SECRETARY OF LABOR,

Complainant,

v.

FORD DEVELOPMENT CORPORATION,

Respondent.

OSHRC Docket No. 90-1505

ORDER AMENDING DECISION

The Secretary of Labor having moved for an amendment of the Commission's decision in the above matter, the Commission hereby amends its decision in the following respect.   The last sentence of the second paragraph of section "I. Motion to Dismiss" is amended to read:

For her part, without conceding that TRG Drilling was correctly decided or that a contumacy test applies here, the Secretary denies that the facts in this case reflect contumacious conduct.  She expresses acquiescence in the application of a contumacy test only to violations of purely procedural rules of the Commission which do not have a direct statutory origin, but argues that all others require a finding of prejudice.

SO ORDERED.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: December 29, 1992

SECRETARY OF LABOR,

Complainant,

v.

FORD DEVELOPMENT CORPORATION,

Respondent.

OSHRC Docket No. 90-1505

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This action arose as a result of an accident occurring on March 22, 1990, while a Ford Development Corporation ("Ford"') construction crew was laying new drainage pipe along the side of a road in Ohio.  On that day, the wall of a newly dug trench shifted, trapping an employee's foot between the pipe and the side of the trench.   With the help of other employees and the local fire department, the employee was freed.  Shortly after the accident, Compliance Officers Stephen Brunette and Dennis Collins ("'CO's") from the Occupational Safety and Health Administration ("OSHA") of the Department of Labor inspected the worksite.

Following this inspection, the Secretary of Labor ("Secretary") issued three citations consisting of nine items.  Ford contested each item, and at the hearing before Review Commission Administrative Law Judge Paul L. Brady, moved to dismiss the Secretary's complaint on the ground that she was late in forwarding Ford's notice of contest ("NOC") to the Commission.  Judge Brady denied Ford's motion to dismiss, finding no prejudice to Ford or contumacy on the part of the Secretary.  The judge affirmed five and vacated four of the nine citation items.[[1]]  The direction for review involves four items and Ford's motion.

I. Motion to Dismiss

Ford challenges the judge's denial of its motion to dismiss the complaint on the ground that the Secretary failed to transmit Ford's NOC to the Commission within fifteen working days, as required by the Commission Rule.[[2]]  The Secretary stipulates that she failed to provide the Commission with timely notice of her receipt of Ford's NOC.   The Secretary explains that a regional office secretary, relatively new to her position, had apparently misunderstood the procedure for notifying the Review Commission, resulting in improper documentation and a late filing.  As a result, the NOC was transmitted seven days late. Upon receipt by the Commission, the matter was docketed and the administrative process commenced.  After conducting a hearing, the judge found that this delay was "innocuous... the result of a clerical error, plain and simple," and denied Ford's motion.

Ford contends that the citation should be vacated upon a showing either that the employer was prejudice in preparing or presenting its defense or that the Secretary's conduct was contumacious, citing TRG Drilling Corp., 10 BNA OSHC 1268, 1981 CCH OSHD ¶ 25,837 (No. 80-6008, 1981) (after unexplained 39-day delay in filing complaint, contumacy found where Secretary requested no extension of time and ignored employer's motion to dismiss).[[3]]  Though Ford claims no prejudice, it does argue that the Secretary's conduct in this case was "contemptuous." [[4]]   For her part, without conceding that TRG Drilling was correctly decided, the Secretary expresses acquiescence in the application of a contumacy test, but denies that the facts here reflect contumacious conduct.

Under Commission Rule 41[[5]], the standard of review that the Commission uses is whether the judge abused his discretion in denying a motion to sanction the Secretary by vacating the citation.  Under this standard of review, in evaluating the propriety of a dismissal sanction as set forth in Duquesne Light Co., 8 BNA OSHC 1218, 1980 CCH OSHD ¶ 24,384 (No. 78-5034, 1980) (consolidated cases), the Commission considers the following factors:

(1) the amount of time used by the trial court;

(2) whether plaintiff's claim necessarily lacks substance;

(3) whether defendant is prejudiced;

(4) whether there is a clear record of delay;

(5) whether plaintiff's attorney exhibited contumacious conduct;

(6) whether there is a showing of willful default on the part of the plaintiff;

(7) the rights of the defendants to be free from costly and harassing litigation; and

(8) the time and energies of the court and the right of would-be litigants awaiting their turn to have other matters resolved.

Id. at 1222, 1980 CCH OSHD at pp. 29,718-19 (citations omitted).  A demonstration of prejudice to the employer or contumacious conduct by the Secretary are among the more significant factors to take into account.  E.g., Texas Masonry, Inc., 11 BNA OSHC 1835, 1983-84 CCH OSHD ¶  26,803 (No. 82-955, 1984) (no finding of contumacy after 45-day delay in transmittal of NOC during ongoing settlement negotiations; case remanded to determine any prejudice) and Pennsylvania Elec. Co., 11 BNA OSHC 1235, 1983-84 CCH OSHD ¶ 26,449 (No. 80-5211, 1983) (no finding of contumacy after 7-month delay in transmittal due to failure of Secretary's personnel to follow proper procedure; case remanded to determine possible prejudice).

The Commission will not condone the Secretary's failure to comply with Commission Rule 33.  The Secretary's 15-day transmittal deadline, like other filing deadlines established under the Act and the Commission Rules, are intended to streamline and expedite the administrative process by which hazards are adjudicated and abated.  None shall be taken lightly.  See, e.g., Chartwell Corp., 15 BNA OSHC 1881, 1992 CCH OSHD ¶ 29,817 (No. 91- 2097, 1992), petition for review filed, No. 92-2338 (4th Cir. October 26, 1992).  Nevertheless, in the clear absence of any showing of prejudice, we find that the conduct (a 7-day transmittal delay which has been established to have been inadvertent) falls short of that necessary to have the citation dismissed.   Nor do any of the other factors in this case indicate that such a harsh sanction would be in order.  Accordingly, while the Secretary is on notice that the Commission expects adherence to its rules, we find that here the judge did not abuse his discretion in denying Ford's motion to dismiss.

II. Hazard Commission Standards

A. Citation No. 1, Item 1

Material Safety Data Sheets (MSDS)

At issue is whether Ford committed a serious violation of the standard at 29 C.F.R.§ 1926.59(g)(8)[[6]], concerning material safety data sheets (MSDS's). MSDS's for gasoline and portland cement (the two hazardous materials on the site) were not kept at the construction site but at Ford's office, which employees usually visited twice a week to get work assignments and their paychecks.  The judge affirmed the violation as serious.

Ford admits that the sheets were not physically located on the jobsite during working hours but argues that its practice of making them available on a regular basis effectively fulfills the requirements of the standard.  In the alternative, Ford acknowledges the potential applicability of Super Excavators, Inc., 15 BNA OSHC 1313, 1991 CCH OSHD ¶ 29,498 (No. 89-2253, 1991), issued by the Commission after the judge's decision in this case.  In Super Excavators, the Commission held that the standard was violated; there, the MSDS's were kept at the employer's main office, over 20 miles away from the worksite.  The Secretary cites both Super Excavators and Thomas Lindstrom Co., 15 BNA OSHC 1353, 1991 CCH OSHD ¶ 29,526 (No. 90-1084, 1991), as compelling a finding of violation.  We agree with the Secretary that both cases are controlling in this circumstance.

