OLIN CONSTRUCTION COMPANY, INC.
OSHRC Docket No. 3486
Occupational Safety and Health Review Commission
July 23, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge David H. Harris, dated March 29, 1974, has been before the 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 Commission is equally divided on whether the evidence is sufficient to support the Judge's finding that the respondent failed to comply with 29 C.F.R. § 1926.652(b) which provides protective measures for "[s]ides of trenches in unstable or soft material, 5 feet or more in depth." Commissioner Cleary agrees with the Judge's disposition and reasoning. Chairman Moran finds that the inspector's approximation from an "eyeball" observation of a 72 inch marker is insufficient to establish that the depth of the respondent's trench was five feet or more.
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 [*2] Judge's decision referred to herein follows]
HARRIS, JUDGE: This proceeding, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the Act), was initiated by Olin Construction Company, Inc. (hereinafter Olin), the Respondent, by a timely Notice of Contest, to review two citations and a Notice of Proposed Penalty, issued by Complainant under the provisions of Sections 9(a) and 10(a) of the Act, respectively.
One citation, undated, was issued and served upon Olin on June 18, 1973, immediately following an inspection of Olin's workplace by an official of the Occupational Safety and Health Administration of the United States Department of Labor (hereinafter OSHA) (C-1). This citation charges a serious violation of the standard at 29 CFR 1926.652(a) at a workplace under Olin's ownership, operation or control at Route 55 in Poughkeepsie, New York, described as "Installation of 12" water main," in the following language:
Failure to shore, lay back to a stable slope or provide some other means of protection for employees who may be exposed to moving ground or cave-ins. This applies to all trenches 5 feet or more in [*3] depth.
The second citation, issued on June 20, 1973, alleges that, at the same workplace, during a trenching operation, Olin violated the standard at 29 CFR 1926.50(f) as follows:
Failure to conspicuously post the telephone numbers of physicians, hospitals or ambulances.
The latter citation does not allege that the charged violation is a serious violation within the purview of Section 17(k) of the Act. Both citations require immediate abatement.
A Notice of Proposed Penalty was issued on June 20, 1973 wherein Complainant proposed a penalty of $500 for violation of the standard at 29 CFR 1926.652(a). No penalty was proposed for the charged violation of 29 CFR 1926.50(f).
The standard at 29 CFR 1926.652, Specific Trenching Requirements, provides:
(a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as a guide in sloping of banks. Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected. (39 FR 27553-4; December [*4] 16, 1972)
The complaint herein, filed on July 17, 1973, alleges that Olin violated the said standard in that it "failed to shore, lay back to a stable slope or provide some other means of protection for employees who may be exposed to moving ground or cave-ins. This applies to all trenches 5 feet or more in depth." (Compl. para. V(1) and recites a violation of the standard at 29 CFR 1926.652(f) in that "respondent corporation failed to [continuously] post the telephone numbers of physicians, hospitals or ambulances." (Compl. para. V(2)). The standard at 29 CFR 1926.652(f) has to do with providing protection for employees in bell-bottom pier holes and it is obvious that the standard designation intended was 29 CFR 1926.50(f) by the very language used in the allegation of violation both in the citation and in the complaint and the latter should be amended accordingly.
Olin's answer, filed on July 25, 1973 joins issue on the charge of violation of the standard at 29 CFR 652(a) (Ans. para. 5) and admits the allegation of violation of the standard requiring conspicuous posting of the telephone numbers of physicians, hospitals or ambulances made available by the employer (Ans. [*5] para. 6). Olin's determination not to defend against the allegation of violation of the standard at 29 CFR 1926.50(F) was re-stated at the hearing.
The substantial evidence, on the record considered as a whole, supports the following findings of fact and conclusions of law.
Respondent, styled Olin Construction Company, Inc., is a corporation organized under the laws of the State of New York and maintains its principal office in Camillus in that State; it is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act in that it is engaged in the construction business using materials and equipment moving in interstate trade and, in addition, does work outside the State of New York; Olin's sales in 1972 approximated $5 million; it employs about 150 persons daily and there is no evidence of prior violations of OSHA standards.
On July 18, 1973, a compliance officer in the employ of OSHA, inspected a trench opened by employees of Olin at the site described in the citations herein. As he approached the trench and while still in his car, he saw 3 men at grade, and 2 men in the trench whose heads and shoulders were visible. He parked his car and walked to the [*6] trench. When he arrived at the trench no one was in it. He spoke to a man who gave his name as Seelman and identified himself as the foreman. The compliance officer displayed his credentials and in response to his question, Seelman said he had been in the trench with another man. A second man also said he had been in the trench and gave his name as Neville Pottinger. Seelman stated he thought the trench was about 2-1/2 feet wide and about 15 feet long. He said that they had located an underground cable which he pointed out.
No one entered the trench after the compliance officer arrived on the scene. According to the compliance officer the soil looked unstable and appeared to be sandy and gritty. The walls were vertical at the point where the 2 men were seen in the trench. The ends of the cut were sloped down to the bottom. Seelman, standing on the north side, placed the end of a wooden fold-out measuring rule at the bottom of the trench. The compliance officer, on the south edge of the trench, saw an electric cable conduit, the top and sides of which were clear of earth. He assumed a squatting position and looking at the rule held by Seelman, with his eyes a [*7] few inches above ground level, observed the 72" inch mark on the rule to be an inch or two above grade level. Seelman, according to the compliance officer, agreed that the measure was approximately 6 feet. The bottom of the trench was deeper than the exposed conduit.
