TOLER EXCAVATING COMPANY
OSHRC Docket No. 2637
Occupational Safety and Health Review Commission
July 29, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Donald K. Duvall, dated January 18, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision held that the respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with two occupational safety and health standards published as 29 C.F.R. § § 1903.2(a) and 1926.652(b). The Judge affirmed the former violation on the basis that it was admitted in the respondent's answer to the complaint. No penalty was assessed for that violation. The failure to comply with the trenching requirements of 29 C.F.R. § 1926.652(b) was charged as a willful violation pursuant to 29 U.S.C. § 666(a). The Judge reduced the characterization of this violation to serious as defined in 29 U.S.C. § 666(j) and assessed a penalty of $700.00 therefor. For reasons that follow, we affirm.
The citation for the trenching violation identifies the violation as being of the willful type. The complaint charges that this violation was in contravention of section 654(a)(2) and that the penalty was assessed pursuant to section 666(a).
The Judge correctly found that [*2] the evidence was insufficient to establish a willful violation. However, since neither the citation nor the complaint contained an averment concerning the seriousness of the alleged violation, review was directed on whether it was proper to affirm a violation of lesser magnitude under another section of the Act which was not mentioned in the charges against the respondent. See 29 U.S.C. § 666(b), (c), and (j).
29 U.S.C. § 654(a)(2) provides that "[e]ach employer . . . shall comply with occupational safety and health standards promulgated under this Act." When an employer fails to do so, he violates that provision of the Act.
In section 666, entitled "Penalties," the Act categorizes violations as willful, serious, and nonserious. n1 A civil penalty of not more than $10,000.00 "may be assessed" for a willful violation. 29 U.S.C. § 666(a). The Act further provides that a civil penalty up to $1,000.00 "shall be assessed" for a serious violation and that one up to the same amount "may be assessed" for a nonserious violation. 29 U.S.C. § 666(b) and (c).
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n1 This demonstrates that Congress intended that these terms be of primary significance on penalty matters and that the failure of a citation to so classify a violation would not in itself constitute a flaw so fatal as to invalidate the violation. See also Staff on the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 856 (Comm. Print 1971).
[*3]
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A willful violation is defined as an act or omission which occurs consciously, intentionally, deliberately, or voluntarily, as distinguished from accidentally. Secretary v. Intercounty Construction Corporation, 5 OSAHRC 782 (1973). To establish such a violation, the complainant must prove that the respondent had actual knowledge of the pertinent standard and of the noncompliance therewith. Secretary v. Frank Irey, Jr., Inc., 4 OSAHRC 1 (1973).
For a serious or nonserious violation, proof of actual or constructive knowledge of a violation is required. Secretary v. Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973). Additionally, a serious violation requires proof that there was a substantial probability that death or serious physical harm could result from the violation. 29 U.S.C. § 666(j). This requirement is not applicable to a nonserious violation nor to a willful violation which is not alleged to be serious.
In the instant case, the pleadings advised the respondent of the particular conduct that contravened a specifically enumerated standard. Furthermore, the [*4] complaint averred that the respondent had violated section 654(a)(2). This was sufficient to charge a violation of that section. However, if the complainant intended to proceed at the hearing on the basis that the violation was serious for penalty purposes, he should have indicated in the citation that the alleged willful violation was also considered to be serious. 29 U.S.C. § 666(b). This was necessary because of the added requirement to prove the requisite likelihood of death or serious injury to establish a serious violation. Without such an averment, the citation infers that the violation was the nonserious type because proof of a nonserious violation does not require proof of any matter beyond that required to establish a willful violation.
Therefore, when a respondent is charged only with a willful violation and the evidence establishes a violation which is not willful, a nonserious violation may be affirmed but, ordinarily, a serious violation may not be. n2 An exception to this rule exists when the issue of whether the violation is serious is tried by the express or implied consent of the parties. National Realty and Construction Co., Inc. v. OSAHRC, 489 [*5] F.2d 1257, 1264 (D.C. Cir. 1973); Fed. R. Civ. P. 15(b).
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n2 In Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973), and Secretary v. Portland Stevedore Co., 3 OSAHRC 1017 (1973), this Commission discussed the terms "serious" and "nonserious" in some detail.
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A review of the record in this case convinces us that this is a case where the question of the seriousness of the violation was tried by the implied consent of the parties. The case was tried throughout in a manner which shows that the respondent was fully aware that the complainant was litigating that question. The respondent made no objection thereto. To the contrary, in arguing that the complainant had failed to establish a prima facie case of willfulness, the respondent's attorney stated:
What the evidence, if believed, establishes, I submit, is a serious violation of the Act; that evidence does not rise to that required to establish a willful violation.