Ford maintains that if the Commission does find Super Excavators applicable to this case, the violation ought to be downgraded to other-than-serious, as it was in Super Excavators, because the materials at issue are "common construction materials that pose no mystery as to their true composition or hazards."[[7]]

We find the cases distinguishable, however.  The hazardous materials in Super Excavators were concrete, concrete pipe, PVC pipe, and waterplug; in Thomas Lindstrom, acetylene and oxygen; in this case, they are cement and gasoline.   The nature of the materials here makes this case a hybrid of sorts.

In Super Excavators, the Commission found that while the absence of an MSDS alone would not cause physical harm, it could result in an employee's being given inadequate or improper treatment for exposure to a hazardous substance.  Noting three factors, (1) that the materials involved were not particularly volatile, (2) that any harm would be superficial, and (3) that the Secretary had stipulated to the adequacy of the overall hazardous communication program, the Commission found that any harm to employees would not be so exacerbated by the absence of an MSDS that serious injury would result.  The Commission therefore reduced the serious characterization to other-than-serious.

In Thomas Lindstrom, on the other hand, the materials were quite volatile and, if ignited, could cause more than just superficial harm to the employees.  The Commission noted that acetylene is a highly flammable and explosive chemical and that oxygen, by promoting combustion in other materials, can increase the severity of fires.  Nevertheless, in that case, we affirmed the violation as other-than-serious, as originally characterized by the Secretary.

The Secretary alleged that the violation of the standard here was serious.  The nature of the hazardous material affects the characterization and associated penalty.  In Super Excavators, in addition to downgrading the violation to other-than-serious, the Commission reduced the proposed penalty because of the "low gravity" of the violation.  In Thomas Lindstrom, no penalty was proposed and none assessed.  In this case, the Secretary proposed a total unallocated penalty of $500 for the failure to have the appropriate MSDS's on the site.   Since portland cement is a common construction material that poses no mystery as to its composition or the hazards it poses, we find that the failure to have the appropriate MSDS on site constitutes an other-than-serious violation for which we assess no penalty.   Turning to the particular hazards associated with gasoline and applying the Super Excavators factors (volatility, nature of expected harm, and adequacy of hazard communication program), we find that Ford committed a serious violation by failing to have the MSDS for gasoline at the worksite and assess a penalty of $500.

(B) Citation No. 3, Item 3

Employee Information and Training on Hazardous Chemicals

At issue is whether Ford committed a serious, repeated violation of the standard at 29 C.F.R. § 1926.59(h)[[8]], requiring employers to provide employees with information and training on hazardous chemicals in their work area.  The CO acknowledged that "as a written program," Ford's was adequate.  Although Ford had scheduled a number of training seminars and safety meetings designed to supplement its written program, Ford's program at the time of the inspection consisted of nothing more than providing its employees with copies of its hazard communication program, and requiring them at one point to review the program as a condition of receiving their paychecks.   The judge found that in so doing Ford complied with the standard, and he therefore vacated the citation.

The Secretary petitioned for review of that vacation, charging that Ford's program fell short of compliance.  Emphasizing the distinction between information and training, and contending that the judge here improperly combined the two, the Secretary argues that Ford's efforts were most deficient in the training aspect of the standard.  According to the Secretary, unless an employer informs its employees of the specific hazards associated with workplace chemicals and tells them what protective measures to take, it is not in compliance with section 1926.59(h).  She cites ARA Living Centers of Texas, Inc., 15 BNA OSHC 1417, 1992 CCH OSHD ¶ 29,552 (No. 89-1894, 1991).  In that case, the Commission reversed a judge's vacation of a similar citation involving the parallel general industry standard, holding the employer in violation for failure to inform and train nursing home employees using industrial-strength cleaners and disinfectants containing certain hazardous chemicals.  The evidence indicated that employees had access to MSDS's and product labels but that no written hazard communication program was in place, and the employees had not received any training.  In this case, the Secretary introduced no evidence about the labels on the cement bags or gasoline containers.  The evidence does establish that Ford failed to provide ready access to the pertinent MSDS's, and that it conducted no specific training on how to handle portland cement in its various forms or on how to clean up gasoline spills, or avoid and treat siphoning accidents, or prevent explosions or fires.  On the other hand, unlike the employer in ARA, Ford did have an adequate written program, one it required its employees to review.

In the ARA case, the Commission reclassified the violation as other-than-serious: "Based on the limited record presented to us, we conclude that the evidence of a possible skin rash is insufficient to establish a substantial probability of serious physical harm within the meaning of section 17(k) of the Act."   Id. at 1418, 1992 CCH OSHD at p. 39,957.  If cement were the only substance at hand in this case, the ARA case might provide more guidance in how to classify the violation here.  Because this case involves gasoline, however, a substantial probability exists that death or serious physical harm could result if an accident with gasoline occurred.  The Secretary alleged that this violation was serious.   Considering the same factors as we did in characterizing the MSDS violation above, we find the information and training standard violation other-than-serious with respect to the portland cement and serious with respect to the gasoline.

Proposing a penalty of $2,000, the Secretary claims that "at the time of the alleged repeated violation there was a Commission final order against the same employer for a substantially similar violation," citing Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ¶  23,294, p. 28,171 (No. 16183, 1979). Ford resists the Secretary's characterization of the violation as "repeated," pointing to certain "exculpatory" language in the settlement agreement and final order introduced by the Secretary.  For our purposes, the 1989 settlement agreement incorporated by the final order used to establish the "repeated" allegation in this case contains several critical provisions:

(1) "Respondent hereby withdraws its notice of contest...."

(2) "Nothing contained herein should be construed as an admission by Respondent that it violated the Act...."; and

(3) "The settlement is not to be taken as an admission of fault or liability and shall not affect any rights or defenses in the future that Respondent may have in any....proceeding other than one arising under the Act."

Ford claims that under provision (2) above, the Secretary is precluded from using the agreement/order to establish a repeated violation in the instant case.  In other words, Ford argues that since the parties agreed that there was no violation of the Act in 1989, the violation in this case cannot be considered a second, repeated violation.  Ford warns that a Commission finding of a repeated violation in this case would mean that settlements have no future force and effect and are to be ignored, creating a "chilling effect on the salutary goal of settlements."

