SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC Docket No. 84-0556

DECISION

Before:BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The primary issue in this case is whether Capform, Inc., a plywood formwork subcontractor on a multi-employer construction site, violated two OSHA safety standards alleging (1) that it failed to inspect after every rainstorm the excavation in which its employees worked and (2) that it failed to sheet-pile, shore, or brace an excavation wall to resist the extra pressure created by the operation of a 100-ton crane above and near the excavation wall. We conclude that Capform violated those two standards as alleged. We also conclude that the Secretary of Labor's allegation that Capform violated a third safety standard is duplicative of the second allegation referred to above and should therefore be vacated.

Subcontractor Capform built, erected, and dismantled the plywood formwork into which concrete was poured at a site where a partially-underground parking garage was being built in Dallas, Texas. The excavation in which the garage was being constructed occupied a large city block, and was about 25-30 feet deep. Three sides of the excavation were protected from collapse by shoring. The side closest to where Capform employees worked was neither sheet-piled, shored, nor braced. At the time of the alleged violations, there had been "lots of rain"--some of it heavy--at the site for the preceding month (including during the most recent two-week period, when Capform worked at the rite). A 100-ton crane was positioned at the top of the unshored side of the excavation, and it was moving back and forth along the excavation top. The crane's superstructure sometimes came as close as 30 feet to the edge of the embankment. The crane was used to lift Capform's formwork out of the excavation after the concrete poured into those forms had hardened and the forms had been stripped. While the job of removing the formwork from the excavation was proceeding, three segments of, the unshored wall of the excavation collapsed. One Capform employee was killed. Another was injured.

On the day following the accident, one of the Secretary's compliance officers, Henry R. Slagle, investigated the accident site. As a result of that investigation, Capform was issued a serious citation alleging that it had violated three different safety standards: 29 C.F.R. 1926.651(d), by not having a competent person inspect the excavation after every rainstorm; 29 C.F.R. 1926.651(q), by not protecting the excavation from the extra pressure exerted on it by the crane; and 29 C.F.R. 1926.651(c), by not guarding the unshored wall of the excavation that exposed Capform employees to a danger of moving ground. An $800 total penalty was proposed by the Secretary.

The administrative law judge vacated all three items of the Citation. He found that Capform did not create or control the hazardous conditions, and that it did not have--and with the exercise of reasonable diligence could not have had--notice of the hazardous conditions. The judge therefore concluded that Capform had established the "multi-employer worksite" affirmative defense that it had raised. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD 20,690, pp. 24,783-84 (No. 3694, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCH OSHD 20,691, pp. 24,791-92 (No. 12775, 1976). Review was directed on whether the Secretary had made out a prima facie case that Capform violated the three standards and, if so, whether the judge correctly concluded that Capform had proven the multi-employer worksite defense.

I. Inspection of Excavation by Competent Person after Rainstorms

The Secretary alleges that Capform violated section 1926.651(d) by failing to have a competent person inspect the excavation after every rainstorm to determine whether the excavation needed increased protection against cave-ins. Section 1926.6511(d) Provides:

1926.651 Specifics excavation requirements

(d) Excavations shall be inspected by a competent person after every rainstorm or other hazard-increasing occurrence, and the protection against slides and cave-ins shall be increased if necessary.

A "competent person" is defined at 29 C.F.R. 1926.32(f):

1926.32 Definitions.

The following definitions shall apply in the application of the regulations in this part:

(f) "Competent person" means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

To prove a violation of the standard, the Secretary must establish (1) the applicability of the standard, (2) the existence of noncomplying conditions, (3) employee exposure or access, and (4) that the employer knew or with the exercise of reasonable diligence could have known of the violative condition. Dun- Par Engineered Form Co., 86 OSAHRC 40/A8, 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD 27,651, p. 36,033 (No. 82-928, 1986).

There is no substantial dispute about any of the elements of the Secretary's burden. The standard applies whenever rainstorms occur while work is done in an excavation, and frequent rainstorms occurred during the two-week period that Capform employees worked at the excavation site. The excavation was not inspected by a competent person after every rainstorm. Capform does not Contend that either its jobsite superintendent, Pelletier, who was at the jobsite on a daily basis, or its project manager, Cur., L. Hitt, who was at the jobsite on an every-other-day basis, were "competent person[s]" as defined in section 1926.32(f). Capform does not contend that any "competent person" inspected the excavation after every rainstorm. Instead, Capform points to evidence that the general contractor's insurance agent and a State of Texas safety inspector had each visited the site, viewed the excavation, and yet not stated that anything further needed to be done to protect the unshored wall of the excavation from collapse. This evidence, however, is of no avail to Capform, since it does not establish when those persons appeared at the jobsite, much less that they appeared at the site and inspected the excavation after every rainstorm that occurred during the two-week period Capform employees worked there.

Capform's jobsite superintendent, Pelletier, was on the jobsite daily and undoubtedly observed the soil after every rainstorm. But the standard clearly contemplates more than casual observation. Moreover, Capform itself appears convinced that Pelletier was not a "competent person". In a section of its review brief devoted to contesting the Secretary's section 1926.651(c) allegation, Capform, relies on Pelletier's testimony that he had never had responsibility for inspecting the condition of soil in excavations and argues that Pelletier "lacks ... expertise in soils-related areas". The Secretary has therefore established the existence of noncomplying conditions, that is, that the excavation was not inspected by a competent person after every rainstorm or hazard- increasing occurrence.[[1/]]

The existence of employee exposure is not in dispute. Capform employees worked near the unshored excavation wall while erecting and dismantling formwork. They also worked in the area while attaching dismantled formwork to the crane line for lifting out of the excavation--the job that was being performed when the fatal collapse of the unshored excavation wall occurred.

