J. D. BLUM CONSTRUCTION COMPANY

OSHRC Docket No. 3543

Occupational Safety and Health Review Commission

May 25, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Reg. Sol., USDOL

J. D. Blum, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as the "Act"], the decision of Administrative Law Judge Henry F. Martin is before us pursuant to an order granting review by the full Commission following the filing of exceptions to the Judge's decision by the Secretary of labor. The Secretary excepted to the Judge's finding that a notice of contest had been timely filed and to his holding that respondent, J.D. Blum Construction Company did not violate 29 CFR 1926.652(b) n1 and .652(e) n2 because the Secretary had not established that the sides of the trench involved were soft or unstable, or that the sides were substantially affected by vibration and backfill.

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n1 1926.652 Specific trenching requirements

(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).

n2 (e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

[*2]

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Filing Notice of Contest

The citation and notification of proposed penalties were mailed to respondent on May 30, 1973, and received on May 31, 1973. On June 21, the fifteenth working day following receipt of the notification of proposed penalties, respondent addressed a letter constituting a notice of contest to the Secretary's area office. The letter was postmarket "JUN 22 a.m." The Judge found, however, that the company had mailed the letter on the evening of June 21. He therefore considered the notice to be timely.

We accept the Judge's findings. The Secretary's reliance on his rule published at 29 CFR 1903.17(a), requiring notices of contest to be "postmarked" by the fifteenth working day, is misplaced. The rule does not limit the jurisdiction of the Commission when a contest is actually filed in a timely fashion. By placing his notice of contest in the mails on the fifteenth working day after receipt of the citation, the employer timely contested the citation within the 15-working day limitation of section 9(a) of the Act. The Secretary's reliance upon Walter A. Podpora, 1971-73 [*3] CCH OSHD para. 15,129, (No. 721, 1972) and Mississippi Valley Erection Co., 1973-74 CCH OSHD para. 17,098, BNA 1 OSHC 1527 (No. 524, 1973) is misplaced. In both cases there was no question that the notices of contest were mailed after the expiration of the 15-working day limitation.

Alleged Violation of 1926.652(b) and (e)

The citation for "serious" violation was issued after inspection of respondent's worksite in Tulsa, Oklahoma. Respondent was engaged in extending a water main and had excavated a trench. The citation alleged that the trench was dug in unstable or soft material and was not shored, sheeted, braced, or sloped to the angle of repose required by 1926.652(b). It also alleged that, although the trench was dug in a location adjacent to a previously backfilled excavation and was subjected to vibrations from machinery and nearby traffic, no additional precautions in the way of shoring or bracing were taken to prevent slides or cave-ins, as required by 1926.652(e). The citation further alleged that employees were exposed to the combined hazards constituting a "serious" violation for purposes of 29 U.S.C. 666(j).

The trench was 95 feet long, from [*4] five to seven and one-half feet deep, and about three feet wide at the bottom and nine feet wide at the top. The sides of the trench were sloped to an angle of about 65 degrees. There was no shoring, sheeting, bracing, or other means of support applied to the trench walls.

The Judge found that respondent was not in violation of 1926.652(b) because the Secretary failed to establish that the trench was dug in unstable or soft material. We find that the evidence is heavily to the contrary, and that the Judge's decision finds little support in the record.

The Secretary established by a preponderance of the evidence that the soil in which the trench was dug was of a soft and unstable nature. Exhibit 2, a photograph of the trench, shows a worker standing knee-high in water. The photograph shows much loose, wet soil accumulated in one corner of the trench, and several areas of the trench wall where soil had begun to slough off. The compliance officer testified that the soil was composed of clay and loam, and was soft and unstable. He also stated that there was water seeping from the face of the trench, and that this wetness further reduced the stability of the soil. Accordingly, [*5] he concluded that the trench should have been sloped at a 45 degrees angle. Although respondent denied that the soil was soft, the testimony of its own witness, Clyde D. Carroll, respondent's equipment operator, establishes that the soil was soft. The witness testified that the soil was sandy and loamy and that, because of heavy rains "the ground was softer than normal." Indeed, Mr. Blum, respondent's sole owner, testified that "the soil is not all that soft" (emphasis added), a concession that the soil was to some degree soft and unstable. In addition, Mr. Blum testified as follows:

Mr. Blum: On the ditch, all I can tell you is that I know that this ditch -- I know that it is not as wide as their rules, according to their rules. I understand that.

The Court: What do you mean, the sloping?

Mr. Blum: Yes, the slope on the ditch. I know it should have been according to their regulations, that the ditch should have been sloped more than what it was. . ."

