TRI-COUNTY CONSTRUCTORS, INC.

OSHRC Docket Nos. 3427; 3568 (consolidated)

Occupational Safety and Health Review Commission

October 9, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Joseph L. Chalk, dated January 25, 1974, is before this Commission for review pursuant to 29 U.S.C. 665(i). Except for the amount of the penalty assessed for the failure to comply with an occupational safety standard published as 29 C.F.R. 1926.652(b), that decision is affirmed.

The penalty in issue was assessed for the respondent's failure to support or shore a trench as required by the above-cited standard. The complainant proposed a penalty of $600.00 for this violation. The Judge, however, assessed a $1,000.00 penalty.

Review was directed on whether the Judge erred in assessing a penalty greater than that proposed by the complainant. We do not reach that issue in this case on that basis, however, because consideration of the complete record convinces us that the penalty proposed by the complainant is appropriate. Considering the circumstances presented on this record and giving due consideration to the factors enumerated in 29 U.S.C. 661(i), we therefore affirm a penalty in that amount.

The trench was about 18 feet deep. It was four [*2] feet wide at the bottom from which the sides rose vertically to a height of about eight feet. Thereafter, it was sloped outward to a width of 25 feet at its mouth. The respondent's foreman testified that the sides were sloped rather than shored "because the rainy season was coming up, and shoring tends to get loose in the trench and they fall."

There was no evidence of a laboratory soil analysis, and the opinion of the witnesses varied in regard to the composition of the soil, ranging from sandy and soft to well-compacted silty clay. They also disagreed as to the degree of danger to exposed employees. The sides of the trench had withstood heavy rains for approximately two months without difficulty. There was no evidence that the soil had been sloughing off from the sides of the trench. A ladder was located in the trench for egress therefrom by the workers.

Although the Commission has previously held that "a particular violation may be so grave as to warrant the assessment of the maximum penalty, even though the employer may rate perfect marks on the other three criteria," n1 the above facts convince us that this is not such a case. Furthermore, those facts and three [*3] pictures of the trench depict a violation that does not reach the highest level of gravity.

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n1 Secretary v. Nacirema Operating Co., Inc.,

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The respondent normally employed about 150 workers, 15 to 20 of whom worked at the worksite where the violation occurred. The respondent had an average safety program, and it had no prior history of other violations. The respondent's vice-president testified that the respondent "never had any trouble with trenches collapsing."

Considering all of the above, we conclude that the $600.00 penalty proposed by the complainant for noncompliance with 29 C.F.R. 1926.652(b) was appropriate and assess a penalty therefor in that amount.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent from the assessment of a penalty of $600 for the failure to comply with the trenching standard involved. A penalty in this amount was initially proposed by the Area Director in his notice of proposed penalties. In his proposed findings and conclusions, [*4] however, the Secretary urged before the Administrative Law Judge that a higher penalty in the amount of $700 be assessed because the Area Director made a mistake in applying the Secretary's formula for the computation for a proposed penalty. The Administrative Law Judge considered the hazard created by the violation to be "much more serious,' than did the Secretary. He concluded that a penalty in the amount of $1,000 was appropriate. The findings and conclusions of an Administrative Law Judge are not "sacrosanct" and are not necessarily binding on us. Adolph Coors Co. v. FTC, 35 Pike & Fischer Ad. L. 2d 174 (10th Cir. June 4, 1974). Nevertheless, they are not without significance because it is he "who had observed the witnesses and lived with the case." Universal Camera v. N.L.R.B., 340 U.S. 474, 496 (1951).

I agree with the Judge and adopt his reasoning for a penalty in the amount of $1,000, the maximum statutory penalty for a serious violation. The photograph in Exhibit C-2 is particularly convincing, and is worth many words in describing the high gravity of the violation.

There was, until recently, some difference of judicial opinion concerning [*5] the power of the Commission to assess a penalty in an amount greater than that initially proposed by the Secretary. In Dale M. Madden Constr. Co. v. Hodgson & O.S.H.R.C., No. 72-1872 (July 29, 1974), reh. denied, October 1, 1974, the Ninth Circuit expressed dicta to the effect that nothing in the Act seemed to allow an increase in proposed penalties. On October 1, 1974, the Ninth Circuit issued an order deleting this language from its opinion in Madden. The Second Circuit expressed approbation of a penalty increase in REA Express Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974).

