Docket No. 83-1224

SECRETARY OF LABOR,
Complainant,

v.

JOHN R. JURGENSEN COMPANY,
Respondent.

OSHRC Docket No. 83-1224

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
By WALL, COMMISSIONER:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

Administrative Law Judge Joe D. Sparks affirmed a repeat citation issued by the Secretary of Labor to the John R. Jurgensen Company. The citation had initially alleged that Jurgensen had violated 29 C.F.R. ї 1926.652(b) by failing to slope or shore the sides of a trench dug in unstable or soft soil; the citation was amended at the hearing before the judge to allege in the alternative that Jurgensen had violated 29 C.F.R. ї 1926.652(c), pertaining to trenches dug in hard or compact soil. The judge found that Jurgensen had committed a repeated violation of section 1926.652(b) and assessed a $1,600 penalty. He alternatively found that if section 1926.652(c) were applicable, a violation of that standard had also been established. The Commission agrees with the judge's finding of a repeated violation of section 1926.652(b) and affirms the amended citation on that basis. We assess a penalty of $1,100. Because we find that Jurgensen violated section 1926.652(b), we do not inquire into the merits of the alternatively-cited section 1926.652(c).

Was the Soil Unstable or Soft?

Section 1926.652(b) provides:

ї 1926.652 Specific trenching requirements.

* * *

(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).

To establish noncompliance with section 1926.652(b), the Secretary must show that (1) the trench is at least five feet deep, (2) a significant portion of the trench wall is composed of soft or unstable soil, and (3) the trench is neither shored nor sloped appropriately from the bottom of the trench. See National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1091, 1981 CCH OSHD І 25,743, p. 32,132 (No. 76-4507, 1981); Joseph J. Stolar Construction Co., 81 OSAHRC 66/C6, 9 BNA OSHC 2020, 2023, 1981 CCH OSHD І 25,488, p. 31,782 (No.78-2528, 1981). aff'd, 681 F.2d 801 (2d Cir. 1981); Edward Kelly & Sons, Inc., 82 OSAHRC 4/D4, 10 BNA OSHC 1340, 1343, 1982 CCH OSHD І 25,884, p. 32,386 (No. 76-2802, 1982). It is uncontroverted that the trench was over five feet deep and that there was no shoring in it. Also, Jurgensen conceded at the hearing that the walls were not sloped sufficiently to comply with section 1926.652(b).[[1]] The lone issue, therefore, is whether the Secretary proved the soil in the trench was soft or unstable.

A. The Evidence

Jurgensen is a heavy construction company that builds pipelines, dams, airports, and roadways. In October of 1983, it was installing a drain pipeline in a trench adjacent to interstate highway 75 near Troy, Ohio. The west wall of the trench collapsed on one of Jurgensen's employees, who sustained a facial cut as a result. OSHA compliance officer Ralph Cannon investigated the accident site after the trench had been filled in; the citation was issued after his investigation.

Jurgensen was installing the eight-inch diameter pipe at the same level in the ground and very near the location of a pipeline that had been laid in 1955. Laying the new line involved locating the manhole for the old line and excavating an eight-to-ten foot wide area around the manhole to allow for placement of a laser beam to be used to align the new line. The new trench was excavated in a direction north of the manhole on a line roughly parallel to the old pipe and about three feet east of it. The trench was dug with a backhoe using a 36-inch wide bucket, and the bottom of the trench was estimated to be three to four feet wide. The sides of the trench were of different heights because the ground in which it was dug sloped down away from the highway. The west side of the trench was 7 to 8 feet deep and the east side 9 to 12 feet deep.

Jurgensen laborer Sammy Lee Dixon testified that the soil in the trench was "[g]ood, hard dirt" and that he was not afraid of going into the trench; he stated that "if they'd handed me my lunch box down I'd have set in there and ate my lunch." At a different jobsite, Dixon had told a supervisor that he would not get into a trench until it was opened wider; Dixon testified that he would have done the same thing at this trench if necessary.

Dixon also testified that as the trench was dug back, the gravel fill in which the old pipe was laid was visible at the bottom of the trench on the west side of the trench. The fill would have been placed around the pipe, Dixon stated, and dirt would have been put on top of the gravel.

