KENT NOWLIN CONSTRUCTION CO., INC.

OSHRC Docket Nos. 76-191; 76-192

Occupational Safety and Health Review Commission

February 20, 1981

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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Wayne E. Bingham, for the employer

OPINION:

ORDER

BY THE COMMISSION:

On April 30, 1980, the Commission issued a decision in this case that concluded with the following order, in pertinent part:

Accordingly, it is ORDERED that Judge Blythe's:

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(3) affirmance of the amended citation alleging a repeated violation for lack of compliance with 29 C.F.R. 1926.652(b) at the Bluewater worksite and assessment of a $1,000 penalty therefor are affirmed, unless Respondent submits a statement of intent to file a brief to rebut the repeated characterization within ten days of this decision's date of issuance.

8 BNA OSHC 1286 at 1295-1296, 1980 CCH OSHD P24,459 at p. 29,872. This case is before us again as a result of Respondent's filing of a rebuttal brief.

In our previous decision, we concluded that the Secretary of Labor ("the Secretary") had established that Respondent, Kent Nowlin Construction Co., Inc., failed to comply with the trenching standard at 29 C.F.R. 1926.652(b) n1 at a workplace referred to as the Bluewater site. Turning [*2] to the judge's conclusion that this violation of the Act was repeated, we quoted the test for a repeated violation set forth in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"): "A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." n2 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. We noted that, under Potlatch, in a case such as the instant one in which the Secretary alleges repeated violations of section 5(a)(2) of the Act, the Secretary can make a prima facie showing of substantial similarity by establishing that the previous and present violations resulted from noncompliance with the same standard. This prima facie showing may be rebutted by evidence of disparate conditions and hazards associated with the violations of the same standard.

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n1 The standard provides:

Subpart P - Excavations, Trenching, and Shoring

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1926.652 Specific trenching requirements.

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(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 Section 17(a) of the Act, 29 U.S.C. 666(a), reads as follows:

Any employer who willfully or repentedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

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We concluded in our previous decision in this case that the Secretary had made his prima facie showing that the trenching violation at the Bluewater site was repeated because he had entered into evidence, without objection, a citation issued on July 18, 1973, containing an item alleging noncompliance with 29 C.F.R. 1926.652(b) at two manholes and a sewer stub in Albuquerque, New Mexico. This uncontested citation became a Commission final order more than two years before November 11, 1975, the date of the inspection of the Bluewater worksite.

We recognized in our previous decision that Respondent's first opportunity to rebut the alleged repeated characterization was on review. Thus, the judge, acting sua sponte in his decision, had amended the citation from the originally charged willful violation to a repeated violation. In its brief on review, Respondent had set forth its rebuttal in general terms, i.e., it asserted that the circumstances surrounding the 1973 violation and the 1975 violation at issue here were entirely different. n3 In order to afford Respondent the opportunity to more specifically [*4] present its arguments on this issue, we entered our conditional order, quoted supra, and further stated:

Respondent's brief in rebuttal should set forth in detail the asserted dissimilarities between the 1973 violation and the 1975 Bluewater violation, excluding those factors listed in Potlatch Corp. as having no bearing on whether a violation was repeated.

8 BNA OSHC at 1295, 1980 CCH OSHD at p. 29,871. In response to and in conformity with our previous order, Respondent initially notified the Commission of its intent to file a brief to rebut the repeated characterization of the violation at issue and subsequently filed the brief. n4

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n3 Respondent also mentioned that a number of personnel changes occurred over the period of greater than two years. We noted in our previous decision in this case that, among other factors, the commonality of supervisory control over the violative conditions and the time lapse between the violations have no bearing on whether a specific violation is repeated, although such factors will be considered in assessing a penalty. We cited Potlatch for this proposition.

n4 Respondent also submitted a request for the Commission to clarify whether the Commission's orders with regard to the other violations found in these consolidated cases were final for purposes of appeal. In response, the Commission issued a notice stating:

The Commission advises Respondent that pursuant to Rule 54(b) of the Federal Rules of Civil Procedure the effect of the timely filing of Respondent's statement of intent to brief is to toll the 60 day judicial review period set forth in section 11(a) of the Act, 29 U.S.C. 660(a) until final Commission disposition of the entire case.