REA Express and the recent action of the Ninth Circuit are consistent with the basic concept that, when an employer contests a penalty, he puts in issue its appropriateness in a de novo proceeding. Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under Interstate Glass Co., the Secretary's proposal has only advisory effect after the contest.

From its early days, this Commission has consistently recognized that the penalties that it finds appropriate may well exceed those initially proposed by the Secretary; e.g. Hidden Valley [*6] Corp., No. 11 (February 8, 1972); Baltz Brothers Packing Co., No. 91 (February 8, 1973); Dreher Pickle Co., No. 48 (February 13, 1973); Tacoma Boatbuilding Co., Inc., No. 6 (August 31, 1973); California Stevedore & Ballast Co., No. 14 (September 4, 1973), appeal docketed, 9th Cir. No. 73-3103; Dixie Electric, No. 1345 (November 14, 1973); and Lipsky & Rosenthal, No. 690 (May 13, 1974

[The Judge's decision referred to herein follows]

CHALK, JUDGE: Respondent's worksite at Marsh Creek State Park located at Uwchlan, Pennsylvania, was inspected on April 18, 1973 and again on May 22, 1973, by a Department of Labor compliance officer. As a result of the April 18th inspection, two Citations for Serious Violations of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), each alleging one such violation, and Notification of Proposed Penalty were issued against Respondent on May 2, 1973 (Docket 3427). n1 Respondent duly contested these Citations and the proposed penalties on June 15, 1973. n2 As a result of the May 22nd inspection, a Citation alleging two nonserious violations of Section 5(a)(2) of the Act and [*7] a Notification of Proposed Penalty were issued against Respondent on June 4, 1973 (Docket #3568). On June 26, 1973, Respondent duly contested item number one of this Citation and the penalty proposed therefor.

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n1 A Citation alleging three nonserious violations of the Act was also issued on the same date; however, Respondent did not contest this Citation or the related penalty proposed in connection with said Citation.

n2 The record reflects that the Notification of Proposed Penalty was not received by Respondent until after June 1, 1973 (Tr. 5, 6, 7, 8, 100, 101, 102).

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The contested portions of the Citations in question reflect the following:

DOCKET NUMBER 3427

Citation No. -- Standard -- Description of Alleged Violation

1 -- 29 CFR 1926.652(b) -- On April 18, 1973, the sides of the trench, located at manhole #20, in an unstable material, five feet or more in depth, were not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employee working within.

2 -- 29 [*8] CFR 1926.651(c) -- On April 18, 1973, the wall and faces of an excavation, located at manhole #18, in which employees were exposed to danger from moving ground, were not guarded by a shoring system, sloping of the ground, or some other equivalent means.

DOCKET NUMBER 3568

Item Number -- Standard -- Description of Alleged Violation

1 -- 29 CFR 1926.652(b) -- On May 22, 1973, the sides of the trench located at manhole #18-D Marsh Creek State Park, in unstable material 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.

The Secretary proposed penalties of $600.00 each for the two serious charges and $100.000 for the nonserious charge.

The provisions of the two standards involved in the charges are as follows:

29 CFR 1926.652(b) -- Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (b) of this section).

29 CFR 1926.651(c) -- The walls and faces of all [*9] 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.

I

At the hearing, the parties stipulated that Respondent's annual sales amounted to approximately $2,500,00, that Respondent used materials at the worksite received from out of state, and that Respondent had approximately one hundred fifty employees, fifteen or twenty of whom were employed at the worksite in question.

April 18, 1973 Inspection

Exhibits C-1 through C-6 are photographs taken either by the compliance officer or a state inspector accompanying him during the inspection. Exhibits C-1 through C-3 relate to manhole number 20, whereas Exhibits C-4 through C-6 relate to manhole number 18. Exhibit C-2 shows one of Respondent's employees working in manhole number 20, and Exhibits C-4 and C-5 show two other of Respondent's employees working in manhole number 18. Both the photographs and the testimony of the compliance officer establish that neither manhole was supported by shoring, sheeting or bracing.