Jurgensen foreman Jack Harper testified that the soil in the trench was silty, sandy clay, "good solid dirt". The walls of the trench were "good solid walls." Harper testified that the distance between the new sanitary line and the old line was supposed to be at least three feet but that that distance was not maintained because the old line was not straight. As a result, the old line became visible in the trench where the new line was to be placed. This occurred initially at a distance of about 40 feet from the manhole. The cave-in occurred about 35 feet from the manhole.

The backhoe operator for the digging of the trench, Stanley Harper, Jack Harper's son, testified that the soil in the trench was a sandy, silty clay, a hard soil. He could tell that the soil was hard because it took more power from the backhoe to excavate it than soft soil.

Jurgensen soil expert James Veith, a geotechnical engineer with thirteen years of experience, made a soil test boring in April of 1984, about six months after the cave-in. The boring was made twelve feet west of the five-foot wide barrier wall over the old sanitary line and 22-1/2 feet north of the manhole. Veith testified that the samples obtained were representative of the undisturbed soil conditions in the immediate area. According to Veith, the upper 4-1/2 to 5 feet of soil was somewhat less dense or "softer" than the underlying material. The soil sample taken from five to ten feet below ground was a brown sandy, silty clay with fine to course gravel and rock fragments. Below the 9-1/2 to 10 foot level, the soil changed color and became glacial till (soil material deposited by glacial ice masses).

Veith also testified that, "[a]t the test point and location, the undisturbed material is what I would term very stiff, very compact; it would be a very stable material." He calculated the "critical height" of the soil tested, that is, the height at which the soil could safely stand vertically, as ten feet--30 feet divided by a safety factor of 3. No protection would be needed if trench walls of that height stood open in winter for one day. However, Veith stated, if the soil in the trench was backfill from the 1955 trench, his soil sample of April 1984 was not representative of the west wall of the trench on the day of the accident.

Veith also testified that the State of Ohio imposed compaction requirements on construction within a State right-of-way and that the old sanitary line was within a right-of-way. When asked if it would be possible, by using compaction techniques, to restore the ground in a trench that was refilled to the same or similar levels of hardness or compaction as the original ground, Veith testified that the sandy silty clays of his samples "could be spread in a trench and compacted with proper equipment so that the strength would be comparable to what you have in the undisturbed soil conditions." He further testified that the excavation for the old sanitary line could have been compacted to restore the soil to its original state if the Ohio State Department of Transportation's compaction specifications were followed. Veith had no knowledge, however, of whether the Ohio compaction requirements were followed in 1955 when the excavation for the old sanitary line was backfilled.

Veith stated that laborers backfilling a trench tie the backfill into the undisturbed soil of the trench about half the time.[[2]] He also stated that if the tying-in process was not done, then the seam between backfilled material and undisturbed soil represented a possible weakness in the soil. Over a long period of time "there would be some meeting action that may occur [naturally] that would tie this in slightly," Veith testified, but this would take longer than thirty years.

Compliance officer Cannon was a construction specialist who had inspected about 300 trenches. Cannon testified that when an excavation is made and then refilled, "[n]o matter how you treat [compact] that soil, you can't get it to join the two side walls of the former excavation." He further testified:

Now they come along and they dig another excavation that one side wall is going to eventually come into that backfilled material. If that pipe is going to intersect. . .then that side wall is going to be very close or will be in the sidewall of the excavation that you're digging now.

And as such, it has no strength as far as the back side of that--the other fill. . .the old excavation.

Also, Cannon stated, when gravel is put around the old pipe and the excavated material placed on top of the gravel, "the gravel itself is not stable. So that once the sidewalls are expanded, the gravel can simply come out of that . . . ."

B. The Judge's Decision and the Parties' Arguments

The judge found that the soil was unstable, largely because it was dug in backfill from the 1955 excavation. He discounted as unrepresentative soil samples taken from undisturbed soil by Jurgensen's expert, Veith. The Judge instead relied on the compliance officer's testimony that the proximity of the previously excavated trench caused the instability of the new trench. The Judge noted that Jurgensen's expert Veith had acknowledged, as the compliance officer had testified, that it was possible that a seam between the backfilled material and the undisturbed soil could constitute a weakness in the soil.

