OSHRC Docket No. 81-0992


Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.


A decision of former Administrative Law Judge Jess D. Ewing is before the Commission under 29 U.S.C. 661(i).  The Horvitz Company was installing and constructing sewers and catch basins at a worksite in Cleveland Heights, Ohio.  It had excavated a cavity that was approximately seven feet deep, nine feet wide and thirteen feet long.  The employer was issued a citation alleging a serious violation of the trenching standard at 29 C.F.R. 1926.652(c).  Before the hearing, the Secretary of Labor moved to amend the citation to alternatively allege a violation of the excavation standard at 29 C.F.R. 1926.651(c) in that the excavation was not shored or otherwise protected against the danger of "moving ground."  The motion to amend was granted by the judge over the employer's objection.  After a hearing, the judge found a serious violation of section 1926.651(c).  On review, the employer argues that the judge erred in allowing the pre-hearing amendment and affirming the citation.  We have examined the entire record and find no prejudicial error in the judge's decision.   Accordingly, the judge's decision is affirmed.


Ray H. Darling, Jr.
Executive Secretary

DATED:  MAR 30 1984

ROWLAND, Chairman, Dissenting:

I agree that the judge did not err in granting the Secretary's motion for a prehearing amendment,[[1]] but I conclude that the Secretary did not by a preponderance of the evidence establish a violation of 29 C.F.R. 1926.651(c).  Therefore, I dissent from the majority's decision to affirm the judge.

The standard at issue, section 1926.651(c),[[2]] requires that "[t]he 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."  In interpreting this standard, the Commission has previously held that it requires specific proof by the Secretary of employee exposure to a danger from moving ground.  Pipe-Rite Utilities, Ltd., 82 OSAHRC 3/B1, 10 BNA OSHC 1289, 1982 CCH OSHD 25,877 (No. 79-234, 1982).  The determination of whether such a danger exists is a factual matter requiring consideration and evaluation of all the conditions at the worksite including any expert testimony.  Seaward Construction Co., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD 21,803 (No. 8684, 1977).

In this case, the judge credited the compliance officer's testimony that the soil was clay and clay loam over the testimony of Respondent's superintendent that the excavation was dug in rock.  He further found from the compliance officer's testimony that clay soil tends to lose stability when exposed to air due to loss of moisture and that vibration from construction equipment and other traffic was a special circumstance sufficient to cause a danger from moving ground within the meaning of the standard.   In my view, while the judge properly recognized the Secretary's burden to show a danger from moving ground based on the particular conditions and circumstances existing at the worksite in question, he did not give proper consideration to Respondent's testimony regarding the composition of the soil.  In addition, his finding on the danger presented by construction and other vehicles operating adjacent to the excavation is based on unsupported opinion testimony showing only a possibility of a hazard, which in my view is insufficient to satisfy the Secretary's burden of proof.

The compliance officer, Hutchison, took no soil samples and made no tests.   His conclusion that the soil was clay and clay loam was based solely on visual observation of the excavation.  The record shows that other than two days' training as a compliance officer, Hutchison's only education in recognizing soil type was what he characterized as "non-formal" training by persons in the construction industry, who showed him various types of soils.  Prior to his employment as a compliance officer, his experience with determining soil type consisted of estimating the nature of soil for purposes of measuring its volume in cut-and-fill work.  As a compliance officer, he had inspected three clay excavations and one clay backfill excavation in the northeast Ohio area, where the alleged violation at issue here occurred.

In contrast, Respondent presented as a witness its superintendent, Carpenter, who had been with Horvitz over 30 years, has a degree in civil engineering, and had been a registered engineer in Ohio for 26 years.  Carpenter testified from his personal knowledge of the excavation that it was dug primarily in rock, with an upper layer of shale mixed with soil.  He stated that it had been very difficult to dig the excavation, and that jackhammers had had to be used extensively.  He further indicated that his characterization of the material as rock was consistent with the configuration of an existing pipe in the excavation.[[3]]

