DANCO CONSTRUCTION COMPANY

OSHRC Docket Nos. 4681; 4682; 4683 (Consolidated)

Occupational Safety and Health Review Commission

April 22, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: This case is before the full Commission by my direction for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). Review was directed on the following issue:

Whether the administrative law judge committed reversible error by considering certain penalties as unreviewable or by vacating the penalty for item 5 of docket 4681 (respondent's alleged violation of 29 CFR 1926.652(c))?

The issue before us concerns only Docket No. 4681. On August 8, 1973, the Danco Construction Company was engaged in constructing a sewer line in Little Rock, Arkansas, and on that day the job was inspected by a Department of Labor inspector under section 8(a) of the Act. Following the inspection, a citation and notice of proposed penalties were issued to the company alleging the following non-serious violations of the following standards: 29 CFR 1903.2(a); 29 CFR 1926.100(a), 1926.150(c)(1)(vi), 1926.152(g)(9), and 1926.652(c). A sixty-five dollar penalty was proposed for violation of 29 CFR 1926.652(c), which was item 5 of docket 4681, and twenty-five [*2] dollar penalty was proposed for violation of 29 CFR 1926.150(c)(1)(vi).

The company timely contested the citation with the following notice: "We respectfully contest the citations given to: Danco Construction Company, P.O. Box 856, North Little Rock, Arkansas Numbers B-9498-19 B-1509-16 G-6738."

A hearing was subsequently held with Judge Brenton presiding. Judge Brenton affirmed three items of the citation, and vacated the remaining two items. The citation for a violation of 29 CFR 1926.652(c) was one of those vacated. The Judge declared "void in law" the penalty of $65 that has been alleged for that violation. The only other item for which a penalty has been proposed was for violation of 29 CFR 1926.150(c)(1)(vi). The citation and penalty were affirmed. Judge Brenton said that he had no authority to change the penalty for the citation because a penalty had become a final order by operation of law since the company had contested only the citation.

We concluded that the Judge erred. The company's timely contest of the citation put in issue not only the violations alleged in the citation but also the assessment of the proposed penalties. Florida East Coast [*3] Properties, No. 2354 (February 5, 1974) and Southern Indiana Gas & Electric Co., No. 456 (March 5, 1974). The Judge's reliance on Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973) is misplaced. There, the Fifth Circuit held that a citation becomes final and unreviewable when an employer contests only a penalty. As explained, however, in footnote 3 of Florida East Coast Properties, the converse is not true for the reasons assigned therein.

Nevertheless, the Judge's finding of no violation concerning item 5 in No. 4681 is not challenged before us. We therefore adopt his decision in this regard. Accordingly, the proposed penalty of $65 assessed for item 5 in No. 4681 must be vacated.

As to the penalty for item 3 in No. 4681, where a violation was found, we note that a portable tank containing over five gallons of combustible diesel fuel was poured near a work area without a "No Smoking" sign and without a fire extinguisher within 50 feet. The violation is low in gravity. We therefore, assess a $25 penalty, the amount proposed by the Secretary of Labor in light of all penalty factors in section 17(j).

Accordingly, it is ORDERED [*4] that the decision of the Judge as modified be affirmed.

CONCURBY: VAN NAMEE; MORAN

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur for the reasons stated in my dissent in florida East Coast Properties, 6 OSAHRC 404 (1974).

MORAN, CHAIRMAN, concurring: I concur in the Commission's disposition of this case. However, I disagree with the determination that the Judge erred in holding that the Secretary of Labor's penalty proposal had not become a final order by operation of law.

Relying on 29 U.S.C. 659(a), Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230, 234 (5th Cir. 1973), correctly held that:

The Act provides that a failure to notify the Secretary within 15 [working] days of intent to contest the citation or proposed penalty will render such citation or penalty "a final order of the Commission and not subject to review by any court or agency." (Emphasis added.)

The correctness of treating citations and penalty proposals separately is supported by the legislative history of the Act which provides the following:

The Senate bill kept separate the proceedings for the issuance of the citation from those with respect to the imposition of penalties [*5] for violations. The House amendment combined proposed penalties with the issuance of the citation. The conference report follows the provisions of the Senate bill in this respect.

Staff of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).

Additionally, 29 C.F.R. 1903.17(a) provides that the employer shall specify in his notice of contest whether he is contesting the citation or the penalty proposal, or both. In this case, the respondent was placed on notice of the requirement to contest the penalty by the "Notification of Proposed Penalty" which advised that the penalty proposals would become a final order by operation of law if not contested within 15 working days from the date of receipt thereof."