The Secretary, citing Stone Container Corp., 14 BNA OSHC 1757, 1987-90 CCH OSHD ¶ 29,064 (No. 88-310,1990), argues that Ford's withdrawal of its contest in provision (1) above constitutes an agreement to the affirmance of the citation and establishes the existence of a violation of the cited standard. She emphasizes the clear language of provision (3) above and adds that the settlement agreement was devoid of any language expressly barring the use of the agreement in future citations.  Cf. National Steel & Shipbuilding Co., 8 BNA OSHC 2023, 2023 n. 1, 1980 CCH OSHD ¶ 24,748, p. 30,476 n.1 (No. 79-929, 1980) (settlement agreement contained a provision "that the citation ... giving rise to the above-captioned matter shall not be utilized as or form the basis of a future repeat citation").

We note that the settlement agreement language on which Ford relies is similar to that in another case, Dic-Underhill, A Joint Venture, 8 BNA OSHC 2223, 1980 CCH OSHD ¶ 25,959 (No. 10798, 1980).  The language in the Ford agreement echoes the following language contained in the Dic-Underhill agreement:

Respondent's agreement to pay the proposed penalty, to take the proposed action and the signing of this agreement are not admissions by respondents of any violations of the Act or of the truth of any of the allegations .... [Nor are they to be] construed ... as admissions of fault or liability in any claim or proceeding which exists or may arise and be pursued by any person ... other than in any subsequent proceedings brought by the complainant before the [OSHRC] ....

Id. at 2225,1980 CCH OSHD at p. 30,797 (emphasis added).   The Commission held in Dic-Underhill that the plain language of the settlement agreement allows it to be used in a later proceeding as the basis for finding a repeated violation.  The same reasoning holds true the instant case.[[9]]  Based on the existence of a Commission final order for a violation of the same standard, we find that Ford's serious violation of section 1926.59(h) is repeated.

The Secretary proposed a penalty of $2,000 for this serious, repeated violation.  Ford's efforts to increase its safety training activities after the inspection are impressive; indeed, some of these activities were described as "scheduled" at the time of the inspection.  In our opinion, this evidence of good faith on Ford's part justifies a further reduction in the penalty.  See Southern Indiana Gas & Elec. Co., 1 BNA OSHC 1569,1973-74 CCH OSHD ¶ 17,374 (No. 456, 1974) (commending employer's ongoing efforts to reduce noise hazard both before and after inspection, assessing no penalty).  We therefore assess a penalty of $1,000.

Ill. Trench Standards

A. Citation No. 3, Item 1

Employee Training on Hazard Recognition and Avoidance

At issue is whether Ford committed a serious violation of the standard at section 1926.21(b)(2)[[10]], requiring employers to train each employee in hazard recognition and avoidance.  On review, the Secretary concedes that this violation was not "repeated" as initially alleged and requests a recharacterization as "serious."  The Secretary cited Ford for failing to provide its foreman, David Neu, with adequate training in excavation hazards, including failure to instruct Neu in appropriate methods of soil evaluation he was to follow as the designated "competent person" for the site.  The term "competent person" is defined in section 1926.650(b) as "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."

Neu, employed by Ford for three years, testified that during his eight years with his prior employer, he learned, through on-the-job training, to observe changes in the ground and to gauge the power the backhoe required in different types of soil.  He testified that he was aware of the 5-foot trench-protection requirement, but when asked why he had not shored the 6-foot trench, he replied, "The reason I didn't use any shoring was because this ground ... was hard to pull through as I dug it."  Neu also testified that he had attended a 1-day OSHA seminar on trench safety about four years prior to the hearing, before he came to work for Ford.  He admitted, however, that he had not learned when or how to take any tests.  For instance, he did not know that the standard contains requirements such as manual testing and soil sampling.  Moreover, Neu testified that he had received no training during the three years he had been working for Ford.

The Secretary argues that the standard provides no mechanism for training received from past employers to be "credited" or carried over to an employee's current employer.  Noting that the regulations governing excavations had changed during Neu's tenure with Ford,[[11]] she cites Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1020, 1991 CCH OSHD ¶ 29,317, p. 39,381 (No. 87-1067, 1991), aff'd without published opinion, No. 91-1311 (D.C. Cir. October 26, 1992) (employer's duties are satisfied when the employer instructs its employees about the hazards they may encounter on the job and about the regulations applicable to those hazards) and other cases [[12]] in support of her position that Ford violated the standard.

Ford styles the Secretary's dispute as being not with Mr. Neu's qualifications themselves, but with their source.  Ford further asserts that to hold Ford in violation for failing to duplicate the training Mr. Neu brought with him to the job when he was hired is to exalt form over substance.

The Commission has recently examined the requirements of this standard.  In A.P. O'Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD ¶ 29,223 (No. 85-369, 1991), a case involving training in trench safeguards, the foreman testified that he had never been given instructions about soil mechanics or attended any lectures on soil, and that all his knowledge had been gained through his 14 years' experience working in trenches.  Id. at 2010, 1991 CCH OSHD at p. 39,131.  The Commission criticized the employer for relying too heavily on experience and on-the-job training of the crew instead of providing specific trenching instructions and affirmed the alleged violation of section 1926.21(b)(2), citing H.C. Nutting v. OSHRC, 615 F.2d 1360 (6th Cir. 1980) (unpublished) and John R. Jurgensen Co., 872 F.2d 1026 (6th Cir. 1989) (unpublished) (evidence that employees were unaware of particular safety requirements, because of a lack of specific instruction, establishes a violation).

Similarly, in R & R Builders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD ¶ 29,531 (No. 88-282, 1991) (occasional correction of employees does not amount to systematic training) and Concrete Constr. Co., 15 BNA OSHC 1615, 1992 CCH OSHD ¶  29,681 (No. 89-2019, 1992) (employer that provides no training other than safety booklet violates standard), the Commission made clear that while the standard does not limit the employer in the method by which it may impart the necessary training, an employer that places too much trust in the quality of experience and training an employee has already acquired elsewhere runs the risk of violating the standard.

The judge found not only that what little formal training Neu had received years ago fell short of meeting the standard, but also that training by a previous employer does not fulfill the requirements of the standard.  He therefore affirmed the violation. We agree, while noting that our decision should not be read as requiring employers always to demand that their employees undergo formalized training, nor as compelling employers in every instance to gather written verification of job skills from their employee's formal employer's.  Here, the plain language of the standard requires some positive action on the part of the cited employer, and none was taken in this case.[[13]]  The judge, still considering this violation as "repeated," affirmed the proposed $3,600 penalty.  While Ford continued to argue in its reply brief that no violation existed, it did not dispute that a violation, if found, could result in serious physical harm or death.  We find that this violation is serious, but not repeated.  Constrained by the former penalty structure that places a maximum of $1,000 as applied to this case, we find a penalty in the amount of $1,000 to be appropriate.

B. Citation No. 2, Item 1

Trench Protective System

At issue is whether Ford committed a serious violation of the standard at section 1926.652(a)(1) [[14]], essentially requiring trench protection systems for excavations 5 feet deep and over unless they are carved out of stable rock.

