PAUL L. HEATH, d/b/a PAUL L. HEATH CONTRACTING CO.
OSHRC Docket No. 5467
Occupational Safety and Health Review Commission
September 24, 1975
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: The July 25, 1974 decision of Administrative Law Judge Vernon Riehl is before the Commission for review 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"]. Judge Riehl affirmed the citation for serious violation of section 5(a)(2) of the Act after he found a failure to comply with the safety standard published at 29 CFR § 1926.652(c), n1 and that respondent's employee was exposed to the hazard of a trench cave-in. The Judge assessed a penalty of $500.
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n1 1926.652
Specific trenching requirements
(c) Sides of trenches in hard or compact 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.
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The issue before us was raised sua sponte, and is whether an employee of respondent was exposed to the hazard resulting from the non-compliance with § 1926.652(c). The Secretary of Labor has filed no brief, and simply asserts that the Judge's decision is supported by the record. The respondent does not contest his failure to comply with the standard, but seeks reversal on the exposure issue largely on the strength of the testimony of its employee, Mr. Henley.
Having reviewed the entire record, the decision of the Judge is affirmed.
The finding by the Judge that an employee of respondent was exposed to the cited hazard was based on the credibility accorded testimony of two witnesses, the compliance officer ans respondent's employee, Mr. Henley. The compliance officer testified that he saw Mr. Henley climbing out of the trench. He noted that he did not see Mr. Henley enter the trench, nor did he know why he was in it.
Mr. Heath testified that on the day of the inspection the trench had already been dug, and that pipefitters, employed by another contractor, were working in the trench. [*3] He claimed that his employee would only have been in the trench to assist the pipefitters, a possibility which would occur only in extreme emergencies and which be deemed unlikely because of union rules. Respondent's employee, Mr. Henley, however, testified that he did not think he was in the trench. When questioned further he stated, "This man never caught me in the ditch."
This Commission adheres to the rule that determining the credibility of witnesses is a matter for the trial Judge to decide. Julius Nasso Concrete Corp., No. 673 (July 29, 1974); see Rushing v. F.T.C. 320 F.2d 280, 283 (5th Cir. 1963), cert. denied, 375 U.S. 986 (1964). There is no basis on this record upon which to set aside the Judge's finding that respondent's employee was exposed to the hazard. See Fed. R. Civ. P. 52(a). n2
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n2 Rule 52(a) states in pertinent part:
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.
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With respect to the penalties, we find that the Judge properly considered the gravity of the violation as well as respondent's size, safety history, and good faith, as required by section 17(j) of the Act. We find his assessment of a $500 penalty to be appropriate.
Accordingly, the Judge's decision is AFFIRMED.
[The Judge's decision referred to herein follows]
RIEHL, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citation alleges that an inspection of the workplace under the ownership, operation, and control of the respondent reveals the existence of workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.
The citation alleges that the violation results from a failure to comply with standards promulgated by publication in [*5] the Federal Register.
A description of alleged violations contained in said Citation states:
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CITATION NUMBER 1 FOR NONSERIOUS VIOLATIONS |
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Date by |
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Standard, regula- |
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which al- |
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Item |
tion or section |
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leged viola- |
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num- |
of the Act al- |
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tion must |
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ber |
legedly violated |
Description of alleged violation |
be corrected |
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1 |
1926.100(a) |
An employee working a trench was |
Immediately |
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exposed to possible head injury |
upon re- |
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from impact or from falling objects |
ceipt of |
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and was not protected by a |
this |
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protective helmet. |
Citation. |
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2 |
1926.652(h) |
Exit ladders or steps were not |
Immediately |
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provided and located so as to |
upon re- |
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require no more than 25 feet of |
ceipt of |
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lateral travel for an employee |
this |
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working in a trench more than 4 |
Citation. |
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feet in depth and approximately |
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55 feet in length with vertical |
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sides. |
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The above alleged violations are cited from 29 CFR 1926 as appears in Volume 37, Federal Register dated December 16, 1972, Number 243.
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CITATION NUMBER 2 FOR SERIOUS VIOLATION |
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Date by which |
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Standard, regulation |
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alleged viola- |
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or section of the Act |
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tion must be |
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allegedly violated |
Description of alleged violation |
corrected |
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1926.652(c) |
The sides of the trench more than |
Immediately |
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five (5) feet in depth and more |
upon receipt of |
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than eight (8) feet in length in |
this Citation |
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which an employee was working |
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were not provided with shoring or |
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sloped to prevent collapse. |
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[*6]
The above alleged violation is cited from 29 CFR 1926 as appears in Volume 37, Federal Register dated December 16, 1972, Number 243.
Pursuant to enforcement procedures set forth in section 10(a) of the Act, respondent was duly notified by letter, by the Occupational Safety and Health Administration that the U.S. Department of Labor proposed to assess a penalty for the violations in the total amount of $525. Pursuant to section 10(c) of the Act, respondent timely filed with the Secretary a notification to contest the citation and penalties.
