact soil exclusively. Therefore the determination made in paragraph (b) above is dispositive of the issue with regard to providing support for the sides of trenches as alleged. Also there has been no evidence presented which would indicate respondent has violated Paragraph (c), or that it has application to the facts of the instant case.

Alleged Violation of 29 CFR 1926.651(i)(1)

The complainant alleges that on or about May 22, 1972, respondent failed to store excavated material at least two feet from the edge of the excavation in violation of section 1926.651(i)(1). The backhoe operator testified that the excavated soil was stored [*15] right up to the edge of the trench and was approximately 8 feet high (Tr. 27). The compliance officer testified that the soil was approximately 5 feet high, and stored no more than 18 inches from the edge of the trench at the farthest point (Tr. 41). Although neither witness measured the distance involved, their testimony is undisputed. It is therefore concluded that complainant sufficiently established that the soil was stored less than 2 feet from the edge of the trench as alleged, in violation of section 1926.65(i)(1) as alleged in Citation No. 1.

Citation No. 3

Alleged Violation of Section 1926.651(i)(1)

The citation for serious violation issued July 27, 1972, alleges another violation of section 1926.651(i)(1) for failure to store excavated material at least two feet from the edge of an excavation on June 13, 1972. The compliance officer who conducted the inspection testified that excavated material was stored right up to the edge of the excavation in question, and that the material (soil) was estimated to be approximately 4 feet high, and about 6 to 8 feet in length (Tr. 60). Respondent's witness, the backhoe operator, testified that the excavated soil was about 3 [*16] feet high on the edge of the excavation (Tr. 192). Complainant's exhibit No. 8 is a photograph which shows respondent's employee working at the bottom of the excavation (Tr. 193). The excavation was measured to be about 17 feet in depth (Tr. 67).

The parties stipulated that Professor George F. Sowers is one of the best experts in the country in the field of soil engineering and mechanics (Tr. 97). Professor Sowers testified that in his opinion respondent's employees working in the excavation as depicted in complainant's exhibits 7 and 8, were working under hazardous conditions (Tr. 123).

From the testimony and exhibits received, respondent's employees clearly entered the excavation to work where the excavated material was stored less than 2 feet from the edge of such excavation. Thus respondent violated the aforesaid regulation as alleged in the citation.

Respondent undertakes to show as an affirmative defense to the alleged violations, that he has met his responsibility to insure compliance with the safety standards, and that he should not be liable for violations which occurred as the result of his employee's misconduct. It is contended that as an employer he did [*17] not and could not with the exercise of reasonable diligence, know of the presence of the violations within the purview of section 17(k) of the Act.

The record contains testimony with reference to citation No. 1, that the job foreman Mr. J. W. Chupp, was an experienced foreman, familiar with the shoring of trenches, and was accustomed to following safety instructions (Tr. 204). Mr. Horne testified that additional shoring material had been purchased for the job and that he specifically told his foreman to use particular caution (Tr. 205). Mr. Charles Cox, an employee working at the site, and brother of the deceased Sam Cox, testified that both men (decedents) were aware of Mr. Horne's instructions to use the shoring material provided (Tr. 165). However, the foreman said he did not think it was necessary (Tr. 93). Further, it was shown that James Ellison, the backhoe operator, and Charles Cox warned the deceased persons of the dangers of working in the trench, but to no avail (Tr. 29, 70).

Respondent points out the various efforts made to provide for the safety of his employees and also acquaint them with the requirements of the Occupational Safety and Health Act (Tr. 95-201). [*18] Also, he stated instructions regarding shoring have continually been given to his employees (Tr. 204). Compliance Officer Harold Gier stated respondent had a good safety program (Tr. 46).

The evidence is clear that Mr. Horne was dilligent in providing for the safety of his employees, and there was no dispute that his foreman understood his policy and instructions. It also appears that he had no reason to believe his policy and instructions would be disregarded by his foreman.

The respondent has shown misconduct on the part of his employee (foreman) which may have given rise to the alleged violations in citation No. 1. But, it must be noted the record does not bear out that if Mr. Chupp had performed as respondent instructed the violations would not have occurred. This is true even though the deceased employees were working in an unshored area at the time of the cave-in, and the cave-in of the trench ceased at the point the shoring was in place.

The matter to be resolved in this proceeding however, is whether the Secretary has shown a violation of the regulations described at the time and place alleged. On the basis of this record the Secretary has sustained his allegations [*19] with regard to the violation of Section 1926.652(b). Notwithstanding the foreman's misconduct, the respondent's compliance responsibilities under the Act remain undiminished as required under Section 5(a)(2).