The facts of the trench accident that prompted OSHA to conduct the inspection in this case are not entirely clear.  A number of references are made to the "collapse" and to the material that "gave way" or "let loose."  The only eye-witness to the accident who testified, foreman Neu, described the scene this way:

I was running the hoe at the time of the accident.... The guy was down in the ditch, and we set the pipe and was just getting ready to plug it for the night.... The bank did not fall in.  The bank slid in, was sheared in.... [W]hen the bank started to slide, I hollered and the guy started to run.  When he seen the bank was coming in, he stepped [up] on the pipe.... He got his left foot up on top of the pipe, and he went to step up; and before he could step up, it slid over and caught his right foot.

Though the judge made no finding on whether a cave-in[[15]] actually occurred, the record belies Ford's continual assertions in its brief that at no time was there a cave-in or failure of the soil.  Normally, the fact that an accident occurred, let alone the details, is irrelevant to these proceedings.  Here, however, the facts tend to establish a substantive point: the unavailability of the solid rock exception.  The record in this case tends to show that the trench wall broke down in some way, and as in other cases before the Commission, the very fact of the collapse seems to demonstrate an instability at the scene of the accident. Bland Constr. Co., 15 BNA OSHC 1031, 1991 CCH OSHD ¶ 29,325 (No. 87-992, 1991).

It is undisputed that Ford made no efforts to comply with the standard by sloping or shoring the sides of the trench.  Ford contends that the standard did not apply to the trench in this case because it was carved in stable rock and was under five feet deep.  Again, under Dover Elevator Co., see supra note 8, the party claiming the benefit of an exception bears the burden of proving that its case falls within that exception.

That the material at the site was hard clay and rock is undisputed.  The Secretary argues that ground which is partly clay is not "stable rock."  She further notes that her reasonable interpretation of her own standard is entitled to deference and cites a number of Commission decisions with which her position is fully consistent.  Bland Constr. Co. (all unstable material such as fractured rock, clay, and topsoil must be sloped or shored); Woolston Constr. Co., 15 BNA OSHC 1114, 1991 CCH OSHD ¶ 29,394 (No. 88-1877, 1991), aff'd, No. 91-1413, (D.C. Cir. May 22, 1992) (trench wall is only as stable as its weakest component).  Ford, on the other hand, claims that "clay" fits into the definition of "stable rock" in paragraph (b) of the standard's Appendix A: "natural solid mineral matter that can be excavated with vertical sides and remain intact while exposed."   Acknowledging that clay may not be rock, Ford suggests that clay is nonetheless a natural solid mineral matter and, as such, constitutes a sufficiently stable substance for purposes of the term "stable rock" as used in the standard.  The judge saw no merit in Ford's argument, and we agree with the judge.

The cited standard, when read in context with related definitions and tables in the appendices to Subpart P, amply supports findings that clay is soil and that soil is not stable rock.  "Soil" and "stable rock" are mutually exclusive, not interchangeable.  For instance, "stable rock"-- one of four categories of material in the standard--is a classification separate from the three soil types.  Gravel, crushed rock, and unstable dry or submerged rock are all classified within one of the soil types, but stable rock is not.   The evidence is that the composition of the ground at the site was some proportion of clay and rock.  Therefore, we find that the trench in this case does not meet the "stable rock" exception.

Ford also claims that the "depth" exception to the standard applies to this case.  This exception only applies if the trench measures less than five feet deep and if a competent person who examines the ground finds no indication of a potential cave in.

The evidence here indicates that the trench was too deep to meet the terms of the exception.  Both CO Brunette and foreman Neu testified that the trench was approximately 6 feet deep.  Even the specifications for the trench called for 3 1/2 to 4 feet of cover on top of the 12-inch pipe, which in turn was to be laid on 6 inches of sand, so the contract itself required a trench that was at the very least 5 feet deep, not "less than 5 feet," in the words of the standard.  The explanation Ford offers, that since employees were supposed to stand on the pipe at all times their "exposure" was to the equivalent of a trench that was only 3 1/2 feet deep, is unpersuasive.  The standard speaks of the depth of the trench, not of the position of employees in the trench.  Therefore, the trench in this case does not meet the depth exception to the standard.

Ford has failed to establish that the trench in this case meets either available exception.  Hence, we affirm the judge in finding a violation of the trench protection standard.  The Secretary proposed a penalty of $10,000 for a willful violation of the standard.  However, the judge found that Neu did not act with reckless disregard for his crew's safety, but believed in good faith that the soil's composition precluded the necessity for sloping or shoring.  The judge reclassified the violation as serious and reduced the penalty to $1,000.  We defer to the judge's assessment.  E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2132, 1991 CCH OSHD ¶ 29,264, p. 39,231 (No. 87-0008,1991); C. Kaufman, Inc., 6 BNA OSHC 1295,1297,1977-78 CCH OSHD ¶ 22,481, p. 27,099 (No. 14249,1978).  The judge's findings are affirmed, and a penalty of $1,000 is assessed.

IV. Conclusion

Accordingly, Ford's motion to dismiss is denied.  Item 1 of citation no. 1 is affirmed as modified by this decision, and a penalty of $500 is assessed.  Item 1 of citation no. 2 is affirmed as serious, and a penalty of $1,000 is assessed.  Item 1 of citation no. 3 is affirmed as serious, and a penalty of $1,000 is assessed.  Item 3 of citation no. 3 is affirmed as modified by this decision, and a penalty of $1,000 is assessed for this repeated violation.  Hence, a total penalty of $3,500 is assessed.

Edwin G. Foulke, Jr.

Chairman

Donald G.Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: December 3, 1992

SECRETARY OF LABOR,

Complainant,

v.

FORD DEVELOPMENT CORPORATION,

Respondent.

OSHRC Docket No. 90-1505

APPEARANCES:

Kenneth Walton, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Kenneth Seifried, Esquire, Holbrook and Poston, Cincinnati, Ohio, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge: Ford Development Corporation (Ford) is a construction company whose principal place of business is located in Sharonville, Ohio.  In March of 1990, Ford was under contract with the Cincinnati Water Works to lay a drainage pipe along Bridle Road, near Eight Mile Road, in Newton, Ohio (Tr. 22, 320).  On March 22, 1990, an accident occurred at the worksite.  A Ford employee's foot was trapped between the drainage pipe and one wall of the trench in which the pipe was being laid.  The fire department eventually freed the trapped employee (Tr. 26).

As a result of this accident, OSHA compliance officers Stephen Brunette and Dennis Collins inspected the worksite.  Pursuant to their inspection, three citations were issued to Ford on May 2, 1990.  Citation No. 1 alleged serious violations of 29 C.F.R. §1926.59(g)(8) for failure to make material safety data sheets (MSDS's) readily accessible to its employees, of 29 C.F.R. § 1926.251(a)(1) for failure to remove defective rigging from service, of 29 C.F.R. § 1926.651(d) for failure to provide warning vests to employees exposed to public vehicular traffic, and of 29 C.F.R. § 1926.651(k)(2) for failure to require a competent person to remove exposed employees from hazardous excavations.

Citation No. 2 alleged a willful violation of 29 C.F.R. § 1926.652(a)(1) for failure to provide a protective system for employees in an excavation.

