ENGINEERS CONSTRUCTION, INCORPORATED

OSHRC Docket No. 3551

Occupational Safety and Health Review Commission

September 29, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, COMMISSIONER: A July 15, 1974, decision of Review Commission Judge Jerome C. Ditore, in a proceeding under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). Because an employee was working in an unsafe trench, respondent was charged with violating 29 U.S.C. 654(a)(2) as a result of a failure to comply with an occupational safety and health standard codified at 29 C.F.R. 1926.652(b). n2 The Judge affirmed the charge. We reverse.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 84 Stat. 1590, 29 U.S.C. 651 et seq., hereafter the Act.

n2 That standard provides:

"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."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The facts are not in dispute. Respondent corporation is engaged in trench excavations. The essence of this offense is that its [*2] foreman supervisor, Vincent B. Manning, was in an unsafe trench n3 preparing the sides for the insertion of a trench box. He did this despite his knowledge of safety rules to the contrary. n4 He also disregarded alternative feasible methods for supporting the walls without so exposing himself.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Respondent has admitted that the trench did not meet the support requirements of the charged standard at the time of the alleged failure to comply.

n4 Manning testified that it was a "firm order" of the respondent that a trench would not be entered "without sheeting or using a trench box or sloping the trench." He also testified as follows:

"Q. And do they enforce [the order]?

A. Yes, they do.

Q. [D]o you follow those directions?

A. Yes, I do."

"Q. And did you have any authorization or direction to proceed as you did?

A. No, I did not."

"Q. And [had you] been encouraged. . . to proceed as you did?

A. No, I hadn't.

Q. This was strictly on your own?

A. Yes, it was."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The record establishes that [*3] the excavation had only been opened for a few days before the inspection. A few minutes before the inspection, Manning, contrary to respondent's safety rules, descended into the trench to do a job that would only take minutes to complete. He had seven years of trenching excavation and supervisory experience. Although this was the first time he had ever violated the company work rule, n5 he was reprimanded therefor and his pay was "dock[ed]."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Manning testified in regards thereto as follows:

"Q. Has there been any other occasion where you have had to do things contrary to company instructions . . .?

A. No.

Q. This is the first time?

A. The first time.

Q. In your seven years experience this is the first time this happened?

A. Yes."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In affirming the violation, the Judge held that the respondent was absolutely liable for the conduct of its agent, Manning, which was imputable to the respondent despite the fact that it was in contravention of the respondent's safety policy. The Judge erred, however, because [*4] the Act does not impose absolute liability upon employers when an employee fails to follow established safety practices. See Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946 (3d Cir. 1974); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).

This is consistent with our holdings in prior cases that employers are not insurers of employee observance of job safety standards. Secretary v. The Mountain States Telephone and Telegraph Co., 2 OSAHRC 168 (1973); Secretary v. Standard Glass Co., 1 OSAHRC 594 (1972).

Since Congress intended to require elimination only of preventable hazards, an employer is not responsible for unpreventable instances of hazardous conduct by his employees. Simply stated, the employer's duty is qualified by the requirement that it be achievable rather than a mere vehicle for strict liability. See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973). n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Although this case concerned an alleged violation of 29 U.S.C. 654(a)(1), we deem the law therein to be equally applicable to an alleged violation of 654(a)(2).

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

To hold respondent in violation under the circumstances resented by this record would disregard the Act's dual responsibility upon both employees and employers to comply with safety requirements. n7 We agree with the conclusion reached in Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 (9th Cir. 1975), and:

fail to see wherein charging an employer with a . . . violation because an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions, contributes to achievement of the cooperation sought by the Congress.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 29 U.S.C. 654 provides:

"(a) Each employer-. . . (2) shall comply with occupational safety and health standards . . . . (b) Each employee shall comply with occupational safety and health standards . . . which are applicable to his own actions and conduct."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant has not shown what respondent could have [*6] done to prevent the idiosyncratic behavior of Manning. It was, so far as respondent was concerned, an unpreventable occurrence which could not be predicted.