Jurgensen argues that the evidence supports a finding that the soil was not unstable but was hard and compact. Employee Dixon testified that the trench walls were hard, that the trench was safe enough for him to eat lunch in, and that he would not have worked in a trench he felt was unsafe. Employees Jack and Stanley Harper corroborated Dixon's testimony. Soil expert Veith analyzed the soil and determined that it was stable, Jurgensen states. Although the judge discounted Veith's testimony because Veith's soil samples were taken from undisturbed soil, Jurgensen argues that this was necessary to gain knowledge of the type of soil Jurgensen encountered prior to the excavation. Also, the judge found that the soil in the trench was unstable because it contained backfill from the 1955 excavation. However, Jurgensen contends, the backfill was required to be compacted by the State of Ohio, and Veith testified that backfilled soil may be compacted to essentially the same hardness as undisturbed ground.

The Secretary argues that Table P-2, which follows paragraph (g) of section 1926.652, and which includes "filled" soil in a category with soft and sandy soils, indicates that backfilled soils are unstable soils. He contends that there is no question but that the soil in the trench was unstable, backfilled material. Both compliance officer Cannon and Jurgensen expert Veith provided reasons for concluding that the soil was unstable. Compliance officer Cannon testified that disturbed soil can never be compacted so that it will "join" the side walls of an earlier excavation and regain its original strength. He also testified that the gravel put around the old pipe could "simply come out" when the wall of the new trench reached that area and that this created an unstable situation. Jurgensen expert Veith agreed that the seam between backfill and undisturbed soil could be a weakness in soil.

Further, as the judge found, the soil sample which expert Veith relied on to theorize that a ten foot high wall of the trench could have stood up safely without support came from an area of undisturbed soil. Veith admitted that the soil sample was not representative of the soil material in the backfilled area. Also, the Secretary contends, Veith's testimony that the soil in the old trench could have been compacted to its original strength was conjecture, because neither he nor any other witness knew about the compaction methods used in 1955.

C. Discussion

The west wall of the trench was dug in soil that had been excavated and backfilled when the old sanitary line was installed in 1955. The drain pipe Jurgensen was installing was supposed to be only three feet away--and at the same level in the ground--as the pipe installed in 1955. The proximity of the two pipelines made it inevitable that the trench wall between the two pipelines, the west wall of the Jurgensen trench, would contain backfill from the old trench. In fact, because the old pipe was not laid straight, the west wall of the Jurgensen trench contained not just backfill from the old trench, but the gravel that had been placed around the old pipe, and the old pipe itself. The old pipe became visible about 40 feet from the manhole--just five feet beyond where the trench had collapsed on Dixon. The issue is whether this wall consisted of soil that was "unstable or soft" within the meaning of section 1926.652(b). We conclude that it was unstable within the meaning of the standard; we therefore need not determine whether the soil was "soft."

The record in this case supports the judge's finding that the backfilled soil in the west wall of the trench was unstable. Compliance officer Cannon testified that once the backfill in the east wall of the old trench was exposed by Jurgensen's digging of the west wall of its trench, that soil would have "no strength." Cannon also testified that the gravel placed around the old pipe was a source of instability in the new trench, because the gravel could simply "come out" of the west wall of the Jurgensen trench where it was visible.[[3]] We agree with the judge's reliance on this testimony. As we noted above, the compliance officer specialized in construction inspection and had inspected about 300 trenches.

Moreover, the Secretary's trenching standards support the view that backfill can be unstable. For example, 29 C.F.R. її 1926.651(m) and 1926.652(e) indicate that backfill does not have the strength of undisturbed soil; the standards require that special precautions be taken to protect trenches and excavations dug next to backfilled areas. Section 1926.651(m) provides:

ї 1926.651 Specific excavation requirements.

* * *
(m) Special precautions shall be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or a fill, particularly when the separation is less than the depth of the excavation. Particular attention also shall be paid to joints and seams of material comprising a face and the slope of such seams and joints.

Section 1926.652(e) provides:

ї 1926.652 Specific trenching requirements.

* * *
(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

In Table P-2, which follows section 1926.652(g), where the minimum requirements for the shoring of trenches are set forth, "filled" soil is equated with "soft, sandy" soil. Table P-2 also treats "filled" soil as a soil which requires more protection than even soil that is "[l]ikely to crack." These provisions, however, do not preclude an employer from introducing evidence that the backfill is not soft and unstable. However, Jurgensen has not made such a showing here.

