POLLARD, INC.

OSHRC Docket No. 2197

Occupational Safety and Health Review Commission

April 30, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John J. Morris dated July 5, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held respondent in violation of 29 U.S.C. 654(a)(2) for failure to comply with an occupational safety and health standard found at 29 C.F.R. 1926.651(c). Except for the amount of the penalty assessed therefor, that decision is affirmed.

Respondent was cited for failure to shore or slope certain excavations on its worksite. After filing a timely notice of contest, a hearing was held on May 22, 1973. The Judge thereafter affirmed the citation, but raised the penalty proposed by complainant from $175.00 to $225.00. The basis for this increase was a disallowance of the complainant's proposed credit for two factors under 29 U.S.C. 666(i): good faith and history of previous violations. n1

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n1 It is noted that the consideration required to be given the 4 criteria specified in 666(i) is the province of this Commission -- not the complainant. Consequently, the extra-statutory consideration thereof by complainant is not an appropriate basis to which the judge should connect his disposition. Once a penalty proposal it contested the judge must make his own independent evaluation. Secretary v. Nacirema Operating Company,

[*2]

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Review was directed on whether the Commission has the authority to assess a penalty higher than that proposed by the complainant. The impropriety of penalty increases has been discussed in a number of previous decisions. See Secretary v. Painting Unlimited, Inc., Secretary v. Beall Construction Co., Secretary v. Luther Martin Robbins, Secretary v. California Stevedoring and Ballast Co., We do not have to reach this issue, however, because after consideration of the complete record, we find ourselves in agreement with the penalty proposed by the complainant.

Respondent, having company divisions in three states, employs approximately 70 workers. Two of these employees were exposed to the hazard here in issue. In testifying that this hazard was not classified as "serious," complainant's inspecting officer stated the following:

Q. What led you to the judgment that a serious violation should not issue?

A. [*3] Well, the width of the excavation . . . [it] being pretty wide, I stayed away from the serious.

Q. You didn't feel anybody could be trapped?

A. Oh, a man could be, but in a wider excavation, he has a little better chance of getting out of the way.

Evidence also revealed that respondent has instituted a safety program. It has monthly meetings for its foremen, in part to school them on the provisions of safety standards under this Act. Copies of safety proposals are on file for everyone's use. There is also a monetary penalty program whereby any employee found violating a safety rule will be fined.

Additionally, respondent abated the violative condition two days after the inspection. This was done even though by law there was no requirement that it do so at that time. n2

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n2 29 U.S.C. 659(b) requires an employer to abate the violative condition only after entry of a "final order" by the Commission.

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Consequently, after considering all of the above, we conclude that the penalty proposed by complainant is appropriate [*4] and we therefore assess an amount of $175.00 for the citation herein.

CLEARY, COMMISSIONER, concurring: The direction for review raised the issue of whether the Commission has the power to assess a penalty in excess of the one proposed by the Secretary. The Commission has recently reiterated its long-standing position that it does have such authority. See Chicago Bridge & Iron Co., No. 609 (November 20, 1974) and cases cited therein. Moreover, this policy has received express judicial approval. See REA Express, Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974). In light of these decisions, it is clear that the Commission has the power to assess penalties in excess of those proposed by the Secretary.

In the instant case, however, the Secretary's proposed penalty, which accorded respondent only a 10% credit for good faith and a 10% credit for hisotry of previous violations, sufficiently penalizes respondent for deficiencies in those areas. Recently, respondent has instituted a safety program as indicated in my colleague's opinion. Consideration of the section 17(j) criteria leads to the conclusion that the proposed $175 penalty is appropriate in [*5] this case.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the result for the reasons given in the lead opinion but do not associate myself with the dictum therein concerning our authority on the issue of penalties.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting a Citation issued by the Complainant against Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondent located in the City of West Jordan, Utah and described as follows: installing 3500 feet of 36 inch concrete pipe.

It is further alleged that Respondent violated Section 5(a)(2) of the Act by failing to comply with a certain occupational safety and health standard promulgated by Complainant, pursuant to Section 6 thereof. Abatement was proposed one day from the date of receipt of the citation.