I believe that it is senseless to hold that penalty proposals are in issue when they have not been specifically contested. It is a common procedure before the Commission for employers to contest only the validity of citations and concede the appropriateness of penalty proposals if the citation is found to be valid. The Commission's holding in this [*6] case will result in unwarranted litigation and add to the increasing backlog of cases pending before the Commission. Moreover, it will lead to unjustified lengthy delays in finalizing cases, such as here where it has taken the Commission 10 months to affirm the Judge's disposition of the case.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting three citations, heretofore consolidated for trial, issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

Each citation alleges that as the result of the inspection of workplaces under the ownership, operation or control of the Respondent, located at Geyer Springs Road & Mabelvale Cutoff, Valley Drive, and 7200 Mabelvale Cutoff, respectively in Little Rock, Arkansas, and each described as follows: "trenching," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 [*7] thereof.

The citations, which were issued on August 30, 1973, allege that the several violations resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR Part 1903 and Part 1926.

The description of the alleged violations contained on said citations state as follows:

Docket 4681

Item 1 -- 29 CFR 1903.2(a) Occupational Safety and Health Poster was not posted in a conspicuous place where notices to employees are customarily posted.

Item 2 -- 29 CFR 1926.100(a) Employees working in areas where there was a possible danger of head injury were not protected by protective helmets; i.e., two employees working under crane boom.

Item 3 -- 29 CFR 1926.150(c)(1)(vi) A fire extinguisher, rated not less than 10B, was not provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas was being used on the jobsite; i.e., Diesel fuel storage tank south side of trench.

Item 4 -- 29 CFR 1926.152(g)(9) Conspicuous and legible signs prohibiting smoking were not posted at service or refueling areas; i.e., Diesel fuel storage area south side [*8] of trench.

Item 5 -- 29 CFR 1926.652(c) Sides of trenches in hard or compact soil, including embankments, were not shored or otherwise supported when the trench is more than 5 feet in depth and 8 fect or more in length. In lieu of shoring, the sides of the trench above the 5-foot level were not adequately sloped to prevent collapse.

Docket 4682

Item 1 -- 29 CFR 1926.100(a) Employees working in areas where there was a possible danger of head injury were not protected by protective helmets; i.e. employees working around hoisting equipment.

Docket 4683

Item 1 -- Occupational Safety and Health Poster was not posted in a conspicuous place where notices to employees are customarily posted.

Item 2 -- Employees working in areas where there was a possible danger of head injury were not protected by protective by protective helmets; i.e. two employes working under back hoe bucket.

Item 3 -- 29 CFR 1926.401(a)(1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment were not grounded; i.e craftsman sabre saw.

Item 4 -- 29 CFR 1926.450(a)(9) The side rails of ladder did not extend 36 inches above the landing.

Item 5 -- 29 CFR 1926.650(f) Employee exposed [*9] to vehicular traffic was not provided with warning vests marked with or made of reflectorized or high visibility material; i.e. one employee directing traffic.

Item 6 -- 29 CFR 1926.651(i)(1) Excavated material was not effectively stored and retained at least 2 feet or more from the edge of the excavation.

Item 7 -- National Electrical Code, NFPA 70-1971, Article 110-17(a) Live parts of electric equipment were not guarded to prevent accidental contact by approved cabinets or other forms of enclosures; i.e. craftsman sabre saw.

The standards as promulgated by the Secretary provide as follows:

Docket 4681

Item 1 -- Section 1903.2 Posting of notice; availability of Act, regulations and applicable standards.

(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 [*10] 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.

Item 2 -- Section 1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Item 3 -- Section 1926.150 Fire protection.

(c) Portable fire fighting equipment -- (1) Fire extinguishers and small hose lines. (vi) A fire extinguisher, rated not less than 10B, shall be provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the jobsite. This requirement does not apply to the integral fuel tanks of motor vehicles.

Item 4 -- Section 1926.152 Flammable and combustible liquids. (g) Service and refueling areas. (9) Conspicuous and legible signs prohibiting smoking shall be posted.

Item 5 -- Section 1926.652 Specific trenching requirements.

(c) Sides of trenches in hard or compact [*11] soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

Docket 4682

Item 1 -- Section 1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Item 1 -- Section 1903.2 Posting of notice; availability of Act, regulations and applicable standards.

(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 [*12] 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.