Although Veith testified that the undisturbed soil taken from his samples was very stable and could safely stand vertical to a height of ten feet, the undisturbed soil he tested was not representative of the backfilled soil in the west wall of the trench. Veith himself acknowledged that the soil he tested was not representative of the soil in the west wall of the Jurgensen trench if the west wall was made up of backfill from the 1955 trench. It also does not avail Jurgensen that employees Dixon, and Jack and Stanley Harper testified generally that the soil in the trench was good, solid dirt that appeared to be safe. We agree with the judge that the opinion of the experienced compliance officer, and the presence of backfill and gravel, are entitled to more weight than the testimony of the employees.[[4]] Finally, contrary to Jurgensen's assertion, we do not give any weight to the existence of an Ohio transportation department regulation requiring backfilled soil to be compacted. Unlike Shane, Inc., 77 OSAHRC 37/E11, 5 BNA OSHC 1217, 1219, 1977-78 CCH OSHD І 21,694, p. 26,053 (No. 13136, 1977) (discussing section 1926.652(e)), there was no evidence that the soil actually had been compacted. Jurgensen knew even before it dug this trench--and certainly after it began--that the soil had been disturbed. It, therefore, should have come forward with evidence of compaction at the hearing to rebut the Secretary's showing of instability. It did not do so. Therefore, the Commission finds that the Secretary established Jurgensen violated section 1926.652(b).

Was the Violation Repeated?

Under Commission precedent,

[a] violation is repeated. . .if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD І 23,294, p. 28,171 (No. 16183, 1979). Under Potlatch, a prima facie case of similarity is established by a showing that the prior and present violations were for failure to comply with the same standard. If the standards were not the same, however, the Secretary must present other evidence that the violations were substantially similar and in such cases evidence that the violations involved similar hazards is relevant. Id.

On August 28, 1981, a one-item serious citation alleging the following violation was issued to Jurgensen:

29 CFR 1926.652(c): The side(s) of trench(s) in hard or compact soil, including embankment(s), were not shored or otherwise supported when the trench was 5 feet or more in depth and 8 feet or more in length:

Employees installing a sewer line along the north side of Crescentville Road west of route 747 in a trench 11' long x 6' wide x 7' deep were not protected against hazardous ground movement by shoring, sheeting, bracing, trench box, sloping or an equivalent type protection.

Jurgensen contested the citation and another citation issued on the same day by letter dated September 28, 1981; the Commission docketed the case as No. 81-2285. On March 25, 1982, Administrative Law Judge Edwin G. Salyers issued an order approving a settlement agreement which was signed for Jurgensen by a witness in the instant case--its safety director, Robert E. Zimmerman. The judge therefore affirmed the two citations as modified and assessed a penalty. He also issued a "Notice of Decision" in No. 81-2285 stating that the case would become a final order on April 26, 1982, unless directed for review.

In the instant case, Judge Sparks stated he would take "official notice of the records of the Occupational Safety and Health Review Commission [in] Docket Number 81-2285" in receiving into evidence Jurgensen's notice of contest, the settlement agreement of the parties, and Judge Salyers' Notice of Decision and Order Approving Settlement.

Judge Sparks found a repeated violation under Potlatch. He found that the prior and current violations, although of different subsections of section 1926.652, were substantially similar because they both involved Jurgensen's failure to protect its employees working on highway projects from the hazard of collapsing trenches and because the two different subsections were closely related.
Jurgensen argues that to prove a repeated violation under Potlatch, the Secretary has to prove the existence of a prior final order and that the Secretary has never "introduced the final order of the Commission." Jurgensen also argues that the prior and present violations were not factually similar and that the judge erred in finding the present violation was repeated because he failed to find that the present violation was "serious."

The Secretary contends that the judge properly took official notice that the settlement agreement involving the earlier section 1926.652(c) violation had become a final order. The Secretary also points out that Jurgensen did not affirmatively allege or attempt to prove that the 1981 citation had not become a final order. The Secretary also contends that the prior and current violations were substantially similar because both involved employees exposed to the danger of cave-ins while working in inadequately sloped, inadequately protected trenches.