The Citation was issued on January 19, 1972 as the result of an inspection on January 16, 1973 [*6] and it is alleged that the standard violated was duly published in the Federal Register and subsequently recodified in the Code of Federal Regulations at 29 CFR 1926.651(c).

The foregoing standard provides, in part, as follows:

Subpart P-Excavations, Trenching and Shoring. 1926.650 General protection requirements. (c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated January 19, 1973 from the U.S. Department of Labor, Area Director for the Occupational Safety and Health Administation; said Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $175.00.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed the case came on for hearing in Salt Lake City, Utah on May 22, 1973. No parties desired to intervene in he proceedings; the notice of hearing was duly posted.

STATEMENT OF JURISDICTION

Respondent's officer [*7] and division manager, was called as an adverse witness and testified that Respondent is a Utah corportion with 50 employees in Utah and also operating in the State of Arizona. Respondent has an office in Texas and does excavating work in all three States. Further, Respondent uses the facilities of interstate commerce including the mails and telephone services.

It follows that the Occupational Safety and Health Review Commission has jurisdiction of the subject matter and the parties to this litigation.

COMPLAINANT'S EVIDENCE

John L. Mitchell, a compliance officer of the Occupational Safety and Health Administration testified to extensive experience in trenching and tunneling work. The witness contacted Respondent on January 16, 1973. At the worksite he found an excavation divided in the center with loose fill. In the south end 36 inch concrete pipe had been installed; the north end was open for the installation of a manhole. The north end (Compl. Ex. 5) was 10 feet deep, 20 feet wide and 20 feet long. To the south end (Compl. Ex. 4) the excavation was 9 feet deep, 17 feet wide, and 30 feet long. The soil was classified as a sandy clay type which was wet and the [*8] bottom 3 to 4 feet was described as soft and unstable. The excavation was within 25 feet of a major highway subjecting it to the vibrations of heavy traffic. The clay and sandy condition existed throughout the excavation.

When soil of this type gets wet it softens and will start moving. There was a danger of moving ground due to these soil conditions. There was no shoring system or trench box and there existed a hazard of moving ground. There were two employees in the ditch, one of which was the foreman.

The Compliance Officer determined the gravity of the alleged violation by considering the probability of injury; the extent of the violation, that is, that the ditch was open on both sides and the entire excavation was in violation. He arrived at the unadjusted penalty of $500.00. The evidence indicates that a cubic yard of this type of soil weighs approximately 2,000 pounds.

Respondent was given a 10% credit for good faith; a 10% credit for size; a 10% credit for history for a total of 30% which reduced the unadjusted penalty to $350.00. There was no indication by the Respondent indicating a willingness to cooperate or to accept the spirit of the Act. Respondent was granted [*9] a 10% credit for prior history instead of the maximum 20% because of repeated warnings Respondent had received from the safety Department of the State of Utah. These warning letters were offered as Complainant's Exhibits 8-15; all from the State of Utah Safety Division. The prior warning notices from the Industrial Commission of the State of Utah served on Respondent involved, in part, a lack of, or inadequate trench shoring, sloping or trench bracing. These warnings were as follows:

Warning Date

Date of Alleged Violation

December 18, 1972

December 8, 1972

Compl. Ex. 8

October 3, 1972

September 25, 1972

Compl. Ex. 9

October 3, 1972

September 26, 1972

Compl. Ex. 10

August 21, 1972

August 18, 1972

Compl. Ex. 11

July 31, 1972

July 27, 1972

Compl. Ex. 12

May 17, 1972

May 9, 1972

Compl. Ex. 13

December 7, 1971

November 29, 1972

Compl. Ex. 14

June 2, 1971

May 27, 1971

Compl. Ex. 15

Respondent was given a further 50% reduction for further abatement and because it was the agency's initial contact with the Respondent. The proposed penalty was thereby reduced $350.00 to $175.00.

In the judgment of the compliance officer abatement could be achieved in this situation [*10] by using a back hoe to slope the banks. He further prescribed that abatement date one day from receipt of the Citation; Respondent could also shore the excavation. The compliance officer did not allege a serious violation because of the width of the excavation.

RESPONDENT'S EVIDENCE

Respondent testified through its representative that the day prior to the inspection the jobsite had been inspected by the State of Utah and found to be in compliance. The State of Utah regulation provides for sloping at 1/2 to 1. The condition involved at this worksite was abated two days after the inspection.

