R. COLWILL EXCAVATING COMPANY

OSHRC Docket No. 13920

Occupational Safety and Health Review Commission

October 11, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Reg. Sol., USDOL

Vance R. Goldammer, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge John C. Morris is before the Commission pursuant to 29 U.S.C. 661(i). In his decision, the Judge held that respondent, R. Colwill Excavating Co., was in serious violation of 29 U.S.C. 654(a)(2) for failing to comply with the safety standard published at 29 CFR 1926.652(b). n1 He assessed a penalty of $250 for the violation.

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

n1 1926.652 Specific trenching requirements.

* * *

(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. See Tables P-1, P-2 (Following paragraph (g) of this section).

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

A petition for review excepting to the Judge's decision was filed by respondent raising the following [*2] issue: n2

Whether respondent was afforded fair notice that the exposure of its foreman and vice-president, Randy Colwill, to the violative trench was in issue.

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

n2 A Direction for Review was also issued by former Commissioner Moran specifying no issues.

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

For reasons that follow we answer the question in the affirmative and affirm the Judge's decision.

Respondent was removing a buried gasoline tank from a trench in Sioux Falls, South Dakota. While driving past the site of the trench, an OSHA compliance officer saw a man jump into the trench. The compliance officer parked his car and walked to the site where he saw two men coming out of the trench. After identifying himself to Randy Colwill, who was respondent's foreman and vice-president, the compliance officer began a formal inspection of the trench.

The compliance officer's unrebutted testimony established that the trench was 9 feet deep, 14 feet wide, and 28 feet long. The soil consisted of an uncohesive sandy clay that was similar to fine silt. The trench [*3] walls were not shored, sloped, or supported in any other way. The gasoline tank was located in the center of the trench, and was separated from the trench walls by 30 inches on either side.

Subsequent to the inspection, respondent was cited for a failure to comply with the standard at 29 CFR 1926.652(b). A penalty of $500 was proposed by the Secretary. Following respondent's timely notice of contest the Secretary filed a complaint alleging:

On June 4, 1975 at respondent's said construction worksite, respondent violated the standard set forth at 29 CFR 1926.652(b) in that two men were working at the bottom of an excavation of feet deep in unstable or soft material, in an area 3 feet wide between a large steel tank and the excavation wall; the sides of the trench thus formed were not shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working therein (Citation No. 1, Item 1). Two of respondent's employees were affected by this violation. The penalty proposed was $500. An immediate abatement date was prescribed.

At the hearing, respondent contended that the two employees entered the trench to check a pipe that had [*4] been exposed by the excavation. Randy Colwill testified that he had ordered the men not to enter the trench and that he had not observed their entry. He admitted that both before and after the inspection he had occasion to enter the trench to check pipes. It was Mr. Colwill's opinion, however, that as an officer and part-owner of the company he was not an "employee" within the meaning of the Act.

In his decision, Judge Morris held that respondent was not responsible for the actions of the two employees because their entry into the trench was both unauthorized and unanticipated. The Judge, however, rejected respondent's contention that, as a corporate officer, Randy Colwill was not an employee within the meaning of the Act. n3 Accordingly, he affirmed the citation based on Colwill's admitted exposure to the violative condition.

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

n3 Respondent does not except to this holding. The Judge's ruling is therefore not before us. Williams Enterprises, Inc., 5 BNA OSHC 1785, 1977-78 CCH OSHD para. 22,113 (No. 12100, 1977).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - [*5] - - - -

As noted at the outset, the question before us is whether respondent received adequate notice that the exposure of Randy Colwill to the unprotected trench was at issue. Respondent argues that it was cited for the exposure of the two subordinate employees and that the exposure of Randy Colwill to the hazard constituted a separate violation for which it was not charged. Moreover, respondent contends that Colwill volunteered the information about his exposure, and was unaware that his statement would form the basis for finding a violation.

We are not persuaded. The gravamen of the citation was the failure to shore or slope a trench dug in unstable soil and the exposure of employees to the resulting hazard. The identification of the exposed employees is not an operative fact. See A.J. McNulty & Co., Inc., 76 OSAHRC 46/D2, 4 BNA OSHC 1097, 1975-76 CCH OSHD para. 20,600 (No. 2295, 1976) in which it was held that as long as employee exposure is established it is not necessary for the Secretary to establish the personal identity of that employee. The Secretary proved that respondent failed to shore or slope the trench in contravention of the requirements of 1926.652(b) [*6] and that an employee was exposed to the hazardous condition. Accordingly, the violation has been established.

In any event, we find that the exposure of Rand Colwill was tried with the consent of the parties. Testimony of Colwill's exposure was admitted without objection by respondent. n4 Accordingly, the complaint may be amended to conform to the evidence, pursuant to Fed. R. Civ. P. 15(b), to indicate the exposure of Randy Colwill. Duane Smelser Roofing Co., 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD para. 21,387 (No. 4773, 1976), petition for review docketed, No. 77-3105, 6th Cir., February 22, 1977. Respondent's major argument before the Judge was that Colwill, as a corporate officer, should not be considered an "employee" under the Act. The argument deals with an issue that is not before us. n5

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

n4 See Tr. 48-49.

n5 On review, the Secretary contends that the Judge erred by finding that the exposure of the two subordinate employees was an "isolated incident". Although the issue is before us pursuant to our Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976), our disposition makes it unnecessary for us to reach the issue. For my part, however, I would note that the Secretary's argument is meritorious. See Tr. 47, 66. This testimony would indicate that any workrule of respondent prohibiting employees from entering the trench was not effectively enforced. Indeed, that Randy Colwill entered the trench is strong evidence against the existence of an effectively enforced workrule. National Realty and Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, n.38 (D.C. Cir. 1973); Young Sales Corp., 77 OSAHRC 122/B1, 5 BNA OSHC 1564, 1977-78 CCH OSHD para. 21,883 (No. 8184, 1977). Accordingly, in my view, the "isolated incident" defense was not established. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1283, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).

[*7]

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

Regarding the penalty, we find the $250 assessed by the Judge to be excessive. Colwill's exposure was brief, and given Colwill's position in the corporation we assign substantial good faith to respondent. Finally, counsel represents that respondent is now out of business. Under the circumstances, we find a penalty of $100 to be appropriate.

Accordingly, the citation is affirmed and a penalty of $100 is assessed.