UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-4725
CAPITAL CITY EXCAVATING CO., INC.,
Respondent.

August 22, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler, Jr. is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The judge’s decision in this case was directed for review by Commissioners Barnako and Cottine. Inasmuch as it is dispositive of the case, we address only the question of whether the judge erred in concluding that Respondent’s notice of contest was timely filed under section 10(a) of the Act, 29 U.S.C. § 659(a). We find that Respondent’s notice of contest was untimely and vacate the judge’s order.

The record discloses, and the judge found, that the citation and notice of proposed penalty, sent to Respondent by certified mail, where delivered to a clerical employee and receipt was acknowledged by her on September 13, 1978, a Wednesday.[1] In an affidavit, Respondent’s corporate secretary stated that he received the citation and notification of proposed penalty on September 15. Respondent’s written notice of contest was dated October 6, 1978, and postmarked October 7, 1978. Relying on Rule 4(d) of the Federal Rules of Civil Procedure[2] and the Commission’s holding in B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD ¶ 23,675 (No. 76–2165, 1979) (‘B.J. Hughes, Inc.’), that commencement of the period within which a notice of contest must be filed begins with service upon an employee who is situated to bring the citation to the attention of the appropriate corporate official, the judge concluded that the date of receipt by the corporate secretary on September 15, was the date of effective service. He found that the notice of contest was mailed October 6 and held it to be timely.

While conceding that one of its clerical employees received the citation and notification on September 13, Respondent argues that an appropriate company official did not receive the documents until two days later, so that the fifteen-day period did not begin to run until September 15. Respondent thus asserts that its notice of contest was timely filed.

The judge’s reliance on Federal Rule 4(d) was misplaced and he misapplied the Commission’s holding in B.J. Hughes, Inc. We have held that, when service of a citation and notice of proposed penalty is made by certified mail as provided by section 10(a) of the Act, Rule 4(d)(3) is not applicable. Joseph Weinstein Electric Corp., 78 OSAHRC 28/A2, 6 BNA OSHC 1244, 1978 CCH OSHD ¶ 22,526 (No. 14839, 1978). Section 10(a) of the Act provides:

If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

When a notice of contest is filed untimely, the Commission is without jurisdiction to review the citation, which is final by operation of law pursuant to section 10(a). Kerr-McGee Chemical Corp., 76 OSAHRC 129/C14, 4 BNA OSHC 1739, 1976–77 CCH OSHD ¶ 21,161 (No. 9890, 1976). Delivery of the citation and notice of proposed penalty to an employer’s place of business and receipt by an employee who accepts delivery of certified mail constitutes service on the company as of the date of initial receipt. See Henry C. Beck Co., 80 OSAHRC ——, 8 BNA OSHC 1395, 1980 CCH OSHD ¶ 24,484 (No. 11864, 1980); B.J. Hughes, Inc., supra.

Under the facts of this case Respondent received the notice issued by the Secretary on September 13. The fifteenth working day after Respondent received the citation and notice of proposed penalty was Wednesday, October 4. Even if Respondent’s notice of contest had been postmarked October 6, the day it is dated, it would not have been timely.

Accordingly, we conclude that the Commission is without jurisdiction. The judge’s decision in this case is vacated because the citations and proposed penalties became final by operation of law.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 22, 1980

CLEARY, Chairman, concurring:

I concur.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-4725
CAPITAL CITY EXCAVATING CO., INC.,
Respondent.

September 6, 1979

DECISION AND ORDER

APPEARANCES:

William S. Kloepfer, Associate Regional Solicitor, U. S. Department of Labor, Cleveland, Ohio, by Benjamin Chinni, Esquire, for the complainant.

Roger L. Sabo, Esquire, Knepper, White, Arter and Hadden, Columbus, Ohio, for the respondent.

Cutler, Judge

Following an inspection of its work site on September 5, 1978, in Columbus, Ohio, Capital City Excavating Company, Inc., (hereinafter Capital City) was cited for trenching violations pursuant to section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter the ‘Act’).

Specifically, Capital City is charged as follows:

1a ‘29 CFR 1926.652(c):[3] The side(s) of the trench(es) in hard or compact soil, including embankment(s), were not shored or otherwise supported when the trench was more than 5 feet in depth and more than 8 feet in length:

a) For the north and east walls at the north end of the trench.

