McELWEE-COURBIS CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 76-2523

Occupational Safety and Health Review Commission

October 12, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

Lawrence S. Wescott, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Joseph Chodes, dated March 3, 1977, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision held that the respondent had violated the requirements of 29 C.F.R. 1926.651(c) by failing to adequately guard the earthen wall of an excavation in which its employees were working. In its petition for discretionary review, the respondent takes exception to numerous factual findings of the Judge, as well as his summary and analysis of the evidence.

The respondent was engaged in the business of heavy duty construction and water pollution control. At the time of inspection by an authorized representative of the Department of Labor, the respondent was building a pumping station and surge tank. A large circular excavation, 68 to 70 feet in diameter, was dug for the purpose of building the bottom concrete slab of the surge tank. The diameter of this center slab was 32 feet.

An employee of [*2] the respondent was injured when a lower portion of the excavation's 18 1/2-foot high north wall, which the complainant alleged was not sloped or otherwise supported, collapsed. A 4-foot high plywood barrier separated the center slab from this portion of the wall. The barrier was to serve the dual functions of acting as a concrete form and protecting employees. When the cave-in occurred, employee Golden was working outside of the protective barrier, between the barrier and the excavation wall. He was pinned against the barrier by the collapsing soil.

The inspection of the worksite was conducted following the accident, and the respondent was cited for noncompliance with the excavation standard codified at 29 C.F.R. 1926.651(c). The cited standard provides as follows:

The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

The respondent's principal contentions in support of its argument that the citation should be vacated are that:

(1) Its excavation was adequately sloped.

(2) It provided additional equivalent protection in the form of a [*3] barrier that was 4 feet high.

(3) Its employee was installing shorting or equivalent protection at the time of the accident.

(4) Its employee would not have been injured if he had followed instructions to remain behind the 4-foot barrier.

(5) The Judge erred in finding that it could be reasonably inferred from the presence of the respondent's foreman and superintendent at the jobsite that the respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the violation.

(6) The $400 penalty assessed by the Judge is inappropriate. For the reasons that follow, we reject the respondent's contentions and affirm the Judge's decision.

Testimony regarding the adequacy of the north wall's slope was contradictory. The inspecting officer testified that the wall had been almost vertical prior to the accident. This conclusion was based on discussions with employees, as well as his view that a resulting overhang would not have been present after the cave-in if the wall had been sloped. The injured employee, John Golden, testified that the relevant portion of the wall was virtually vertical and that an overhang was not present before the cave-in. However, [*4] another carpenter, William Boyle, who was assisting Golden at the time of the accident, testified that an overhang was present prior to the cave-in. The respondent's president and superintendent testified that the wall was laid back on a slope of 1:1, which was proper for the type of soil present.

Based "on the evidence as a whole," Judge Chodes found that the north wall had not been sloped at an angle of repose which would guard against the danger of moving ground. Contrary to the respondent's argument on review, the Judge did not rely only on photographs taken after the accident in reaching this finding. The Commission agrees with the Judge's finding and therefore adopts it.

The respondent argues that the 4-foot plywood barrier provided equivalent safe protection for employees working in the excavation. Even if it did, however, the respondent would not be absolved of liability because Golden, as well as other employees, worked outside the barrier in an area where it could provide no protection at all. n1

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n1 Golden testified that other employees, including the foreman, had worked in this area. See also footnote 3, infra.

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The respondent further argues that no violation can be found since Golden was installing shoring or equivalent protection at the time of the cave-in. This argument is also rejected. Employees must be adequately protected during the installation of shoring. See Floyd S. Pike Electrical Contractors, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD para. 21,584 (No. 12398, 1977), appeal filed, No. 77-1659, 5th Cir., March 28, 1977. Furthermore, as noted by the Judge, there is evidence that employees other than Golden had worked outside the barrier in the unprotected area of the excavation while performing other work.

In regard to Golden's exposure, the respondent argues that Golden disobeyed specific instructions of his foreman to remain inside the barrier. n2 Golden would not have been injured if he had been working inside the barrier. Golden and his coworker testified that they were instructed to work outside the barrier; two supervisory employees testified to the contrary. The evidence is contradictory on exactly what job Golden was supposed to be doing. The foreman's [*6] testimony indicates that Golden was instructed to place braces behind the plywood barrier and this work could be done from inside the barrier. Golden's testimony indicates that he was either placing stakes at the lower portion of the excavation wall, across which boards would be placed to prevent water seepage from reaching the concrete slab, n3 or that he was installing the braces referred to by the foreman. Whatever Golden's job was, however, the critical question is whether supervisory instructions were violated. Judge Chodes found that the employee did not disobey instructions. The Commission has no reason to evaluate differently the evidence underlying this credibility finding. CTM, Inc., 77 OSAHRC 126/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977).

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n2 The Commission has recognized that an employer can be responsible only for preventable instances of hazardous employee conduct. In other words, employers are not to be held strictly liable for all violations. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976). The record in this case, however, indicates that the conduct and the injury could have been prevented by adequate supervision.

n3 If Golden had not been putting in the stakes, other employees had installed them that day. This work could not have been done from inside the barrier.

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The respondent also takes exception to Judge Chodes' conclusion that the respondent's knowledge of the violation can be inferred from the presence of its foreman and superintendent at the jobsite. It is well established that the actions and knowledge of supervisory employees are imputable to their corporate employer for the purpose of establishing employer knowledge of violative conditions and practices. Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd, No. 76-1060, 4th Cir., August 2, 1977. In the instant case, Golden was not instructed about working on the safe side of the barrier, the hazardous work area was within plain view throughout the worksite, and other employees had worked in the danger zone. These circumstances adequately support the Judge's finding.

After considering the statutory criteria for penalty assessment set forth at 29 U.S.C. 666(i) in conjunction with the entire record, the Commission finds that the assessed penalty of $400 is appropriate, particularly in view of the high gravity of the violation.

Accordingly, [*8] the Judge's decision is affirmed.