Citation No. 3 alleged a repeat violation of 29 C.F.R. § 1926.21(b)(2) for failure to train employees in the recognition and avoidance of unsafe conditions, of 29 C.F.R. § 1926.59(e)(1) for failure to maintain at the workplace a written hazard communication program, and of 29 C.F.R. § 1926.59(h) for failure to provide employees with information and training on hazardous chemicals in their work.

FORD'S MOTION TO DISMISS BASED ON THE SECRETARY'S

UNTIMELY NOTICE TO THE REVIEW COMMISSION

At the start of the hearing Ford moved to dismiss the Secretary's case based on her alleged failure to comply with 29 U.S.C. § 659(c) by failing to provide timely notice to the Review Commission.  The motion was held in abeyance until the issuance of this decision (Tr. 16).

29 U.S.C. § 659(c) provides in pertinent part:

If an employer notifies the Secretary that he intends to contest a citation ... the Secretary shall immediately advise the Commission of such notification...

Rule 2200.33(a) of the Rules of Procedure of the Occupational Safety and Health Review Commission provides:

Within 15 working days after receipt of--

(a) notification that the employer intends to contest a citation or proposed penalty under section 10(a) of the Act, 29 U.S.C.§ 659(a) ... the Secretary shall notify the Commission of the receipt in writing and shall promptly furnish to the Executive Secretary of the Commission the original of any documents or records filed by the contesting party and copies of all other documents or records relevant to the contest.

The Secretary received Ford's notice of contest on May 10, 1990. The last working day which the Secretary could have provided the Review Commission with notice of her receipt of Ford's notice of contest and be in compliance with § 2200.33(a) was May 28, 1990.[[1]] The Secretary did not give notice to the Review Commission until June 8, 1990 (Ex. R-14, Tr. 358).

In response to Ford's interrogatories, the Secretary stated that on June 1, 1990, she had notified the Review Commission of its receipt of Ford's notice of contest (Ex. R-1, Tr. 188).  Dennis Collins, the compliance officer who signed the Secretary's responses to interrogatories, based this response on information he received from his supervisor, Dennis Slessman, who based his information on a notation made on his secretary's calendar (Exs. R-3, R-4, Tr. 188, 189).  Slessman's secretary was relatively new to her position at that time, and apparently was mistaken in her understanding of the procedure for notifying the Review Commission (Tr. 295).  The day before the hearing (in November of 1990), the Secretary supplemented its response, stating that based upon additional information, notice to the Review Commission was not sent on June 1, 1990.  The new information indicated that the notice had been sent sometime between June 1 and June 11, 1990 (Ex. R-2, Tr. 190).

At the hearing, Slessman stated that the week before the hearing began, he received a copy of the written notice to the Review Commission, which established that the notice had been sent on June 8, 1990 (Ex. R-14, Tr. 349, 350).

The Secretary stipulated that "Complainant failed to provide timely notice to the Review Commission of her receipt of Ford Development's notice of contest" (Tr. 6-9).

Ford contends that the Secretary's delay in notifying the Review Commission of its receipt of Ford's notice of contest is grounds for dismissing the case. Ford does not claim that it was prejudiced in any way by the Secretary's untimeliness.  Rather, Ford contends that the motion to dismiss should be granted because violation of the cited statute requires dismissal, and because the Secretary engaged in "contumacious" conduct.

Regarding the first argument, that violation of the statute requires dismissal, reference must be made to OSHRC's Rules of Procedure § 2200.41(a) (Failure to Obey Rules):

Sanctions.  When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared in default either: (1) on the initiative of the Commission or Judge, after having been afforded an opportunity to show cause why he should not be declared to be in default; or (2) on the motion of a party.  Thereafter, the Commission or Judge, in their discretion, may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.  (Emphasis added)

As § 2200.41(a) makes clear, dismissal of a case because of procedural errors is discretionary with the judge.  Dismissal is not mandated by a failure to comply with the rules.

Ford cites TRG Drilling Corporation (Mid-Continent Division), 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1981 CCH OSHD ¶ 25,266 (No. 80-6008, 1981), as standing for the proposition that a citation should be vacated for failure to comply with the Review Commission rules if there is either prejudice to the opposing party or if the Secretary engages in contumacious conduct.  Actually what TRG states is: "The Commission precedent is clear - the Secretary's failure to file a timely complaint does not justify vacating a citation absent a finding of contumacious conduct by the Secretary or prejudice to the employer." Id., 10 BNA OSHC at 1269 (dissenting opinion).   Again, the discretionary aspect of the dismissal (here relating to the Secretary's complaint, not its notice to the Review Commission) is implied.

In addition, Ford cites Secretary v. Barretto Granite Corporation, 830 F.2d 396 (1st Cir. 1987), which also deals with the late filing of the Secretary's complaint, and which states: "The Secretary must file a complaint within 20 days of the time the notice of contest has been received, and may be subjected to dismissal of the case if an employer can establish that he was prejudiced by a delay in filing the complaint."  Id., at 398.  The noteworthy aspects of this statement are the discretionary power implicit in the phrase "may be subjected to dismissal" and the mention of prejudice as the sole basis for dismissal. Barretto does little to bolster Ford's argument.

"Contumacious" is defined as "obstinately disobedient or rebellious; insubordinate."  The American Heritage Dictionary 319 (2d College Ed. 1982).  Even construed in the worst light, the Secretary's actions in filing the notice to the Review Commission do not rise to the level of contumaciousness.   Instead, the Secretary's delay is attributable to miscommunication and inexperienced personnel, resulting in an innocuous clerical error.

Despite Ford's attempt to show otherwise, the record establishes only that a secretary, new to her position, did not forward the notice of receipt of Ford's notice of contest to the Review Commission.  This oversight was not caught immediately, resulting in the notice being received by the Review Commission 11 days outside of the time limit set by OSHRC Rule of Procedure § 2200.33.  This 11-day delay did not prejudice Ford, nor was it the result of obstinately disobedient, rebellious, or insubordinate behavior by the Secretary.  It was the result of a clerical error, plain and simple.

Furthermore, the conduct which Ford characterizes as contumacious has nothing to do with the cause of the delay itself.  Rather, Ford focuses on the subsequent events, when the Secretary attempted, in response to Ford's interrogatories, to ascertain the date that she gave notice to the Review Commission.   Granted, the Secretary's procedures in trying to pin down the date of the notice to the Review Commission do not call to mind the precision of a finely tuned machine, but neither do they raise the suspicion of deliberate misrepresentations.

The Secretary's admitted untimely notice to the Review Commission of her receipt of Ford's notice of contest was the result of a clerical error, which was not contumacious in nature and which did not prejudice Ford.  Ford's motion to dismiss for untimely notice is denied.

