BROSHEAR CONTRACTORS, INC.

OSHRC Docket No. 15614

Occupational Safety and Health Review Commission

July 7, 1977

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Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

Gerald Broshear, Vice Pres., Broshear Contractors, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION: The issue before the Commission is whether the Judge properly found respondent in violation of the standard codified at 29 C.F.R. 1926.652(h) for failing to provide "an adequate means of exit" for its employees working in a trench. * That standard provides:

"When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel."

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* The Judge also vacated a citation alleging that the trench was not shored or sloped as required by 29 C.F.R. 1926.652(b). Since neither party has taken issue with the Judge's disposition of that citation, it will not be reviewed. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Commission therefore affirms the Judge's vacation of this citation. The portion of the Judge's decision pertaining to this citation is accorded the significance of an unreviewed Judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

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After the complainant's inspector arrived at the respondent's worksite, he saw the respondent's employees working under supervision in a trench. Although a ladder was lying beside the trench, no ladder or other equivalent means of exit was available in the trench. The respondent replaced the ladder in the trench after being told by the inspector that the condition violated the standard.

The respondent contends the citation must be vacated because the ladder was only temporarily out of place.

Judge Robert N. Burchmore held that the standard required that an adequate means of exit "be in the trench at all times that employees are in the trench." The Commission agrees.

Accordingly, the Judge's decision is affirmed.