As mentioned above, the Commission precedent for proof of a repeated violation is Potlatch. Potlatch has been followed by those courts of appeals that have examined it. See J.L. Foti Construction Co. v. OSAHRC, 687 F.2d 853 (6th Cir. 1982); Willamette Iron & Steel Co. v. Secretary of Labor, 10 BNA OSHC 1477 (9th Cir. 1982) (unpublished opinion); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982); Communications, Inc. v. Marshall, 672 F.2d 893 (D.C. Cir. 1981). In Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981), the Fifth Circuit noted its general agreement with Potlatch, but held that the Secretary must also prove substantial similarity of violations when the prior and current violations are of the same standard. Further, the Potlatch test for proof of a repeated violation was, to a significant extent, derived from the decisions of two other circuits, the Fourth Circuit in George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), and the Ninth Circuit in Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977). Although panels of the Third Circuit have not followed Potlatch because they are required by circuit rule to follow a pre- Potlatch precedent, the Third Circuit has not examined the Potlatch test. See Jones & Laughlin Steel Corp. v. Marshall, 636 F.2d 32 (3d Cir. 1980), discussing Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976). In light of this strong support for the Potlatch test, the principle of stare decisis applies with great force. We, therefore, will apply the Potlatch criteria in determining whether the violation in this case was repeated.

Under Potlatch, the Secretary must prove the existence of a prior final order against the same employer for a substantially similar violation. Jurgensen's main argument against the finding of a repeated violation is essentially that the Secretary never introduced into evidence the prior final order of the Commission. The Secretary did, however, introduce exhibits which included the prior citation, and Administrative Law Judge Salyers' decision approving a settlement agreement in which Jurgensen withdrew its notice of contest regarding the Secretary's citation alleging a violation of section 1926.652(c). The Commission takes official notice, from our own records, that the aforementioned decision of Judge Salyers became a final order of the Commission on April 26, 1982.[[5]] See Paul Betty, 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1384 n. 10, 1981 CCH OSHD І 25,219, p. 31,152 n. 10 (No. 76-4271, 1981) (Commission took official notice of date settlement agreement became final order). Thus, at the time of the alleged section 1926.652(b) violation in this case, the earlier citation had become a final order of the Commission.

Jurgensen contends that the prior and current citations were not substantially similar. Although the prior final order involved Jurgensen's violation of section 1926.652(c) and the present violation is of section 1926.652(b), the two violations were substantially similar and involved similar hazards. As the Secretary has argued, the prior and current violations both involved the exposure of Jurgensen employees to the hazard of cave-ins while working in inadequately sloped, inadequately protected trenches.[[6]] Therefore, the Secretary has established that the violation of section 1926.652(b) was repeated.

After a consideration of the penalty factors set forth in section 17(j) of the Act, 29 U.S.C. ї 666(j), the Commission assesses a penalty of $1,100, rather than the $1600 assessed by the judge. Jurgensen is a fairly large employer, with about 450 employees. The gravity of the violation is moderately high because the unsupported trench presented a danger of cave-in. However, there is no indication of bad faith in Jurgensen's incorrect assessment of the strength of the trench wall that collapsed. A measure of Jurgensen's good faith is demonstrated by the fact that it had a safety program and held weekly tool box safety meetings. Further, although Jurgensen had violated the Act previously, Jurgensen had also been inspected by the Secretary on occasions when no violations had been found.

Accordingly, the Commission affirms the citation insofar as it alleges a repeat violation of section 1926.652(b), and assesses a $1,100 penalty.

FOR THE COMMISSION

Ray H.Darling, Jr.
Executive Secretary

DATED: JUL 21 1986

RADER, Commissioner, concurring:

From my reading of the trial record it is a close question whether the Secretary carried his burden of proof in this case. Certainly at the beginning of the trench I believe Jurgensen was entitled to rely on the fact that the dirt was stable, and that the sloping or shoring requirements of section 1926.652(b) were not applicable. However, I am persuaded to join the majority because as the trench was dug back the gravel fill from the old, adjacent trench became visible. At that point I believe Jurgensen was alerted to the necessity of shoring or sloping the trench walls at a greater angle.

BUCKLEY, Chairman, concurring:

I agree with the lead opinion of Commissioner Wall that the Secretary proved Jurgensen violated section 1926.652(b). I also concur with Commissioner Wall that the Secretary proved Jurgensen "repeatedly" violated the standard under the Commission's precedent, Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD І 23,294 (No. 16183, 1979), which received the endorsement of the U.S. Court of Appeals for the Sixth Circuit in J.L. Foti Construction v. OSHRC, 687 F.2d 853 (6th Cir. 1982). I am uncomfortable with the Potlatch test, primarily because it appears to ignore the plain meaning of "repeatedly" in permitting a finding that an employer repeatedly violated the Act after only a single prior violation of a substantially similar standard. However, I will apply Potlatch here and find that Jurgensen "repeatedly" violated the Act primarily because the Sixth Circuit has followed Potlatch and because Jurgensen did not ask that the precedent be re-examined, although provided the opportunity to do so by the direction for review.