In concluding that the Secretary has not established that the soil was soft or unstable, Judge Martin places major emphasis on the fact that a "geologist or technical expert in soil analysis" did not testify at the hearing. [*6] We believe that the Judge erred in this regard. The compliance officer had many years of experience in construction and excavation work, and spent about six months attending training sessions in soil sampling conducted by OSHA. We believe that this training and experience was sufficient for the compliance officer to present probative testimony as to the soil composition, and that it was not necessary for him to be a geologist or "technical expert in soil analysis."

The Judge also erred by finding that respondent had not failed to comply with 1926.652(e). Respondent used a four-cylinder engine Bantam crane at the site. This subjected the trench to vibration. Respondent did not contest the existence of the vibration, but contended that it was insufficient to affect the stability of the trench. Also, the trench walls consisted partially of backfill from a previously constructed sewer line that ran across respondent's trench.

The Judge held that the vibration from the Bantam crane was insufficient to affect the stability of the trench. The Judge, however, did not take into consideration the existence of the backfilled area that is inherently less stable than ground found in [*7] its natural state, and thus more susceptible to the effects of vibration.

Moreover, the Judge erred in finding that the backfilled area around the sewer pipe was not "adjacent" to the trench. It was undisputed that the trench walls consisted partially of backfill from the construction of the sewer line. Nevertheless, the Judge stated as follows:

Although there was a small backfilled area around the sewer pipe, it should be noted that the sewer line was not adjacent or parallel to the trench which Respondent was digging on the day in question but ran across the trench and is not considered to be the type of backfill contemplated by the wording of the regulation, to wit, "in a location adjacent to a previous backfilled location."

It is error to find that a backfilled area which "ran across" a trench is not adjacent to it. The dictionary definition of "adjacent" is "near or close" or "adjoining." n3 We, therefore, conclude that the trench was adjacent to a backfilled location and subject to vibration from the Bantam crane. These conditions together increased the likelihood of a trench collapse. Accordingly, respondent was in violation of 1926.652(e) by failing to take additional [*8] precautions to compensate for these conditions.

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n3 Webster's New World Dictionary 17 (2d ed. 1972).

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"Serious" violation

The Secretary alleges a "serious" violation of the Act in that nomcompliance with paragraphs (b) and (e) of 1926.652 creates a hazard of collapsing trench walls, and a substantial probability of death or serious physical harm could result from this. The testimony of the compliance officer supports the allegation. This is also consonant with our assessment of the seriousness of trenching violations in other cases. See, for example, Leone Construction Co., 1975-76 CCH OSHD para. 20,387, BNA 3 OSHC 1979 (No. 4090, 1976); Adams and Mulberry Corp., BNA 3 OSHC 1077, (No. 2548, 1975); Davenport Bros., Inc., 1974-75 CCH OSHD para. 19,289, BNA 2 OSHC 1583, (No. 3705, 1975); Shaffer Constr. & Eng. Co., 1974-75 CCH OSHD para. 19,153, BNA 2 OSHC 1449, (No. 675, 1974); Marino Development Corp., 1974-75 CCH OSHD para. 18,825, BNA 2 OSHC 1260, (No. 1040, 1974).

However, the respondent's [*9] good faith is abundant, and it has a good safety history. Respondent has not previously been cited by OSHA for safety violations. Also, it is a small employer which abated the hazards by increasing immediately the slope. Under these Circumstances, we assess a penalty of $300.

It is ORDERED that the citation for serious violation of the Act for failure to comply with the standards at 29 CFR 1926.652(b) and (e) is affirmed, and a penalty of $300 is assessed. In all other respects the Judge's decision is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Martin was the trier of the facts in this case and, after observing the demeanor of the witnesses, evaluating their credibility, and weighing the evidence, he determined that the evidence was insufficient to establish that the trench was dug in unstable and soft material. n4 He was eminently correct in so holding and his finding should be affirmed.

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n4 See his decision which is attached hereto as Appendix A and incorporated by reference herein.

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Messrs. Barnako [*10] and Cleary, however, although often professing recognition of the principle that the Judge is the trier of facts, once again have seen fit not to apply that principle since it would not benefit complainant. The Barnako-Cleary credibility rule holds that the Judge's findings on credibility will be accepted only when they are beneficial to the Secretary of Labor. When a Judge's findings on credibility favor the employer, Messrs. Barnako and Cleary will not accept it but will reweigh the evidence and substitute a finding favorable to the Secretary. n5 That is what they have done in this case. There is, however, no basis for doing so on the record before this Commission.

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In support of his allegation that the soil was soft and unstable, complainant's evidence [*11] consisted solely of testimony to that effect by the government's safety inspector. The inspector, though having attended training sessions in soil sampling, was not a geologist or technical expert in soil analysis. Furthermore, his determination was based solely on visual observation and his sense of feel. Respondent, on the other hand, called two witnesses to testify, both of whom, like the inspector, had many years of experience in construction and excavation work. They both testified that the trench was safe and that the soil was not soft or unstable.

