NELCO, INCORPORATED
OSHRC Docket No. 6969
Occupational Safety and Health Review Commission
November 6, 1975
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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners
COUNSEL:
Morton Marks, U.S. Dept. of Labor
John D. Merwin, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge Joseph L. Chalk, dated August 27, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
The essential question before the Commission is whether Administrative Law Judge Joseph L. Chalk erred in holding that the ground opening involved was an "excavation" as defined in 29 CFR § 1926.653(f) rather than a trench. n1 I would hold, for the reasons set forth below, that the Judge erred when he concluded that the ground opening was not a trench and thereafter vacated the citation, as amended by the complaint, issued to respondent, Nelco, Inc., for alleged non-compliance with safety standard 29 CFR § 1926.652(c).
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n1 The direction for review also invited submissions on whether the Judge erred in finding that the soil presented "no danger of sliding or caving in." Because of my view of the case, consideration of that point is unnecessary.
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On the day of inspection, respondent was engaged in the construction of a double cistern at a worksite in Frederiksted, Saint Croix, United States, Virgin Islands. It had dug a cavity in the earth that was 6-feet deep, 65-feet long and 35-feet wide. The walls of this cavity were vertical, unshored, and otherwise unprotected. Judge Chalk concluded that the soil was hard and compact.
A latticework system of steel rods 10-feet in length and tied together with pieces of wire had been erected inside part of the cavity. Eventually, plywood would be erected around the latticework to create a form into which concrete would be poured. Between the earthen walls and the latticework was a space of two and one half feet. An employee was working in this narrow space, with his back to the dirt wall.
The citation issued to respondent alleged a failure to comply with safety standard 29 CFR § 1926.651(c) which reads as follows:
§ 1926.651 Specific excavation requirements.
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(c) the walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by [*3] a shoring system, sloping of the ground, or some other equivalent means (emphasis added).
The complaint, however, amended the citation and alleged non-compliance with safety standard 29 CFR § 1926.652(c) n2 which in pertinent part reads as follows:
§ 1926.652 Specific trenching requirements.
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(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 (emphasis added).
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n2 After resting his case, the Secretary moved under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 15(b) to conform the pleadings to the evidence, and to allege alternatively non-compliance with either safety standard 29 CFR § 1926.651(c) or § 1926.652(c) pursuant to Fed. R. Civ. P. 8(a). The Judge reserved ruling on these motions. Later, he avoided ruling on the motions when he vacated the citation. I also find a ruling unnecessary, but do so because I would find the cavity to be a "trench" as alleged in the complaint.
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Judge Chalk concluded "as a matter of law" that the cavity dug by respondent was an "excavation" and, therefore, that paragraph (c) of § 1926.651 was controlling. He vacated the citation because he concluded that there was "no danger from moving ground" as required by the standard. n3
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n3 The Judge concluded that the hard and compact soil did not present a danger to employees of a cave-in. This fact relates only to the gravity of a violation in the context of alleged non-compliance with safety standard 29 CFR § 1926.652(c). That standard, unlike safety standard § 1926.651(c) does not require that the soil be shown to be dangerous in specific cases before precautions are required.
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I strongly disagree with the holding, affirmed by the majority, that the relevant portion of the cavity between the unshored, unsloped or otherwise unprotected earthen wall and the cage-like lattice system of steel rods two and one half feet from the face of the cavity wall was not a trench.
Paragraph 1926.653(f) of Title [*5] 29 defines the word "excavation" as follows:
§ 1926.653 Definitions applicable to this subpart.
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(f) "Excavation" - Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reason of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench (emphasis added).
The word "Trench" is defined, at paragraph 1926.653(n) of Title 29, as follows:
(n) "Trench" - A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.
Taken together, I conclude that these definitions contemplate that when installed forms of similar structures narrow an excavation to less than 15 feet, such that the depth of the excavation is greater than its width, the excavation should also meet the substantive requirements of the relevant trenching standard. Further, I conclude that reasons of practicality require this conclusion. In an excavation, employees could possibly retreat to the center of the cavity, thereby [*6] escaping a cave-in or earth slide. In a trench, a cave-in would most likely crush employees even in the center of the trench. The greater danger involved in trenches vis-a-vis large excavations is plainly the reason for the more specific trenching requirements. See, Copelan Plumbing Co., No. 861 (June 17, 1974) (concurring and dissenting opinions).
In this case, the steel latticework structure effectively reduced the width of the cavity that respondent's employee worked in to two and one half feet. The depth of the excavation exceeded its width and the more specific trenching requirements were applicable.
Rather than viewing the relevant standards in this manner, Judge Chalk applied a mechanistic analysis that allowed the conclusion that the latticework was not a form or similar structure because it could not contain freshly poured concrete and thus, could not serve the usual purpose of a form. Judge Chalk "reached" into subpart Q of Part 1926 to find a definition of the word "formwork" to support his conclusion. "Formwork" is defined as follows:
§ 1926.702 Definitions applicable to this subpart.
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(b) "Formwork" or "falsework" - The total system of support [*7] for freshly placed concrete, including the mold or sheathing which contacts the concrete as well as all supporting members, hardware, and necessary bracing.
Admittedly, the steel reinforcing bar that was being worked into the lattice-like structure was not "formwork" within the meaning of the definition contained in 29 CFR § 1926.702(b). However, safety standard 29 CFR § 1926.653(f) uses the term "form or similar structure," and Judge Chalk's reliance on the § 1926.702(b) definition is misplaced. Judge Chalk would require a "similar structure" within the definition of § 1926.653(f) to be able to contain concrete. Such a construction disregards the last part of the definition of "excavation," which is concerned with the reduction of depth to width ratios, whereby employees might find themselves unreasonably hemmed in. The latticework was a "similar structure" within the meaning of the § 1926.653(f) definition, and nothing in the Judge's decision serves to rebut that conclusion. n4 As such, I conclude that the appropriate standard to be applied to the facts of this case is 29 CFR § 1926.652(c) - trenches dug in hard or compact soil.
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n4 I do not read the judge's opinion as relying on the fact that the latticework could be climbed as a ladder as a ground for holding the latticework to not be a "form or similar structure." I detect, therefore, no disagreement with the proposition that the fact that employees could climb the latticework would be of small comfort to an employee trapped by a sudden cave-in. The latticework is at most an incidental, albeit accidental, precaution against injury. It goes only to the gravity of the violation inasmuch as a means of escape is an independent requirement (see, 29 CFR § 1926.652(h)) and must itself be adequate for that purpose. Coughlan Constr. Co., Inc., Nos. 5303 & 5404 (October 28, 1975) (leading and concurring opinions).
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