FRANCIS E. FIGLEY

OSHRC Docket No. 3366

Occupational Safety and Health Review Commission

July 29, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Charles K. Chaplin, dated March 5, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The members of the Commission are equally divided on whether the Judge correctly disposed of this case by vacating the two alleged violations.

Chairman Moran would affirm for the reasons given in the Judge's opinion.

Commissioner Cleary would reverse the Judge and affirm a serious violation of 29 C.F.R. 1926.652(c). The upper five to seven feet of the trench were located in hard, compact soil and were not shored, otherwise supported, or properly sloped. Commissioner Cleary concludes that the standard therefore requires that all hard and compact soil above the lowest five feet of a trench must be shored, otherwise supported, or sloped. In concluding differently upon finding no hazard, the Judge substituted his judgment for that of the standard [*2] -- something he cannot do. Budd Co., 7 OSAHRC 160 (1974).

Commissioner Cleary would also reverse the Judge and affirm a nonserious violation of 29 C.F.R. 1926.200(g)(1) because the Judge erred in considering the validity of a standard. But assuming such authority, he would conclude that the standard satisfies constitutional requirements. In his opinion, the standard is general but not excessively vague. A reasonably prudent employer should have been aware that an excavation 10 feet away from a heavily traveled highway, adjacent to a large parking lot, and not separated from the highway by a substantial barrier, created a "hazard" which required the use of traffic signs under the standard. See McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974).

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: This is a proceeding pursuant to Section 659 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter the Act), wherein [*3] Respondent contests the Citation for both the alleged serious and nonserious violations. These Citations dated May 31, 1973, were based on an inspection conducted May 11, 1973.

The alleged serious and nonserious violations were cited as follows:

Standard, regulation

or section of the Act

Description of alleged violation

allegedly violated

29 C.F.R. 1926.652(c)

On May 11, 1973, the sides of the trench in

as adopted by 29

hard or compact soil located adjacent to Holy

C.F.R. 1910.12

Trinity Church and School on Route #22 and

30 in Robinson Township were not shored or

otherwise supported. In lieu of shoring, the

sides of the trench above the five (5) foot level

were not sloped at least 1/2 foot on the

horizontal for every one (1) foot rise to

preclude collapse.

29 C.F.R. 1926.200

On May 11, 1973, the construction area

(g)(1) as adopted by

(Trench) bordering [sic] Route #22 and 30,

29 C.F.R. 1910.12

Robinson Township, was not posted with legi-

ble traffic signs in the area of hazard.

The standard at 29 C.F.R. 1926.652(c) provides:

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than [*4] 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. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

and the standard at 29 CFR 1926.200(g)(1) provides:

(g) Traffic signs. (1) Construction areas shall be posted with legible traffic signs at points of hazards.

Penalties of $600 and $60 were proposed.

In its answer to the Complaint, Respondent admitted that this Commission had jurisdiction over the proceeding, that Respondent was engaged in a business affecting interstate commerce, had employees subject to the Act and on the date of inspection had three employees at the inspection site. It was stipulated Respondent had an average of eight employees and an average yearly gross income of $150,000.

THE EVIDENCE

The Secretary offered the testimony of its Compliance Officer, Mr. Hiland Edward Moore, who testified that he performed the inspection on May 11, 1973. He described this as a random inspection in that while [*5] he was driving to the airport he observed a back hoe on the highway. He pulled off the road into a parking lot and saw an excavation (trench). Upon looking into the excavation he observed it was a pipe tunneling operation under the road. He made measurements of the trench and took photographs and then resumed his journey, since there were no workmen in the area. On his return he stopped at the site again. He described the trench as being approximately 22 feet deep and 6 feet wide at the bottom. Sixteen feet from the bottom the sides were benched back approximately 2 feet. The width at the top was approximately 12 feet (exhibit C-4). The trench walls were all vertical. The trench was about 10 feet back from the road. There were no road signs and between the trench and the road there was a snow fence, partially knocked over. He described the soil as hard compacted soil containing some shale. There were sections of soil which appeared to have caved in (he indicated this was the soil shown by the ladder in exhibit C-4). He described the hazard from the lack of a sign as that a motorist could pull into the parking lot where the trench was and, not observing it, drive into [*6] it. He considered the alleged trenching violation to be serious because of the depth of the trench and possibility of a cave in with resulting death to anyone in the trench.

On cross-examination, Mr. Moore explained with regard to the alleged nonserious violation that a highway warning sign should be placed about 200 feet down the highway in a situation similar to the inspection site and that such a sign is always required when working adjacent to a highway and within 10 feet there is no judgment involved, it is a hazard. He conceded that the soil he felt had caved in may have represented earth removed by the auger in boring under the highway.

The Secretary offered the testimony of Mr. Lloyd Prado, an inspector for the consulting engineer charged with seeing that the job was performed properly. He testified he visited the site in issue every day, that the trench was never shored and the soil was hard clay with a 1-1/2 foot ledge of rock about 10 feet down and under the rock the ground was looser. He agreed with the dimensions as stated by Mr. Moore. On cross-examination he testified that the trench was benched at the ledge of rock and the bench was about 2 feet wide. [*7] From the bench the trench was "V'd" to a certain extent from the movement of the 2 foot bucket of the back hoe. Further that the bench was 5 to 7 feet below ground. On redirect he testified the slope or angle was 7 to 12 inches. Below the bench the trench walls were straight up and down. On recross-examination he identified the back hoe as belonging to another contractor.