Similarly, in closing argument, he said the following:
We do . . . recognize [*6] that there is evidence sufficient to make out a prima facie case of a charge of a serious violation, the resolution of which would depend, of course, on the finder of fact's determination as to just what were the facts, what is to be believed and disbelieved.
Additionally, one witness for the complainant, without objection by the respondent, expressed the opinion that there was a substantial probability that death or serious physical harm could result from the failure to comply with the trenching standard. The facts underlying this opinion show that it is well-founded. The trench was 9 to 12 feet deep and was located in unstable soil. The sides thereof were almost vertical and were not shored, adequately sloped, or otherwise protected from collapsing. The possibility of trench collapse was increased by the storage of excavated material close to the edge on the side that collapsed. The operation of the backhoe on the other side of the trench added another stress factor. Failure to comply with the standard resulted in a cave-in that caused the death of one of the respondent's employees.
On the basis of the foregoing, the Judge's decision is affirmed.
CONCURBY: CLEARY
CONCUR:
[*7] CLEARY, COMMISSIONER, concurring: I concur with the lead opinion in so far as it concludes that a willful violation was not established and that a nonserious or serious violation can be affirmed when the serious nature of an alleged violation is not pleaded in the averments against a respondent. I also agree that a serious violation was tried by the consent of the parties and with the affirmance of a serious violation.
I disagree, however, with the lead opinion's definition of a willful violation and with its discussion of the elements of proof required for various types of violations. I have previously set forth my views on the question of employer knowledge of an alleged violation in several cases. See, e.g., D.R. Johnson Lumber Co., No. 3179 (April 25, 1975); Floyd S. Pike, Inc., No. 3069 (January 30, 1975); Whitcomb Logging Co., No. 1323 (December 18, 1974). I have recently expressed my opinion as to what constitutes a willful violation in Amulco Asphalt Company, No. 3258 (July 29, 1975). Considering the criteria set forth therein, I find that the evidence in the instant case is insufficient to establish that the violation was willful.
[The Judge's decision [*8] referred to herein follows]
DUVALL, JUDGE: This is a proceeding pursuant to Sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called "the Act") contesting a Citation and Notification of Proposed Penalty in the amount of $7,000 relating to an alleged willful violation of the Occupational Safety and Health Standard set forth at 29 CFR 1926.652(b), as adopted by 29 CFR 1910.12, under Sections 5(a)(2) and 6 of the Act. Complainant's Citation Number 1 issued to Respondent on March 20, 1973, on the basis of an inspection conducted on January 5, 1973, at Respondent's worksite, being a trenching operation in connection with installation of sewer pipe, located in Hickory Hills Vacation Community Route 940, Whitehaven, Pennsylvania, described the alleged violation as follows:
The sides of a trench, located in unstable material, at Hickory Hills Vacation Community, on Shadetree Road, near the intersection of Sunshine Road, five feet or more in depth, were not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within it on December 12, 1972.
The Citation [*9] Number 1 was contested by Respondent by letter of its counsel dated April 3, 1973. A Citation Number 2 was also issued on March 20, 1973, and contested by Respondent, but the single non-serious violation of 29 CFR 1903.2(a), (Failure to post OSHA notice) alleged in Citation Number 2 was admitted by Respondent in its answer to the complaint filed by Complainant (Finding of Fact 19).
A hearing in this matter was duly held at Scranton, Pennsylvania on July 17 and 18, 1973, before the undersigned Judge. Following the Complainant's presentation of its case in chief, Respondent's motion to dismiss was denied by the Judge. Thereafter, the parties submitted briefs with suggested findings of fact and conclusions of law.
To summarize the alleged essential facts of this matter, Complainant asserts that on December 14, 1972, (the parties stipulated at the hearing that this was the date of alleged violation, rather than December 12, 1972, as stated in the Citation) Mr. Toler, trading as Toler Excavating Company, with two employees (Mssrs. Zeiser and Kintz) dug a trench over five feet deep in unstable soil the sides of which were not properly sloped, shored, sheeted or braced or otherwise [*10] supported as required by the trench standard published at 29 CFR 1926.652(b). Complainant further contends this trench constituted a serious violation within the meaning of Section 17(k) of the Act because there was a substantial probability that death or serious physical harm could result from the condition of said trench, of which the employer (Mr. Toler) knew or, with the exercise of reasonable diligence, could have known.
Finally, Complainant contends that the condition of the trench constituted a willful violation within the meaning of Section 17(a) of the Act because Respondent's top management (Mr. Toler) knew or reasonably should have known of the trenching requirement under the Act and/or of the hazardous nature of the trench, recognized as such by the construction industry, despite which knowledge Respondent deliberately, intentionally and with careless disregard did not take reasonable action to correct said violation or hazardous condition, which resulted in the death by cave-in of employee Kintz.