Knowledge of the violative condition is also not in dispute. Capform's supervisors were continually present at the worksite. They admitted that they knew about the rainstorms, yet did not assure that the excavation was inspected by a competent person after the rainstorms. The Secretary has therefore established a prima facie case of Capform's violation of the cited standard.

We must now decide whether Capform established its multi-employer worksite defense. To establish the defense, Capform must prove, by a preponderance of the evidence, that.

1. It did not create the violative condition; and

2. It did not control the violative condition such that it could realistically have abated the condition in the manner required by the standard; and

3. (a) It made reasonable alternative efforts to protect its employees from the violative condition; or

(b) It did not have, and with the exercise of reasonable diligence could not have had, notice that the violative condition was hazardous.

See Anning-Johnson,4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-84; Grossman Steel,4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92.

Capform argues that it did not create or control the violative condition because it did not dig the excavation and was not responsible for shoring it. It also argues that it did not have notice that cave-in risks were increased by rainstorms, because it had no expertise in determining soil stability. According to Capform, the general contractor was the employer on the worksite with some expertise and it was responsible for assuring that the excavation was safe.

The judge concluded that Capform had established the defense. He found that Capform had neither created nor controlled the hazardous condition, and that although "it had rained from time to time in the month or so before the accident, the respondent's supervisory personnel did not have sufficient knowledge in such matters as to be able to conclude that the embankment might collapse."

The Secretary contends that inspection by a competent person was clearly within Capform's control, and that if Capform's, did not have competent persons on its own staff to do the inspecting, it could have obtained the services of someone else. The Secretary emphasizes that Capform never requested an inspection, or even inquired into whether the general contractor had conducted the inspections required by the standard.

The multi-employer worksite defense does not alter the general rule that each employer is responsible for the safety of its own employees. Anning-Johnson, 4 BNA OSHC at 1198-99,1975-76 CCH OSHD at p. 24,784. Capform's business involved work in excavations. It had a duty to protect its employees who worked in the excavations. This duty required Capform to familiarize itself with the OSHA standards and to take affirmative steps to assure that its employees received the protection required by the standards.

The standard at issue here, section 1926.651(d), requires that a competent person inspect an excavation after every rainstorm to determine whether protection for employees working within the excavation needs to be increased. Even if Capform lacked expertise in soil stability, the standard put Capform on notice that rainstorms can decrease the stability of an unsupported excavation wall and that inspections to determine whether this had occurred were necessary. If Capform did not itself employ a "competent person" within the meaning of the cited standard, that did not prevent it from determining whether the general contractor, who Capform contends was responsible for the safety of the excavation, had conducted the required inspections.

If Capform had made such an inquiry and discovered that the inspections had in fact been conducted, Capform would thereby have known that compliance with the standard had been attained. If Capform had learned that the required inspections had not been conducted, it would have been on notice that its reliance on the general contractor was not well-founded. It then would have been required by the standard to take the additional steps necessary to protect its employees--including itself hiring a competent person to conduct inspections. Capform here, however, did not even take the minimal step of asking the general contractor whether a competent person was inspecting the excavation after every rainstorm.

Because Capform had a duty to know the terms of the cited standard and because it made no attempt to protect its employees in the manner required by the standard, Capform is unable to establish its affirmative defense. We therefore conclude that it violated section 1926.651(d) as alleged.

II. Operation of Crane Near Excavation

The Secretary alleges that Capform violated section 1926.651(q) by not sheet-piling, shoring, and bracing as necessary the unprotected excavation wall next to the area where its employees worked. Section 1926.651(q) provides:

1926.651 Specific excavation requirements.

(q) If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.

The judge vacated this item, as he had the prior one, on the basis of his conclusion that Capform had established its affirmative multi-employer worksite defense. The Judge also found it pertinent to observe that, although the "movements of the crane might have been factors in the collapse of the embankment...[the crane] was not operated by the respondent's employees."

The Secretary argues that she proved the crane was near the unshored excavation, that Capform was using the crane to move forms, that Capform, supervisor Pelletier knew where the crane was located, and that both Capform supervisors, Pelletier and Hitt, knew the excavation was unshored in the area near where the crane was operating. The Secretary also contends that Capform did not establish its multi-employer defense because Capform knew of the violative conditions--conditions that did not require any particular expertise to comprehend.

Capform contends that the cited standard requires the Secretary to prove that the "hazard of extra pressure on the side of the excavation existed at the jobsite, and that the Secretary failed to do so. Capform also contends that it established the multi-employer worksite defense by proving that its lack of expertise in soil-related matters deprived it of notice that the moving crane imposed extra pressure on the unshored excavation wall.