According to the compliance officer, the soil in the trench designated as manhole number 20 consisted [*10] of sandy material that was soft, loose and tended to crumble. The trench itself was eighteen feet four inches deep, twenty-five feet wide at the top, and four feet wide at the bottom. The bottom eight feet of this trench had walls that were verticle, whereas the portion of the walls above the bottom eight foot level were sloped. The verticle portion of the bottom of this trench was measured with a tape by Respondent's foreman and another of Respondent's employees.

The compliance officer testified that the soil in the excavation designated as manhole number 18 consisted of loose material containing some rock. This excavation, the walls of which were just about verticle, was about seventeen feet wide at the top, and about thirteen feet deep. Its width at the bottom varied from about four and one-half to about twelve feet. There was also water in the bottom of this excavation that came from an underground spring. In addition to this testimony, Exhibit C-4 shows that one of the employees working in this manhole was standing in mud at least above his ankles if not almost midway to his knees.

The testimony of a state inspector, present during the inspection, regarding both manholes [*11] was essentially the same as that of the compliance officer. He did not enter either manhole because he felt that both were "extremely dangerous" (Tr. 66, 68). In his opinion the soil in both was unstable and would slide.

Another state inspector, who had worked full time at the site for three and one-half years and who was present during the inspection, confirmed the statements of the other two witnesses for the Secretary. Most of the soil in the area, according to this witness, consisted of sandy silt loam with rock; and there were many springs in the area. He, too, would not enter either manhole because he believed them to be unsafe.

Respondent's vice-president, who was not present during the inspection, testified that manhole number 20 consisted of silty clay material that was well compacted. The trench had been open for several months and had withstood much rain without caving in. Its top width measured twenty-nine feet and its bottom thirty-three inches. He believed that manhole number 20 was properly sloped and that both manholes were safe in light of their soil condition.

Respondent's foreman, who was present during the inspection, reiterated much of what [*12] the vice-president stated. He classified the soil in the area as "hard compacted clay and sand" (Tr. 139). He always sloped the sides of trenches that were not in solid rock because he believed that such practice was safer than shoring, "mostly because of the rainy season . . . coming up" (Tr. 139). He did not believe that the verticle walls in either manhold would exceed his height, five feet four inches. He accordingly believed that Exhibit C-2 showing an employee bending over in the bottom of manhole number 20 was misleading.

May 22, 1973 Inspection

After being informed by the state inspection department on an unknown date after the April 18th inspection that "nothing had been done out there," the same compliance officer conducted another inspection of the job site on May 22, 1973 (Tr. 40). On this occasion, he cited Respondent for a different ground opening designated as manhole number 18D (Ex. C-7). This opening was about forty-two feet long, seven to eight feet wide, and its depth varied from "5 foot [sic] to 6 foot [sic] and over 6 foot [sic] in some locations" (Tr. 41). It had no shoring, sheeting or bracing and its soil was soft, loose material that crumbled. It [*13] also contained water that was being pumped out at the time.

The same two state inspectors were present during this inspection and they testified that they would enter this opening because it presented no danger of injury. In elaborating on this opinion, one of these inspectors stated that "its wasn't that deep and it was sloped at the top" (Tr. 78).

II

In proposing penalties for the two alleged serious violations, the Secretary gave Respondent a ten percent reduction for both good faith and size, and a twenty percent reduction for its history of no prior violations (Ex. C-8). In proposing a penalty for the alleged nonserious violation, the Secretary gave Respondent no reduction for good faith, a ten percent reduction for both size and prior history of violations, and fifty percent reduction for abatement (Ex. C-9). As to the latter, the Secretary considered the gravity to be relatively serious (Ex. C-9).

III

In proving serious violations, the Secretary has the burden of establishing not only that an employer is aware of a particular hazard, but that there is a possibility that an accident will occur as a result of the hazard and that there is a substantial probability [*14] that such an accident will result in death or serious bodily injury ( Secretary of Labor v. Standard Glass and Supply Co., Docket No. 585, April 27, 1973). This record presents no issue that Respondent was unaware of the features of the ground openings in issue.

There can be no serious contention that manhole number 20 did not constitute a violation of 29 CFR 1926.652(b), for one of the photographic exhibits (Ex. C-2) confirms the statements of the Secretary's witness concerning the trench's specifications and characteristics. This photograph showing an employee in the trench also evinces the extreme danger to which this employee was subjected in his bent-over position in the bottom of the trench between the narrow, verticle walls, leaving little doubt that short of a miracle, a cave-in would almost certainly result in his death. It was, therefore, a serious violation. Accordingly, Citation for Serious Violation number 1 (Docket No. 3427) will be affirmed.

