UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 5303 & 5304 (Consolidated)
COUGHLAN CONSTRUCTION COMPANY, INC.
Respondent.

DECISION

October 28, 1975

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

BARNAKO, CHAIRMAN:

This case arose upon Respondent’s (Coughlan) contest of two separate citations issued pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘the Act’) alleging nonserious violations of 29 C.F.R. 1926.652(h).[1] Coughlan defended on the grounds that (a) the standard was invalidly promulgated; (2) the standard is unenforceably vague; (3) it was in fact in compliance with the standard; and (4) the citations were not issued with reasonable promptness as required by Section 9(a) of the Act. Judge Donald K. Duvall resolved these issues adversely to Coughlan and affirmed both citations. He assessed penalties of $45 for each violation. We have reviewed the record. For the reasons which follow, we affirm the Judge’s disposition.

The essential facts are not in dispute. Coughlan was engaged in trenching operations in Boston, Massachusetts. On September 20, 1973, a representative of Complainant inspected Coughlan’s worksite on West Second Street. Two of Coughlan’s employees were working in a trench 11 feet deep, 9 feet 4 inches wide, and 10 feet 4 inches long. The sides of the trench were supported against collapse by a shoring system. The shoring members on each side of the trench were held in place by 6 6 inch cross braces running horizontally across the width of the trench. The vertical separation of the cross braces was about three feet. There was no ladder leading out of the trench. During the inspection, one employee was observed leaving the trench by climbing up the cross braces and, upon reaching the top one, walking along it out of the trench. This method of exiting trenches was commonly employed by Coughlan on jobs of this type.

An inspection of a trench at Kneeland Street and Harrison Avenue was conducted by the same compliance officer on September 25, 1973. This trench was 5 feet 9 inches deep, 3 feet 10 inches wide, and 8 feet long. Only one side of this trench was supported by shoring; there were no cross braces between the two sides. Two employees were working in the trench. There was no ladder available to provide a means of exit from the trench. In order to leave the trench, the workers simply pulled themselves up and over the side.

Within several days of the September 25 inspection, the compliance officer conferred with a construction specialist in his office concerning whether the conditions he observed were in violation of C.F.R. 1926.652(h). Shortly thereafter, he submitted his report to the Area Director, recommending that the citations issue. Several weeks passed before the Area Director reviewed the report and decided to issue the citations. The citations were issued on October 26, 1973.

Coughlan claims that the standard was invalidly promulgated insofar as it purports to be applicable to construction work that is not federally subsidized or assisted. The standard was originally promulgated under the Construction Safety Act (40 U.S.C. 333), and that Act only regulated federally supported construction. As now published, however, the standard applies to all construction. Coughlan argues that the expansion of the scope of the standard was improper because it was accomplished without resort to required rulemaking procedures.

A similar argument, involving a standard promulgated under the Walsh-Healey Act (41 U.S.C. 35 et seq) was made in Lee Way Motor Freight, Inc., 7 OSAHRC 1128 (1974); aff’d 511 F. 2d 864 (19th Cir. 1975). It was rejected in that case because Congress itself prescribed that the Walsh-Healey standards ‘shall be deemed to be occupational safety and health standards issued under this Act.’[2] The same is true of the Construction Safety Act standards. [3] Furthermore, the standard at issue is an ‘established Federal standard,’[4] and Congress authorized Complainant to promulgate such standards as standards of general applicability without further rulemaking proceedings.[5] Thus, the standard was validly promulgated and is enforceable against Coughlan.

Coughlan also argues that the standard is unenforceably vague in its use of the term ‘adequate means of exit.’ It claims that persons of common intelligence can differ as to what means are ‘adequate,’ and are thus not put on notice as to what conduct is required by the standard. The Judge rejected this argument, holding that the standard should be interpreted to require conduct reasonable under the circumstances and that, as so interpreted, it was not too vague.

