HOROWITZ BROS., INC.

OSHRC Docket No. 3004

Occupational Safety and Health Review Commission

April 30, 1975

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The issue in this matter is whether the administrative law judge erred by finding Respondent (Horowitz) in serious violation of section 5(a)(2) of the Occupational Safety and Health Act (29 U.S.C. 651 et seq. ) because it failed to slope or shore the sidewalls of a trench.

It arose on the Secretary's citation and complaint charging Horowitz with having violated "29 C.F.R. 1926.652(c) in that the sides of a trench more than five feet in depth and more than eight feet in length were not shored or otherwise supported or sloped to prevent collapse." At trial the parties stipulated as follows: "Respondent admits the operative facts as pleaded by the Secretary, but the Respondent does not admit that there was a violation."

The evidence is that Horowitz was laying water pipe in a trench. The trench was 88 feet long and 5 feet 8 inches to 6 feet 2 inches in depth. It was 3 feet wide at the bottom and 7 feet wide at the top. It had been dug in soil characterized as "a type of bank run, a combination of sand and gravel."

Horowitz moved for dismissal of the citation after the Secretary concluded [*2] his case. It was argued that the Secretary had failed to prove a violation because he had not shown that the soil was hard and compact. The hearing judge took the motion under advisement whereupon Horowitz rested.

Thereafter the judge rendered his decision. He noted that there was no evidence of record that establishes the soil as being hard and compact. But, said he, the Secretary was not required to submit such proof because of the stipulation.

We do not agree. According to the stipulation, Horowitz admitted the operative facts as pleaded. The only such facts pleaded were that the trench was more than 5 feet deep, more than 8 feet long; it was not shored or otherwise supported or sloped to prevent collapse. Operative facts concerning the nature of the soil were neither pleaded nor proved. This is an essential part of the Secretary's prima facie case and his failure to address the issue is fatal. To determine the degree to which the sidewalls of a trench should be sloped can only be accomplished by knowing the nature of the soil. *

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* See 29 C.F.R. 1926.652, Table P-1.

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Even without this fatal flaw, which is sufficient in and of itself to support vacating the citation, the Secretary has failed to sustain his burden of proof. Let us assume, as the Secretary insists, that the trench was dug in hard or compact soil. The cited standard, as pertinent here, provides:

Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5 foot level, may be sloped to preclude collapse, but shall not be steeper than a 1 foot rise to each 1/2 foot horizontal. (Emphasis supplied.)

As is evident from the plain words of the standard, trenches in hard or compact soil need only be sloped "above the 5 foot level." That is, the walls may be vertical for the bottom 5 feet of the trench. Sloping above the 5 foot level in such trenches is to be not less than 1/2 foot horizontal for each foot of rise.

In this case the Secretary's representative thought the width at the top of the trench should be 9 feet, and it was for [*4] this reason he believed a violation existed. Since the trench was 3 feet wide at the bottom and since he used an average height of 6 feet, he must have arrived at his top dimension of 9 feet by calculating the sloping need from the bottom of the trench. But, according to the standard, the calculation is to be made from the 5 foot level. On this basis a trench 3 feet wide and 6 feet deep in hard or compact soil must be 4 feet wide at the 6 foot level, i.e., it must be sloped 6 inches to the side for the first foot above the 5 foot level. The parties agree that Horowitz's trench was 7 feet wide at the top, i.e., 3 feet wider than is required by the standard. In the circumstances, the Secretary has failed to prove a violation.

Accordingly, the judge's decision is rejected insofar as it affirms the citation for serious violation of 29 C.F.R. 1926.652(c) and assesses a penalty therefor, the said citation is vacated for the reasons assigned herein, and the remaining portion of the judge's decision is affirmed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case because the slope of Horowitz's trench conformed [*5] to the requirements of section 1926.652(c).

I dissociate myself, however, from the discussion of the asserted inadequacy of the Secretary's pleading concerning the nature of the soil.

The adequacy of notice to the parties is what is important. See 1 K. Davis, Administrative Law Treatise, 8.04 (1958). Here, the issue of whether the soil was hard or compact was clearly tried. There was no problem of notice to respondent. Respondent's attorney cross-examined the Secretary's only witness on this issue.

[The Judge's decision referred to herein follows]

CHODES, 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), in which the Respondent is contesting two Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The Citations allege that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at the Woodgate Housing Development, Holbrook, New York, the Respondent is alleged to have violated Section 5(a)(2) of the Act by failing to comply with [*6] certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations, which were issued on May 4, 1973, allege that the violations resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR Part 1926. The standards prescribed by Part 1926 were adopted as occupational safety and health standards under the Act at 29 CFR 1910.12.