In sum, therefore, the evidence consists of three laymen stating their opinions as to the type of soil here involved, one of whom described the soil as soft, and two who disagreed with that characterization. This being the case, how my colleagues can characterize the Judge's well-reasoned decision as "heavily . . . contrary" to the evidence is beyond my comprehension. In point of fact, not only was the Judge's decision a reasonable interpretation of the evidence, but it is the only logical conclusion one could reach. The burden of proving soil instability was on the complainant. It is clear from the record that it was not [*12] established in this case. Such a finding is simply conjectural.

Messrs. Barnako and Cleary make much of the fact that the photograph in Exhibit 2 shows "much loose, wet soil" in one corner of the trench, which, according to the safety inspector, demonstrates that the soil on the trench wall had begun to "slough off." Ignored in their discussion, however, is the testimony of Mr. Blum, which the Judge found "convincing," that the "sloughing" was caused by the teeth of the backhoe in sloping the sides.

Similarly, much is made of Mr. Blum's statement that "the soil is not all that soft." n6 That statement, characteristically taken out of context by my colleagues, is misleading at best. The full quotation is as follows:

"I say that the soil is not all that soft. It is not hard that you have to take a pick or something to dig it, but it is not runny, either. It's ok, I don't know. It is hard to say. I am not one of those test experts, either. But I know that when you hook that back hoe in it that it will kick them governors to dig it, I'll put it that way."

It is followed immediately by the following testimony:

"THE COURT: You have got to give it a pull?

THE WITNESS: Yes. [*13] You just don't reach in there and go. They say soft material. Well, maybe that is what they call soft material, but I will take you to where there is soft material."

Shortly thereafter, he again denied that the soil was unstable. Thus, it is clear that Mr. Blum was not in any way admitting that the soil was soft or unstable. On the contrary, he expressly denied it.

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n6 Messrs. Barnako and Cleary also rely on Mr. Blum's statement "that the ditch should have been sloped more than it was." This statement is not, of course, an admission of fact. It is a conclusion of law and, as such, cannot be treated as evidence. Furthermore, a close reading of the transcript reveals Mr. Blum's confusion and misreading of the standards at that time. He was not represented by an attorney and his statements as to what the law requires are not entitled to any weight whatsoever in the context in which the majority opinion quotes this statement.

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To conclude, as do Messrs. Barnako and Cleary, that complainant has sustained his burden [*14] of proving that the soil was soft and unstable merely because the safety inspector, one who is clearly not an expert in soil analysis, described it as such, is palpably absurd. It is even more absurd in view of the fact that his conclusion was reached by merely picking up a few handfuls and feeling it. Apparently, my colleagues have forgotten that complainant must prove his case by a preponderance of the evidence. n7

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n7 Olin Construction Co. v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973).

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The evidence being insufficient to ascertain the type of soil here involved, item B of the citation, charging a violation of the occupational safety standard codified at 29 C.F.R. 1926.652(e), must also be vacated. That standard requires "additional precautions" when trenches are located adjacent to backfilled excavations or are subjected to vibrations. n8 As I pointed out in Secretary v. W.N. Couch Construction Company, n9 the use of the words "additional precautions" [*15] presupposes that other precautions are required by another standard. In a case substantially similar to the instant one, Judge Martin vacated a citation for noncompliance with section 1926.652(e) on the following basis:

"Since it has not been shown that the trench was in soft or unstable material it was not necessary for respondent to brace, shore, or sheet the sides of the trench; therefore, it would be difficult to state that 'additional' precautions should have been taken on the trench in question to protect employees from vibrations or backfilled excavations." n10

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n8 See note 2, supra, for the complete text of the standard.

n10 Secretary v. Weaver Construction Co., 16 OSAHRC 677, 683 (1975).

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Accordingly, the citation for a serious violation should be vacated and the Judge's decision affirmed. n11

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n11 I am in agreement with the discussion in the majority opinion regarding the timeliness of respondent's notice of contest. It is consistent with Judge Martin's observations which are reported in footnote number ten of his decision and with prior precedent.

[*16]

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APPENDIX A

DECISION AND ORDER

Mr. Robert A. Fitz, USDOL, for Complainant

Mr. J. D. Blum, for Respondent

MARTIN, Judge:

This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq.), hereinafter referred to as the Act, regarding two Citations, one described as a Citation for Serious Violation, issued by the Secretary of Labor, hereinafter referred to as the Complainant, pursuant to Section 9(a) of the Act and the proposed assessment of penalties in connection with said Citations in the total amount of $550.00 pursuant to Section 10(a) of the Act.