1b ‘29 CFR 1926.652(e):[4] Additional precautions by way of shoring or bracing were not taken to prevent slides or cave-ins where trench(es) were made adjacent to backfilled excavations, or where excavations were subjected to vibrations from railroads or highway traffic, operation of machinery, or any other source(s):

a) For the west wall at the north end of the trench.’

The violations are alleged as serious with a proposed penalty of $550.

A hearing was held in Columbus, Ohio, on May 1, 1979. No affected employee or authorized employee representative elected to participate as a party.

There is no issue as to jurisdiction in that respondent admits that its employees were and are regularly and customarily engaged in the handling and working on of steel, aluminum and other materials which have been moved in interstate commerce (Respondent’s Answer).

I

Prior to filing his complaint, the Secretary filed a Motion to Dismiss Respondent’s Notice of Contest. It is alleged that Capital City’s Notice of Contest was mailed three days subsequent to the expiration of 15 working days from the date of serviced of the citation upon it.[5]

The file reflects a date of delivery of September 13, 1978, with a signature of ‘Sharon Fiest’ on the citations. The Notice of Contest is dated October 6, 1978, and its envelope is postmarked October 7, 1978.

Respondent’s opposition to the motion contains the affidavit of Mr. Ralph Walls, who deposes that he is respondent’s secretary and, as such, is responsible for reviewing incoming mail and distributing it to the proper personnel within the company. He avers that he received the citation on September 15, 1978, as evidenced by the date stamp he used. In the normal course of events, he would then have transmitted the notice to the president of the company. Sharon Fiest is an office clerical employee and not an authorized agent, managing officer, or official of the company.

Mr. Walls further deposes that the Notice of Contest was prepared by the company on October 6, 1978, and deposited in the postal substation that evening. Saturday, October 7, was not a work day for the company.

Complainant’s Motion to Dismiss was denied by Judge Irving Sommer on November 21, 1978. At the hearing, the parties had no additional evidence or argument on the motion or ruling.

Subsequent to the hearing of the case, the Commission in Keppel’s Incorporated, —— OSAHRC ——, (Docket No. 77–3020, dec. June 12, 1979,) overruled its prior decisions to the effect that filing a notice of contest after the 15-day period prescribed in section 10 of the Act was not necessarily an ‘impenetrable barrier’ to Commission jurisdiction. Keppel’s now mandates that a notice of contest must be in writing and a notice of contest not filed within 15 working days from receipt of the notice issued by the Secretary is invalid unless the employer can show the delay in filing its notice of contest was caused by the Secretary’s deception or failure to follow proper procedures.

Accordingly, since a jurisdictional issue is involved, it is appropriate to reevaluate the prior ruling in this case.

First, as to the date of receipt of the citation, the Secretary points to the date it was delivered to the company. However, Mr. Walls, the first responsible official of the company authorized to receive service of process, did not get the notice until September 15, two days later. Rule 4(d) of the Federal Rules provides that

Service shall be made . . . (3) Upon a . . . corporation . . . by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process . . ..

This is consistent with the Commission’s view that service upon an employee who is situated to bring the citation to the attention of the appropriate corporate official will satisfy the test for proper service. B. J. Hughes, Inc., ——, OSAHRC —— (Docket No. 76–2165, dec. June 29, 1979).

Therefore, using September 15 as the starting date, the first working day thereafter would be September 18. By computation, thereafter the fifteenth day would fall on Friday, October 6, 1978. According to Mr. Walls, the Notice of Contest was deposited in the post office that evening although not postmarked until the following day.

The Act requires Notices of Contest to be filed within 15 days. However, the Commission has ruled that, when an employer’s letter of contest was mailed on the 15th day following receipt of citation but not postmarked until the following day, this constitutes a timely Notice of Contest within section 9(a) of the Act. J. D. Blum Construction Co., 76 OSAHRC 58/D14.4 BNA OSHC 1255, 1976–77 CCH OSHD ¶20,735.

Considering the foregoing, I find respondent’s Notice of Contest to have been timely filed.

II

Turning to the substantive matters in issue, respondent is charged with a two-pronged trenching violation which stemmed from an inspection of its work site in Columbus, Ohio, on September 5, 1978. On that day, OSHA Compliance Officer Robert Compton visited the location where Capital City, a general construction contractor, was engaged in setting manholes in sewer lines (Tr. 12–13).