Item 2 -- Section 1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Item 3 -- Section 1926.401 Grounding and bonding.

(a) Portable and/or cord and plug connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

Item 4 -- Section 1926.450 Ladders.

(a) General requirements. (9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

Item 5 -- Section 1926.650 General protection requirements.

(f) Employees exposed to vehicular [*13] traffic shall be provided with and shall be instructed to wear warning vests marked with or made of reflectorized or high visibility material.

Item 6 -- Section 1926.651 Specific excavation requirements.

(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.

Item 7 -- National Electrical Code, NEPA 70-1971, Article 110-17. Guarding of Live Parts. (Not more than 600 Volts)

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means: . . .

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated August 30, 1973, from J. P. Knorpp, Area Director of the Tulsa, Oklahoma Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation at Item No. 3 under Docket No. 4681 in the amount of $25.00, and for the violation alleged at Item [*14] No. 5 under Docket No. 4681 in the amount of $65.00.

After Respondent contested these citations, and a Complaint and an Answer had been filed by the parties, the consolidated cases came on for hearing at Little Rock, Arkansas, on January 23, 1974.

FINDINGS OF FACT

1. Jurisdiction is not an issue in any one of the three cases inasmuch as Kespondent by answer in each case admitted it was engaged in a business affecting commerce.

2. At the time of the inspection concerning the three citations Respondent was engaged in constructing a sewer line in the City of Little Rock, Arkansas, where at least three operations were being conducted within the course of this sewer line which exceeded a half mile.

3. The Notice of Contest, as filed for each citation, fails to contest in any manner any proposed penalty to be assessed.

4. OSHA notices as required by 29 CFR 1903.2(a) were posted in employee's waiting room at Respondent's headquarters in North Little Rock, Arkansas. All employees frequent this room at least once a month. One was carried in the Superintendent's truck roving the sewer project.

5. Respondent furnished personal protective equipment including hard hats and [*15] directed its employees to wear the latter wherever there existed a chance of injury.

(Docket No. 4681)

6. No OSHA poster, as required by 29 CFR 1903.2(a), was posted at Mabelvale Cutoff and Geyer Springs Road where a portion of the sewer crew was in the performance of sewer construction work.

7. Two employees, out of six at this location, worked under the area of the operation of the boom of the backhoe, each absent a protective helmet.

8. A portable tank containing in excess of five gallons of combustible diesel fuel, servicing the entire sewer project, was parked near the work area at this location absent a "No Smoking" sign thereon or thereabout, and absent a fire extinguisher of any kind within 50 feet of the tank.

9. The trench at this location was made in hard or compact soil, was more than 5 feet in depth and more than 8 feet in length, was not shored nor otherwise supported but was sloped above the 5-foot level with no more than a 1-foot rise to each 1/2-foot horizontal. Two employees worked in this trench for about one hour.

(Docket No. 4682)

10. Two employees, at the Valley Drive location of the sewer project, worked in, under, and about the area [*16] of a hoisting machine operation, each absent a protective helmet.

(Docket No. 4683)

11. No OSHA poster, as prescribed by 29 CFR 1903.2(a), was posted at 7200 Mabelvale Cutoff where eight employees were in the performance of work on the sewer project.

12. Two employees at this location worked in the area underneath the movement of the boom of the backhoe, each absent a protective helmet.

13. Respondent by its answer admits the violation of Standard 29 CFR 1926.401(a)(1) cited at Item 3 of the citation.

14. Within the trench at this location two employees used a ladder which extended 24 inches above the access point to the landing.

15. Respondent by its answer admits the violation of Standard 29 CFR 1926.650(f) cited as Item 5 of the citation.

16. A portion of the spoil bank of the trench at this location was situated within the two foot area from the edge of the trench at a time two employees were in the ditch installing shoring.

17. Respondent by its answer admits the violation of the standard cited at Item 7 of the citation.

ISSUES

Do the regulations at 29 CFR 1903.2(a) and (b) require posting on a sewer construction site more than a half mile in length, where [*17] three crews are employed at separate locations, the employees of two of which do not report to the employer's headquarters more often than once each month where these regulations are complied with.

When, if ever, does the furnishing and instruction to wear a hard hat if there is danger of sustaining an injury, standing alone, relieve the employer from liability of the provisions of 29 CFR 1926.100(a).

Where an employer elects to slope a trench in hard or compact soil, which is more than 5 feet in depth and 8 feet in length, is the angle of repose measured from the bottom of the trench or from the 5-foot level.