Accordingly, no violation of the Act can be found. The Judge's decision is hereby reversed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER: I respectfully dissent because in my view the whole record establishes that the trenching violation was preventable.

Respondent's job superintendent made a conscious decision to enter an admittedly unsafe trench for the purpose of expediting the job. n8 It is clear that the entry into the unshored trench was not a necessity. The compliance officer and respondent's foreman both testified that sheeting or shoring could have been installed in the trench without requiring the unsafe entry of personnel in the trench. Following the inspection, the pipe which was impeding the placement of the trench box was removed from the top part of the trench and the trench box put in.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The testimony is clear as to the reasons underlying the job superintendent's decision.

Q. And on this particular day in question, could you give us the explanation as to why you were in the bottom of that trench preparing that site for the trench box?

A. Yes. To speed up work -- actually to get moving. I was at a stalemate. I couldn't go anywhere. I just couldn't get going, and in direct violation I went into the trench, did what had to be done.

Q. In other words, the reason you got down in the trench was simply it was faster to do it.

A. Yes, I had been eight hours trying to get that going at that point.

[*7]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The facts do not indicate that this action by its job superintendent was so isolated and so idiosyncratic that its occurrence could not be forseen and prevented. Although, as the majority has noted, the job superintendent unequivocally stated that he had never before violated a company work rule; the same man testified that he could not remember whether, previous to this incident, he had ever entered an unshored trench. This suggests that by "never" the foreman may have meant hardly ever. Moreover, in addition to the general policy not to enter unshored or unsloped trenches, it is clear that respondent placed heavy stress on completing projects as quickly as possible. Respondent's foreman testified that he was aware of contract penalties for failure to complete jobs on time. He also responded as follows:

Q. It is a safe statement to make there is a great deal of time pressure involved in getting these jobs completed on time?

A. Yes.

The following testimony of respondent's roving supervisor, the immediate senior to the foreman, verified the emphasis on speed of production.

[*8] Q. Is it safe to say you just started this job?

A. Yes.

Q. In your opinion was there any need to speed up the work activity?

A. No, we are always putting pressure on these people. Production is income and we always like to see our people work as fast as possible.

Q. You have standing instructions to your employees to work as quickly as possible to get the job done?

A. To do a good job.

Faced with an apparent conflict between company policies and apparently no assignment of priorities, respondent's foreman at a relatively remote jobsite chose to place a higher value on time then safety. This was a choice not permissible under the Act. With respondent's emphasis on production, it is not unforeseeable that this choice was made.

I would also agree with the Administrative Law Judge that the actions of the job superintendent are imputable to the employer corporation. Floyd Pike, Inc., No. 3069 (January 30, 1975). Indeed the majority opinion would seem to overrule this decision. Even if his actions were not so imputable, I would add that when an employee or agent in this position feels free to breach a company safety policy, this is strong evidence that the policy [*9] is lax. See footnote 38 in the Nat'l Realty decision cited by the majority.

[The Judge's decision referred to herein follows]

DITORE, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act), contesting a serious citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act.

The citation alleges that as a result of the inspection of a workplace under the ownership, operation and control of the respondent, located at Berlin Street, Montpelier, Vermont, and described as "Pipeline excavation and installation," the respondent violated section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation issued June 18, 1973, alleges that a serious violation resulted from respondent's failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27503) and codified in 29 CFR 1926.652(b). *

- - - - - - - - - - - - - - - - - [*10] -Footnotes- - - - - - - - - - - - - - - - - -

* The citation alleged a violation of 29 CFR 1926.651(c). The citation and the description of the violation in the citation were amended by the complainant to allege and describe a violation of 29 CFR 1926.652(b) There was no objection to the amendments by respondent and the case was tried on the amended citation. (Complaint)

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The description in the amended citation of the serious violation, and the standard as promulgated by the Secretary, are as follows:

Amended citation -- Description -- 29 CFR 1926.652(b)