Specifically, the Respondent was charged with serious violation of the standard set forth at 29 CFR 1926.652(c) which provides, in pertinent part, as follows:

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal.

and with the nonserious violations of 29 CFR 1926.450(b)(12) and 29 CFR 1926.65(i)(1) which, respectively, provide:

(12) Cleats shall be inset into the edges of the side rails one-half inch, [*7] or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, and 12 inches top-to-top.

and

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 4, 1973, from J. Epps, Area Director of the Garden City, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty of $600 for the serious violation, no penalty for violation of 29 CFR 1926.450(b)(12) and a proposed penalty of $30 for violation of 29 CFR 1926.651(i)(1).

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York on September 11, 1973.

STIPULATIONS

1. The Respondent, Horowitz Bros., Inc., is a New York corporation with its principal office and place of business [*8] at Robbins Lane, Syosset, New York.

2. Respondent is engaged primarily in the plumbing, heating, ventilating and air-conditioning business and does business in New York, New Jersey and Pennsylvania.

3. The net worth of the Respondent at the end of the year immediately preceding the year in which the Citation was issued was 2.3 million dollars and the annual dollar volume of business during the same period was 8.5 million dollars.

4. The average number of employees of the Respondent over a period of a year is between 150 and 200; at the site where the alleged violations occurred there were seven employees of the Respondent, but only two were exposed to the hazards of the alleged violations.

5. The Respondent was in control of the trench at the workplace involved herein, there were no injuries or deaths at the workplace, and the inspection did not result from an employee complaint.

6. There is no previous history of a violation in New York State of any Occupational Safety and Health Administration standards, but Respondent was cited in another State for non-serious violation which did not involve trenching.

7. Respondent posted in an appropriate place all required [*9] documents, including the Notice of Hearing.

8. Respondent withdraws its Notice of Contest insofar as the nonserious violations of 29 CFR 1926.450(b)(12) and 29 CFR 1926.651(i)(1) are concerned.

9. With respect to the alleged serious violation of 29 CFR 1926.652(c) the Respondent admits the operative facts as pleaded by the Complainant, but Respondent does not admit that there was a violation of the standard. Further if there was a violation of the standard, the Respondent does not admit that the violation was serious or that the penalty imposed was appropriate.

AMENDMENT TO CITATION

At the request of the Complainant to which the Respondent did not object, item 2 of the Citation for nonserious violations is amended to reflect an alleged violation of 29 CFR 1926.651(i)(1).

RESPONDENT'S REQUEST FOR WITHDRAWAL

Respondent has requested that its Notice of Contest relating to the two alleged nonserious violations of 29 CFR 1926.450(b)(12) and 29 CFR 1926.651(i)(1) be withdrawn. The record shows that the violations have been abated, the Respondent offered to pay the proposed penalty of $30 and has agreed to comply in the future with the provisions of the Occupational Safety [*10] and Health Act of 1970. The Complainant has no objection to the withdrawal. Accordingly, the request for withdrawal will be granted and the Citation and proposed penalty affirmed.

SUMMARY OF EVIDENCE

On May 1, 1973, Leonard A. Cobb, a Compliance Officer employed by the Complainant, made an inspection of the workplace referred to above under "Statement of the Case." He contacted Anthony Oddo, who was in charge of the work for the Respondent, showed him his credentials, and gave him copies of a pertinent part of the Federal Register, the Occupational Safety and Health Act of 1970, and a reference guide to the Act and record keeping.

The Respondent was engaged in laying water pipes in a trench which was being dug by a back hoe. As Mr. Cobb started his inspection Mr. Oddo came on the scene and they measured the trench which was found to be 88 feet long and 5 feet 8 inches in depth. The trench was about 3 feet wide at the bottom and 7 feet wide at the top. The soil was typical of the area and called a type of bank run, a combination of sand and gravel. A sample of the soil was taken and admitted in evidence as Exhibit C-3. Two of Respondent's employees were working in the trench, [*11] sometimes in an erect position and sometimes in a crouch.

Mr. Cobb considered the unshored trench a serious violation because, if a cave-in occurred, it could result in serious injury or possibly death. The type of soil involved in the instant case, which exists all along Long Island, has a foot of hard soil, or silt, sometimes called loam, at the top, whereas the soil at the bottom is different and can give way which can result in large slabs coming down from the top. Even though the trench was only about 6 feet deep, an employee could be seriously hurt or killed because he might be working in a crouching position when the slide occurs. Mr. Cobb recommended a proposed unadjusted penalty of $1,000. A deduction of 20% was allowed for the Respondent's past history as they had been cited only once and the Citation was not for a trenching violation. An additional allowance of 20% was made for good faith on the basis that Respondent sent its employees to OSHA school, they had a formal training program, their employees wore hard hats and there was a ladder in the trench where the employees were working. No allowance was made for the size of Respondent's business inasmuch [*12] as they had more than a hundred employees. The final proposed penalty recommended by Mr. Cobb was $600 and this was accepted by the Complainant's regional director. (Exhibit R-1)