Where a ladder is used for either ingress into or egress from a trench, regardless of whether it is required by 29 CFR 1926.652(h), is an employer excused from complying with 29 CFR 1926.450(a)(9).

When, if ever, may an employer permit any portion of excavated or other material to remain closer than 2 feet from the edge of an excavation.

I

The object and purpose of the posting regulations under 29 CFR 1903.2(a) and (b) is to provide a means of informing employees of the protections and obligations provided for in the Act together with where they may find assistance [*18] and other information dealing with the Act.

Here Respondent engaged three separate crews in constructing a sewer line extending over a course in excess of a half mile. These crews did not interchange and only one reported daily at Respondent's headquarters. There was no fixed single physical location for any one of the crews at the construction site inasmuch as it was a continuous on-going mobile operation, involving the employees their tools, equipment, and materials. The Complainant would require separate, continuous, and respective posting at the job site for each of two crews as each progressed from one location to another.

The regulation requires that the notice or notices shall be posted in a conspicuous place but the totality of the evidence fails to reveal that there is a conspicuous place over the route of the sewer line under construction to which the employees of the two separate crews in question report on a daily basis. Moreover, Complainant neither suggested nor hinted how his interpretation of the regulations might be accomplished under the facts and circumstances then and there existing.

It would appear that the employees of the two crews in question, [*19] do not usually work at, or report to, a single establishment as envisioned by the regulations; at least, not on the sewer construction project under examination. And, although they are engaged in construction activities which are physically dispersed their work engagements correspond to and are similar to longshoremen. Thus posting at the location from which these employees operate to carry out their activities should satisfy the regulations. In the instant case they operated out of the headquarters of Respondent even though one or more might not see the inside of the employee waiting room more often than once each month. And there the required notice or notices are posted conspicuously for all to see and digest individually and collectively as each shall see fit so to do.

Each employee of this Respondent is afforded an opportunity to see and become familiar with the information supplied by OSHA notices. Neither the Act nor the regulations require that it be repeated.

Accordingly Item 1 of the citation under Docket 4681 and Item 1 of the citation under Docket 4683 should be vacated.

II

The facts demonstrate that Respondent did furnish personal protective equipment for its [*20] employees. Also, that an employee should wear such equipment whenever presented with a chance of injury. Furthermore, that Respondent had a fair safety program. And this is just about the extent of its surveillance and discipline. The failure of six employees to wear hard hats, under the same or similar conditions, at three separate locations on the same day, certainly does not make out a case for isolated infraction of a disciplinary rule, nor an unwarranted violation which the Respondent could not anticipate. Rather it shows a lack of concern for the safety of its employees.

Here the evidence shows that in each instance each employee was subjected to the chance of injury from an impact or from a falling object even though the duration was very short and the chance almost remote. Yet the chance, in each of the three cases, was lurking therein and thereabouts and thus a possible head injury existed.

The Act does not impose one on one supervision but it does require reasonable conduct by the employer to assure in so far as possible a safe place to work. Respondent's efforts in respect to when and where to wear protective helmets falls short of that goal. A stronger [*21] attitude and concern for lurking dangers, however remote they may appear or seem to be, together with a more vigorous safety program would in all common probability have sufficed and perhaps have caused these employees to have dawned their hard hats at the times and places in question.

Accordingly Item 2 of the citation under Docket 4681, Item 1 of the citation under Docket 4682, and Item 2 of the citation under Docket 4683 should be affirmed.

III

There are numerous specific excavation and trenching requirements enumerated at 29 CFR 1926.651 and .652, each designed and calculated to prevent injury or death to employees required to perform job tasks within them.

The parties are in agreement that the trench at Geyer Springs Road and Mabelvale Cutoff was made in hard or compact soil, that it was absent any shoring but was sloped to an angle of repose not steeper than a 1-foot rise to each 1/2 foot horizontal above the 5-foot level.

Complainant agrees, in the situation here existing, that an employer may elect to slope in lieu of shoring, but in effect, by the citation, charged that the regulation is and should be interpreted to mean in lieu of shoring above the five foot level the [*22] angle of repose shall be not steeper than a 1-foot rise to each 1/2-foot horizontal. And Complainant argues that where no shoring exists then the angle of repose must be measured from the bottom of the trench and not from the 5-foot level.

How then should the regulation appertaining to the violation as charged be construed. The portion of the regulation in issue is "In lieu of shoring, the sides of the trench above the five foot level may be sloped to preclude collapse."