VALIDITY OF INSPECTION

Ford argues that its Fourth Amendment rights were violated by the Secretary because OSHA's compliance officers made the inspections, over Ford's objections, without a warrant (Tr. 63-65, 110).  Although Collins subsequently obtained a warrant, the evidence on which the citations were based was gathered before that time.  Ford contends that OSHA's inspection was unconstitutional and that the citations should be vacated.

The site where the drainage pipe was to be laid was along Bridle Road, a public roadway.  At each end of the road (the top and the bottom of the hill) there were large orange construction signs marked "Road Closed" (Tr. 160, 263-264, 321).  Despite these signs, local traffic was allowed on the road (Tr. 164).  It was estimated that 15 to 20 cars a day traveled on the road (Tr. 235).

Ford's argument is without merit.  Under the "open view" exception to the warrant requirement, a warrant is not needed if the worksite to be inspected is accessible to the public and open to view.  Accu-Namics v. OSHRC, 515 F.2d 828, 833 (5th Cir. 1975), cert. denied 425 U.S. 903 (1976);

Environmental Utilities Company, 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977 CCH OSHD ¶ 21,709 (No. 5324, 1977).

In the present case, Bridle Road was open to the public, despite the "Road Closed" signs.  Fifteen to twenty cars passed by the worksite on a daily basis. There is no evidence that anyone was ever turned away who desired to travel on that road.  Ford had no reasonable expectation of privacy on the roadway. The placing of signs, which limited the flow of traffic, did not convert a public road into a private one in this case.  OSHA did not need a warrant to inspect the site.

CITATION NO. 1

ITEM 1: 29 C.F.R. § 1926.59(g)(8)

29 C.F.R. § 1926.59(g))8) provides:

The employer shall maintain copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).

OSHA compliance officer Dennis Collins spoke with Ford's foreman, David New, on April 4, 1990.  Collins asked New if he had copies of the MSDS's for gasoline and portland cement, both of which were being used by the employees on the site, available at the worksite.  New responded that he did not (Tr. 123, 130).   The MSDS's for these materials were located at Ford's office in Sharonville, Ohio (Tr. 131).

Ford contends that the presence of the MSDS's at its Sharonville office, where, Collins was told, employees went at least twice a week, meets the requirements of the standard (Tr. 197).  Even a cursory reading of § 1926.59(g)(8) shows that this is not the case.

The standard requires that the MSDS's be "readily accessible during each work shift to employees when they are in their work area(s) (emphasis added).  If an employee only visits Ford's company office twice a week, then the MSDS's are not readily accessible to him during each work shift, and they are not accessible to him when he is in this work area.  Ford was in violation of § 1926.59(g)(8).

ITEM 2: 29 C.F.R. § 1926.251(a)(1)

29 C.F.R. § 1926.251(a)(1) provides:

Rigging equipment for material handling shall be inspected prior to use on each shift and as necessary during its use to ensure that it is safe.   Defective rigging equipment shall be removed from service.

Collins observed a wire rope sling being used to lift and place the drainage pipe into the trench.  Some strands of the sling were broken and were protruding from it (Ex. R-13, Tr. 132, 133).

Ford concedes that the strands were broken but argues that the broken strands did not render the sling defective.  The manufacturer's specifications for the sling demonstrated that it had a 1,940 pound capacity (Ex. R-13, Tr. 329).   The pipe which was being used to hoist weighed 965 pounds (Tr. 330).  The sling was made up of seven braids, each of which contained 19 wires (Tr. 339-340).   Ford argues that a few broken strands would not cause the sling to be defective.

The word "defective" is not defined in the safety standards.  Websters Third New International Dictionary (1971) defines "defective" as "wanting in something essential: falling below an accepted standard in regularity and soundness of form ... or in adequacy of function."   Id. at 591.  The Secretary failed to establish that the few broken strands on the sling resulted in its being inadequate to hoist the pipe.  Collins stated that the sling appeared to be functioning properly and that he could not say that the sling's built-in safety functions were exceeded in this case (Tr. 223, 224, 226).

The Secretary's basis for alleging that the sling was defective was the presence of a few broken strands.  That, in light of the specifications for the sling and the weight being lifted, is insufficient to support a finding that a violation of the standard occurred.  Ford was not in violation of § 1926.251(a)(1).

ITEM 3: 29 C.F.R.§ 1926.651(d)

29 C.F.R. § 1926.651(d) provides:

Employees exposed to public vehicular traffic shall be provided with, and shall wear, warning vests or other suitable garments marked with or made of reflectorized or high-visibility material.

None of Ford's employees on the worksite wore warning vests or other reflectorized clothing (Tr. 133).  Traffic passed by the employees as they worked. Collins observed a saw operator who scored the pavement while standing near the center of the right lane while traffic used the left lane (Tr. 134).

Ford argues that it was not in violation of the standard because it applies only to "public vehicular traffic."  Ford contends that because the road was "closed", public traffic did not travel on the road.

As discussed earlier in this decision, the roadway was public despite the signs posted, and traffic on the roadway would be public.  The vehicles were driven by members of the public, and the employees were exposed to the same dangers, whether or not the "Road Closed" signs were posted.  Ford was in violation of § 1926.651(d).

ITEM 4: 29 C.F.R. § 1926.651(k)(1)

29 C.F.R. § 1926.651(k)(1) provides:

Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions.  An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift.   Inspections shall also be made after every rainstorm or other hazard increasing occurrence.  These inspections are only required when employee exposure can be reasonably anticipated.

David New was the designated competent person on the site (Tr. 138).  New made daily inspections of the excavation site (Tr. 139, 249).  New evaluated the soil by visually examining it and by noting how hard the backhoe had to work in order to dig the trench (Tr. 140).

The Secretary argues that New's inspection was inadequate to meet the requirements of the standard because New did not conduct any manual tests of the soil (Tr. 140-142, 249-250).  Nowhere in the standard does it require manual tests of soil to be made.  The standard requires only that "daily inspections be made", which New indisputably did.  The Secretary's allegation is without merit.   Ford was not in violation of § 1926.651(k)(1).

ITEM 5: 29 C.F.R. § 1926.651(k)(2)

29 C.F.R. § 1926.651(k)(2) provides:

Where the competent person finds evidence of a situation that could result in a possible cave-in, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions, exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety.

The Secretary contends that as the designated competent person, New should have noticed hazardous conditions that could result in a cave-in and removed the employees from the trench.  New realized that the trench was increasing in depth and that the trench was progressing towards a culvert which would require the depth of the trench to increase even more (Tr. 143, 245-246).

Ford argues that the standard requires that employees be removed "where the competent person finds evidence of a situation that could result in a possible cave in," and that there is no evidence that New did find such evidence.  New believed the soil was hard enough and that there was no danger of its collapse (Tr. 260).  The culvert to which the Secretary refers was not as deep as depicted in the plans (Ex. C-12, Tr. 143).

The Secretary has failed to establish that New was aware of any evidence indicating the possibility of a cave in.  New believed that the dirt in which the excavation was made consisted mostly of hard clay and rock, and he thought the trench was "okay" (Tr. 143, 253).  Ford was not in violation of § 1926.651(k)(2).