I previously articulated my misgivings about the Potlatch test in New England Container Co., 85 OSAHRC ____, 12 BNA OSHC 1368, 1985 CCH OSHD І 27,148 (No. 78-1539, 1985). There I found it unnecessary to decide whether the Potlatch test was correct, particularly with respect to whether a single prior Commission final order is a sufficient basis for characterizing a violation as one "repeatedly" done. I did state, however, that by authorizing a ten-fold increase in the potential penalty when the violation is either willfully or repeatedly committed, "Congress evidently intended that misconduct engaged in repeatedly was either circumstantial evidence of willfulness, or of itself was of a higher order requiring a greater deterrent penalty." New England Container, 12 BNA OSHC at 1369, 1985 CCH OSHD at p. 35,044.

The Third Circuit examined this issue in great detail in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976). The court, using Webster's Third Edition, painstakingly analyzed the difference between the word "repeat" and "repeatedly", concluding that while "repeat" means "more than once", "repeatedly" is the equivalent of "often repeated." The court stated that, "[g]iven that the plain and ordinary meaning of the word 'repeatedly' is 'constantly, frequently, occurring again and again',. . .we do not believe that only two violations can ever form the basis of a 'repeatedly' violation within the meaning of [29 U.S.C.] Section 666(a)." 540 F.2d at 162 n.11. It held that "a broad interpretation of 'repeatedly' would 'disrupt the graduations of penalties and violations so carefully provided in the Act." 540 F.2d at 161. It quoted its earlier decision in Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), for this proposition: "It is obvious from the size of the penalty that can be imposed. . .--ten times that of a serious. . .[violation]--that Congress meant to deal with a more flagrant type of conduct than that of a 'serious' violation." Bethlehem, 540 F.2d at 161.

Before Potlatch, the Commission had held a number of views as to the meaning of "repeatedly." In General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1042, 1974-75 CCH OSHD І 19,567, at pp. 23,367-68 (No. 2739, 1975), it had held that evidence of intentional disregard or flouting of the Act was required. In Potlatch a majority rejected that interpretation, which had been accepted by the Bethlehem court. It went on also to reject the "more than twice" concept of Bethlehem and offered as the only reason the "common usage of the term 'repeatedly'." Potlatch, 7 BNA OSHC at 1064, 1979 CCH OSHD at p. 28,172. I respectfully submit that that is not the common usage of the term at all and that the Commission should reconsider this second holding of Potlatch. As stated by former Commissioner Moran in his dissent in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1328, 1977-78 CCH OSHD І 21,744, p. 26,171 (No. 13559, 1977):

The drafters of the Act purposefully chose to use the term "repeatedly" as opposed to "repeat." There is a significant distinction between the two. Webster's Third New International Dictionary (Unabridged) defines "repeat" as "to make or do or perform again." However, "repeated" is defined therein as "renewed or recurring again and again." Thus, "repeatedly" is descriptive of a rather persistent course of conduct.

(Footnote omitted.)

Unfortunately, there is little guidance from the legislative history as to the reason for the addition of the term "repeatedly" to section 17(a), which committees in both the House and Senate previously had limited to violations committed "willfully." Congressman Steiger included the term in his comprehensive substitute that passed the House and neither he nor the conference committee offered any interpretation of it. Comm. on Labor & Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 1103 (Comm. Print 1971). In the absence of any indication that Congress was giving this term a meaning different than its usual and conventional sense as reflected in the cited dictionary definition, I cannot agree with Potlatch.