We agree with the Judge’s reasoning. Standards written in broad terms are not unenforceably vague if interpreted to require employers to act reasonably. Cape & Vineyard Division of the New Bedford Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir., 1975); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir., 1974); Plessey-Burton, Inc., 12 OSAHRC 577 (1974). In this case, the broad phrase ‘adequate means of exit’ is clarified by the additional language ‘such as a ladder or steps.’ An employer need not guess as to how to comply with this standard. If he is otherwise uncertain as to what is required, he can utilize a ladder or steps. The general language of the standard simply allows extra flexibility when the circumstances are such that a means of exit other than a ladder or steps is adequate. See e.g., Callahan Brothers, Inc., 6 OSAHRC 355 (A.L.J. 1974) (earth ramp at end of trench is adequate means of exit).

Thus, whether the means of exit used by Coughlan’s employees were adequate under the standard depends on whether reasonable people familiar with sound trenching practices would consider them adequate. Both parties presented evidence on this point and the Judge, after evaluating this evidence in light of the physical circumstances, found that the means employed were not adequate. The Judge’s decision is supported by the record and no persuasive reason is given for disturbing it on review.

Coughlan argues that the citations should be vacated because they were not issued with reasonable promptness, citing our decision in Chicago Bridge & Iron Co., 6 OSAHRC 244 (1974).[6] Complainant claims that the citations were timely issued within the rule set forth in that case. Subsequent to the time these arguments were made, the decision in Chicago Bridge & Iron was reversed on appeal. Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975). The Court did not preclude our giving some effect to the reasonable promptness requirement of the Act. It did, however, reject the approach taken in that case.

We see no reason to vacate these citations on grounds of reasonable promptness. In the usual case, a delay in the issuance of the citation is not prejudicial to the employer. The time for abatement is prolonged and, if evidence becomes stale, it may become more difficult for Complainant to prove a violation. If the employer is prejudiced because evidence becomes unavailable or if the employer is prejudiced from some other cause, then the citation can properly be vacated. E.C. Ernst, Inc., 14 OSAHRC 579 (1975). In this case, however, Coughlan has not alleged prejudice, and the record reveals none.

If anybody is adversely affected by a delay in issuance of a citation, it is the employees who are exposed to the hazard Complainant seeks to eliminate. Coughlan’s employees, however, have not appeared and sought relief. We need not consider what relief might be appropriate had they done so.

We turn now to the assessment of appropriate penalties. The gravity of the violations was low, as only relatively minor injuries were likely to result should an accident have occurred. Respondent is of moderate size, with 150 employees and an annual gross income approximating two million dollars. Its good faith is demonstrated by an effective safety program, and it has no prior adverse history under the Act. On balance, we conclude that the proposed penalties of $45 are appropriate for each violation.

Accordingly, the citations for violation of 29 C.F.R. 1926.652(h) and the corresponding proposed penalties are affirmed. It is so ORDERED.

CLEARY, COMMISSIONER, concurring:

I join in my colleague’s discussion and disposition of respondent’s claim that 29 CFR § 1926.652(h) was invalidly adopted. For my own views on the question of the Commission’s power to entertain the issue of whether a standard was validly adopted, see United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (Cleary, Commissioner, concurring). My colleague’s views on the reasonable promptness issue are consonant with those expressed in United States Steel Corp., Am. Bridge Div., No. 3010 (July 29, 1975) (separate opinion of Commissioner Cleary). I expressed there the view that inasmuch as the benefits of section 9(a) run primarily to employees, vacation of citations would be an inappropriate remedy, and all others would seem inadequate.

The remainder of my comments concern the vagueness question. As stated in the dissenting opinion in Santa Fe Trail Transport Co., No. 331 (December 18, 1973), rev’d 505 F.2d 869 (10th Cir. 1974), the Commission has no power to declare a standard unenforceable by reason of vagueness. I adhere to that view, but in the absence of dispositive judicial guidance on the matter, the question of whether 29 CFR § 1926.652(h) is unenforceably vague should be addressed.