The aforementioned Citations, which were issued on May 30, 1973, allege that an inspection of the workplace of the J.D. Blum Construction Co. of Collinsville, Oklahoma, hereinafter referred to as Respondent, at the location of 6670 South Lewis Street, Tulsa, Oklahoma, was conducted on or about May 18, 1973, where a trenching operation was being undertaken for the extension of a water main.

The Citation for Serious Violation describes the alleged infraction as follows:

Date on which al-

Standard or regulation

Description or alleged

leged violation

allegedly violated

violation

must be corrected

29 CFR 1926.652(b)

The sides of trench that were cut

Immediately upon

(formerly 29 CFR 1518.

in unstable or soft material, and

receipt of citation

652(b)), as adopted

greater than 5 feet in depth,

by 29 CFR 1910.12

was not shored, sheeted, braced,

nor sloped to angle of repose or

otherwise supported by means of

sufficient strength to protect the

employees working within the

trench. n1

29 CFR 1926.652(e)

Additional precautions by way of

Immediately upon

(formerly 29 CFR 1518.

shoring and bracing were not

receipt of citation

652(e), as adopted

provided to prevent slides or

by 29 CFR 1910.12

cave-ins when excavations or

trenches were made in a location

adjacent to a previous backfilled

location, or where the excavation

was subjected to vibrations from

highway traffic, operation of

machinery, or any other source.

29 CFR 1926.652(e)

Employees were exposed to

(formerly 29 CFR 1518.

hazards when they were re-

652(e), as adopted

quired to work within a trench

by 29 CFR 1910.12

that was not shored, sheeted,

(cont'd)

braced, or sloped to angle

of repose or otherwise supported

by means of sufficient strenth

to protect employees working

within the trench nor was addi-

tional precaution taken to prevent

slides or cave-ins when ex-

cavations were made in locations

adjacent to backfilled areas

that are subjected to vibrations

from highway traffic or machinery

operations or any other source,

which resulted from two standards

or regulations allegedly violated,

which combined constitute a

serious violation. n2

29 CFR 1903.2(a)

Occupational Safety and Health

June 29, 1973

Poster was not posted in a

conspicuous place where notices

to employees are customarily

posted. n3

29 CFR 1904.2(a)

Occupational Safety and Health

June 29, 1973

Administration OSHA Form #100

or private equivalent was not

maintained readily available

in the establishment to record

all recordable occupational

injuries and illnesses. n4

29 CFR 1904.4

Occupational Safety and Health

June 29, 1973

Administration OSHA Form #101 or

acceptable alternative record

was not maintained at the

established. n5

29 CFR 1904.6

Occupational Safety and Health

June 29, 1973

Administration OSHA Form #102,

Annual Summary of Occupational

Injuries and Illnesses, was not

retained available for review as

required. n6

29 CFR 1926.50(c)

A person who had a valid

June 29, 1973

(formerly 29 CFR 1518.50

certificate in first-aid

(c)), as adopted by

training from the U.S. Bureau

29 CFR 1910.12

of Mines, the American Red

Cross, or equivalent by

documentary evidence, was not

available at the job site to

render first-aid. n7

29 CFR 1926.550(a)(5)

Deficiencies were not repaired

June 29, 1973

(formerly 29 CFR 1518.

or defective parts replaced on

550 (a)(5)), as adopted

crane before at was used; i.e.,

by 29 CFR 1910.12

main frame of crane boom was

bent and cross braces on crane

boom were bent and broken on

Schield Bantam Crane, serial

#5015. n8

29 CFR 1926.651(i)(1)

The employees were required to

Immediately upon

(formerly 29 CFR 1518.

work within the excavation where

receipt of citation

651(i)(1), as adopted

effective barriers or other

by 29 CFR 1910.12

devices were not used in order

to prevent excavated materials

from falling into the

excavation. n9

[*17]

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n1 Section 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 (g) of this section).

Citation No. 1 covering the alleged non-serious violations, is described as follows:

n2 Section 1926.652(e). Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

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n3 Section 29 CFR 1903.2(a). Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

n4 29 CFR 1904.2(a). Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. * * *

n5 Section 29 CFR 1904.4. In addition to the log of occupational injuries and illnesses provided for under Section 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

n6 Section 29 CFR 1904.6. Records provided for in Sections 1904.2, 1904.4, and 1904.5 shall be retained in each establishment for 5 years following the end of the year to which they relate.

n7 Section 29 CFR 1926.50(c). In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the work site, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid.

n8 Section 29 CFR 1926.550(a)(5). The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

n9 Section 29 CFR 1926.651(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.