By way of defense, Respondent claims that Mr. Toler had no actual or specific knowledge of the Act or the trench standard promulgated thereunder or of the alleged [*11] hazardous nature of the trench; that the trench in fact had some slope and was not deemed by him or his employees to be hazardous nor the soil to be unstable. While admitting that the trench might have constituted a technical serious violation of the Act (Respondent's Brief, p. 14). Respondent insists that there must be a conscious and knowing violation of the Act or standard promulgated thereunder to sustain a finding of willful violation.
The principal issues to be decided herein are (1) whether on December 14, 1972, Respondent violated the Occupational Safety and Health Standard on trenching, set forth at 29 CFR 1926.652(b), (2) whether said violation constituted a serious or willful violation within the meaning of Section 17 of the Act; and (3) whether the proposed penalty of $7,000 is appropriately to be assessed under Section 17 of the Act.
FINDINGS OF FACT
1. At all times relevant hereto, Respondent was engaged in the excavating business under the sole proprietorship of Earl Toler, trading as Toler Excavating Company, who maintained an office at his home at Palmerton, Pennsylvania on December 14, 1972. Respondent employed three persons: Stanley Berger, a bull dozer operator [*12] employed for 3 1/2 years by Respondent; Samuel Zeiser, a laborer, truck driver and sewer pipe layer, employed by Respondent for 3 1/2 years; William Kintz, Respondent's foreman and pipelayer who was employed by Respondent for approximately 10 months prior to his death in a trench accident on December 14, 1972.
2. Earl Toler, 30 years of age, married with two children, worked for another contractor as a laborer, including the laying of sewer pipe, from 1960 - 1966; became a contractor for himself in or about 1967 engaged in road building, cellar excavations, septic system work, and sewer installations (about 5% of total work on average per year) within a 50 mile radius of his home; and laid his first sewer pipe line in September, 1972, in Hickory Hills, Pennsylvania. In 1971, based on his federal tax returns Mr. Toler showed a loss of $4,269 in his excavating business, with a net worth of $30,000 based on the value of machines and equipment owned and encumbered. Tax returns for 1970 and 1972 showed losses of $6,568 and $3,577 for those years respectively. Mr. Toler is not bankrupt; his gross receipts for 1972, for example were $108,363, with a gross profit of $43,466. [*13]
3. Prior to December 14, 1972, Mr. Toler never received any communication concerning the Act, never attended any business, trade or other meetings concerning the Act, never discussed the Act with any other contractors in the area of his operations, and was not familiar with the Act or any regulations promulgated thereunder.
4. On December 4, 1972, Respondent and Vacation Construction Corporation were parties to a contract (Exhibit C-13) under which Respondent agreed to install central sanitary sewer lines (8 inch pipe) in Hickory Hills, White Haven, Pennsylvania in a good workmanlike manner, with payment based on linear foot of pipe laid and at what depth and with sewer pipe, Deere backhoe, steel cage and wood shoring supplied by Vacation Construction Corporation at its cost. Respondent guaranteed that installation would comply with all standards and requirements of Pennsylvania Department of Environmental Resources and standards and requirements of Sun Dance Valley, Inc. (owners of Hickory Hills) Sanitary Sewer Engineer. Tests conducted by Sun Dance Valley, Inc. Engineers, Department of Environmental Resources were to determine if standards and requirements were met and installation [*14] correct (Exhibit C-13).
5. Prior to December, 1972 an OSHA Poster received by Vacation Construction Corporation was posted in the office of its President, which office was visited by Mr. Toler a number of times prior to December, 1972.
6. Vacation Construction Corporation actually supplied Respondent with two steel cages, one of which was constructed in consultation with Mr. Toler, at a cost of $2,300 - $2,600.
7. At about 10:30 A.M. on December 14, 1972, Mr. Toler (operating the backhoe), and Respondent's employees William Kintz and Samuel Zeiser excavated a trench 12-15 feet long on the north side of a manhole, which trench was 14-15 feet wide at the manhole, proceeding northward to a width of 8-10 feet, with a depth of 9-10 feet. Then, Mr. Peduto and two other employees of Vacation Construction Corporation inserted a 3 foot length of sewer pipe in the manhole. In the area of the manhole the trench was sloped but not sheeted or shored. Thereafter, Mr. Toler (on the backhoe), Mr. Kintz and Mr. Zeiser (in the trench) laid a 12 foot length of pipe in connection with the 3 foot length joining the manhole and covered it with stone and dirt. Mr. Zeiser watched for [*15] cave-ins as Mr. Kintz covered the pipe with dirt using a shovel. When completed, Mr. Kintz joined Mr. Zeiser at the end of the trench, but then went back to retrieve his shovel at which time he was killed by a cave-in which occurred about 12 feet from the manhole. At that point, the trench was about 3 feet wide at the bottom and 6-8 feet wide at the top and was not sheeted, shored or braced. The west side of the trench was at the edge of a paved road. The backhoe tended to put stress on the top of the trench, especially if more than one pass was made in digging the trench, and the excavated dirt was piled close to the edge of the east side of the trench, adding to the instability of the soil to some degree.