The judge, recognizing the conflict between the witnesses regarding the composition of the excavation, found Hutchison's testimony more credible on the basis that it was consistent with photographs taken during the inspection showing one wall of the excavation. The judge made this finding despite Carpenter's specific testimony that the lower five feet of the wall shown in the photographs consisted of rock with a facing or overlay of dirt.  The judge also did not mention Carpenter's opinion that based on his knowledge of soil determination it would not be possible to ascertain whether a material is clay by visual observation alone, and that normally tests would be performed to identify soil material by its particle size.  Thus, not only did the judge merely rely on the photographs without explaining how they supported the compliance officer's testimony, but the judge made no findings as to whether clay can be detected by visual observation alone.  Nor, assuming such detection is possible, did the judge make any findings as to whether the photographs accurately presented the actual conditions in the excavation.

The Commission requires that a judge's credibility finding be made in the light of, and give consideration to, the entire record, as well as resolve important subsidiary factual issues.  The Commission need not defer to a credibility finding by a judge that does not meet these criteria.  C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD 22,481, pp. 29,099-100 (No. 14249, 1978).   It is obvious that the judge's credibility finding in favor of the Secretary in this case is seriously deficient.  Not only did the judge leave unresolved important factual issues raised by the testimony, but he failed to state any reasons for declining to credit Carpenter's testimony regarding the inadequacy of visual observation in the circumstances presented here, despite the fact that Carpenter's testimony on these matters was unrebutted and uncontradicted.  Accordingly, the Commission errs in accepting the judge's credibility findings.  See P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD 22,413, p. 27,024 (No. 76-431, 1977).  In view of Carpenter's professional qualifications, his extensive experience with excavation work, his personal knowledge of the excavation in question, and the fact that his opinion is consistent with the location of the existing sewer pipe within the excavation, I would conclude that his testimony of the composition of the excavation is entitled to weight.[[4]]  See my dissenting opinion in Kelly Springfield Tire Co., 82 OSAHRC 47/B6, 10 BNA OSHC 1970, 1975, 1982 CCH OSHD 26,223, p. 33,115, (No. 78-4555, 1982), petition for review filed, No. 82-4389 (5th Cir. Oct. 6, 1982).

The record further shows that the worksite in question was located along the northern side of a four-lane divided highway.  At the time of the inspection all regular vehicular traffic in both directions was restricted to the two southern lanes, with the northern traffic lanes reserved for the use of construction equipment.  A fairly wide berm separated the two pairs of traffic lanes such that, as shown by a blueprint admitted into evidence, the southernmost traffic lanes were at a minimum distance of approximately sixty feet from the excavation.  According to Hutchison, he observed several medium-sized trucks and a "fair amount" of automobile traffic on the south roadway, and he stated that a front-end loader and two trucks moved back and forth along the roadway between five and seven feet from the southern edge of the excavation.  Hutchison gave his opinion that because of vibration from the construction equipment and the vehicle traffic it would be "possible" that a "piece" of the excavation wall might become dislodged.

Hutchison's testimony indicates that he did not consider a collapse of the entire wall of the excavation even to be a possibility. Furthermore, his concern that a piece might fall was limited to the north wall of the excavation, that is, the side furthest from the roadway.[[5]]  Considering that the excavation was nine feet in width, the construction equipment then could not have been any closer to the north wall than fourteen feet.  Furthermore, Hutchison conceded that the speed of the moving equipment might have an effect on the danger from vibration, but said he could not be sure of its effect.  He stated that the speed of the construction vehicles was very slow and did not indicate the speed of the traffic passing along the southernmost lanes further distant from the excavation.  Nor did he state how frequently or, indeed, how many times the construction equipment moved past the excavation. Finally, he did not observe any ground move during the inspection, and the record does not indicate that he actually felt any vibration while he was present on the jobsite.[[6]]

In my view, in order to establish a violation of a standard such as the one at issue here, which requires proof that a hazardous condition exists, the Secretary must present more substantial evidence than a mere unsupported opinion that the hazard could occur. See Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1380, 1982 CCH OSHD 25,943, p. 32,515 (No. 77-1334, 1982) (concurring and dissenting opinion).  In this case, the compliance officer was not shown to have had any expertise or familiarity with vibration from equipment at trench or excavation worksites.   There is no indication that his opinion that a hazard of moving ground could exist was based on any consideration of the distance of the construction equipment and other traffic from the excavation or the speed and frequency of movement of those vehicles.   On this record, his opinion clearly is utterly speculative
and, as such, is not entitled to dispositive weight.  H.E. Weise, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1510-11, 1982 CCH OSHD 25,985, pp. 32,618-19 (No. 78-204, 1982) (dissenting opinion).