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A Notification of Proposed Penalty was issued by Complainant's area director on May 30, 1973, wherein a proposed penalty of $500.00 was requested for the alleged trenching violation, described as a serious violation. Penalties of $25.00 were proposed because of an alleged improperly maintained crane and because barriers were allegedly not used to prevent excavated material from falling into the excavation. No penalties were recommended for Items 1 through 4, dealing with posting and record keeping requirements or because of the alleged failure to have a person trained in first aid available at the job site (item 5).

On the date of June 21, 1973, Respondent addressed a letter to Complainant's area office in Tulsa, wherein he stated that he would like to "protest these alleged violations of safety, which have resulted in me being penalized".

Following Respondent's Notice of Contest, Complainant filed a formal Complaint with the Review Commission setting forth substantially the same information regarding the alleged violations as had been described in the two Citations.

On August 7, 1973, Respondent [*19] filed an answer wherein he stated that he would like to "continue the protest on the above case", stating that he felt "that at no time had any of his employees been in any danger on the project". He further stated that he did not feel that he should have been "fined" inasmuch as "this was the first time he had been visited by the Occupational Safety and Health Administration".

On August 29, 1973, the Review Commission's Executive Secretary received a Motion to Dismiss from Complainant's attorney and requested in the alternative a decision by default on the ground that Respondent had not filed an answer prior to August 13, 1973. This Motion to Dismiss was denied by the undersigned Judge inasmuch as Respondent's letter of August 7, 1973, indicated his desire to "continue his protest" of the matters involved in this proceeding.

This matter was assigned to the undersigned Judge on September 5, 1973, pursuant to the provisions of Section 10 of the Act and a formal hearing was scheduled and held on October 11, 1973, in Tulsa, Oklahoma. Complainant was represented by his attorney, Mr. Robert A. Fitz, and Respondent was represented by its owner, Mr. J. D. Blum. No other parties expressed [*20] a desire to intervene or to participate in the hearing. Neither party filed proposed Findings of Fact or Conclusions of Law.

The issues to be decided herein are whether or not Respondent violated the provisions of Sections 29 CFR 1903.2(a), 29 CFR 1904.2(a), 29 CFR 1904.4, 29 CFR 1904.6, 29 CFR 1926.50(c), 29 CFR 1926.550(a)(5), 29 CFR 1926.651(i)(1), 29 CFR 1926.652(b) and 29 CFR 1926.652(e) and if such violations are established, then a determination must be made as to what penalties, if any, should be assessed. n10

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n10 Prior to the presentation of any evidence Complainant's attorney called the Judge's attention to the fact that the Citations and Notification of Proposed Penalty were mailed to Respondent on May 30, 1973, and received by Respondent (J.D. Blum) on May 31, 1973, that the Secretary received the Notice of Contest from J.D. Blum Construction Co. on June 25, 1973, in an envelope postmarked June 22, 1973. While no pleading was filed by Complainant's attorney alleging a failure to file the Notice of Contest within fifteen working days, the implication was that Respondent's Notice was defective or untimely and that the Citations were therefore final orders not subject to review. Section 10(a) of the Act provides that "the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Citation or proposed assessment of penalty". A "working day" is defined in the Review Commission's Rules of Procedure (Section 2201) as all days except Saturday, Sunday, or Federal holidays. A review of the file reveals that Respondent's letter, treated as a Notice of Contest, bears the date of June 21, 1973, which was the fifteen working day after his receipt of the Citations. Although the envelope bore a postmark of "Collinsville, Oklahoma JUN 22 AM" it is concluded that Respondent was in substantial compliance with the Act since it is not unreasonable to conclude that Respondent placed its letter in the postal channels at the close of the business day on June 21, 1973, which would be consistent with the "AM" postmark on June 22, 1973.

[*21]

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Regarding Items 1 through 4 dealing with the posting and record keeping requirements, Complainant offered the testimony of his compliance officer, Mr. Otto B. Medlin, who testified that he did not find the "OSHA" poster posted at the work site and quoted Mr. Blum as stating that he had never been furnished copies of any literature or the poster in question. He also testified that Respondent on the dates in question did not maintain a log of occupational injuries or a supplemental record of each occupational injury. Respondent, in defense, stated that he had not had any injuries to report. Inspector Medlin also stated that Respondent did not have available for review the annual summary of occupational injuries. He testified further that none of these infractions resulted in any risk to the health of employees and consequently no penalty was proposed. Since the evidence herein disclosed that Respondent was not furnished with the poster (informing the employees of their protection and obligations under the Act) Item 1 of the Citation, charging a violation of Section 29 CFR 1903.2, will be vacated. [*22] Items 2, 3, and 4 of the Citation will be affirmed.