On or about June 5, 1973, the respondent violated the standard set forth at 29 CFR 1926.652(b) in that said respondent failed to shore, sheet, brace, slope or otherwise support by means of sufficient strength the sides of a trench five (5) feet or more in depth and in unstable or soft material. (see para III of complaint)

Standard as promulgated

29 CFR 1926.652(b)

(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 [*11] to protect the employees working within them. (See Tables P-1, P-2 (following paragraph (g) of this section)

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated June 18, 1973, from Francis R. Amirault, area director of the Concord, New Hampshire area, that the Occupational Safety and Health Administration, United States Department of Labor, proposed to assess a $550.00 penalty for the serious violation of 29 CFR 1926.652(b).

The case was heard at Burlington, Vermont, on October 30, 1973.

ISSUES

1. Whether respondent was responsible for the violation which was caused by the unauthorized acts of its job superintendent.

2. If respondent was responsible, whether the proposed penalty was reasonable and proper.

STATEMENT OF THE EVIDENCE

On June 5, 1973, compliance officer Charles A. Leel, inspected respondent's worksite at Berlin Street, Montpelier, Vermont. The worksite consisted of a trench 18 feet long, 14 feet deep, 10 feet wide at the top and 4 feet wide at the bottom. The trench contained 6 to 8 inches of water, consisted of unstable soil and was adjacent to a heavily traveled highway. The [*12] trench was unshored, unsheeted, unbraced and inadequately sloped. Respondent's job superintendent, Vincent B. Manning, was working in the trench (Exhs. C-1, C-2).

Respondent admits that the trench was in violation of standard 29 CFR 1926.652(b). Respondent through the testimony of its treasurer and civil engineer, Allen Pidgeon, stated that it was respondent's safety policy, communicated to all of its employees, that no employee was to enter any trench or excavation unless the trench or excavation was properly shored, sheeted or sloped; that such instruction was given to its job superintendent, Vincent B. Manning; and that Vincent B. Manning was its representative at the jobsite to supervise the work to be done and to carry out respondent's safety policy.

Mr. Manning stated that he was instructed by respondent not to enter any trench deeper than 4 feet unless the trench was properly shored, sheeted or sloped; that this was a firm safety order of respondent; that he did not follow this instruction on June 5, 1973, the day of the inspection because he had problems with the trench and had to speed up the work; and that he was reprimanded by respondent for disobeying its safety rule. [*13] Mr. Manning further stated that he had five employees at the worksite but none of them worked in the trench.

Respondent contended that it was not responsible for the violation of 29 CFR 1926.652(b) because the violation was the result of the unauthorized act of its job superintendent.

OPINION

Respondent admits that the trench at its worksite was in violation of 29 CFR 1926.652(b). Whether respondent is responsible for the violation which exposed one of its employees to the serious hazard of a trench cave-in, remains as an issue.

Respondent contends it had a firm safety rule, communicated to all its employees, that no employee was to enter any trench or excavation which was deeper than four feet and was not shored, sheeted or sloped; and that its job superintendent Vincent B. Manning, unknown to respondent, acted contrary, and in direct opposition, to its safety rules by working in the unsafe trench. Therefore respondent reasons it is not responsible for its job superintendent's unauthorized act which resulted in a violation of 29 CFR 1926.652(b).

The evidence of record discloses that respondent maintained a safety program. Included in this program was the assignment [*14] by respondent to its supervisory personnel the duty, among other, of enforcing respondent's safety rules for trenching and excavation work.

Under the Act, as well as under the Common Law, the duty of an employer to furnish a safe work place for his employees is positive, continuing and non-delegable. This does not imply that an employer cannot discharge this duty by assigning others to perform it. What is meant is that an employer cannot escape responsibility if the person who carries out or performs the duty does so improperly.