Although perhaps not as great a hazard as that presented by manhole number 20, manhole number 18, as described by the Secretary's witnesses, clearly constitutes a violation of 29 CFR 1926.651(c). In addition to the statements [*15] of these witnesses, two photographs (Exs. C-4, C-5), showing two different employees working in this excavation in different areas in close proximity to its almost verticle walls, convince me that there was a substantial probability that a cave-in in either location would result in death or serious bodily injury to the affected employee. This violation, too, was a serious one. Accordingly, Citation for Serious Violation number 2 (Docket No. 3427) will also be affirmed.

Upon the evidence presented by this record, and for the reasons that follow, I cannot affirm item number 1 of the Citation for nonserious violations (Docket No. 3568); and that item and the penalty proposed therefor will be vacated. First, the allegation should have been charged as a violation of 29 CFR 1926.651(c), instead of a violation of 29 CFR 1926.652(b), because the opening, for the most part, was an excavation instead of a trench (see definitions in 29 CFR 1926.653). n3 This factor, alone, requires reversal, for such a charge is not embraced within that charged in the Citation ( Secretary of Labor v. R.L. Rider & Co., Docket No. 3223, November 15, 1973; Secretary of Labor v. Keibler [*16] Industries, Inc., Docket No. 1689, June 28, 1973). Finally, even if the proper standard -- 29 CFR 1926.651(c) -- had been charged, the Secretary did not prove a violation, as that standard requires a shoring system or sloping only when employees working in the excavation are exposed to danger. Two of the Secretary's witnesses testified that the opening presented no such danger, and a photograph (Ex. C-7) showing two employees in the opening convinces me that the witnesses' assessment of the opening is eminently correct.

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n3 Even as to the small portion of manhole number 18D that might be classified as a trench, the evidence convinces me that the Secretary has not carried his burden of proving a depth of five feet or more, as required by 29 CFR 1926.652(b) before the provisions of the standard become operative. I base this conclusion on the testimony of the compliance officer that portions of the opening, without specifying which portions, were only five feet deep, on Exhibit C-7 which convinces me that an exact measurement is humanly impossible and that this portion of the opening could well be one that the compliance officer placed in the five foot category, and finally, on the fact that any depth of any fraction of an inch less than five feet would place the opening without the scope of the standard.

[*17]

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IV

In my review of this entire record, and in consideration of the guidelines laid down in Section 17(j) of the Act on penalty assessments, I view the violation at manhole number 20 as much more serious than does the Secretary, as reflected by the penalty he proposed. Accordingly, I will assess the maximum penalty allowed by law. Upon the same considerations, however, I consider the $600.00 penalty proposed by the Secretary for the manhole number 18 violation appropriate; and I will accordingly assess such a penalty.

V

Upon consideration of the entire record, I reach the findings of fact and conclusions of law that follow.

FINDINGS OF FACT

1. That at the time and place in question, Respondent had employees working in a trench, designated as manhole number 20, dug in unstable soil that was more than five feet deep and that was not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working therein (Docket No. 3427).

2. That at the time and place in question, Respondent had employees exposed to danger from moving ground by [*18] reason of their work location in an excavation designated as manhole number 18, the walls of which were not guarded by a shoring system, sloping of the ground, or some other equivalent means (Docket No. 3427).

3. That at the time and place in question, Respondent had employees working in an excavation that did not expose said employees to any danger from moving ground (Docket No. 3568).

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the causes.

2. That at the time and place in question, Respondent violated Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(b) and 29 CFR 1926.651(c) (Docket No. 3427).

3. That the foregoing violations constituted serious violations of the Act.

4. That at the time and place in question, Respondent did not violate Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(b) (Docket No. 3568).

Citation for Serious Violation number 1 (Docket No. 3427) and Citation for Serious Violation number 2 (Docket No. 3427) are affirmed. Penalties of $1,000.00 and $600.00, respectively, are assessed therefor. Item number 1 of the Citation for nonserious violations (Docket No. 3568) and the penalty proposed [*19] therefor are vacated.

It is so ORDERED.