With respect to Item 5 of the Citation, charging Respondent with the failure to have a person trained in first-aid on the worksite to render first-aid, Inspector Medlin stated that he found no such person on the job and that the nearest hospital, clinic, or doctor would be approximately fifteen minutes away (measured in driving time). He stated that he arrived at this estimate by conferring with Mr. Blum and considering the distance and time it would take an ambulance to arrive on the scene. Mr. Medlin stated that the abatement date of June 29, 1973, was fixed in order to allow time for a person to receive the necessary training and be certified by the American Red Cross or Bureau of the Mines.

Section 29 CFR 1926.50(c) provides in substance that where a clinic, hospital or infirmary is not reasonably accessible in terms of time and distance to the worksite (underlining supplied) a person who holds a valid certificate in first-aid training shall be available at the worksite to render first-aid. By applying a reasonable interpretation to the wording of the standard in question it is concluded that a hospital or medical facility [*23] which is as far away as fifteen minutes driving time is not "reasonably accessible".

The instant case is distinguishable from the Review Commission's holding in the Secretary of Labor v. Santa Fe Trail Transportation Co., issued December 18, 1973 (CCH 17,029) wherein it was concluded that a similar standard was vague and unenforceable resulting in a vacation of the Citation. There, however, the standard required the presence of a person trained in first aid only in the absence of an infirmary, clinic, or hospital in "near proximity". It was the Review Commission's view that employers should not be left to guess at what is meant by "near proximity". The Commission stated: "We have searched the Complainant's regulations and no guidance is provided as to the meaning of the words "near proximity".

With respect to Item 6 of the Citation Inspector Medlin testified that he observed several cross braces or members on the boom of a bantam crane which were bent or deformed (see Complainant's Exhibit C-1). Mr. Medlin felt that the degree of probability of the occurrence of an injury from the use of said crane would be moderate. The area director, however, after discussing the [*24] violation with Mr. Medlin, and viewing the exhibit, was of the opinion that this would be "one of the lower gravity situations" and that the probability of injury would be low. He admitted that a visual observation of the boom might not reveal a potential hazard to the entent that a careful inspection would. Mr. Blum, testifying for Respondent, stated that while the boom had a few bent braces, he did not consider it to be unsafe. He testified that the crane was rated to lift six or eight tons and that on the date of question they were lifting a maximum of 1,000 pounds. The record is silent as to whether Respondent had designated any person to inspect its machinery prior to or during its use. Following Mr. Medlin's inspection Mr. Blum immediately had the bent braces removed and new parts welded into place.

The Citation and also the Complaint, in describing the infraction, alleged that the cross braces on the crane boom were "bent and broken". The evidence in the record admittedly shows several bent braces but it is open to speculation as to whether they weakened the crane to the extent of creating a safety hazard. Complainant's Exhibit C-1 shows a very slight dent or bend in [*25] one of the angle braces going up to the end of the boom. No evidence of any broken braces was established nor was there any evidence of any cracks in the boom or in the braces. Neither was there any evidence of any showing of rust or other deterioration which might cause the crane to fail under a condition of stress. It is open to speculation as to whether any of the braces, on the boom itself, was actually defective. In view of the inconclusive nature of the evidence as to whether the operation of the bantam crane would in fact result in an unsafe condition, this item of the Citation as well as the proposed penalty will be vacated.

Item 7 of the Citation relates to the presence of excavated materials at the edge of the trench. Inspector Medlin testified that the materials removed from the ditch were stored on the left side thereof within two feet of the edge (See Complainant's Exhibit C-2). It was his opinion that in the event of a cave-in the excavated materials would slide back into the trench. Inasmuch as no convincing evidence was offered to the contrary, it is concluded that excavated materials were stored within two feet of the edge of the excavation in violation of [*26] Section 29 CFR 1926.651(i)(1). It is further concluded that the proposed penalty of $25.00 should be affirmed since it appears that Complainant took into consideration the factors of gravity, good faith, size of business, and prior history within the purview of Section 17(j) of the Act.

Item A of the Citation for Serious Violation alleged that the sides of the trench were cut in soft or unstable material greater than five feet in depth which were sheeted, shored, braced, or sloped to the angle of repose and Item B alleged that additional precautions by way of shoring or bracing were not provided to prevent slides or cave-ins when the trench was made in a location adjacent to a previous backfilled location or where the excavation was subject to vibration from highway traffic or the operation of machinery.