Respondent's job superintendent, Vincent B. Manning, controlled the work at respondent's worksite and was charged with enforcing respondent's safety rules. In such a capacity, Manning was a representative of respondent in carrying out respondent's non-delegable duty of providing its employees with a safe place to work. See Holliday v. Fulton Bond Mill, 142 F.2d 1006, 1007 (5th Cir., 1944).

In the course and scope of his duties, Manning, regardless of his motivations, entered and worked in an unsafe trench contrary to respondent's safety rules, and in violation of standard 29 CFR 1926.652(b). Manning's knowledge of the violation of both the [*15] safety rules and the standard, was respondent's knowledge. To hold otherwise would permit respondent to divest itself of a non-delegable duty under the Act by shifting this duty to a supervisory employee, and would defeat the very purpose of the Act. Respondent had knowledge of, and is responsible for, the violation of 29 CFR 1926.652(b).

The violation, admittedly a serious one (T. 78), exposed one of respondent's employees to the hazard of a trench collapse with probable serious or fatal results. Although respondent's job superintendent exposed only himself to the occupational hazard, his breach of the safety policy he was charged with enforcing is strong evidence that respondent's implementation of its safety rules is lax. Further the actions or behavior of the job superintendent is a poor example or guide for respondent's other employees at the worksite. National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1267 at n. 38 (D.C. Cir., 1973).

Under the circumstances and facts of this case, and with due consideration to the statutory factors of section 17(j) of the Act, this Judge finds that a penalty [*16] of $550.00 is proper and reasonable.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preporderant proof of the following specific findings of fact:

1. Respondent, Engineers Construction, Incorporated, is a Vermont corporation, and maintains a business address at P.O. Box 2187, South Burlington, Vermont.

2. Respondent is in the construction contracting business, and in the course of its business receives and handles goods that move in interstate commerce.

3. At all times material herein, respondent controlled and operated a pipeline excavation and installation worksite at Berlin Street, Montpelier, Vermont.

The Worksite

4. On June 5, 1973, respondent's worksite consisted of a trench 18 feet long, 14 feet deep, 10 feet wide at the top and 4 feet wide at the bottom. The trench contained 6 to 8 inches of water, consisted of unstable soil and was adjacent to a heavy traveled highway (Exhs. C-1, C-2).

5. The trench was unshored, unsheeted and inadequately sloped. Respondent admitted the trench was in violation of 29 CFR 1926.652(b) (Exhs. C-1, C-2).

6. Respondent's job superintendent, Vincent B. Manning was working in the unsafe trench [*17] at the time of inspection on June 5, 1973.

7. Respondent maintained a firm safety policy which it communicated to all its employees including job superintendent Manning, that no employee was to enter or work in any trench or excavation deeper than four feet which was not shored, braced, sheeted or sloped.

8. Manning contrary to, and in direct violation of, respondent's safety work policy and rule entered and worked in the unsafe trench.

9. Respondent's duty to provide a safe workplace for its employees is non-delegable (see Opinion).

10. Vincent B. Manning in his capacity as job superintendent and enforcer of respondent's safety policy, represented respondent at the jobsite (see Opinion).

11. Vincent B. Manning's knowledge and use of the unsafe trench in violation of respondent's safety policy and of standard 29 CFR 1926.652(b) is respondent's knowledge (see Opinion).

12. The violation admittedly was a serious one.

13. The proposed penalty was arrived at by reducing the unadjusted penalty of $1,000.00 to $550.00 by allowing credits of 20% for prior history, 20% for good faith and 5% for size.

CONCLUSIONS OF LAW

1. The respondent is, and at all times material herein [*18] was, engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent was in violation of standard 29 CFR 1926.652(b) on June 5, 1973.

4. The violation was serious within the meaning of the Act.

5. A penalty of $550.00 for the serious violation of 29 CFR 1926.652(b) is reasonable and proper.

ORDER

Due deliberation having been had on the whole record it is hereby

ORDERED that the citation for a serious violation of 29 CFR 1926.652(b) is affirmed; it is further

ORDERED that the notification of proposed penalty of $550.00 is affirmed.