In the past two months Respondent has instituted a safety program and conducts weekly safety meetings. The company has also devised a monetary penalty program for employees found to be in violation of safety conditions. Company foremen are being schooled the provisions of the safety regulations.

Rebuttal evidence by the Complainant indicated that the Federal compliance officer was accompanied by a State of Utah safety officer during the inspection and in this type of situation Utah requires a 1/2 to 1 slope whereas the Federal regulations require a 1 to 1 slope, or shoring or sheeting. [*11]

PROCEDURAL ISSUES

Complainant was granted leave to amend the Complaint to show that the location of the jobsite should read "4800 South at Interstate 15" rather than "48th South at Interstate 15."

Complainant moved to dismiss the notice of contest due to the failure of Respondent to file an answer and Complainant further moved that all allegations be deemed admitted for want of an answer. The foregoing motions were initially denied as being untimely but the undersigned Judge reversed the initial ruling and took the motions as submitted.

DISCUSSION

It is apparent from the foregoing statement of facts Respondent on the date of the inspection was in violation of 29 CFR 1926.650(c). Even if Respondent was in compliance with the State of Utah Safety Regulations on the day prior to the inspection by the Federal Compliance Officer the evidence, including the photographic exhibits, clearly show that Respondent was not in compliance on the date of the federal inspection. In any event Complainant's standards preempt the State of Utah regulations. The citation should be affirmed.

A more complexing issue is what credits, if any, should be granted to Respondent under the facts [*12] of this case.

The Compliance Officer allowed a 10% credit for good faith (against a possible maximum credit of 20%). The evidence indicates that company management did not indicate a willingness to cooperate or accept the spirit of the Act. It is this Judge's view that affirmative evidence is required to conform to the Congressional mandate under 17(j) of the Act which states that:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.

There being a failure of affirmative evidence of good faith in the record, hence the credit of 10% should be disallowed.

Insofar as the size of the business of the employer being charged the Complainant allowed a credit of 10%. Considering the maximum to be 10% and the number at this worksite relatively low such credit is proper.

Congress has further directed that due consideration should be given tof the "history of previous violations" Section 17(j). The maximum [*13] allowable credit is 20% under the Complainant's guidelines; Complainant authorized a 10% credit. The 10% was allowed instead of the 20% in view of the repeated letters from the Safety Department of the State of Utah relating to failure to properly slope excavations (Compl. Exs. 8-15).

The evidence indicates that the State of Utah regulations are less stringent than the Federal regulations. The warnings from the State of Utah Industrial Commission involve a lack of, or inadequate sloping, shoring or bracing. Respondent's representative admits that all of these warnings were sent to his predecessor. It is this Judge's view that alleged violations by the State of Utah are admissible against Respondent and bearing on the issue of prior history because they involve a similar condition as is involved in the instant case. The history is unfavorable; to give a 10% credit under these facts and circumstances would be contrary to the Congressional mandate and such credit should be disallowed.

Complainant gave a 50% reduction because it was an initial Federal Safety Agency inspection and a 50% abatement depends on future abatement. Respondent did abate the condition within two days of [*14] the inspection and inasmuch as abatement is one of the prime objectives of the Act and in view of the fact that the full Commission is not yet passed on the appropriateness of an abatement credit, this Judge is unwilling to vacate such a credit and Respondent should receive the 50% abatement credit. The Citation should be affirmed and for the reasons herein above stated the proposed penalty of $175.00 is inadequate and a penalty of $225.00 should be assessed.

It should be noted that Complainant proposed an other than serious violation in this case. The Compliance Officer stated that he did not issue a serious violation because of the width of the excavation. On the authority of the case of the Secretary of Labor vs. Wetmore & Parman, Inc.

The remaining issues to be determined are Complainant's motion to dismiss for failure of Respondent to file an answer, or in the alternative that the allegation in the Complainant be deemed admitted for lack of an answer. These motions were first made at the time of the commencement [*15] of the trial and this factor alone would indicate that the motion is untimely and should be denied. However, the reoccurance of this issue requires a more definitive decision of this problem.