If Mr. Chupp's status was that of an employee only, acting on his own, perhaps there would be some validity to respondent's view, as he attempts to set forth with the use of Commission cases he cites. However, on the basis of the facts presented here, the foreman is deemed to be part of management. The employees working in and about the trench performed at the direction of Mr. Chupp, who, for the purposes of that job, was management, with all the authority and responsibility attendent thereto. Respondent cannot be heard to deny his responsibility under the Act by charging that his foreman failed to meet the standards as required by the Secretary.

In Hodgson v. Lebanon Lumber Company,

When an employer is under a statutory duty and then entrusts its performance to his agent, he becomes responsible for the failure [*20] of that agent to comply with the law. See Pirtle's Adm'x v. Hargis Bank and Trust Co., et al., 44 S.W. (2nd) 541. . .

It has been a long settled principle of the law of Agency that in addition to the acts of which he has directed his agent to commit, the principal also is liable for all other acts committed by his agent while acting within the scope of his authority, irrespective of that fact that his agent also may be personally liable.

In touching on the question of misconduct, which is applicable to the holding in the instant case, the Commission pointed out. . .

Whatever action respondent's agent took in furtherance of carrying out his work assignment must be deemed to have been done within the scope of his employment and as a result, must be imputed to the respondent. Moreover, the operation of this proverbial principle is not affected by the fact that an employee may have acted contrary to his employer's instructions.

In holding that respondent committed violations all alleged in the citations aforementioned, it is likewise held that the violations are of a serious nature. In this regard Section 17(k) of the Act provides:

For purposes of this section, [*21] a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The Secretary has adequately shown that respondent's employees in the excavations involved, worked under conditions where there existed a substantial probability that death or serious physical harm could result.

Respondent does not dispute the foregoing evidence in regard to Citation No. 3. He maintains however, that the excavated soil was spillage which resulted from the dumping of the backhoe machine (Tr. 191). Also, that the spillage was of a "de minimis quantity" (BR 6). Further, he states that his instructions were that the soil was to be placed 5 feet from the excavation, and that it should be banked and shored (Tr. 219) (Exhibit D-3). Mr. Horne pointed out that he remained on the job the entire first day, "seeing that they [*22] understood this thing completely", in reference to the proper digging and the moving of the earth, and that on the second day he left the job site to prepare his payroll, during which time the compliance officer made the inspection herein (Tr. 210). He argues that he should not be held in violation of Section 1926.665(i)(1), as the soil on the edge of the excavation spilled during the digging operation, and occurred in his absence, and contrary to his prior instructions.

In considering the evidence in this record, respondent's defense to the allegations is held to be without merit. The testimony of the compliance officer, respondent's own witness, and complainant's exhibit No. 8, sufficiently establishes the amount of soil resting to the edge of the excavation. Professor Sowers testified to the dangerous situation created for the employees working in the excavation at the time, and Mr. Horne himself testified that he had a foreman on the job who had the authority to correct any problems (Tr. 210). It will serve no useful purpose to repeat the principles of agency law as previously set forth, however, the discussion regarding safety measures, and the respondent-foreman [*23] relationship, equally applies here and is so adopted.

APPROPRIATENESS OF PENALTIES

The authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a), and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b).

In determining the appropriate penalty, the Commission under section 17(j) of the Act is expressly required to give "due consideration "to the size of the employer's business, the gravity of the violation, good faith of the employer, and history of previous violations, in determining the assessment of an appropriate penalty.

The area director of the Occupational Safety and Health Administration testified, the "gravity factors" considered in assessing an appropriate penalty in this case consisted of good faith, history, previous violations, and size of the firm (Tr. 144). Commencing with the penalty of $1,000 the amount authorized under the Act for serious violations, a 20% reduction was allowed for good faith, 20% for history of previous violations, and 10% for [*24] size, regarding Citation No. 1. Under citation No. 3 a 10% reduction was allowed for size, which was the total credit allowed on the unadjusted amount of $1,000 (Tr. 146). The record does not indicate what specific consideration if any was given to the gravity of the violations by the Secretary.

In Nacirema Operating Company, Inc., The Commission stated in National Realty and Construction Co., Inc., Weighing all of these factors in light of the circumstances, it is concluded that the proposed penalty for citation No. 1 in the sum of $500.00, is appropriate and reasonable based on the facts of this record. In considering all [*25] of the same factors relating to citation number 3, it is determined that at the time the citation was issued there had been no evidence of previous violations by respondent under the Act, nor was it shown that respondent had acted with less good faith than that manifested at the time citation No. 1 was issued. In effect, the allegations regarding citation No. 1, were held to constitute a violation for the purposes of denying credit for history of previous violations, and good faith. This is erroneous, because the Commission had not issued any previous orders finding respondent in violation of the Act, pursuant to its exclusive authority under Section 10(c). Until such time as the Commission officially acts no such violation is deemed to exist in this regard.