It is clear, that when Congress wants to prescribe a substantial penalty when a person commits only a second violation, it can express itself clearly on that point. See The Horse Protection Act, 15 U.S.C. її 1825(a)(2)(A) ("after one or more convictions. . ."); The Wholesome Meat Act, 21 U.S.C. її 671 ("has been convicted. . .of. . .more than one violation. . ."); and The Controlled Substances Act of 1970, 21 U.S.C. її 841(b)(1)(A) and (B), (2), (3), (5) and (6), ї 842(c)(2)(B), ї 843(c), 848(a) ("commits. . .after one or more prior convictions. . .") and її962 ("if the offense is a second or subsequent offense. . .a person shall be considered convicted of a second or subsequent offense if, prior to the commission of such offense, one or more prior convictions. . .have become final.") In fact, the Senate version of the Occupational Safety and Health Act would have provided increased criminal penalties for the second conviction of a willful violation. Comm. on Labor & Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 566 (Comm. Print 1971). Therefore, since Congress knew how to specifically prescribe an enhanced penalty for a mere second violation, I can not conclude that it intended to give the term "repeatedly" such a tortured interpretation.
I acknowledge that a significant number of the other federal courts of appeals, as cited in Commissioner Wall's lead opinion, have declined to follow Bethlehem. Most of those courts, however, have not focused their attention on Bethlehem's analysis of the minimum number of prior violations necessary to constitute "repeatedly" violating the Act. Rather they have focused on Bethlehem's requirement that flouting of the Act's requirements must be proven and have rejected it, finding that a violation need not be committed "willfully" to have been committed "repeatedly." To the extent that they have even considered whether two previous violations must be proven, they have done so without setting forth an analysis comparable to that offered by the Third Circuit. See J.L. Foti Construction; Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977).

I agree with Judge Kennedy of the Ninth Circuit who, having considered this matter carefully in his dissent in Todd Shipyards, 566 F.2d at 1327, concluded:

If every second offender were a repeated violator it would make no sense for the statute to direct that the history of violations be considered in assessing the relatively minor penalties for single violations. . . The more stringent penalties prescribed by section 666 are reserved for instances where an employer's deliberate disregard of the Act may be inferred.

While I believe Potlatch should be reexamined, Jurgenson has not requested it in this case, although provided the opportunity to do so by the direction for review. Nor does my colleague believe that its reexamination here is appropriate, particularly in light of the Sixth Circuit's unexplained statement in J.L. Foti Construction, that "repeatedly means, simply, occurring more than once." I would hope that when that court focuses on that question it will come to the same conclusion I have. However, for now, under these circumstances, I will follow Potlatch and J.L. Foti here and find Jurgensen had repeatedly violated section 1926.652(b).

SECRETARY OF LABOR,
Complainant,

v.

MARTIN WRIGHT ELECTRIC COMPANY
Respondent.

OSHRC DOCKET NO. 84-1115

ORDER

The parties' Stipulation and Settlement Agreement as to the serious citation is approved. The administrative law Judge's decision is therefore set aside as to the serious citation alleging a violation of 29 C.F.R.ї1926.500(d)(1). The settlement agreement makes no mention of the citation for an other than serious violation of 29 C.F.R. ї 1926.400(h)(1). The judge's decision to vacate that citation is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: September 15, 1986

WILLIAM E. BROCK, SECRETARY OF LABOR,
Complainant,

v.

MARTIN WRIGHT ELECTRIC CO.,
Respondent.

OSHRC DOCKET No. 84-1115

STIPULATIONS AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement of the instant matter which is currently pending before the Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. ї 651 et seq.) (hereinafter "the Act").

(b) Respondent, Martin Wright Electric Co., is a corporation with its place of business located in San Antonio, Texas. It is engaged in the business its employees perform various tasks in the nature of installing electrical equipment. During the course of its business, respondent uses materials and equipment which its receives from places located outside San Antonio, Texas. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on September 26, 1984, at respondent's workplace at the Carlyle condominium project, San Antonio, Texas, a citation alleging one serious violation of the standard at 29 CFR 1926.500(d)(1), with a Proposed Penalty of $250.00 and a citation alleging one non-serious violation of 29 CFR 1926.400(h)(1), with, no Proposed Penalty, was issued to respondent on October 17, 1984 pursuant to section 9(a) of the Act.

(d) Respondent submitted a notice of contest dated October 30, 1984, informing Complainant of its intention to contest the alleged violations and the Proposed Penalty. The notice of contest was received by the Austin, Texas Area Director, Occupational Safety and Health Administration, on November 1, 1984. Thereafter, the parties duly filed a complaint and an answer.

(e) On March 22, 1985, a hearing was held before Commission Administrative Law Judge Stanley M. Schwartz on respondent's notice of contest. On June 27, 1985, Judge Schwartz issued his Decision and Order in which he affirmed the serious citation alleging a violation of 29 CFR 1926.500(d)(1) and vacated the non-serious citation alleging a violation of 29 CFR 1926.400(h)(1). The Judge also assessed a penalty of $75.00. Thereafter, respondent filed a timely Petition for Discretionary Review to the Commission and on August 21, 1985, Commissioner Rader granted review of the issues raised in respondent's petition. The Commission issued a Briefing Notice on April 30, 1986. Respondent submitted its brief to the Commission on June 6, 1986.