The evidence presented herein discloses that the trench being dug by Respondent's employees were approximately 95 feet long, from five to seven and one-half feet deep, with an approximate width of three feet at the bottom and nine feet at the top. No bracing, sheeting, or shoring was installed, however there was some sloping, estimated by Compliance Officer Medlin to be approximately [*27] 68 degrees. He testified that the soil was soft and unstable, basing this determination on his observation and sense of feel, stating that the soil was wet due to the presence of ground water seepage. n11 He stated that the seepage was coming from the face of the trench. He advised that the presence of ground water has a serious effect on the stability of the walls of the trench. Inspector Medlin testified that the requirement for sloping to the angle of repose in this case is a one to one ratio, or 45 degrees. He stated that the trench was adjacent to a backfilled excavation of a sanitary sewer line (running north and south across the width of the ditch) that had previously been installed. It was his view that the operation of the bantam crane in close proximity to the trench would cause vibrations which might affect unstable or unshored soils, causing them to give away or collapse. He described the soil as a mixture of clay and loam which would not stick together due to its wetness. n12 Mr. Medlin felt that there was a substantial probability that serious physical harm or death could have resulted from a shearing off or cave-in. He called attention to several areas where [*28] the dirt had "sloughed off" from the sides of the trench because it was unstable.

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n11 Complainant's Exhibit C-2 shows one workman standing in the trench in water approximately 18 inches deep.

n12 It is not clear from the record the exact place where the Compliance Officer picked up the soil to "feel" of it.

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Mr. Blum, testifying for Respondent, admitted that the ditch was not sloped according to regulations but in his opinion was "safe enough for a man to work in." In view of the slope of the ditch, Mr. Blum did not feel that there was any way for the ditch to "fail in". Regarding the softness of the material Mr. Blum testified:

"I say that the soil is not all that soft. It is not hard that you have to take a pick or something to dig it, but it is not runny, either. It's - oh, I don't know. It is hard to say. I am not one of those test experts either. But I know that when you hook that backhoe in there it will kick them governors to dig it, I'll put it that way." (Tr. p. 110)

Mr. Blum admitted that some soil [*29] had "sloughed off" of the sides of the trench however it was his contention that some of the indentations shown in Complainant's photograph (C-2) were backhoe marks.

The backhoe operator, Mr. Carroll, testified that he has been operating backhoes for about twenty years and has dug pipe lines in approximately twenty different states. He described the soil as river bottom soil, a mixture of clay and gumbo and some sand. He stated the soil at the top for about two feet was sandy, "not real tight but not a running type" and the soil for the next four or five feet was described as black dirt with a clay type at the bottom of the trench. Mr. Carroll stated:

"It wasn't a hard type of soil at that time year because we had an extreme amount of rain in February and March and all through there up until -- during the time we was doing that job it rained continuously and the ground was softer than normal, I'll put it that way." (Tr. p. 85)

Mr. Carroll agreed that the slope of the ditch was over 65 degrees but stated that he was of the opinion that it was sloped enough to be considered safe. When questioned regarding the effect of moisture on the soil in the trench he stated:

"It can be [*30] quite dangerous if you have enough of it in your ditch to come up with any depth, and where it sets there in the length of time, but where you would dig that ditch and lay right on through it, immediately, the seepage water, which, as they said the ditch was seven foot deep and a foot or 18 inches of water in the bottom of that ditch, is not going to have much effect on it unless you have run into sand at the bottom of your ditch, which we did not have." (Tr. pp. 89 & 90)

After carefully considering all of the evidence in the record it is concluded that Complainant has not established that the sides of the trench were soft or unstable. An examination of Complainant's Exhibit C-2 leaves considerable room for doubt as to the nature of the soil. Undoubtedly Inspector Medlin was correct in his view that some of he dirt had "sloughed off", however, Mr. Blum was equally convincing in his opinion that many of the indentations on the sides of the trench were made by the teeth of the backhoe in sloping the sides.

Admittedly seepage or water affects the walls of a trench. Although there was considerable water in the ditch it is not clear whether the same was caused by seepage along the [*31] face of the trench as surmised by Inspector Medlin or whether it only came from the area around the previously installed sewer line. The backhoe operator, in discussing the presence of water, stated that it would not have much effect unless there was sand at the bottom of the ditch. He did not notice sand, rocks or gravel in the bank. All of the sandy soil appeared to be on the upper surface to the extent of one or two feet.

Inspector Medlin has had many years of safety experience, some of which dealt with excavation work, however, he is not a geologist or an expert in the analysis of soils. Neither is Mr. Blum technically trained in classifying soils. He has had 19 years in the construction business, mainly in excavation and utility lines. Mr. Carroll, the backhoe operator, has had approximately 20 years of experience in digging trenches.

After carefully weighing all of the views expressed by the various witnesses it cannot be said that Complainant has established by a preponderance of the evidence that the sides of the trench were soft or unstable. n13 No geologist or technical expert in soil analysis was present to express an opinion on the issue. Without engaging in speculation [*32] it cannot be determined whether the sides of the trench were soft or unstable, therefore, the alleged serious violation must be vacated.