We reject Capform's argument that the standard requires the Secretary to prove that the crane's operation near the unshored side of the excavation created a hazard. The terms of the standard require the Secretary only to establish that a crane was operating above and near an excavation wall that was not sheet-piled, shored, or braced; it presumes that the weight of the crane and the forces created by its operation can lead to the collapse of unsupported soil. The standard does not require additional proof that the presence of the crane created extra pressure. See H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1047, 1981 CCH OSHD 25,711, p. 32,056 (No. 76-4765).

We find that the Secretary has made out her prima facie case. The 100-ton crane was operating above and as close as 30 feet from the excavation wall that was neither sheet-piled, shored, nor braced. Also, Capform employees were exposed to the hazard created by the crane while they worked, and particularly while they were attaching their forms to the crane line. Further, the Secretary established that Capform had actual knowledge of the violative condition by proving that Capform project manager Pelletier and project superintendent Hitt knew the crane was operating above and near the excavation wall.

Capform did not establish its multi-employer worksite defense. The most fundamental element of the defense is that the employer did not create or control the condition that violated the standard. Here, Capform created or controlled the violation because the crane that was operating above and near the unshored excavation wall was being operated in Capform's behalf, lifting Capform's formwork out of the excavation. The fact that the crane was not operated by a Capform employee does not detract from our conclusion that Capform created or controlled the violation. It is the use of the crane above an unsupported wall, not the identity of its operator, that creates the hazard.

Even were we to find that Capform had neither created nor controlled the hazard, we would still find that Capform had not proven its defense. The defense also requires that Capform prove either (1) that it made reasonable alternative efforts to protect its employees or (2) that it did not have, and could not have had, notice that the violative condition was hazardous. Capform proved neither. Although it was the responsibility of either the general contractor or the subcontractor that dug the excavation, and not Capform's responsibility, to sheet-pile, shore, or brace the pertinent excavation wall, Capform should at least have asked the general contractor to comply with the standard by providing the required support for the wall that subsequently collapsed. Capform wade no such request.

Further, Capform failed to prove that it did not have notice that the violative condition (the unsupported excavation wall) was hazardous. Capform is charged with notice (constructive knowledge) of the terms of the cited standard. The standard requires that an excavation wall be sheet-piled, shored, or braced when a crane is operating above and near that wall. Although Capform's onsite supervisors may have lacked expertise in soil stability, they knew that a crane was operating above and near an unsupported excavation wall. Under the specific terms of this standard, therefore, the existence of these prohibited conditions placed Capform on notice that its employees were exposed to a hazard. Accordingly, Capform's affirmative defense fails. We find that Capform violated section 1926.651(q).

III. Sloping or Shoring of Excavation Wall

The Secretary's citation also alleges that Capform violated a third safety standard, section 1926.651(c), by failing to slope or shore the excavation wall to protect employees from the danger of moving ground. The judge vacated the allegation on the basis of his finding that Capform had established its multi- employer worksite defense. Section 1926.651(c) provides:

1926.651 Specific excavation requirements.

(c) 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 standard thus requires employers to guard certain excavation walls by shoring, sloping or equivalent means. We have just concluded that Capform violated section 1926.651(q), a standard that required Capform to sheet-pile, shore or brace the excavation wall that partially collapsed. If Capform had complied with section 1926.651(q) by sheet-piling, shoring, or bracing the wall, Capform would also necessarily have been in compliance with the less stringent requirements of section 1926.651(c). We therefore vacate the section 1926.651(c) allegation because it is duplicative of the section 1926.651(q) allegation. See Cleveland Consolidated Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD 27,829, p. 36,430 (No. 84-696, 1987).

We find that the affirmed violations are serious, as alleged by the Secretary. Noncompliance with the cited standards increased the risk of cave-ins at the excavation site, and cave-ins can, as they did here, result in death or serious physical harm to employees.

The Secretary proposed a total penalty of $800 for violation of the three standards contained in the citation. We find that a penalty of $800 is appropriate even though we have affirmed only two of the items. Capform is a large employer, with about 225 employees at the time of the citation. Its good faith is suspect because it apparently made no efforts to comply with either of the violated standards. The gravity of the violations is high because several employees were exposed to the hazard presented by the unprotected, 25- to 30-feet high excavation wall over a two-week period. We therefore assess a total penalty of $800.

Accordingly, we affirm the Secretary's citation insofar as it alleges violations of sections 1926.651(d) and (q), and vacate the citation insofar as it alleges a violation of section 1926.651(c). We find that the affirmed violations were serious and assess a total penalty of $800.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 26, 1989


SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC Docket No. 84-0556

Appearances:

For the Complainant:

Allen Reid Tilson, Esquire
Department of Labor, Dallas, Texas.

For the Respondent:

Steven R. McCown, Esquire
Dallas, Texas.

Louis G. LaVecchia, Judge:

DECISION AND ORDER

This is a Proceeding under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). A citation, characterized as "serious" in view of the violations alleged, was issued to the respondent as a result of a fatality investigation and inspection of its worksite on February 22 and 23, 1984 by compliance officers of the Occupational Safety and Health Administration ("OSHA"). A civil penalty of $800 was proposed.

The respondent contested the citation and the matter went to hearing on January 29 and 30, 1985 at Dallas.

The respondent stipulated that it is engaged in a business affecting commerce and that it is an employer within the meaning of Section 3(a) of the Act.
Post-hearing briefs and/or replies have been filed by the parties. There were no intervenors in the action.