With respect to the penalty, Mr. James W. Stanley, Assistant to the Area Director, United States Department of Labor, testified that in computing the penalty Respondent was credited with the maximum reduction in penalty based on its history (20%), and size (10%) and for good faith a deduction of 10% out of 20%. Since the allowable penalty was $1,000, there was a 40% or $400 reduction to $600. In evaluating the other alleged violation elements of the hazard were considered under a formula which indicated that a maximum proposed penalty of $200 was appropriate. Applying the same percentage reductions (40%) the adjusted penalty was $120 and a further reduction was made based on Respondent's abating the condition, resulting in a proposed penalty of $60.

Respondent's owner, Mr. Francis E. Figley testified that [*8] there were three contractors handling this project and that he made the boring for all three, 80 bores in all. He stated that at the trench in question, the first 5 to 7 feet were composed of clay or hard pan and then they hit rock at about 8 feet. From then on ". . . it was consistent from there to the bottom. As to hard rock and tight shale there was no rock and shale in the whole excavation." In the front of the excavation a new sewer line had been installed so that there was disturbed earth and here the trench sides were angled back. He described the difficulty experienced in digging the trench, the fact that it took three days to dig rather than the normal five hours, the fact that although he is licensed to dynamite it was decided not to blast because the undisturbed earth provided perfect shoring which would not be the case if they blasted. With respect to the nonserious violation he pointed to a flasher shown on exhibit C-4 behind the snow fence.

He testified further of the steps he had taken to insure safety in his operations including the development of a trench box for which a patent had been applied. He described over three years of work experience in [*9] the area in question and his experience of the subsurface rock and soil conditions. Further he testified he had 50 trench shores which he used in trenches.

On cross-examination he described the soil conditions as hard earth mixed with boulders, 3 or 4 feet of solid rock and the remainder tight shale and rock. He described the site in question as an excavation and not a trench. He said it was 6-8 feet in width at the bottom and 30-31 feet long. However, at the bore face (part of the excavation parallel to the road) it was 30 feet wide at the top.

Mr. Kenneth Doran, Respondent's on site foreman, testified he had six years of experience in the work he was doing for Respondent. He described the excavation as being 7 feet wide at the bottom, that it angled back to 15 feet at the bench and about 20 feet at the surface. He described how the face of the excavation was dug out where the previous ditch had been. He stated his work in the hole had been completed in the morning and the snow fence had been dropped (Ex. C-4) to permit the back hoe to come in and lift out the auger. He also indicated there were more than one blinker light and they were fastened to the snow fence.

FINDINGS [*10] OF FACT

1. The Respondent is a contractor engaged in the business of installing underground pipe and on the date of inspection was boring a hole under a roadway, from a trench, for the purpose of running a sewer line to a property on the other side of the road.

2. The work is accomplished by digging an excavation or trench of sufficient depth and width to accommodate the boring or augering machine at the level of the sewer. In this case the depth was approximately 22 feet and length 30 feet. At the bottom the working area was 6 feet. The sides rose vertically 14-15 feet and then there was a 2 foot bench on each side and 7-8 feet to the ground level. At the end of the earth opening near the road, described as the face where the boring took place, was an area where the sewer line had already been laid and because of the disturbed earth, the sides had been sloped back so that the opening was 30 feet wide at this point. (This is well illustrated in exhibits C-4 and C-6.)

3. No soil analysis was done and the best description of the soil from the entire record is that it was hard, compacted soil for the first 5-7 feet when a 3-4 foot shelf of solid rock was present [*11] and below that was solid shale.

4. There were flasher lights between the ground opening and the road, 10 feet away.

DISCUSSION

The testimony respecting dimensions was that they were not taken with exactness, however, for our purpose all parties are in essential agreement on the approximate dimensions. However, the Compliance Officer should have become more knowledgeable about what was happening and what he saw. It is only when we get the testimony of Respondent, in part verified by government's exhibits, that a clear picture emerges of the shape of the excavation or trench and the composition of the soil. When I look at the background and experience of the witnesses I cannot ignore the wealth of practical experience of Respondent in digging in the area of this particular earth opening and considering the extensive means available to him for employee protection, I can see no hazard to his men here because of the benching and the rock and shale below the bench.

With respect to the nonserious violation, I do not see how a reasonable man can make any logical deduction of what to do from a reading of the standard when applied to facts such as we have. The standard simply [*12] requires traffic signs at construction areas where there are points of hazard. It is only because this particular Compliance Officer made this inspection that we have a violation charged at all, since he considered any construction within 10 feet of the road to require a sign. The standard is so vague that no employer, not working directly on the road, can be expected to know at what point he must erect signs. In view of this decision there is no need to discuss the testimony that in fact blinkers were out as verified by the government's own exhibit.

CONCLUSIONS OF LAW

1. Respondent, at all times material hereto, was an employer within the meaning of the term in the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter under Section 10 of the Act.

3. Respondent was not in violation of 29 CFR 1926.652(c).

4. As to the factual situation involved here the standard at 29 CFR 1926.200(g)(1) is vague.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, it is hereby ORDERED that:

1. The Citations for serious and other than serious violations dated May 31, 1973 and proposed [*13] penalty in combination of $660 are vacated.