According to Mr. Compton, at this spot location Capital City had employees working in a 90-foot-long trench paralleling an adjacent roadway. At the north end of the trench, he observed and photographed two Capital City employees cementing a manhole. By measurement he ascertained that that portion of the trench was 14 feet deep, 14 feet wide at the top, and 6 feet wide at the bottom (Ex. 5–7; Tr. 13, 29). He took no measurements at the five-foot level of the trench and he was only concerned with the 13-foot segment of the north end (Tr. 64). The soil at the west wall of the north end, having been previously backfilled, was a mixture of sand and grit. The east and north walls were composed of hard compact soil (Tr. 13–14).

Mr. Compton also testified he observed undercutting on the northwest corner adjacent to where the manhole was being installed. At that location, the trench was not sloped or shored (Ex. 10; Tr. 30–31). The west wall, which ran parallel to the roadway, was not sloped, had an overhang and was not shored. The soil was composed of loose sand and grit because it had been previously backfilled from a prior excavation (Ex. 11; Tr. 33, 39, 85). He observed vehicles that employees were driving and one or two dump trucks traveling past the area (Tr. 40). A backhoe was parked at the north end of the trench which he determined had been used to open the trench (Tr. 41). In his opinion, the vibrations from the moving vehicles could cause a slide, collapse or cave-in of the walls (Tr. 45). However, he stated on cross-examination that he neither felt vibrations nor tested for any (Tr. 82).

Respondent presented evidence to rebut the allegations that the hazardous conditions existed and that it was in violation of the cited standards.

The manhole being constructed was two to three feet from the north wall (Tr. 108). A four-foot section had already been put in place over a six-inch base and the employees were working on the next segment (Tr. 105). The manhole was being placed directly next to an existing manhole that dominated the west wall of the arc of the trench in question (Tr. 39, 165). This existing manhole was made of concrete and its measurements ranged from two feet, two inches, at the top to four feet at the bottom (Tr. 113, 122).

A trench box and sheeting were available at the jobsite, but the company did not deem these protective provisions were necessary because the trench was dug in accordance with proper procedures. Its employees would not have worked in a trench they thought was unsafe (Tr. 99, 110–111, 121, 129).

As for the adjacent roadway, respondent’s evidence is to the effect that the street was barricaded to halt through traffic. At the time of the inspection, no equipment was running through the project and the backhoe was not in use (Ex. 10; Tr. 74, 109, 111, 128). No vibration test was taken of the area and the compliance officer felt no vibrations (Tr. 82).

III

Item la of the citation alleges that the north and east walls at the north end of the trench in question were not shored or otherwise supported as required under 29 C.F.R. § 1926.652(c). The cited regulation requires that sides of trenches in hard or compact soil should be shored and, if not, should be sloped above the five-foot level on a ratio no steeper than a one-foot rise to each horizontal one-half foot. Measurements taken by Mr. Compton indicate the 13-foot length of the trench with which he was concerned was 6 feet wide at the bottom and 14 feet wide at the top.

Given these dimensions, the trench would have had to be 15 feet wide at the top to comply with the regulations.

From examination of the photographs and evaluation of the evidence, it appears that the west wall was properly graded but that the east wall was not sloped to the one-half-to-one ratio required by the regulation. This is in effect conceded by two Capital City witnesses. One testified the slope was two or three feet (Tr. 122) and the other said it was about four feet (Tr. 136). The compliance officer testified the wall was vertical (Tr. 19, 65, 80, 91–92). Examination of the photographs depicting the east wall (Exs. 1, 4, 5, 8) clearly indicates the angle was, if not vertical, at least close to it. In any event, it was not sloped to the angle required by the regulations.

As for the north wall, Mr. Compton testified that it was not sloped and it was undercut which resulted in an overhang (Tr. 21, 39–31). However, according to respondent’s foreman and another worker on the site, the north end was sloped. It was necessary that this be done in order for the backhoe operator to see the trench (Tr. 108, 128). The photographs (Exs. 5, 6, 9, 10) are of little assistance in determining whether the wall was sloped.

Considering the conflicting evidence, I cannot conclude that the Secretary has established that the north wall was not sloped.

Item 1b of the citation charges that respondent did not take additional precautions by way of shoring or bracing for the west wall at the north end of the trench to prevent slides, or cave-ins caused by backfilled excavations or vibrations from traffic or machinery operation.

According to Mr. Compton, the west wall was not sloped and it had an overhang. He also testified that the soil was composed of loose sand and grit although he took no samples of the soil[6] (Tr. 82).

Mr. Compton testified that he observed vehicles of employees and one or two dump trucks traveling on the adjacent roadway. However, he neither felt vibrations nor tested for any.