The Alleged Violations

1a 29 CFR 1926.651(c): The walls oor(sic) faces of excavations(s) in which employee(s) were exposed to danger from moving ground were not guarded by a shoring system, sloping of the ground, or some other equivalent means:

(a) Embankment wall, northwest corner of the west wing of the building under construction.

1b 29 CFR 1926.651(d): Excavations were not inspected by a competent person after every rainstorm or other hazard-increasing occurrence for the purpose of increasing the protection against slides and cave-ins where necessary:

(a) Unshored embankment wall of excavation for building under construction.

1c 29 CFR 1926.651(q): The side(s) of the excavation(s) were not sheet-piled, shored or braced as necessary to resist the extra pressure due to super-imposed loads:

(a) A 100-ton capacity crawler crane was position and operated at points along and near to the excavation at grade level on the west side of the west wing of the building under construction.

The Standards

The safety standard at 29 CFR 1926.651 provides:

Specific excavation requirements.

(c) 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.

(d) Excavations shall be inspected by a competent person after every rainstorm or other hazard-increasing occurrence, and the protection against slides and cave-ins shall be increased if necessary.

(q) If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.

The Relevant Evidence

Henry Slagle, compliance officer with OSHA, stated that he has been so employed for 10 years. Before that, he performed similar work for the State Health Department. He has a degree in mechanical engineering and a graduate degree in nuclear engineering. He has taught mathematics, including algebra and trigonometry, at the college level. He has also had many courses in hazard recognition and abatement procedures associated with the construction industry in general, and with soil cave-ins in particular. On-the-job training, as an observer at times, is a part of his job activities has conducted more than 700 inspections for OSHA. (Tr. 18-21).

He conducted an investigation of the respondent's worksite on February 22, 1984, where a subterranean parking garage was under construction. The respondent wag performing form installations for the pouring of concrete structures. (Tr. 22).

The respondent had 225 employees at the time of the investigation. It was engaged in removing wooden forms from a concrete wall that had been poured and cured. A report of a fatal accident at the jobsite had triggered the investigation. (Tr. 23).

The jobsite embraced a city block area or more, bordered on five sides by Dallas city streets. (Tr. 24). (Ex. C-26).

The witness made a number of photographs of the jobsite on the second day of his investigation. (Exs. C-1 through C-24).

The embankment directly above the place where the deceased employee was working was photographed several times.

After the accident "benching" operations were performed with a view to stairstepping the involved excavation to prevent further caving-off of earth. (Ex. C-5).

Exhibit C-7 shows the area where the accident occurred in the lower left corner. The fresh red soil next to the concrete wall was that which had caved off from above. After the caving-off the earthen wall above the accident site appears almost vertical.

Exhibit C-10 shows, in the opinion of the witness, that the earthen walls remaining after cave-off were obviously not sloped to 45 degrees.

Exhibit C-12 shows the wooden forms with which the deceased workman was working at the time of the accident.

Preparations were being made by the employees for hoisting the wooden forms from the excavation by hooking them onto the crane cable. (Tr. 43).

The yellow-colored crane shown in exhibit C-14 was the crane that was to be used to hoist the wooden forms from the point of the accident. (Tr. 45).

Exhibit 21 shows a water pump that had been used to remove water from the area. (Tr. 48).

An underground garage was being built at the time of the excavation. The whole area had been dug down to the level required. At the site of the accident the bottom of the excavation was about 25 feet from the street level above. (Tr. 52). The excavation was large, extending several hundred feet in width, and perhaps two city blocks in length. It had been dug to various depths, and appeared to be incomplete at the time of the investigation. (Tr. 52-52).

Auguste Pelletier [respondent's job supervisor] told the CO that he was on the upper level when the accident occurred. He stated that he did not see the first batch of earth cave off, but did see the second batch as it broke away from the top level. The crane was stationed on the asphalt surface [Yeargen Street] overlooking the excavation where the accident occurred. (Ex. C-26).(Tr. 54). The asphalt street or driveway was scheduled to be destroyed during the course of the construction. (Tr. 55).

Pelletier further stated that he saw a man at the bottom of the pit when the second cave-off happened and he shouted a warning to that individual. That workman was the victim's uncle. (Tr. 55-56).

Pelletier indicated that it was felt that the asphalt surface of the street would help hold up the excavation wall at that point. He expressed the opinion that the cave-offs had happened because of the presence of the crane on the street above. (Tr. 56).

The CO's investigation revealed that there had been recent rains in the construction area. (Tr. 56-58). He expressed the opinion that soil stability changes with moisture content. And he stated that he could find no one who had inspected the excavation following the rains to determine if soil stability had degraded. (Tr. 58).

The general contractor's insurance representative had inspected the job-site at some prior time. (Tr. 59).

The post-accident benching operations were voluntary on the part of the parties so engaged on the day after the fatality. The CO had not yet made any abatement recommendations. (Tr. 61).

The respondent's job supervisor (Pelletier) stated that the general contractor nor anyone else had been requested to do anything about the slope because it was not considered a dangerous situation. (Tr. 62).

The witness felt that it was obvious from observation and the occurrence of the accident that the side of the excavation rising above the work pit had not been sloped to a 45-degree angle. (Tr. 63).

It appeared to the compliance officer that the walls under which the employees were working were originally 70 to 80 degrees in slope, rather than 45 degrees. The CO alluded to his background in mathematics and his other experience as qualifying him for estimating the degree of slope in matters of this kind. (Tr. 63-64).