The case was duly transmitted to the Occupational Safety and Health Review Commission and docketed as number 5467. At the hearing, which was held on April 3, 1974, St. Louis, Missouri, the respondent, Paul L. Heath, appeared and represented himself.
DISCUSSION
Respondent's defense is that his employees were not working in the area described in the citation and also that he thought the Compliance Officer, Mr. Hensley, had not properly identified respondent's employee in an unslanted ditch over 5 feet deep.
Respondent, Paul L. Heath, is the sole proprietor of his business. He is engaged in the excavation and construction of sewers, sewage [*7] disposal systems and other underground utilities. He employs approximately five persons.
On October 25, 1973, respondent had a construction worksite located at 12781 Pennridge Drive, Bridgeton, Missouri. This site was inspected by OSHA Compliance Officer, Hershal W. Hensley, on that date. As a result of this inspection, a citation alleging two nonserious violations, a citation for serious violation and a notification of proposed penalty was issued.
A trench which had been excavated by respondent's employees was inspected by the compliance officer in respondent Heath's presence. This trench was some 55 feet in length, from 6 feet in depth at one end to 8 feet in depth at the other, and was approximately 24 inches wide at the bottom (Exhibit G-4). The sides of the trench were nearly vertical. 29 CFR 1926.652(c) requires that if sloping is elected, the slope shall not be steeper than a 1 foot rise to each 1/2 foot horizontal. There was no shoring or bracing used to support the trench walls (Exhibit G-3).
Therefore, there is no question but what the trench was deeper than the standard requires without being shored, or slanted. The remaining issues are whether or not [*8] an employee of the respondent was actually in the trench at the time of examination by the compliance officer and, if so, whether or not the penalty was appropriate.
We closely followed the evidence at the hearing. We have carefully examined the transcript and other evidence in the file and have concluded that the preponderance of the credible, substantial, probative evidence establishes that respondent's employee, Gary Henley, was working in the trench at a point which measures 7 feet deep.
We quote the following excerpts from the testimony in substantiation:
Q. (by Mr. McCoy) How many of the six were identified to you as employees of Paul Heath?
A. (by Mr. Hensley) One.
Q. Is that one present here today?
A. Yes.
Q. Could you point him out and state his name, please?
A. Yes. Mr. Henley, Gary Henley (indicating).
Q. You observed Mr. Henley working then without a hard hat, is that correct?
A. When I first came on the job only.
Q. Yes.
A. As soon as the foreman for them went back and told them I don't know what he told them, I can't say for sure -- but anyway, as soon as he went back out on the job they all went to their cars. They all evidently were [*9] provided hard hats because they all immediately went and got them on.
JUDGE RIEHL: Did an employee get down in the trench or stay above ground all the time?
THE WITNESS: I never saw Mr. Henley get down in the trench. However, I had watched them work there for a few minutes, then I walked away with Mr. Ware and talked to him about some other items. It was for some period of time -- it couldn't have been a very long time -- then I looked back out of the window and I saw Mr. Heath's employee, Gary Henley, crawling out of the trench. I did not see him in the trench. I saw him crawling out. What he was doing in there I don't have any idea.
JUDGE RIEHL: Before you go any further, you say you saw. Mr. Henley climb out of this trench in G-3?
THE WITNESS: Yes.
JUDGE RIEHL: Do you know how deep the point was he climbed out of?
THE WITNESS: Where I measured it, approximately where he was, was approximately seven feet.
JUDGE RIEHL: Where he climbed out?
THE WITNESS: Yes, sir.
Q. (by Mr. McCoy) Once again, what was the approximate depth of the area where you saw the backhoe operator dropping the pipe in and you saw Mr. Henley emerge from the trench?
A. (by Mr. Hensley) It was [*10] near the center of the trench, probably close to where the first pipe and the second pipe were connected up and about seven feet. The depth at that point was approximately seven feet deep. It was graduated from six feet to eight feet in depth. That particular point is about half way.
JUDGE RIEHL: How did he get out of there? Did he have a ladder or what?
THE WITNESS: No, sir. He just crawled up out of there, I suppose. I just saw him coming over the edge is all I saw.
CROSS EXAMINATION
MR. HEATH: . . . I'm merely pointing this out since it appears the Government here is trying to establish as to whether or not he was ever in the trench. And I'm not sure that he was. And I could not say that it was at that depth though at the time he was in it.
JUDGE RIEHL: In other words, does he have to get in that ditch sometime during the day to clean it out?
MR. HEATH: When we auger across the street either he or someone else would have had to have gotten down in that ditch. We auger across with a small piece of pipe and then we put a larger auger on and come back. And at the time that small piece came over someone would have had to have gotten down in the ditch and take the small [*11] auger off and put the big auger on. And then after that if our hole is a little bigger than the ditch or something, many times we go in with a backhoe and cut it down.
I don't know this was the case here. I'm merely pointing out it could have been.