At this point, Olin's job foreman arrived and stated that the excavating was being done to locate an underground electrical cable and that it had been located. He then ordered the above-referred to Pottinger to stake the cable and issued orders to back-fill the trench. Pottinger held a stake to mark the conduit while the trench was being backfilled. There is little dispute that the trench was dug in ground which is characterized as fill, or that the trench was not shored.
Curiously, Olin seeks to establish that the trench observed by the compliance officer on June 18 was less than 5 feet deep by the job foreman's testimony that the conduit was not located on June 18 and that it reopened the same back-filled trench on June 19 and had exposed the top of the electric conduit at a depth of 4 feet 6 inches (Exh. R-1, R-2). This position is subject to several infirmities. First, the trench on the 19th was opened from [*8] 2 to 4 feet away from the place where the trench was located on June 18. Secondly, the trench on June 18 was deeper than the top of the conduit, as we have seen, and thirdly, the job foreman's memory concerning the actual depth of the trench on June 18 and whether he participated with the compliance officer in taking a measurement at that time, is not clear, although he came to the site after hearing that an inspection was in progress and was informed that a measurement had been taken of the depth of the trench in which the aforesaid Seelman had participated. I am satisfied that his failure to see the conduit on June 18, is subject to the same infirmity. Lastly, Seelman, Pottinger and three un-named employees of Olin were on the scene during the inspection by OSHA's compliance officer on June 18. One of them, Seelman, allegedly held the rule in measuring the depth of the trench, another, Pottinger, allegedly held the stake marking the conduit as the trench was back-filled. Olin did not call these men as witnesses nor did it offer to explain their absence. These witnesses may naturally be inferred to be favorable to Olin and their testimony, it seems to me, would have [*9] been important corroboration under the circumstances of this case. See Perlman v. Shanck, 182 N.Y.S. 767 (1920); Laffin v. Ryan, 162 N.Y.S.2d 730 (1957); Case v. New York Central R. Co., 329 F.2d 936 (2 Cir. 1964); Gross v. Williams, 149 F.2d 84 (8 Cir. 1945); U.S. v. Cotter, 60 F.2d 689 (2 Cir. 1932).
It seems clear that the language used in the citation to describe the offense for failure to shore, was intended to charge a violation of the standard at 29 CFR 1926.652(b) rather than 1926.652(a). 1926.652(b) provides:
(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 (g) of this section). (37 FR 27554, December 16, 1972)
Complainant has moved that the citation and complaint be amended to allege a violation of the said standard at 29 CFR 1926.652(b). I perceive no prejudice which may result to Respondent here. The matter was fully tried as though the allegation had charged a violation of the latter standard rather than 29 CFR 1926.652(a) and Olin [*10] does not interpose an objection to Complainant's prayer to amend (Letter December 20, 1973). See, Sec. v. Brisk Waterproofing Co., Inc.,
Coming now to the question of suitable penalties, there is nothing in the record herein bearing upon this subject matter in connection with Olin's admitted violation of the standard at 29 CFR 1926.50(f) and I therefore assess no penalty thereon.
As for the violation of the trenching standard, I find it to be a serious violation within the meaning of Section 17(k) of the Act. Any trench which is more than 5 feet in depth, some 2-1/2 feet in width, dug in fill soil with perpendicular walls presents a substantial probability that death or serious physical harm could result to a person standing or working therein. See, Sec. v. National Realty and Construction Co., 489 F. 2d 1257 (D.C. Cir. 1973).
Olin was here engaged in attempting to locate an electric cable and conduit. The job foreman before leaving at 10:00 a.m., had issued orders to use the back-hoe to dig 1 or 2 feet and then dig by hand, alternating until the conduit was located. The compliance officer spotted two men shoulder deep [*11] in the trench as he drove by at approximately 1:30 p.m. By the time he parked his car and arrived at the site the two men were no longer in the trench and it is not clear whether the men were aware that an inspection was imminent. The exposure, on these proofs, would be minimal in nature were it not for the fact that four days earlier, on June 14th, two of Olin's men had been ordered out of an unshored trench, in unstable soil in the same vicinity, which was over five feet deep, about 30 inches wide and had vertical walls, by an inspector of the New York State Department of Labor.
The fact that no accident had occurred may well be regarded as fortuitous and I find that under the circumstances of this case a penalty of $500 is not unreasonable; and it is therefore
ORDERED that:
1. The complaint herein be and the same is hereby amended to delete reference to the standard at 29 CFR 1926.652(f) in paragraph V(2) thereof and to substitte therefor the standard at 29 CFR 1926.50(f); and
2. The citation hereinabove which charges a serious violation for failure to shore or lay back a trench 5 feet or more in depth, be and the same is hereby amended to delete reference to the standard [*12] at 29 CFR 1926.652(a) and to substitute therefore the standard at 29 CFR 1926.652(b); and
3. The complaint herein be and the same is hereby amended to delete reference to the standard at 29 CFR 1926.652(a) in paragraph V(1) thereof and to substitute therefore the standard at 29 CFR 1926.652(b); and
4. Olin be and it is hereby adjudged to have violated the standards at 29 CFR 1926.50(f) and 29 CFR 1926.652(b) on or about June 18, 1973 as alleged in the citations issued herein, as amended, and the said citations and each of them be and they are hereby affirmed; and
5. Olin be and it is hereby assessed and required to pay a penalty of $500 as and for the said violation of the standard at 29 CFR 1926.652(b).