The CO stated that it was obvious that none of the walls in the excavation left free-standing were at a slope of 45 degrees or less. A normal person, assuming he can get a foothold, can climb a 45-degree slope. He could not see a single wall in the work area or in any of the photographs that he made at the time, that he felt he could climb. (Tr. 65).

The only precautions against moving earth hazards seen by the CO were the shoring projects on three sides of the pit. No shoring was seen on the fourth side, where the accident took place. (Tr. 65).

The combination of the rains, the crane movements at the top of the pit in which the employees were working, and the vibrations caused by the movements of the crane, added to the hazard imposed by the unshored side of the excavation. (Tr. 65). The CO expressed the opinion that the wall in question should have been sloped at a 45-degree angle. He estimated that the angle was actually 70 to 80 degrees, in some instances 90 degrees, and in some places there was actually an overhang. (Tr. 71-72).

In addition to the deceased employee (Martin Ramirez) and the injured employee (Epifonio Fernandez) the respondent had other employees working in the excavation. They numbered about 22, and were engaged in installing and removing forms for the construction of concrete structures. They had been working in the area for two or three days. (Tr. 90-91).

The CO took soil samples at the jobsite. (Ex. C-30). This sample was taken at the surface of the original grade, just under the asphalt pavement, following the scraping off of the surface by the backhoe. (Tr. 95). The soil appeared to be a sandy clay, in the opinion of the compliance officer. (Tr. 97).

Several methods of abatement of the hazard were mentioned by the CO. The embankment could have been sloped to an angle of repose, where it would not be inclined to fall by its own weight, or with the imposition of other loads on top of it. Shoring could have been done, either at the lower level or at some point above, and sloping in combination. Or it could have been benched (stairstepped) to prevent the soil first of all from cracking off, or secondly, not to fall the full depth to the bottom of the pit. None of these methods had been pursued at the accident site. (Tr. 97-98).

A backhoe would be suitable for accomplishing the sloping of the earthen wall. There was a backhoe at the jobsite. No shoring or benching had been done. The backhoe could have done both operations. (Tr. 99).

Another technique would be the use of a "work box" or "mule" that can be lowered into the work area. In the event of a cave-off the worker is protected by the sides of the box from possible injury or death. (Tr. 99).

On cross-examination the CO stated that neither he nor Gerald Forrester, the other CO, took any measurements for distance or angle at the excavation. However, he had been told by the general contractor, Longcrier, and by the respondent's representatives that the depth of the excavation was 25 feet. (Tr. 102).

The CO concluded that the respondent did not do any of the excavation work, and did not create the hazard alleged. He was not aware of any contractual responsibility on the part of any contractor. He concluded that no request was made by the respondent to Longcrier for correction of the hazard. (Tr. 104-105).

The CO did not establish for whom the operator of the backhoe was working when the benching operation was performed following the accident. Upon inquiring of the respondent he was told that the operator was not a Capform employee. (Tr. 106).

The general contractor, Longcrier, told the CO that the excavation work had been performed by a sub-contractor, Weir Brothers. (Tr. 108).

In his conversations with Pelletier the CO was told that the former didn't think there was any problem with the embankment before the accident. (Tr. 111).

The CO also talked with Mr. Hitt, another representative of the respondent. Hitt did not say that the embankment looked hazardous prior to the accident.

The CO stated that he had been told by Longcrier's representative that the City [Dallas] inspected the excavation site and had required the existent shoring. Nothing had been said about the condition of the wall [embankment].

He had also been told that the insurance company representative had inspected the construction site. (Tr. 114).

The CO made a note in his investigation file stating that Hitt, the project manager, and Pelletier, the job foreman, had said that the respondent did not create the hazard; that it did not have the authority or the ability to correct it; and that Capform, the respondent had not requested the controlling employer to correct it. (Tr. 115).

He confirmed that the red soil shown in Exhibit 10 was the portion of the embankment that caved off and buried the deceased employee. (Tr. 129).

In view of the configuration of the bank at the site of the accident, the CO expressed the opinion that the caved-off portion of the bank had been an overhang before the collapse. (Tr. 133-134).

The greatest angle of slope observed by the CO in the unshored area of the excavation was 60 to 65 degrees. This was not the result of shoring, but appeared to the CO to have occurred when the embankment collapsed. This flattest slope [easiest to climb] of 60 to 65 degrees was right above the accident scene. (Tr. 138-139).

The concrete wall that the men were working on was estimated by the CO to be three to five feet from the bottom part of the embankment. The concrete wall was about nine feet tall. (Tr. 140).

The CO stated that he had concluded that the respondent had no ability to correct the hazard. (Tr. 144).

The concrete wall did not extend ever the entire length of the unshored embankment, but the CO estimated that it was 100 to 200 feet long. (Tr. 146). He indicated that exhibits 5 and 6 showed the overhang previously mentioned. (Tr. 147).

The CO had used the concrete wall as a vertical line of reference in estimating the 60 to 65 degree-angle of slope in the embankment. (Tr. 144-149).

Epifonio Fernandez, through an interpreter, testified that he had a ninth-grade education, and that he and his nephew, Martin Ramirez (the deceased) were employed by the respondent, but could not recall how long they had been so employed. It had been a little cool before the accident, and it had rained a few days before. (Tr. 149-152).