Complainant did not prove or assert any prejudice and Respondent complied with the posting requirements. The case of In Re Buck's License 192 Or 66, 93, 232 P2d 791, 802 (1951) 200 OR. 488, 258 P.2d 124 (1953), appeal dismissed 346 U.S. 919, 74 S. Ct. 313, 98 L. Ed. 414 (1954) involved an administrative hearing and the court indicated that strict rules of pleading need not be followed. . . . The essential requirement is that the charge shall be described with reasonable certainty in order to enable the defendant to prepare his defense.

It is common knowledge that a pro se Respondent generally has little or no knowledge as to what constitutes the formalities on an "Answer." In 71 C.J.S. 99 an Answer is defined as a pleading by which a defendant in a suit at law endeavors to resist plaintiff's demand by an allegation of facts either denying the allegations of the Complainant or by confessing them, and alleging new matter in avoidance which defendant alleges should prevent a recovery on the [*16] facts set out by Plaintiff. Respondent in this case in its Notice of Contest both contested Complainant's Citation and raised the affirmative defense that the trenching operation complied with the State of Utah safety standards. The pro se Respondent put the case at issue for trial. The Review Commission in related issues has taken a lenient view as to the filing of answers. Secretary of Labor vs. A.J. McNulty and Company, Inc., OSAHRC Docket Number 2295 (June 7, 1973). In the case of Secretary of Labor v. A. Stuart Bolling, Inc., OSAHRC Docket Number 1434 (February 7, 1973) the Review Commission, after an order of dismissal by the trial Judge remanded the case and considered Respondent's letter to the Commission as an answer and a motion to reinstate. In its letter Respondent in Bolling stated:

1. c. 2, We posted all the pleadings as prescribed by law and though the posting was the requirement not the answer. We felt the important thing was the appeal, not the technical aspects of the law. . . .

Please let us have a day in Court, because I think the facts will show that the charge is not a serious violation or one that could lead to serious injury [*17] or death.

Where a Respondent appears pro se, complies with the posting requirements, is ready for trial on the merits, and where Complainant has failed to show any prejudice Respondent's Notice of Contest is to be treated as an Answer to the Complaint. The motions to dismiss and in the alternative that the allegations in the Complaint be deemed admitted are accordingly denied.

FINDINGS OF FACT

1. Respondent Pollard, Inc. is a State of Utah Corporation with employees in the States of Utah, Arizona, and Texas.

2. Respondent uses in its business the facilities of interstate commerce including the mails and telephone services.

3. On January 16, 1973 Respondent was excavating in a sandy clay soil which was soft, wet and unstable.

4. Two employees of Respondent, including the foreman were in the excavation and were exposed to danger from moving ground.

5. The walls and faces of the excavation were not guarded by a shoring system, sloping of ground, or any equivalent means (Compl. Ex. 4, 5).

6. In arriving at a proposed penalty Complainant considered the gravity of the violation and calculated an unadjusted penalty of $500.

7. Complainant allowed a 10% credit for good faith. [*18]

8. Respondent did not indicate a willingness to cooperate or accept the spirit of the Act.

9. Complainant allowed a 10% credit for prior history.

10. The Respondent had received warning notice from the Industrial Commission of the State of Utah for similar alleged violations on 8 prior separate occasions (Compl. Ex. 8-15).

CONCLUSIONS OF LAW

1. Respondent is and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (Facts, para. 1, 2).

2. Respondent is and was at all times herein mentioned, an employer within the meaning of Section 3(5) of the Act and subject to the provisions of Section 4(a) and 5(a) of the Act and standards promulgated under Section 6 thereof (Facts, para. 1, 2).

3. Respondent violated 29 CFR 1926.651(c) (Facts, para. 3, 4, 5).

4. The allowance of a 10% credit for good faith is not warranted and it should be disallowed (Facts, 7, 8).

5. The allowance of a 10% credit for prior history of violations is not warranted and it should be disallowed (Facts 9, 10).

ORDER

Based on the foregoing findings of fact and conclusions of [*19] law it is hereby adjudged and ordered that:

1. Citation number 1, item 1 for an other than serious violation of 29 CFR 1926.651(c) is affirmed.

2. The proposed civil penalty of $175 for the violation found in the preceding paragraph is vacated; in lieu thereof a civil penalty of $225 is assessed against Respondent.

SO ORDERED.