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n13 Rule 73 of the Commission's Rules of Procedure provides that the burden of proof shall rest with the Secretary.

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Although Section 29 CFR 1926.652(e) was coupled with Section 29 CFR 1926.652(b) by Complainant, the evidence relative to vibration was not convincing. The evidence does not reflect any highway traffic close by. The undersigned Judge is inclined to agree with the statement made by Mr. Blum who was of the opinion that the small four cylinder engine in the bantam crane would not be likely to create any serious amount of vibration. Although there was a small backfilled are around the sewer pipe, it should be noted that the sewer line was not adjacent or parallel to the trench which Respondent was digging on the day in question but ran across the trench and is not considered to be the type of backfill contemplated by the wording of the regulation, to wit, "in a location [*33] adjacent to a previous backfilled location".

FINDINGS OF FACT

1. Respondent, J.D. Blum Construction Company of Collinsville, Oklahoma, is solely owned by J. D. Blum and is primarily engaged in excavation work for utility lines in the Tulsa, Oklahoma area.

2. On May 18, 1973, Respondent employed approximately seven persons and had a weekly payroll varying from $1500 to $3000.

3. Respondent on the aforementioned date was engaged in excavating a trench at 6670 South Lewis Street, Tulsa, Oklahoma, for the extension of a water main.

4. Respondent on the aforementioned date, failed to post a notice advising its employees of the obligations and responsibilities under the Act, however, there was no showing that Respondent had ever been furnished a copy of said poster.

5. Respondent, failed to prepare and maintain OSHA Forms No. 100, 101, and 102 relating to occupational injuries, or acceptable alternative records.

6. Respondent failed to have a person available at the job site who was trained to render first aid when said job site was not reasonably accessible to an infirmary, clinic, doctor or hospital.

7. Respondent was operating a bantam crane on the work site which [*34] was found to have several bent cross braces, however, it was not established that said parts were so defective as to create a safety hazard to the employees.

8. Respondent's employees were working in and around a trench where the soil or excavated materials were not placed two feet or more from the edge of the trench.

9. Respondent excavated a trench at the aforementioned location which was in excess of five feet in depth which was not shored, sheeted, braced, or adequately sloped, however, it was not established by reliable and appropriate evidence that the sides of the trench were soft or unstable.

10. Respondent's trench was not subject to vibration due to railroad traffic or highway traffic nor does the record conclusively show that vibration of a significant degree would be caused by Respondent's bantam crane.

CONCLUSIONS OF LAW

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

2. That Respondent at all times material hereto was subject to the requirements of the Act and standards promulgated thereunder and the Review Commission [*35] has jurisdiction of the parties and subject matter.

3. That Respondent did not violate Section 29 C.F.R. 1903.2 inasmuch as he had not been furnished a copy of the poster in question.

4. That Respondent violated Sections 29 C.F.R. 1904.2, 1904.4, and 1904.6, however, no penalties were proposed in connection therewith.

5. That the evidence herein establishes that Respondent was in violation of Section 29 C.F.R. 1926.50(c) since no person trained in first aid was available at the work site and that no infirmary, clinic, hospital or doctor was reasonably accessible to said work site.

6. That it was not established that Respondent was in violation of Section 29 C.F.R. 1926.550(a)(5) by virtue of several bent braces on the crane boom.

7. That Respondent violated Section 29 C.F.R. 1926.651(i)(1) by reason of the storage of excavated materials on the edge of the excavation.

8. That Respondent did not violate the provisions of Section 29 C.F.R. 1926.652(b) and 29 C.F.R. 1926.652(e) since it was not established that the sides of the trench were soft or unstable or that the same were substantially affected by vibration.

9. That the assessment of a $25.00 penalty for the violation [*36] of Section 29 C.F.R. 1926.651(i)(1) is found to be appropriate.

ORDER

Based upon the foregoing Findings of Fact, Conclusions of Law, and the entire record herein, it is ORDERED:

1. That Item 1 of the Citation be and the same is hereby vacated.

2. That Item 2, 3, 4, and 5 of the Citation, for which no penalties were proposed, be and the same are hereby affirmed.

3. That Item 6 of the Citation and the proposed penalty therefor be and the same are hereby vacated.

4. That Item 7 of the Citation, and the proposed penalty of $25.00 therefor, be and the same are hereby affirmed.

5. That Items A and B of the Citation for serious violation, and the proposed penalty therefor, be and the same are hereby vacated.

HENRY F. MARTIN, JR., JUDGE

Dated: May 1, 1974