At the time of the accident he and his nephew were attaching a "waler" to one of the wooden forms that had been used in the construction of the concrete wall. They were waiting for the crane to lower a line so that the hook could be attached to the waler. The crane had moved about in the performance of various lifting jobs on the day of the accident and on the day before. (Tr. 152-153).

The witness stated that his boss, "Pedro" had received instructions from Pelletier designating the witness and his nephew (the deceased) for the performance of the work involved in hooking the crane cable to the wooden forms for removal from the pit. (Tr. 153-154).

Pelletier shouted a warning to the witness when the witness rushed to the assistance of his nephew. The witness was then struck by falling dirt. Pelletier had just come to the work area when the accident occurred. (Tr. 155).

The witness identified the yellow crane in Exhibit 14 as the crane that was at the scene of the accident. (Tr. 155-156).

There was only two or three feet between the concrete wall and the embankment in the working area, just enough space to walk in. (Tr. 157).

Many other laborers employed by the respondent and supervised by Pedro and Pelletier had been working in the area, removing the wooden forms from the concrete wall. (Tr. 157-158).

The witness stated that he could not walk up the slope in the embankment as shown in Exhibit 5. Access to the working area was gained by walking down the embankment shown in Exhibit 22. (Tr. 160).

The witness was himself injured by falling earth and hospitalized after being pinned against the forms. (Tr. 161).

Gerald Forrester, also a compliance officer for OSHA, has been so employed since 1973. He has attended all safety courses presented at the OSHA Institute in Chicago. Included in the courses have been matters involving soil mechanics and the stabilization of soil materials. (Tr. 165-166).

The witness accompanied Mr. Slagle in the investigation of the instant jobsite. Soil samples were taken at the site of the accident. Some sloping was observed, but this had been created by the failed materials. Where there had been no failure, there didn't appear to be any sloping at all. (Tr. 166).

In fact, it was virtually vertical, except for the portion that had caved off. (Tr. 167). The concrete wall running parallel to Yeargen Street appeared to be about 60 feet long to the witness.

The upper part of the bank in question was a sandy clay, while below that was what the witness would describe as silty sand. The silty sand would he considered the weakest strata and a sloping of 60 to 65 degrees, going from the floor of the excavation to the top, would be the safest angle of sloping in the circumstances. (Tr. 168-170).

Other factors present, in addition to the nature of the soil, were the imposed load in the form of the crane, and the heavy amount of traffic in the jobsite area. The pit was 25 to 30 feet in depth at the point where the crane was located, above the accident site. (Tr. 171-172).

The witness was not familiar with the circumstances under which the crane had been ordered into place at the top of the embankment or under whose control it was at the time. (Tr. 175-176).

The heavy traffic referred to by the witness in his testimony was on the streets other than Yeargen. (Tr. 176). He stated that Yeargen appeared to be an access to the work area, and he did see some large trucks going into that area, possibly delivering materials to the jobsite.

Considering the nature of the soil and the angle of the bank as it probably was before the collapse, the witness felt there should have been some measures taken to prevent a cave-in because this was not the type of material that could be depended on to remain in place indefinitely at that angle. (Tr. 177).

Mr. Ralph Barnes, a geotechnical engineer, dealing with foundation engineering, studies of soil and rock and the way they react under loads, and different types of strains, testified with respect to the subsurface report prepared by Hooper & Associates (Ex. C-25); the photographs of the jobsite received in evidence, and the soil sample (Ex. C-10). (Tr. 183-203).

He stated that the materials at the jobsite appeared to be sandy clays, clayey sands, and sands. (Tr. 193). In his opinion this type of soil is subject to moving or caving in. (Tr. 194).

The soils shown in the photographs received in evidence; those mentioned in the soils report; and the soil sample, appeared to have been the type of soil that caved in. (Tr. 193-194).

The witness testified that basically these soils are variable all the way from clays through sands at the jobsite. With the exception of pure sands, they all have a degree of strength that would enable them to stand on vertical cuts for a period of time before caving off or sloughing off. But there is no way to evaluate the time factor, whether it be one day or one year. (Tr. 196). On the other hand, they will definitely cave off at some time. (Tr. 196).

Weathering of the soil, which causes cracking, can lead to ultimate caving off or sloughing off. Changes in the weather, such rain versus sunshine, things that tend to wet and dry the soil, speed up the process. Loads near the top of the bank can open tension cracks, weakening the soil, and speeding up the process of caving in. (Tr. 197).

The crane in the photographic evidence, when moving about, could hasten the weakening process. (Tr. 197).

Heavy rains for a two-week period before the cave-in, and light rain in the days immediately preceding the cave-in could have speeded up the fall. (Tr. 198).

Mr. Auguste Pelletier, a native of Quebec, Canada, testified that he had been in the United States for about a year and a half. He is a supervisor for the respondent in the construction of concrete forms. He has been in the construction industry for 37 years, progressing from laborer to carpenter to foreman, and eventually to supervisor. (Tr. 204-205).

During his 37 years of experience in concrete form work he has worked in and around embankments and excavations, but he has never had the responsibility "to look at" them. He has not performed any excavation work, and stated that he did not have to inspect or observe the excavations to determine their condition. (Tr. 206).