The evidence, therefore, establishes to our satisfaction that Henley indeed did get into the ditch and did do some work in an area where it was at least 6 or 7 feet in depth and was thereby furnished with an unsafe workplace.
The proposed penalties were computed according to OSHA administrative guidelines on the basis of the gravity of the violation, good faith size and prior history of the employer (Exhibits G-5, G-6). We note that although respondent was given full credit for good faith and history, that he had previously been cited for violation of 29 CFR 652 and that this violation resulted in the death of one of his employees.
FINDINGS OF FACT
1. Respondent is the sole proprietor of his place of business in St. Louis, Missouri.
2. Respondent is engaged in the excavation and construction of sewers, sewage disposal systems and other underground utilities. The respondent employs approximately five employees and he [*12] regularly uses equipment and materials which have been moved in or produced for commerce.
3. On October 25, 1973, respondent while working on a construction worksite at 12781 Pennridge Drive, Bridgeton, Missouri, was inspected by an OSHA Compliance Officer, Hershal W. Hensley. As a result of this inspection, a citation alleging two nonserious violations; a citation for a serious violation, and a notification of proposed penalty were issued and duly contested by respondent.
4. The Compliance Officer measured a trench which had been excavated by respondent's employees. The trench measured some 55 feet in length, from 6 feet in depth at one end to 8 feet in depth at the other, and was approximately 24 inches wide at the bottom (Exhibit G-4).
5. Measurements indicated that the sides of the trench were nearly vertical. 29 CFR 1926.652(c) requires that if sloping is elected, the slope ". . . shall not be steeper than a 1-foot rise to each 1/2 foot horizontal."
6. At the time of the inspection, no shoring or bracing was used to support the trench walls (Exhibit G-3).
7. Examination of the soil revealed it to be hard and compact except for an area of disturbed soil [*13] approximately 2 feet along the trench and to a depth of 4 feet, immediately adjacent to the footings of a building being constructed on the site.
8. Mr. Gary Henley, an employee of respondent, climbed out of a trench at a point which measured 7 feet deep during the time of the inspection (Exhibit G-4).
9. Respondent's employee Henley did not use a ladder to exit the trench nor was any ladder or other means of exit provided.
10. An employee of another contractor (one of four pipefitters on the job) was also working in the trench, and respondent's employee Henley had been manually digging in it, at a point which measured 6 feet deep, the day prior to the inspection.
11. At the time of the inspection, a backhoe was operating, with its outriggers planted about 2 feet from the edge of the trench, to lift pipe into the trench.
12. Neither respondent's employee Henley nor the backhoe operator was wearing protective helmets when first observed by the compliance officer. Employee Henley was working in the general vicinity of the backhoe and exposed to injury by its swinging boom and rigging.
13. The purpose of requiring a ladder in the trench is to provide an emergency means of [*14] exit and also to protect the integrity of the trench walls where workmen are climbing in and out.
14. Respondent's failure to provide shoring or sloping exposed his employees to the hazard of a cave-in and this could result in a serious injury or fatality.
15. The proposed penalties were computed according to OSHA administrative guidelines on the basis of the gravity of the violation, good faith, size and prior history of the employer (Exhibits G-5, G-6).
16. Mr. Heath was given full credit for good faith and history although the record shows that he had previously been cited for violation of 29 CFR 652 and that this violation resulted in the death of one of his employees.
17. Respondent Heath had not visited the jobsite in question in this case prior to the October 25, 1973, inspection when he did so at the request of the compliance officer. Respondent Heath left the configuration of the trench to the judgment of his backhoe operator who was given only the general instruction to: "Make the ditch safe.", or words to that general effect.
CONCLUSIONS OF LAW
1. Respondent is and at all times material hereto was an employer engaged in a business affecting commerce [*15] within the meaning of the Occupational Safety and Health Act of 1970 (29 U.S.C 651 et seq., hereinafter, the Act).
2. Respondent violated 29 CFR 1926.100(a) as alleged (citation for nonserious violation, Item 1) by failing to insure that his employees wore protective helmets when working in areas where a possible danger of head injury existed.
3. Respondent violated 29 CFR 1926.652(h) (citation for nonserious violation, Item 2) by failing to provide a ladder or other adequate means of exiting the trench in question.
4. Respondent violated 29 CFR 1926.652(c) (citation for serious violation) by failing to shore the sides, of said trench or slope the sides, above the foot level not steeper than 1/2 to 1.
5. Respondent's violation of 29 CFR 1926.652(c) is a serious violation within the meaning of section 17(k).
6. The proposed penalties of $25, for nonserious violation Item 2, and of $500 for the alleged serious violation are appropriate under section 17(j) of the Act, considering the gravity of the violations, the size of respondent's business, good faith of respondent, and respondent's history of previous violation and respondent's exhibition of good faith and abatement. [*16]
DECISION
Based on the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that the citations, for nonserious and serious violations, are affirmed in all respects.
It is further ORDERED that the penalties of $25, for the nonserious violation Item 2, and $500, for the serious violation of 29 CFR 1926.652(c) are affirmed.