Respondent presented evidence that the road was closed and no traffic was passing by. The backhoe was sitting back several feet (Tr. 128). The west wall was sloped as evidenced by the position of a ladder depicted in exhibit 11.

In order to establish a violation of 29 C.F.R. § 1926.652(e), the Secretary must prove the existence of a hazard which would require additional precautions in the west wall of the trench. In E. L. Dalton & Co., 77 OSAHRC 41/A2, 5 BNA OSHC 1215, 1977–78 CCH OSHD ¶21,690, the Commission ruled that evidence that two large cement trucks traveling on an adjacent road and a rail line located 50 feet away from the trench in question was not sufficient to establish a need for shoring or bracing of the trench in order to comply with 29 C.F.R. § 1926.652(e), absent evidence that the inspector tested for vibrations or felt vibrations in the area at the time of the inspection.

This lack of evidence that actual vibrations were created led to the Commission decision affirming the vacation of a violation of 29 C.F.R. § 1926.651(q).[7]

There is no evidence in this case that the minor traffic that passed in the adjacent roadway or the operation of the backhoe caused any vibrations such as would cause a cave-in or collapse of the trench. There is evidence of an overhang, but this appears at the top of the trench, and the photographs (Ex. 6, 8, 11) indicate it is minimal. Further, it appears that in the area where the men were observed to be working by Mr. Compton, the existing manhole afforded protection similar to shoring (Tr. 95).

Although complainant’s case is premised upon the vibration theory, the cited regulation also specifies that shoring or bracing should be done where trenches were made next to backfilled excavations.

Since he did not go down into the trench (Tr. 17), Mr. Compton based his conclusion that the soil was sand and grit because the west wall was previously backfilled (Tr. 14, 39). Other than this passing reference, the record is devoid of evidence as to any prior backfilling other than the obvious fact that installation of the existing manhole and pipe at some point in time in the past required some excavation work. Thus, there is no evidence as to when the previous excavation was done[8] or how.[9]

Considering all of the evidence, I cannot conclude that a violation has been established.

IV

Subsequent to the hearing, both sides presented various motions. One by respondent to correct the transcript was not objected to by complainant and it is, accordingly, granted. Complainant moved for leave to file findings of fact and conclusions of law out of rule. Respondent has not filed an objection to this motion. Accordingly, it is granted. Finally, respondent filed a motion that this judge be disqualified alleging that he had predetermined the results of the case to the detriment of respondent. This motion is specious and is denied. Careful examination of the transcript reflects that the inquiries made did not reflect a predetermined attitude and were aimed only to develop the record.

V

As heretofore noted, respondent has been found to have failed to comply with the provisions of 29 C.F.R. § 1926.652(c). The violation is alleged as serious. Respondent argues, however, that there is no showing of the probability of death or serious bodily harm. In his testimony, Mr. Compton stated there was definite hazard from collapse, slide or cave-in of the walls (Tr. 45). Common sense dictates that collapse of a trench wall 14 feet high would cause death or serious injury.

The Secretary has proposed a penalty of $550 for the combined violations alleged. One of these has been vacated as well as the part of the other relative to the north end of the trench. Respondent produced evidence concerning its safety training program which is conducted on a regular weekly basis (Tr. 109, 110, 126). Also, respondent’s foreman in good faith believed the trench to be safe enough that shoring or other support was unnecessary. Finally, it is noted that the width of the trench at the top fell only one foot short of that required under the regulations. The probability of an accident occurring is, therefore, low. Considering the above and the statutory factors, I conclude that a penalty of $50 is appropriate.

I reach the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Respondent, Capital City Excavating Company, Inc., a general construction contractor, was engaged in setting manholes in a sewer project in Columbus, Ohio, on September 5, 1978, when it was inspected by a compliance officer for the Secretary.

2. On that date, two of respondent’s employees were installing a sewer next to an existing sewer in the north end of a 90-foot-long trench. At the point where they were working, the trench was 6 feet wide at the bottom, 14 feet wide at the top and had a depth of 14 feet. The soil was hard and compact.

3. At the 13-foot end of the trench at the north wall, the west wall was not sloped to an angle of one-half to one. Although the probability was very low, a cave-in or collapse of the wall could result in death or serious bodily harm.

4. The evidence is insufficient to establish that the north wall also was not sloped to that angle.

5. The trench at that point was not shored or otherwise supported by artificial means except for some protection afforded by the existing manhole.