DISCUSSION OF ALLEGED VIOLATION OF 29 CFR 1926.652(c)

Respondent contends in its memorandum, submitted after the hearing, that the evidence did not establish that the trench was in hard or compact soil as stated in the standard. Hard compact soil is defined in 29 CFR 1926.653(h) as "All earth materials not classified as running or unstable." There is no evidence that the soil involved herein was running or unstable. The Compliance Officer testified that the top soil was hard and that for the most part the soil was compact. The sample of soil admitted in evidence as C-3 appears to be loose sand and small stones, but this could be due to a drying process over the period of time since the sample was taken. Moreover, Respondent's position overlooks Stipulation No. 9 whereby it has admitted the operative facts as pleaded in the Citation and Complaint. The facts pleaded by the Complainant, that the trench was not shored or otherwise supported or sloped to prevent collapse, refers to 29 CFR 1926.652(c) [*13] which relates to trenches in "hard or compact soil." In view of the stipulation, the Complainant was not required to submit evidence in support of the facts upon which the Citation and Complaint were based.

Respondent also argues that the Citation should be dismissed because the Compliance Officer failed to present his credentials to the Respondent before conducting his inspection, contrary to the provisions of Section 8(a) of the Act which provides

SEC. 8. (a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent [*14] or employee.

The evidence in the case does not support the Respondent's position, since the Compliance Officer testified without contradiction that he showed his credentials to the Respondent's supervisor, Mr. Oddo, when he came onto the workplace and that later, when he was inspecting the actual work site, Mr. Oddo was present.

Respondent disagrees with the characterization of the violation of the standard as "serious." Section 17(k) of the Act defines a serious violation as follows:

For purposes of this section, 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 Compliance Officer testified that if a cave-in occurred, it could result in serious injury or possibly death. The existence of the violation was known to the person in charge of the job for the Respondent. The elements [*15] of a serious violation have been established.

The Respondent contends that the amount of the proposed penalty is excessive. The criteria for assessing penalties is set forth in Section 17(j) of the Act which provides:

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.

The Compliance Officer allowed the Respondent the maximum permitted by the Complainant's guidelines for good faith and history of prior violations and the undersigned is in accord. No credit was given for size as the Respondent's business is substantial. However, the gravity of the violation is not considered to warrant a penalty of $600 when account is taken of the mumber of employees exposed to the violation, the degree of probability of an accident, and the severity of any resulting injury. The number of employees exposed was only two. The probability of an accident occurring is considered low as the depth of the trench was [*16] less than a foot above the minimum of 5 feet set by the standard. Moreover the trench was sloped, albeit not to the extent that it complied with the standard. While it is always possible that a severe injury or death could result from a cave-in, in view of the depth of the trench, the probability of severe injury occurring under the circumstances is relatively low. Under all the circumstances, it is believed that a penalty of $300 would be appropriate.

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:

1. Paragraph 1 through 9 of the Stipulations are incorporated herein as findings of fact.

2. On May 4, 1973, the Complainant issued to the Respondent a Citation for violation of the standard set forth at 29 CFR 1926.652(c) for failure to shore or otherwise support the sides of a trench more than 5 feet in depth and 8 feet in length at the Woodgate Housing Development, Holbrook, new York.

3. On May [*17] 4, 1973, the Respondent was notified by the Complainant of a proposed penalty of $600 for the violation of the standard referred to in paragraph (2) above.

4. On May 16, 1973, the Respondent filed with the Complainant a notice of its intention to contest the Citation and proposed penalty referred to in paragraphs (2) and (3) above.

5. On May 1, 1973, two employees of the Respondent were working in a trench in hard and compact soil, 88 feet long and 5 feet 8 inches deep at the worksite referred to in paragraph (2) above, thereby exposing the employees to the hazard of suffering serious physical harm or death from a cave-in of the sides of the trench.

6. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the appropriate penalty for violation of 29 CFR 1926.652(c) described in paragraph (5) above is $300.

CONCLUSIONS OF LAW

1. The Respondent at all times material hereto was engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent at all times material hereto was [*18] subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the Occupational Safety and Health standard set forth at 29 CFR 1926.652(c) and is assessed a penalty of $300.

4. The granting of the Respondent's request to withdraw its Notice of Contest with respect to the alleged nonserious violations of 29 CFR 1926.450(b)(12) and 29 CFR 1926.651(i)(1) is considered to be consistent with the provisions of the Occupational Safety and Health Act of 1970.

ORDER

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

1. The Citation issued on May 4, 1973, for violation of 29 CFR 1926.652(c) is affirmed and the penalty proposed by the Complainant is modified and a penalty of $300 is assessed.

2. The Respondent's request to withdraw its Notice of Contest of the alleged violations of 29 CFR 1926.450(b)(12) and 29 CFR 1926.651(i)(1) is hereby granted and the Citation and proposed penalty of $30 are hereby affirmed.