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In its brief in rebuttal, Respondent argues that, on the basis of available records and in light of Potlatch, its failure to comply with section 1926.652(b) at the Bluewater worksite should not be characterized as a repeated violation. Respondent notes that the uncontested citation issued on July 18, 1973, upon which the repeated characterization is based, described Respondent's noncompliance with section 1926.652(b) as occurring at two manholes and a sewer stub. The citation in the instant case, resulting from the inspection on November 11, 1975, alleged noncompliance with section 1926.652(b) at a trench. Respondent contends that the circumstances surrounding the two violations, in 1973 and 1975, were therefore dissimilar in that, in contrast to the conditions at the trench in the instant case, the installation of a manhole requires a wider cavity with greater sloping. It argues that the hazards posed by a trench differ from those posed by the cavity around a manhole in that the latter is "significantly larger" than a trench and has a "slope which significantly lessens any possibility of hazard." [*6] Respondent additionally asserts that the cavity dug for the sewer stub was only four feet deep and thus not within the scope of section 1926.652(b) -- which applies by its own terms only to trenches 5 feet or more in depth. n5

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n5 Respondent further contends that Potlatch is erroneous in that it excludes the following factors from consideration when determining whether a violation is repeated: employer's attitude ("flouting" of the Act), commonality of supervisory control over the violative conditions, geographical proximity of the violations, the time lapse between the violations, and the number of prior violations. With regard to these factors, we adhere to Commission precedent established in Potlatch and also to our previous holding in this case. See note 3 supra.

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In Potlatch, the Commission majority stated, "A prima facie showing of similarity would be rebutted by evidence of the disparate conditions and hazards associated with these violations of the same standard." 79 OSAHRC at A12, 7 BNA OSHC [*7] at 1063, 1979 CCH OSHD at p. 28,172. We conclude that Respondent has failed in this case to rebut the Secretary's prima facie showing. At the Bluewater trench cited in 1975 and at the manholes n6 described in the 1973 citation, the same hazard was posed to employees working within them -- the collapse of the walls of a cavity dug in unstable or soft ground. The differences in the sizes or shapes of cavities that are all included within the coverage of section 1926.652(b) do not rise to the level of constituting disparate conditions. See Wright & Lopez, Inc., 80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1980 CCH OSHD P24,419 (No. 76-3743, 1980). Nor does the asserted difference in the degree of the hazards establish that the hazards are disparate. Cf. J.L. Foti Construction Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (Nos. 76-4429 and 76-5049, 1980) (difference between fall distances of 15 feet and 30 feet does not establish disparate hazards or conditions).

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n6 We base our conclusion that the violation is repeated solely on the manholes described in the 1973 citation. If Respondent were to prove that the sewer stub was only four feet deep, we would find that the portion of the 1973 citation alleging noncompliance with section 1926.652(b) at the sewer stub is substantially dissimilar from the violation in the instant case. Cf. Dun-Par Engineered Form Co., 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1980 CCH OSHD P24,238 (No. 16062, 1980) (alleged repeated violation, charging noncompliance with 29 C.F.R. 1926.500(d)(1), sustained solely on the basis of prior violations involving floors and not on the basis of prior violations involving roofs).

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Accordingly, for the reasons stated above and in the Commission's decision of April 30, 1980, we affirm the judge's affirmance of the amended citation alleging a repeated violation for failure to comply with 29 C.F.R. 1926.652(b) at the Bluewater worksite and assess a penalty of $1,000. n7 We also re-enter paragraphs (1), (2), and (4) of our order of April 30, 1980. See note 4 supra. n8

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n7 Though relevant to penalty assessment, the two-year period between the antecedent violation and the violation in this case provides no basis for a reduction in the penalty.

n8 Commissioner Barnako, in the previous decision, conclusively decided that the 1973 and 1975 violations were substantially similar. Respondent has not made any argument which would cause Commissioner Barnako to change his previous conclusion.

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IT IS SO ORDERED.