The record contains creditable evidence of respondent's good faith efforts to assure a safe workplace for his employees prior to the issuance of each citation herein, which deserves proper consideration. Therefore, a reasonable and appropriate penalty for the violation in Citation Number 3 is also $500.00. It is noted that although the violations herein may not have been consistent with respondent's safety program, or instructions, [*26] a reduction in the penalty cannot be justified. The best of intentions safety wise are of little meaning to an employee if they are not properly implemented.

FINDINGS OF FACT

1. Horne Plumbing and Heating Company is a sole proprietorship, doing business at 913 Bernina N.E. Atlanta, Georgia, where it is engaged in the business of pipelaying and plumbing, employs approximately 11 employees and regularly receives equipment and supplies from outside the State of Georgia.

2. On May 19, and 22, 1972, and June 13, 1972, respondent was engaged in the excavation of soil and the installation of sewer pipe on premises of the First Baptist Church of Chamblee, Chamblee, Georgia.

3. That on May 19, 22, 1972, and June 13, 1972, authorized representatives of the Secretary conducted inspections of respondent's worksite at the First Baptist Church of Chamblee, Georgia. As a result of such inspections, on June 8, 1972, a citation for alleged serious violations was issued, and on July 27, 1972, two citations were issued for alleged serious violations. Notice of proposed penalties were issued with each citation.

4. That the language used by complainant to describe the alleged violation [*27] of 29 CFR 1926.652(a) refers to the "sides" of a trench. Section 1926.652(a) is applicable only to "banks" as defined by the Secretary under Section 1926.653.

5. That in the process of laying sewer pipe respondent caused a trench to be dug approximately 17 feet deep, 30 inches wide, and extending at least 90 feet. Said trench was shored with vertical timbers measuring less than 3 inches by 6 inches, and spaced approximately 3 to 4 feet apart.

6. That section 1926.652(c) of 29 CFR has application to shoring sides of trenches in hard or compact soil, and not pertinent to the facts herein.

7. That on May 22, 1972, respondent stored excavated soil less than 2 feet from the edge of an excavation, while it's employees worked therein.

8. That on June 13, 1972, respondent stored excavated soil less than 2 feet from the edge of an excavation, while its employees worked therein.

9. That on May 19, 22, 1972, and June 13, 1972, dates of the inspections herein, there was substantial probability that death or serious physical harm could result to respondent's employees working within the excavations.

10. That respondent is held responsible for the actions of his foremen [*28] even though they may not have followed his instructions regarding safety procedures.

11. That the proposed penalties in citations numbered 1 and 3 were determined in accordance with the administrative guidelines of the Secretary. The penalty proposed regarding citation number 1 in the amount of $500.00 is found to be reasonable and appropriate, but the proposed penalty for citation number 3 is unreasonable, and a penalty in the sum of $500.00 is likewise found to be appropriate.

CONCLUSIONS OF LAW

1. Horne Plumbing and Heating Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. Respondent was not in violation of the standard at 29 CFR 1926.652(a) on May 22, 1972, as charged in citation number 1.

4. Respondent was not in violation of the standard at 29 CFR [*29] 1926.652(c) on May 22, 1972, as charged in citation number 1.

5. Respondent was in violation of the standard at 29 CFR 1926.652(b) on May 22, 1972, as charged in citation number 1. The violation constituted a serious violation within the meaning of 17(k) of the Act.

6. Respondent was in violation of the standard at 29 CFR 1926.651(i)(1) on May 22, 1972 as charged in citation number 1. The violation constituted a serious violation with the meaning of 17(k) of the Act.

7. A penalty of $500.00 is assessed for the serious violations as contained in citation number 1.

8. Respondent was in violation of the standard at 29 CFR 1926.651(i) on June 13, 1972, as charged in citation number 3. The violation constituted a serious violation within the meaning of 17(k) of the Act.

9. A penalty of $500.00 is assessed for the serious violation contained in citation number 3.

10. Respondent failed to comply with the regulations set forth above, which are contained in citations numbered 1 and 3, thereby violating section 5(a)(2) of the Act.

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is

ORDERED

1. That the part of citation [*30] number 1, and proposed penalties issued for violations of 29 CFR 1926.652(a)(c), is hereby vacated.

2. That the part of citation number 1, and proposed penalties for violations of 29 CFR 1926.652(b), and 29 CFR 1926.651(i)(1), is affirmed and a penalty of $500.00 is assessed.

3. Citation number 3 issued for violation of 29 CFR 1926.651(i) is affirmed. The proposed penalty is hereby modified and a penalty in the amount of $500.00 is assessed.