III

Now, the Secretary of Labor and Martin Wright Electric Co., in order to conclude this matter without the necessity of further litigation, stipulate and agree as follows:

IV

Respondent hereby states that the alleged violation of 1926.500(d)(1) has been abated and that the worksite at issues is no longer in existence.

V

The Secretary hereby withdraws its Citation for alleged violation of 1926.500(d)(1), with prejudice, issued to respondent on October 17, 1984. The Secretary believes that the judge's decision was correctly decided. However, particularly in view of the fact that the worksite which was the subject of the citation is no longer active, the Secretary
has determined that further litigation of this case is not merited. Accordingly, the Secretary requests the Commission set aside the judge's decision.

VI

Respondent and Complainant agree that each party shall bear its own costs.

VII

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ORLANDO J. PANNOCHIA
Attorney for the Secretary of Labor.

PAY SARY CHURAK, ESQ. Tom Jospeh, P.C.

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Jurgensen's position at the hearing, as stated in its counsel's opening statement, was that the trench was dug in hard or compact soil and that the walls therefore had to be sloped only above the five-foot level as required by section 1926.652(c). Jurgensen admitted, however, that the walls were not sloped from the bottom, and it further conceded that section 1926.652(b) requires that walls of trenches dug in soft or unstable soil be sloped from the bottom. Moreover, although there is conflicting evidence on the precise amount the walls were sloped, the record establishes that there was no significant sloping below the five-foot level.

[[2]] Veith described the tying-in process this way. "[T]hey will do a limited amount of benching or time stepping the fill into the sidewalls to eliminate sheer [sic] planning." Webster's Third New International Dictionary (Unabridged) defines "shear" as "a strain resulting from applied forces that cause or tend to cause contiguous parts of a body to slide relatively to each other in a direction parallel to their plane of contact, . . ."

[[3]] The occurrence of the cave-in suggests that the compliance officer accurately assessed the stability of the soil in the Jurgensen trench.

[[4]] Jurgensen contends that the judge acted inconsistently in finding that the soil in the trench was unstable backfill because the Judge vacated an item referring to the same trench in another citation which called for the taking of additional precautions against cave-ins where trenches are dug adjacent to backfilled locations. However, the judge did not vacate the other citation because the soil was hard or compact, but because he concluded there was no evidence of any additional protection required if a violation of the other standard were found. We do not find his decision inconsistent.

[[5]] Under section 12(j) of the Act, 29 U.S.C. ї 561(j), a judge's decision becomes a final order of the Commission thirty days after its issuance unless directed for review by a member of the Commission. The judge's decision approving the settlement agreement was not directed for review.

Normally, where our decision relies on official notice of a material fact not of record, we would offer the aggrieved party the opportunity, upon timely request, to show that the fact noticed is erroneous. Anoplate Corp., 86 OSAHRC ____, " 12 BNA OSHC 1678, 1692, 1986 CCH OSHD І 27,519, p. 35,690 (No. 80-4109, 1986), 5 U.S.C. ї 556(e). In this case, however, the judge stated he would take official notice of the pertinent Commission records, and he found that the previous citation had become a final order of the Commission. In arguing against this finding, Jurgensen has not attempted to show it is erroneous nor has Jurgensen requested an opportunity to submit evidence demonstrating it is erroneous. Under these circumstances, we think it unnecessary to offer Jurgensen a further opportunity to rebut the noticed fact.

[[6]] Jurgensen also contends that a repeated violation may not be found because the judge did not specifically find that the violation was "serious," only "repeated." The contention lacks merit. Although the present violation was "repeated" and the prior violation "serious," Potlatch does not require that a separate finding of serious be made in conjunction with the finding of a repeat violation. See Austin Road Co., 80 OSAHRC 76/E11, 8 BNA OSHC 1916, 1918, 1980 CCH OSHD І 24,688, p. 30,301 (No. 77-2752, 1980), rev'd on other grounds, 683 F.2d 905 (5th Cir. 1982) (repeat violation involves determining whether prior and current violations resulted in substantially similar hazards, not whether they both resulted in a likelihood of death or serious physical harm).