The witness stated that he was aware of safety requirements for embankments and excavations. He indicated that a 45 degree angle was supposed to be used, and that shoring was necessary. (Tr. 206).

He was the job supervisor for the respondent at the jobsite where the accident occurred. The respondent's job was to build forms for the pouring of concrete structures. No work was done with reinforcement steel, nor did the respondent's employees pour any concrete. (Tr. 207).

The excavation was about 27 to 30 feet deep at the point where the respondent's employees were working. Twenty employees were engaged in the work. Pedro Molina was assisting the witness as a supervisor. (Tr. 208)

The witness had been the supervisor at this jobsite for about a month when the accident occurred. No excavation work had been done by the respondent nor did it work on any of the embankments in the area. The embankments were shored on three sides. There was no shoring in the area where the accident happened. With regard to the embankments in the accident area, the witness stated "I find the slope was all right to me." He made this determination "just by looking at it." He did not recall seeing any cracks In the embankment near the accident site. (Tr. 209).

The witness stated that he saw no sloughing of material, nor did he see the embankment slide or move in any way. (Tr. 210).

The employees had been working in the area for about a month, and there had been no problem reported to him about the embankment that had failed. He knew of no problems with any of the embankments in the area that had not been shored. (Tr. 210).

During the month prior to the accident there had been "lots of rain, lots of rain." He saw no changes in the embankments after the rains. (Tr. 210).

When the accident occurred the witness was just coming onto the job-site. He "saw the dirt coming down, and that's it." He normally arrived on the job at 3:00 a.m., or 5:00 a.m. (Tr. 211).

On the day following the accident the witness, arriving about 5:00 a.m., saw Longcrier employees sloping the bank where the collapse had occurred. The witness had not had any discussions with any representatives of Longcrier concerning the condition of the embankment that was not shored. He stated that Longcrier had its own "safety guide" and that he was not concerned at all prior to the accident that the embankment was hazardous. (Tr. 211-212).

The witness identified the yellow crane in exhibit C-15 as the one that had been on the surface above the accident site before the accident occurred. He indicated that it had moved about on that surface, but that it had not moved when in close proximity to the accident site. (Tr. 215-216).

The witness completed the 12th grade in Canada, but has had no other formal education. He had no courses in mathematics. (Tr. 216).

He knew that the respondent's employees were working below the unshored embankment. (Tr. 217).

Mr. Curt Hitt, Project Manager for the respondent, has been so employed for 5 years. (Tr. 219). The respondent was engaged in wall form work at the construction site. The general contractor at the site was Longcrier. Capform does no excavation work; no shoring activities; no steel operations; and does not own or have any type of earth-moving equipment. It was employed only to do concrete form work at the construction site. (Tr. 219-221).

The witness stated that the exposed embankment was sloped to some degree along its full length. He assumed that the unshored embankment was adequate, in view of the fact that the other three sides of the site had been shored. (Tr. 222). He saw no indications of possible sloughing off of bank material on the unshored embankment. (Tr. 223). Neither of the two pieces of machinery shown in Exhibit C-15 belonged to or were leased by Capform. (Tr. 224). He assumed that the equipment was owned by the general contractor. The equipment was not operated by the respondent's employees. (Tr. 224).

It had rained during the month or so that the respondent had been engaged in form work at the excavation, but the witness saw no signs of deterioration in the unshored embankment. (Tr. 225). He had observed the slope of the embankment before the accident, and that it was adequate. (Tr. 226). However, he had not checked the sloping in assuming that it was adequate. (Tr. 226).

The witness stated that he knew that the respondent's employees were going to be working at the bottom of the slope. (Tr. 226).

Mr. Clyde Enright, an employee of the Longcrier Company, stated that he was employed at the excavation site. (Tr. 227). He was not approached by the respondent's representatives with any complaints about the unshored embankments. Nor was there any complaint registered with respect to any lack of sloping. (Tr. 228-229).

Epifonio Fernandez was recalled by the complainant and asked whether the crane shown in Exhibit C-15 had been working over the site where the accident occurred. He replied that "it was there." (Tr. 231).

Henry Slagle was recalled by the complainant and asked about the conversation he had with Gus Pelletier about the crane. He stated that Pelletier expressed the opinion that the crane had helped to cause the cave-off. He further indicated to the CO that the asphalt paving could have or should have helped hold the embankment from collapsing. (Tr. 234).

Discussion

Multi-employer construction sites have been the subject of many decisions by the Review Commission, which has applied the rules set forth in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA 1193, 1975-76 CCH OSHD 20,690 (Nos. 3694 & 4409), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1976), in determining whether a subcontractor can be held to have violated the Act in the circumstances present in that particular case.

The significant language in Anning-Johnson reads:

We... recognize... the availability to an employer of certain affirmative defenses... [A]n employer ... has an opportunity to demonstrate that it did not create the alleged hazard nor did it control the hazard such that it realistically had the means to rectify the condition...

Once a cited construction subcontractor has established that it neither created nor controlled the hazardous condition, it may affirmatively defend against the Secretary's charge by showing either (a) that its employees who were or may have been exposed to the hazard were protected by means of realistic measures taken as an alternative to literal compliance with the cited standard, or (b) that it did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous.

Hence, if the respondent neither created nor controlled the hazardous condition the remaining question is whether it had or with the exercise of reasonable diligence could have had notice that the condition was hazardous.