6. The west wall which ran parallel to a roadway south from the location of the existing sewer was not sloped, shored or braced. At the time of the inspection, one or two dump trucks and employee vehicles had been operated on the roadway, but it was closed to other traffic. A backhoe was parked several feet from the north end. There was no evidence of vibration from the traffic or equipment. There is also no evidence as to when or how a previous excavation was done.

7. Respondent conducted safety meetings with employees on a regular weekly basis.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in a business affecting interstate commerce and this Commission has jurisdiction over the subject matter and parties to this action.

2. On the date and place in question, respondent was in violation of article 5(a)(2) of the Act by failing to comply with provisions of 29 C.F.R. § 1926.652(c) with respect to the east wall of the north end of the trench in issue but not with respect to the north wall.

3. On the date and place in question, respondent was not in violation of article 5(a)(2) of the Act by failing to comply with the provisions of 29 C.F.R. § 1926.652(e).

Based upon the foregoing findings of fact and conclusions of law, Item 1a, as amended, of Citation Number 1 for a serious violation is affirmed and a penalty of $50 is assessed therefor. Item 1b of Citation Number 1 is vacated.

SO ORDERED.

Dated this 6th day of September, 1979.

CECIL L. CUTLER, JR.

Judge

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[1] Respondent argues that the photocopy of the certified mail receipt signed by Sharon Feist and attached to the Secretary’s motion to dismiss is not in evidence and was not authenticated. We disagree.

The photocopy was attached to the Secretary’s motion to dismiss, was marked as ‘Exhibit A,’ and Specifically was referred to in the Secretary’s memorandum in support of his motion. Rule 71(b) of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.71(b), provides, ‘In the absence of objection by another party or intervenor, exhibits shall be admitted into evidence as a part of the record, unless excluded by the Judge pursuant to § 2200.72.’ The photocopy was marked as an exhibit and was submitted to the judge in support of the motion to dismiss. There was no objection to the exhibit, and the judge did not exclude it. The motion, along with its exhibit, is part of the record in this case and, thus, is before us.

‘Hearings before the Commission and its Judges . . . insofar as practicable shall be governed by the rules of evidence applicable in the United States District Courts.’ Commission Rule 72; 29 C.F.R. § 2200.72. Rule 1003 of the Federal Rules of Evidence provides that, ‘A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.’ Under Rule 901 of the Federal Rules of Evidence, ‘The requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ Only a generous reading of Respondent’s brief on review would support the notion that a genuine question of authenticity has been raised concerning the photocopy at issue. In any event, we conclude that the record supports a finding that the photocopy is what the Secretary claims. The affidavit of Mr. Walls acknowledges that Sharon Feist is an office clerical employee of Respondent. Respondent does not claim that Sharon Feist did not receive the citation and sign for it on September 13, 1978. The requirement of authentication has been satisfied, and the photocopy is otherwise admissible. Furthermore, we conclude that it would not be unfair to admit the photocopy under the circumstances of this case.

[2] Rule 4(d) provides in pertinent part:

(d) Service shall be made as follows: . . .

(3) Upon a domestic or foreign corporation . . . by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process . . ..

[3] This subsection, 29 C.F.R. § 1926.652(c), states:

Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

[4] 29 C.F.R. § 1926.652(e) states:

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

[5] Section 10(a) of the Act provides, as pertinent here, that

the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.’ Further, if no notice is so filed, ‘the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

[6] Respondent objected to any characterization of the soil and claimed surprise. However, as pointed out at the hearing, 29 C.F.R. § 1926.652(e) does not mention any type of soil as does subparagraph (c). Consideration of the type of soil is very relevant in connection with factors of vibration and undercutting.

[7] This section, 29 C.F.R. § 1926.651(q), reads:

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.

[8] In the recently issued decision, W. G. Stang Construction, —— OSAHRC ——, (Docket No. 78–4835, dec. August 20, 1979), Judge Burroughs found no violation of 29 C.F.R. § 1926.652(e) where evidence was presented that, after a number of years the soil in a backfilled trench had resumed its critical undisturbed degree of compaction.

[9] In Cedar Construction, 77 OSAHRC 63/A2, 5 BNA OSHC 1311, 1977–78 CCH OSHD ¶ 21,772, the Commission affirmed a violation where a gas line ran perpendicular to the trench. However, where there would only be a cross-section of a previous excavation, the danger of a slide or cave-in would be minimal when compared to a backfill excavation which runs for some distance adjacent to the trench.