8. The ground in which the trench was dug was unstable sandy clay with dirt and smaller rocks, but not frozen (stipulation).
9. On December 14, 1972, there were two steel cages (trench boxes) within 25-100 feet of the trench and at time of the accident Mr. Toler was instructing employee Stanley Berger to bring over the new cage for use. This cage was 20 feet long and required at least a 22 ft long trench in order to use it. The new cage, as well as sheeting and shoring [*16] had been previously used in trenching on this job.
10. Mr. Toler held safety meetings with his employees on at least 10 occasions between September and December, 1972, and prior to December 14, 1972 he told his employees to wear hard hats on the job, as required by State law, violations of which would result in fines for both employer and employees. Mr. Toler also criticized or corrected his employees on one or two occasions during a three month period for violation of his safety instructions or what he considered good safety practices.
11. On December 16, 1972, the trench was tape measured and found to be 6 feet wide at the top, 14 feet long, and approximately 12 feet deep at the point of the accident. There was no man-made change in the trench between December 14 and 16, 1972, but weather (cold and snowfall) and time (2 days) had resulted in a cave-in of part of the east side of the trench causing that side at that point to be tapered whereas the other side was vertical (Exhibits C-1, 2).
12. In his discussion with Compliance Officer Stanley on January 5, 1973, Mr. Toler stated that on December 14, 1972 the trench was not sloped, shored, sheeted or braced. The [*17] photographs of the trench taken by Mr. Stanley on January 5, 1973, tend to confirm the foregoing statement of Mr. Toler, despite substantial changes since December 14, 1972 due to weather conditions (Exhibits C-8, 11).
13. Immediately prior to the accident on December 14, 1972, the trench was a clear hazard and could have been recognized as such by someone in the construction industry, altho Mr. Toler, Mr. Zeiser and Mr. Berger considered the trench shored some and not hazardous at that time.
14. It was the alleged practice of Mr. Toler to shore a trench being dug over 3-6 feet deep.
15. While Mr. Toler said he understood the slope ratio 1 to 1, he did not give the correct slope for a trench 9 feet deep, nor did he know until after the accident that a permit for excavation was required in Pennsylvania.
16. In determining the proposed civil penalty in this matter, Complainant considered the gravity of the violation and the history, size and good faith of Respondent. The gravity of the violation was serious, Respondent had no previous violations under the Act, was very small in size, and had held safety meetings and followed some safety practices including prior use [*18] of steel cages, but did not have an effective safety program or cooperate fully with OSHA.
17. This matter may have been the first case in which the Philadelphia area director of OSHA assessed a penalty for willful violation, based on a determination that it was a serious violation in the presence of top management (Mr. Toler) who knew or should have known a hazardous condition existed and failed to take reasonable corrective action. The guidelines for willful violations has not yet been formulated by the national office of OSHA.
18. Respondent is an employer engaged in a business affecting commerce within the meaning of the Act (Respondent's Reply Brief, p. 1).
19. Respondent admits that it violated Section 8(c)(1) of the Act and the regulation promulgated thereunder, specifically, 29 CFR 1903.2(a) (Respondent's Answer, VIII, p. 2, Commission File, Item 7).
DISCUSSION
The principal issue in this case is whether Complainant has sustained its burden of proving that on December 14, 1972, Respondent willfully violated the Occupational Safety and Health Standard at 29 CFR 1926.252(b), as adopted by 29 CFR 1910.23 and promulgated under Sections 5(a)(2) and 6 of the Occupational [*19] Safety and Health Act of 1970.
A "willful" violation may exist under the Act where the evidence shows that the employer committed an intentional and knowing violation of the Act and the employer is conscious of the fact that what he is doing constitutes a violation of the Act, or even though the employer was not consciously violating the Act, he was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition. Secretary of Labor v. Frank Irey, Jr., Inc.,
Conduct may be deemed willful in the civil sense if it was intentional, knowing or voluntary as distinguished from accidental, and it may be characterized as conduct marked by careless disregard. Secretary of Labor v. Wetmore and Parman, Inc.,