CITATION NO. 2

29 C.F.R. § 1926.652 (a)(1) [[2]]

The Secretary alleges a willful violation of 29 C.F.R. § 1926.652(a)(1), which provides:

According to Subpart P, Appendix A (b), "stable rock" means natural solid mineral matter that can be excavated with vertical sections and remain intact while exposed.

The area of the trench where the employee's foot was trapped was measured to be 7 feet, 7 inches deep (Tr. 45-46).  The evidence was undisputed, however, that that area had been dug out by Ford's crew in attempting to free the trapped employee (Tr. 70-71).  New testified that the depth of the trench at the time of the accident was about 6 feet (Tr. 259).  The sides of the trench were vertical; no attempt at sloping had been made (Tr. 50).

The evidence established that the soil was composed of hard clay and rock (Tr. 176, 253).  Ford argues that the hard clay and rock mixture meets the definition in Appendix A of stable rock.  This argument is without merit.   In the words of Dennis Collins, "Clay is not rock" (Tr. 186).

Clay is not what Appendix A means by "natural solid mineral matter."  The fact that a hand shovel was used to help dig out the trench around the trapped employee is evidence that the soil was not stable rock (Ex. C-13, Tr. 34-35, 49).

The Secretary has established that Ford failed to slope or otherwise provide protection for a trench that was deeper than five feet and that was not excavated in stable rock.  We must now turn to the classification of the violation.

A willful violation is one committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety. ...It is differentiated from other types of violations by a "heightened awareness"--of the illegality of the conduct or conditions--and by a state of mind--conscious disregard or plain indifference."  [Williams Enterprises, Inc., 13 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987)]

Calang Corporation, OSAHRC, 14 BNA OSHC 1789, 1791 CCH OSHD ¶ (No. 85-319, 1970).

The Secretary has failed to establish that Ford violated the cited standard with either an intentional disregard for the requirements of the Act, or with plain indifference to employee safety.  New testified credibly that he believed the soil in which the trench was being excavated was hard enough so as not to require sloping.  The depth of the trench for the most part was four and a half feet (Tr. 180-181).

New's belief that the trench did not require sloping was erroneous, but his testimony is convincing that he believed in good faith that the soil's composition precluded the necessity for sloping.  The violation of §1926.652(a)(1) is appropriately classified as serious.

CITATION NO. 3

ITEM 1: 29 C.F.R. §1926.21(b)(2)

The Secretary alleges a repeat violation of 29 C.F.R. §1926.21(b)(2) which provides:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

New never received any training in trench safety from Ford (Tr. 242).  He had received one day of training from a former employer four and a half years prior to the hearing (Tr. 242-243).  Even if such minimal training at such a distant time was adequate (it is not), the training would not comply with the standard, which specifies that "[t]he employer [Ford] shall instruct each employee" in safety training.  Training by a previous employer does not fulfill the requirement of the standard.  Ford was in violation of §1926.21(b)(2).

The citation and complaint allege that Ford was previously cited for a violation of §1926.21(b)(2) on June 22, 1987, and that the citation became a final order on July 23, 1987.  No documentary evidence was adduced to support this allegation, but Ford does not dispute it.  Accordingly, the violation will be classified as repeated.

ITEM 2: 29 C.F.R. §1926.59(e)(1)

29 C.F.R. §1926.59(e)(1) provides:

Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met, and which also includes the following:

At the time of the inspection, Ford had a written hazard communications program, which it maintained at its company office in Sharonville, Ohio (Tr. 197). Collins stated that the written program was adequate to meet the requirements of the standard (Ex. R-5, Tr. 196).  The written program was not maintained at the worksite (Tr. 149).  Copies of the program were distributed to Ford's employees several weeks prior to the OSHA inspection (Ex. R-6, Tr. 198-199). Ford contends that maintaining the written program at its company office and distributing copies of the program to the employees satisfies the requirements of the standard.

The standard specifically states that the program be maintained "at the workplace."  There is a reason for this requirement.  If an employee at the worksite should need to consult the program for information regarding a hazardous material that he is about to use, or has used, or that has been spilled or otherwise caused an emergency situation, the program does him no good if it is located miles away at the company office.  Distributing personal copies to employees is a good idea, but there is no guarantee that they will bring them to work each day, or that they memorized the program's contents.  Ford was in violation of §1926.59(e)(1).

In order to establish a repeated violation, the Secretary must show that, at the time of the alleged repeated violation, there was a Commission final order against the employer for a substantially similar violation.  Potlach Corporation, 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No.16183, 1979).

The Secretary introduced into evidence copies of four citations issued to Ford on September 18, 1989, containing allegations of violations of §1926.59(e)(1) and (h) (Ex.C-15).  She also introduced a copy of a settlement agreement entered into by the Secretary and Ford, disposing of the citations (Ex. C-14).

Judge Edwin G. Salyers issued an order approving the settlement on February 26, 1990.   In the settlement agreement, the parties agreed that Items 1 and 3 of Citation No. 3 "shall be affirmed" with a penalty assessed of $100.00 for each item.

Ford strenuously objected to the admission of Exhibits C-14 and C-15.  Paragraph 10 of the settlement agreement states in pertinent part:

Nothing contained herein shall be construed as an admission by Respondent that it violated the Act nor any of the regulations or standards promulgated thereunder...

Ford contends that this exculpatory language prohibits the Secretary from using the settlement agreement as the basis for a repeated violation.   But the quoted language does not function as Ford claims.

A repeat violation requires a final order against the employer for a substantially similar violation.  In the present case, the previous citation was for the same standard at issue here, §1926.59(e)(1).  The Judge's order was a final order of the Commission; and it was undoubtedly an order against the employer, regardless of the language in paragraph 10.  The three items of Citation No. 3 were affirmed and penalties were assessed for them.  The exculpatory language states that nothing in the agreement "shall be construed as an admission", that it violated the standards, but such an admission is not necessary to base a repeated violation on the agreement.  In a contested case that goes to hearing, the employer seldom admits it violated a standard at issue, yet if the judge affirms the citation, the final order can serve as a predicate to a repeated violation.

In its brief, Ford argues that "since in that Agreement the parties agreed that no violations of the Act had occurred, there was no final Order upon which a repeat citation could have been based" (Ford's Brief, p. 34).   Nothing in paragraph 10 of the settlement agreement can be construed as an agreement by the Secretary that no violations had occurred.

The last sentence of the paragraph states: "The settlement is not to be taken as an admission of fault or liability and shall not affect any rights or defenses in the future that Respondent may have in any other proceeding other than one arising under the Act" (emphasis added).  This sentence can only be read to mean that in proceedings arising under the Act (such as the case at bar), Ford's rights or defenses can be affected by the settlement agreement.  Such is the case.

Ford was in repeated violation of 29 C.F.R. §1926.59(e)(1).