Furthermore, Hutchison's testimony does not establish that a danger from moving ground would have existed at any time that an employee was working within the excavation,[[7]] nor does it show that the employee in the excavation would necessarily have been endangered by the movement of simply a "piece" of the excavation wall, as described by Hutchison.[[8]]  Therefore, the citation should also be vacated for failure to show employee exposure to moving ground, as required by the terms of the standard.

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[[1]] The Secretary filed his motion to amend approximately one week after Respondent, in a discussion between counsel, asserted that the wrong standard had been cited.  The filing date also was two days after the judge ordered a continuance due to the unavailability of the compliance officer to testify, and it appears Respondent received the motion two weeks prior to the rescheduled hearing date.  As I stated in my dissenting opinion in United Cotton Goods, Inc., 82 OSAHRC 8/A2, 10 BNA OSHC 1389, 1982 CCH OSHD 25,928, (No. 77-1894, 1982), leave to amend under Federal Rule of Civil Procedure 15(a) is within the discretion of the trial judge, and may be denied for undue or unjustified delay where the movant had sufficient prior opportunity to amend.  In the circumstances of this case, it cannot be said that the Secretary acted with undue delay, and, therefore, the judge did not abuse his discretion in allowing the amendment.

Respondent, however, also contends that it was engaged in settlement negotiations with the Secretary, and to allow the Secretary's pretrial motion to amend would frustrate the settlement process.  The Secretary, however, would not have been precluded from citing both standards in the alternative in the first instance.   Furthermore, the Commission has previously held that in situations where a challenge is made to the applicability of the cited standard, the preferred practice is that the Secretary make a timely motion to amend to alternatively allege a violation of another arguably applicable standard so as to afford the judge the opportunity to consider the issues presented. J.L. Manta Plant Services Co., 82 OSAHRC 61/A2, 10 BNA OSHC 2162, 1982 CCH OSHD 26,303 (No. 78-4923, 1982).

[[2]] The judge found this standard more appropriate than the trench standard originally cited, section 1926.652(c).  Neither party took exception to this finding, and review was not directed on any issue relating to the applicability of the excavation standard.

[[3]] Carpenter explained that Respondent was installing new catch basins in several locations along a roadway to join with an existing outlet sewer pipe.  At some point during this work, the rock layer was encountered.  Because of the resistant nature of the rock layer, the existing sewer pipe had been installed at a shallower depth than at those locations where there was no rock.  At the location at issue in this case, it had been necessary for Respondent to install a brick foundation to bring the catch basin up to the level of the pipe.

[[4]] I note that the judge did not purport to discredit Carpenter on those factors such as demeanor, memory, perception, or narration, that are most effectively analyzed by the trier of fact.  Asplundh Tree Expert Co., 79 OSAHRC 109/A2, 7 BNA OSHC 2074, 2078 (No. 16162, 1979).

[[5]] Hutchison explained that the south wall of the excavation, the side closest to the roadway, was sloped.  The judge erroneously found that none of the sides of the excavation was shored or sloped.

[[6]] He stated that he had inspected other worksites where pieces of a wall rather than the entire wall had collapsed.  However, he specified no details from which we could conclude that conditions on those other worksites were in any way similar to those presented here.

[[7]] On review, Respondent contends that the judge erred in finding that an employee had been working in the excavation.  While Hutchison did not observe anyone in the excavation, I agree with the judge that the record does establish that an employee had been in the excavation doing masonry work at some time prior to Hutchison's observation.  It appears that this employee had taken no more than one hour to perform this work.

[[8]] Indeed, Hutchison characterized the conditions as showing a "potential hazard."