Counsel for the Complainant indicated at the hearing that the language employed by the fashioners of the Standard was vague and that therefore Complainant should be entitled to offer his interpretation of the true meaning of this regulation. This was permitted and the best that can be gleaned from his testimony is that by adhering to his interpretation a much more safe trench, under the same or similar situation, would be created. There is probably no rebuttal to this argument, except that it begs the question as to the true meaning of the regulation, in so far as it may be determined within the scope of the cannons of construction employed to ascertain its literal interpretation.

First, of all, then, [*23] every regulation has a literal meaning, unless it has no meaning that makes sense. The literal meaning is that which the words express, taking them in their natural and ordinary sense; that is, giving to words of common use their commonly accepted meaning and to technical words their proper technical connotation. It is presumed, although rebuttable, that the language of a regulation, having the stature of law, expresses the intention of its fashioners correctly. Thus, where the language employed by the fashioners to express their will is plain and unambiguous and expresses a meaning that is single and sensible, the presumption becomes conclusive. Only where the context, considered from the whole body of regulations on the same subject matter, may admit of another meaning may its plain and unambiguous meaning be subject to judicial construction.

Literally "in lieu of" means "instead of." So the fashioners of the regulation said instead of shoring the sides of trenches, more than 5 feet in depth and 8 feet in length, in hard or compact soil, including embankments, that they may be sloped above the 5-foot level provided the slope is not more than 1-foot rise to each 1/2 foot horizontal. [*24]

And when the regulation in question is considered and construed in light of the several regulations having to do with making trenches a safe place in which to work it is apparent that the doubt cast upon the true meaning of this particular regulation is unwarranted. The companion regulations provide for all the conditions to be encountered outside the scope of hard or compact soil. The regulations for protection in trenches made in soft or unstable material unequivocally mandates that it be provided along the entire sides of such a trench, that is, from the bottom to the top. If the fashioners of the Standard in question meant sloping from the bottom they would have omitted from the Standard the words "above the 5-foot level."

Literalness does not admit of the consideration of evil or objectionable consequences of the obvious meaning, as Complainant, the promulgation of the regulation, seems to contend, where the regulation is plain and unambiguous.

The doctrine of literalness demands that plain, unambiguous regulatory language, expressing a single, sensible meaning, be interpreted to mean exactly what it says. Such language forcloses any consideration of extrinsic [*25] evidence. Statutory interpretation, of course, is not an exact science, nevertheless, conceding its imperfections, literalness, in its full sense, is the most reliable guide to the regulative intent. And when regulations in pari materia are read together as constituting one system or one regulation for making trenches safe places in which to work the doctrine of literalness takes on more reliability.

Accordingly if the angle of repose meets the test of the regulation above the 5-foot level in hard or compact soil then the Standard had not been violated. Here it is conceded that it met that test and thus Item 5 of the citation under Docket 4681 should be vacated.

IV

It has been ascertained that the ladder in the trench at 7200 Mabelvale Cutoff was at least used for egress. Further, that at the point where it rested against the side of the trench that it extended only 24 inches above the landing, whereas the regulation alleged to have been violated requires a 36 inch extension. Respondent argues that the 24 inch extension afforded all the stability needed for its limited use and further that because of the variances in depth along the trench it could have been moved to [*26] meet the requirement of 36 inches. Additionally, it argues inasmuch as there has been no showing that exiting this trench required lateral travel more than 25 feet, then there can be no ladder violation because the proof fails to show ladder was required.

Respondent's argument begs the question. The fact is the ladder was utilized in this trench. The regulation at 29 CFR 1926.450(a)(9) regulates the use of a ladder and not where one shall be used, such as, the requirement at 29 CFR 1926.652(h). The regulation, alleged and cited is to prevent the chance of injury to an employee when he moves to or from the point of access to the landing from the ladder. The extension acts as a grab rail to prevent a fall from imbalance, tripping, or inadvertence.

It was conceded by the Complainant that the 24 inch extension afforded an appreciable measure of protection, that duration of exposure was extremely minimal and that the likelihood of an accident occurring was exceedingly low. Any argument that this situation is a de minimis violation fails because so long as here exists a chance of injury, however slight, there exists a direct and immediate relationship to safety.

The alleged violation [*27] here should be affirmed.