It is undisputed that the respondent did not create the hazardous condition of the embankment. It is likewise quite clear that the respondent did not control the hazard because it lacked the authority or equipment to abate or correct the hazardous condition.

The respondent's project manager did not have an educational background in soil mechanics, nor sufficient experience in the recognition of soil degeneration in the embankment to be apprised of the hazardous condition of the embankment at the site of the accident. He appears to have been justified in assuming that the shoring of three sides of the excavation indicated that the unshored portion of the pit was found to be safe by the general contractor's safety representative, as well as the insurance company representative and the Dallas city inspector's tacit approval.

Neither can it be said that the respondent's job foreman, with no experience in the excavation trades, and an education totally lacking in mathematics of any kind, knew or should have known that the embankment was in a hazardous condition. He saw nothing alarming in the angle of sloping of the embankment before the accident occurred. The precise angle of sloping prior to the accident will never be Known since a considerable portion of the embankment ended up at the bottom of the pit after the collapse of the soil. Thus, it would be pure speculation to assume that common sense should have warned the foreman that the bank was in a hazardous condition thereby constituting a danger to the employees he assigned to perform the form work in the pit.

Findings

All of the evidence, including the testimony, demeanor, and credibility of the witnesses, and the photographic, graphic, and documentary evidence, has been evaluated in the light of the briefs of law and argument submitted by the parties. The following findings of fact are made:

1. The respondent, Capform, was engaged on February 22, 1984, as a subcontractor for the performance of concrete form work at a large building construction site in Dallas, Texas.

2. The construction site embraced an area of one or more city blocks which had been excavated to a depth of 25 to 30 feet by another subcontractor (Weir) under the direction of the general contractor, Longcrier Construction Co.

3. The respondent did not participate in the excavation activity, but was engaged at a later time by the general contractor for the performance of concrete form work at the bottom of the excavation.

4. The respondent does not operate any excavation equipment or machinery; nor does it operate cranes or other lifting equipment.

5. Since three sides of the excavation had been shored against the possibility of collapse, the respondent assumed that embankment left unshored was considered safe from possible collapsing of the soil.

6. The excavation site had been inspected by a Dallas city inspector and by the general contractor's insurance company with no known disapproval.

7. On February 22. 1984 the unshored embankment collapsed at a point directly above two of the respondent's employees, preparing to extract concrete forms from a wall that had been constructed on the floor of the excavation resulting in the death of one man and injuries to the other.

8. A heavy-duty crane (100-ton capacity) was stationed an the pavement of the street above the accident site, apparently for use in removing the concrete forms from the pit below. The movements of the crane might have been factors in the collapse of the embankment, but it was not operated by the respondent's employees. The street (Yeargen) was not heavily traveled by general traffic.

9. The angle of sloping of the collapsed embankment, viewed after the accident, appeared to be 60 to 83 degrees.

10. The respondent's job foreman, with a limited education and command of the English language, lacked any expertise in soil mechanics or engineering, and failed to notice anything about the condition of the embankment before the fall which might have indicated that a collapse of earth might occur while the men were working below.

11. The respondent's project manager, also lacking in expertise with respect to soil mechanics, did not notice anything in the condition of the embankment to indicate that a hazardous condition was present.

12. Although it had rained from time to time in the or so before the accident, the respondent's supervisory personnel did not have sufficient knowledge in such matters as to be able to conclude that the embankment might collapse.

13. The respondent did not create the hazardous condition, nor did it control the hazard.

14. The respondent did not have nor with the exercise of reasonable diligence could have had notice that the condition of the embankment was hazardous.
In view of the findings above I conclude that the respondent did not violate either of the three safety standards set forth in the citation. The citation will be vacated.

Conclusions of Law

1. The Review Commission has jurisdiction of this proceeding and the parties.

2. The respondent did not violate the safety standards set forth at 29 CFR 1926.651 (c), (d), and (q).

Order

The citation is vacated.

So ORDERED.

Louis G. LaVecchia
Administrative Law Judge

August 14, 1985
Dallas,


SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC DOCKET NO. 84-0556

Pursuant to the provisions of Section 556 of the Administrative Procedures Act (5 U.S.C. 556), the undersigned hereby certifies to the Occupational Safety and Health Review Commission the record in this proceeding, consisting of the following:

1. Those documents forwarded to the undersigned by notice dated July 27, 1984, from the Commission;

2. All documents issued by or filed with the undersigned in this matter numbered J-1 through J-22;

3. The original and three copies of the transcript of hearing, the original totaling 236 pages;

4. All exhibits received into evidence; and

5. The undersigned's decision and order in this matter dated August 14, 1985.

LOUIS G. LAVECCHIA
Administrative Law Judge

Dated: August 14, 1985


FOOTNOTES:

[[1/]] Capform also argues that the cited standard requires the Secretary to prove that the hazard of cave-ins "was increased in the unshored embankment at the jobsite after a rainstorm" (emphasis supplied), and that the Secretary failed to do so. We reject this contention. The standard very clearly intends that rainstorms be considered hazard-increasing occurrences unless and until an inspection by a competent person establishes otherwise, and it only requires proof that rainstorms had occurred. Capform does not dispute that rainstorms had occurred at the jobsite while its employees worked there.