ITEM 3: 29 C.F.R. § 1926.59(h)

29 C.F.R. § 1926.59(h) provides:

Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

Ford established that it had provided its employees with copies of its hazard communications program (Exs. R-5, R-6).  Employees were required to review the program in order to receive their paychecks (Tr. 306).  The Secretary has failed to establish that these efforts were inadequate to meet the requirements of the standard.  Ford was not in violation of §1926.59(h).

PENALTIES

Under 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty.  No evidence was adduced concerning the size of the employer's business.

Upon due consideration of the other relevant factors, it is determined that the following are appropriate penalties:

CITATION NO. 1

CITATION NO. 2

CITATION NO. 3

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

ORDER

It is hereby ordered that the citations and their items will be disposed of as follows:

Citation No. 2

PAUL L. BRADY

Judge

Date: May 28, 1991

FOOTNOTES:

[[1]] Of those vacated, the Secretary petitioned only for review of the section 1926.59(h) employee information and training item, and that item was directed for review.  Ford petitioned for review of the judge's rulings on the Fourth Amendment issue, the motion to dismiss and the five items affirmed.  Directed for review were four of those five citation items and the motion to dismiss.  The Secretary subsequently withdrew the citation item for failure to maintain a written hazard communication program at the workplace under section 1926.59(e)(1), leaving three affirmed items and one vacated item on review.

[[2]] Ford claims that two alternative bases exist for dismissing the Secretary's complaint: (1) failure to comply with the statute (under 29 U.S.C. § 659(c), Secretary shall "immediately" advise the Commission) and (2) failure to comply with the Commission rule (under 29 C.F.R. § 2200.33(a), Secretary shall "within 15 working days" notify the Commission).  However, Ford does not seriously challenge the rule itself as a reasonable interpretation of the statute. Therefore, especially in light of the Secretary's stipulation that transmittal was untimely, we treat both statutory and regulatory grounds as one.

[[3]] Ford also argues that the Secretary's late transmittal deprives the Commission of jurisdiction over the matter.  Ford cites no precedent to support its argument, however, and the Commission has not generally considered the Secretary's failure to transmit the NOC within the allotted period to be a jurisdictional question.

[[4]] In its motion to dismiss, Ford mainly focuses not on the 7-day transmittal delay, but on the Secretary's conduct later, during the pretrial discovery process.  Six weeks elapsed between the day Labor Department staff members erroneously responded to Ford's interrogatory about the transmittal date and the day they became sufficiently aware of the existence, cause, and duration of the initial 7-day delay to respond accurately to that interrogatory.  It is the Secretary's behavior during this six-week period which Ford claims sank to the level of contumacy.  That the Secretary mentioned right in her cover letter accompanying the complaint that the untimely NOC transmittal date could pose a problem suggests good faith, not--as Ford would have it--an attempt to cover up her error.  The record or this point does not indicate obstinate disobedience or disrespect for the Commission, and even if it did, the appropriate response on Ford's part would have been to seek discovery sanctions.

[[5]] Rule 41 provides in part:

(a) Sanctions.  When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default....
(2) On the motion of a party.  Thereafter, the Commission or Judge, in their discretion, may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.

(b) Motion to set aside sanctions.  For reasons deemed sufficient by the Commission or Judge and upon motion expeditiously made, the Commission or Judge may set aside a sanction imposed under paragraph (a) of this rule.

[[6]] The standard provides:

§1926.59 Hazard communication.

(g) Material safety data sheets.

(8) The employer shall maintain copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).

[[7]] Ford did not raise, and we do not address, the possibility that the gasoline on its site may not have constituted a "hazardous material" under the exception in section 1926.59(a)(6)(vii) or that some other exception like section 1910.1028(a)(2)(i) might apply.  To quality for the "normal consumer use" exception, for example, the employer must demonstrate that its employee's use and exposure is comparable to a consumer's.  The record shows only that Ford employees used "gasoline for some of the equipment, including compactors."  The Commission has held that the party claiming the benefit of an exception bears the burden of proving that its case falls within that exception.   Dover Elevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD ¶ 29,524, p. 39,849 (No. 88-2642, 1991).  Ford has not shown that any exception applies.

[[8]] The standard provides:

§1926.59 Hazard Communication.

(h) Employee information and training.  Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

(1) Information. Employees shall be informed of:

(i) The requirements of this section;

(ii) Any operations in their work area where hazardous chemicals are present; and,

(iii) The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required by this section.

(2) Training.  Employee training shall include at least;

(i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc);

(ii) The physical and health hazards of the chemicals in the work area;

(iii) The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and

(iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information.

[[9]] The record contains no testimony that Ford representatives involved in the 1989 settlement were misled into believing that the Secretary could not use that agreement as the basis for a "repeated" violation in the future.  On the other hand, we can see how a pro se employer with an untrained eye might focus exclusively on the favorable, exculpatory language instead of reviewing the document as a whole.  We would therefore admonish the Secretary that even the perception among employers that settlement agreements contain "hidden" traps may deter employers from entering into settlement negotiations.

[[10]] The standard provides:

§1926.21 Safety training and education.

(b) Employer responsibility

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazard or other exposure to illness or injury.

[[11]] The revised excavation standards became effective on March 5, 1990, a couple of weeks before the March 22,1990 inspection.

[[12]] National Indus. Constr., Inc., v. OSHRC, 583 F.2d 1048 (8th Cir. 1983) (agreeing with Commission's finding in another case that the standard is broad but clear, not void for vagueness) and H.C. Nutting Co. v. OSHRC, 615 F.2d 1360 (6th Cir. 1980) (unpublished) (standard does not outline any particular requirements, but requires that an employer inform employees of safety hazards addressed by specific OSHA regulations).

[[13]] We note the distinction between the training standard here and the one the Commission recently considered in Trinity Indus., Inc., 15 BNA OSHC 1788,1992 CCH OSHD ¶ 29,773 (No. 89-1791, 1992).  The standard in Trinity provided:

§1910.178 Powered industrial trucks

(1) Operator training.  Only trained and authorized operators shall be permitted to operate a powered industrial truck.  Methods shall be devised to train operators in the safe operation of powered industrial trucks.

The Trinity standard implies that it is employers who are to "permit" and to "devise."  The standard is the instant case, on the other hand, states in no uncertain terms that "the employer shall instruct" employees.

[[14]] The standard provides:

§1926.652 Requirements for protective systems.

(a) Protection of employees in excavations.  (1) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section [sloping, shoring, shielding, and other systems] except when:

(i) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.

[[15]] Section 1926.650 (b) defines "cave-in" as "the separation of a mass of soil or rock material from the side of an excavation, or the loss of soil from under a trench shield or support system, and its sudden movement into the excavation, either by falling or sliding, in sufficient quantity so that it could entrap, bury, or otherwise injure and immobilize a person."

[[1]] That is, 15 days plus 3 days for service by mail.   OSHRC Rule of Procedure § 2200.4.

[[2]] At the hearing, Ford moved to dismiss Citation No. 2.   That motion was held in abeyance and is hereby denied (Tr. 285-288).