V

The regulation prohibiting the storing of excavated or other material closer than 2 feet from the edge of an excavation is to assure safety to workmen within the trench from movement of this material over the side of the excavation, and additionally to eliminate any weight carrying load from the side of the trench to assure stability against any movement of the soil of its side. Respondent argues, because there was an insiginificant amount of material within the 2 feet area, and no proof of any part thereof being an overburden upon the side of the trench, that there is no violation of the Standard alleged.

Again Respondent is begging the question. The proof here at least indicates that there was a chance of material falling into the trench. Consequently any employee in the trench is subjected to the chance of being struck by such an object with resultant injury. Any proof of overburden is probably suspect.

Obviously if no employee is sent into the trench, either directly or by implication, there is no exposure to the hazard created by this condition. It would appear therefore that only where there is no exposure may an employer permit material [*28] within the 2 feet area.

Here the exposure and duration was of small consequence, however, as heretofore indicated, as long as danger lurks in a situation, giving rise to a chance of injury, the condition or situation must be eliminated to avoid a violation.

The alleged violation at Item 6 under Docket 4683 should be affirmed.

VI

Respondent's failure to contest either proposed penalty in accordance with Section 10(a) of the Act, rendered each a final order of the Review Commission not subject to review by any court or agency. This conclusion is made manifest by the pronouncements of law in Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Co., 487 Fed 2nd 230, and as heretofore interpreted by this tribunal in Secretary v. The Bearden Company,

Even though the $25.00 penalty, proposed for failure to maintain a portable fire extinguisher within 50 feet of Respondent's mobile diesel fuel tank resting along the job site, appears to be inappropriate under all the facts and circumstances, it just seems, because of the Bill Echols case, supra, that this tribunal is rendered powerless to consider this penalty in any [*29] respect.

The evidence concerning the alleged fire extinguisher and no smoking violations was conclusive and in fact affirmed by Respondent. Accordingly Items 3 and 4 of the citation under Docket 4681 should be affirmed.

Item 5 of the citation under Docket 4681 will be ordered vacated so that disposition may be made of the penalty. As was held in The Bearden Company case, supra, a penalty certainly cannot stand naked and alone. Thus, where there is no violation of the Act upon which the penalty can be predicated the penalty thereupon becomes void in law and of no force and effect.

CONCLUSIONS OF LAW

1. Where construction activities, employed along a sewer project, are similar to those of longshoremen in respect to reporting to work from place to place along or about a job site, such as no temporary structure thereon as a meeting place; the posting requirements of the Job Safety Act are satisfied by posting at Respondent's headquarters where these employees operated to carry out their activities, even though some may not frequent headquarters more often than once per month.

2. Protective helmets must be worn wherever conditions indicate there is a chance of impact [*30] to the head, however slight, from a moving or falling object regardless of the duration of exposure.

3. Where an employer elects to slope his trench in hard or compact soil instead of shoring he is in compliance with the regulation at 29 CFR 1910.652(c) when his angle of repose above the 5-foot level is not steeper than a 1-foot rise to each 1/2-foot horizontal.

4. The Job Safety Act requires, upon the employment of a ladder in construction, that it extend 36 inches above the landing, unless grab rails affording a sure grip are provided for an employee moving to or from the point of access.

5. Where excavated or other material is stored within 2 feet of the edge of an excavation presenting a chance of falling upon a workman within the excavation, even though the overburden of the stored material may be insignificant, such condition makes a case for violation of 29 CFR 1910.651(i)(1).

6. Where a proposed penalty to be assessed has become a final order by operation of law it may not be vacated nor modified so long as the citation upon which it was predicated remains a valid and subsisting charge. But where the citation upon a contest is vacated the penalty for which, by operation [*31] of law became a final order, thereupon becomes void in law and of no force and effect.

ORDER

Wherefore it is Ordered and Ajudged that:

1. Items 2, 3, and 4 of the citation under Docket No. 4681 be and each is hereby affirmed.

2. Items 1 and 5 of the citation under Docket No. 4681 be and each is hereby vacated.

3. The penalty of $25.00 under Item 3 of the citation under Docket No. 4681 became a final order by operation of law.

4. The penalty of $65.00 under Item 5 of the citation under Docket No. 4681, standing alone without a citation, is void in law and of no force or effect.

5. Item 1 of the citation under Decket No. 4682 be and it is hereby affirmed.

6. Items 2, 3, 4, 5, 6, and 7 of the citation under Docket No. 4683 be and each is hereby affirmed.

7. Item 1 of the citation under Docket No. 4683 be and it is hereby vacated.

It is so ordered.