HAMMET COMPANY, INC.

OSHRC Docket No. 7777

Occupational Safety and Health Review Commission

March 31, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Bryan W. Henry, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: An October 30, 1974, decision of Review Commission Judge John J. Larkin is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated two citations which, as amended by the complaint, alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. 1926.650(h) and 1926.652(b). n1 It also denied a motion submitted about one month after the close of the hearing by the complainant to amend his complaint to conform to the evidence, pursuant to Rule 15(b), Federal Rules of Civil Procedure, so as to allege a violation based on noncompliance with 29 C.F.R. 1926.652(c) n2 in lieu of the 1926.652(b) charge.

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n1 That standard provides that:

"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 employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section."

n2 That standard provides that:

"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."

[*2]

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Review was directed on whether Judge Larkin erred in granting respondent's motion for directed judgment on the citation alleging noncompliance with 1926.652(b) and whether the Judge erred in denying the complainant's motion to amend the complaint. In view of the complainant's concession in its review brief that "the record as a whole supports a finding that the trench was excavated in hard and compact soil" and our action on the amendment issue, it is unnecessary to address the first directed issue.

The trench in issue consisted of two sections. Section "A" was six feet deep, 12 feet long, and "approximately" five feet wide. Section "B" was six feet and six inches deep, four feet wide at the bottom, 10 feet wide at the top, and 25 feet long.

Section 1926.652(c), the standard regulating cavities dug in "hard or compact soil," to which the complainant desires ot amend, requires sloping only above the five-foot level at 1/2:1 ratio. Consequently, section "A" would have to be sloped back only six inches from a depth of one foot, and the section "B" would have to be sloped back only nine inches from [*3] a depth of one and a half feet. This amounts to very little sloping and there is no evidence of any measurements of the widths of the sections at these depths or at the top of section "A." Furthermore, Section A was located in a street, and no sloping of the uppermost portion of that section was required as it consisted of asphalt. See Tables P-1 and P-2, 29 C.F.R. 1926.652. Accordingly, we find that it is not established by a preponderance of the evidence that the respondent failed to comply with 1926.652(c). Therefore, assuming arguendo that the Judge erred in denying the motion to amend, we find that his vacation of this citation was correct.

Accordingly, the Judge's disposition of the citation for noncompliance with 1926.652(b) is affirmed. The Judge's findings as to the remaining citation are also affirmed.

CONCURBY: BARNAKO; CLEARY (In Part)

CONCUR:

BARNAKO, Chairman, concurring.

I concur in the disposition for the reasons assigned except I do not join in the statement "no sloping of the uppermost portion of [section A] was required as it consisted of asphalt." I do not join in because the statement assumes an interpretation of the standard when other interpretations are possible, [*4] and arguments have not been advanced as to any possible interpretation. In this regard and specifically with reference to Table P-2 two courts of appeal have found that the Table is illustrative and does not state an exclusive specification. United States v. Dye Constr. Co., 510 F.2d 78, 81 (10th Cir. 1975); Horne Plumbing and Heating Co. v. O.S.H.R.C., No. 74-3897, Slip op. n.4, (5th Cir., February 26, 1976). A similar conclusion can be made as to Table P-1.

I concur in the disposition because six inches of sloping in asphalt can be characterized as de minimis for serving no useful safety purpose on the facts of this case.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur only in the result as to section "B" of the trench. I dissent as to the disposition regarding section "A" of the trench.

The "B" Section

Trench section "B" was six and one-half feet deep and was four feet wide at its bottom. Section 1926.652(c) requires that such a trench be at least five and one-half feet wide at its top. Trench section "B" was ten feet wide at its top, and accordingly complied with that standard. See e.g., Horowitz Brothers, [*5] Inc., 17 OSAHRC 485, BNA 3 OSHC 1131, CCH 1975-76 OSHD para. 19,596 (No. 3004, April 30, 1975).

The "A" Section

This section was five feet wide and six feet deep. Its sides were essentially vertical, with a belled effect at the bottom, and were neither shored, sheeted nor braced to prevent collapse. The Secretary concedes that the record as a whole supports the Judge's finding that the soil was hard and compact, but he urges that we grant his motion to amend the pleadings under Fed. R. Civ. p. 15(b) as incorporated by reference under Commission Rule 2(b) to allege a failure to comply with 29 CFR 1926.652(c).

In my view, the motion should be granted. All the material issues with respect to 29 CFR 1926.652(c) were tried in one form or another. n3 See generally, D. Federico Company, Inc., BNA 3 OSHC 1970, 1972, CCH 1975-76 OSHD para. 20,422 (No. 4395, February 10, 1976). Moreover, because the trench walls were vertical, the type of soil in which the trench was cut is of no legal significance in this case. See W.N. Couch Construction Co., BNA 3 OSHC 1786 (No. 5105, December 8, 1975) (dissenting opinion).

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n3 Respondent's generalized claims of prejudice are insubstantial. Though it claims that it will be deprived of defenses to the allegation of noncompliance with 29 CFR 1926.652(c), it never states what those defenses are and neither the standards nor the record suggest any such defenses. Cf. Roberts v. Williams, 456 F.2d 819, 825 (5th Cir.), cert. denied 404 U.S. 866 (1971). Vague declarations of prejudice are not sufficient. Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-48 (5th Cir. 1973) (second part of Rule 15(b)). "This prejudice must 'put the objecting party to some serious disadvantage,' and 'it is not enough that [the objecting party] advances an imagined grievance or seeks to protect some tactical advantage.'" Id. at 48, quoting 6 Wright & Miller, Federal Practice and Procedure: Civil 1495 at 478 (1971).

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On the merits, it is clear that respondent violated section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.652(c). Also, this violation was "serious" within the meaning of section 17(k) of the Act. Respondent [*7] knew or could have known of these conditions; and if a cave-in had occurred, n4 death or serious injury would have most likely resulted. Tr. 16.

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n4 The likelihood or frequency of injury is not considered in determining whether a violation is serious within the meaning of section 17(k) of the Act, but is a relevant consideration in determining the gravity of the violation in the penalty assessment context. See generally, California Stevedore & Ballast Company, 4 OSAHRC 642, 644, BNA 1 OSHC 1305, 1307, CCH 1973-74 OSHD para. 16,520 at 21,364 (No. 14, September 4, 1973), aff'd and approved, 517 F.2d 986, 987-988 (9th Cir. 1975); Brady-Hamilton Stevedore Company, BNA 3 OSHC 1925, CCH 1975-76 OSHD para. 20,342 (No. 2265, January 26, 1976) and cases cited.

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I do join, however, in Chairman Barnako's concurring opinion to the extent that it rejects the discussion in the lead opinion concerning the treatment of asphalt under Tables P-1 and P-2. As I understand his opinion, he regards the lack of sloping [*8] in both sections to be de minimis, and for that reason, he sees no useful purpose in pursuing the case further.

I do not agree. The walls of the "A" section were wet, and approaching their elastic limit. Pieces of soil (including one the size of a basketball) were continually sloughing down. The trench was dug into a street, and was subject to traffic vibrations. The section also had a belled effect at the bottom, thus leaving a substantial portion of the trench walls without any support. Under these circumstances, the possible falling of overhanging asphalt cannot be fully discounted. On these facts it is anomalous to find the violation to be de minimis when Commission precedent (see note 4, supra) suggests that the violation of section 5(a)(2) is "serious" within the meaning of section 17(k) of the Act. The violation should be characterized as "serious" even though for purposes of penalty assessment the gravity of the violation may be considered moderately low because of the low probability factor.