My colleague concludes that this standard is not vague because ‘reasonable people familiar with sound trenching practices would consider them adequate.’ This ‘reasonable man’ test is arguably consistent with the precedents relied upon,[7] and I agree with the result. After careful and thorough examination of the precedents, however, I conclude that we should depart from them to the extent that they may be read as applying the ‘reasonable man’ test familiar in the law of negligence. It is an inappropriate aid in the interpretation of occupational safety and health standards.

In my view, the proper test to apply in determining whether a standard is vague is that set forth in the recent Supreme Court decisions in United States Civil Service Commission v. National Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 577–580 (1973) and Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 16633, 1647 (1974). An administrative regulation will withstand a Fifth Amendment due process vagueness attack so long as it prohibitions ‘are set out in terms that the ordinary person [or the person regulated; see National Ass’n of Independent Television Producers & Distributers v. F.C.C., 516 F.2d 526, 539 (2d Cir. 1975)] exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest’ in manageable brevity. 413 U.S. 578–579. As the Court stated in Colten v. Kentucky, 407 U.S. 104, 110 (1972), ‘The root of the vagueness doctrine is a rough idea of fairness.’ It is plain that the Constitution requires fair notice. It does not require a particular standard of conduct. In Ryder Truck Lines, Inc v. Brennan, 497 F.2d 230 (5th Cir. 1974), the court relied on United States v. Petrillo, 332 U.S. 1 (1947) and United States v. National Dairy Corp., 372 U.S. 29, 36 (1963) as authority for its ‘reasonable man’ test. These cases simply hold that a statute of uncertain meaning may become definite when viewed against either common practices or the facts to which it is applied. Neither case holds this to be the only permissible test for vagueness, nor do they require that the ‘reasonable man’ test be elevated to constitutional dimension. The Supreme Court’s Letter Carrier opinion, noted above, strongly suggests that regulations may be upheld when judged against other vagueness tests.

When applied as a standard to care[8] under the Act the ‘reasonable man’ test derogates from the purpose of the Act. In adopting the general duty clause in section 5(a)(1), Congress rejected common law principles in establishing the standard of care thereunder. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 n.34 (D.C. Cir. 1973). It would be incongruous to apply common law principles to this end in the interpretation of standards comprising the duty of employers under section 5(a)(2), particularly in light of the statutory purpose expressed in section 2(b) and the definition of the term ‘occupational safety and health standard’ in section 3(8).[9] The use of the ‘reasonable man’ test therefore detracts from the related Congressional objective of raising the level of safety consciousness above that common before the passage of the Act. See S. Rep. No. 91–1282, 91st Cong., 2d Sess. 2–5 (1970).[10] It signals a retreat from the predominant Congressional purpose of assuring so far as possible, and not merely so far as we or industry believe reasonable, every working man and woman in the Nation safe and healthful working conditions.

It is against this background that I approach the question of the vagueness of the term ‘adequate’ in the standard before us.[11] The term is not vague. Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W. 2d 48, 52–53 (1928). This is especially so when it is defined as requiring means sufficient to meet a specific need.[12] State v. Davis, 469 S.W. 2d 1, 4 (Mo. 1971). See State v. Clark, 234 N.C. 192, 66 S.E. 2d 669 (1951); Words & Phrases, ‘Adequate,’ at 545.

Even if the term ‘adequate’ is nevertheless of uncertain meaning, interpretations issued by an administrative agency may cure deficiencies that may exist. Santa Fe Trail Transport Co., supra (dissenting opinion). Arnett v. Kennedy, 94 S. Ct. at 1647. See Jordan v. DeGeorge, 341 U.S. 223, 229–232 (1951) (clarified by case law). Such interpretations may use a performance criterion.[13] Cf. Minnesota v. Probate Court, 309 U. S. 270, 273–274 (1940).

The purposes of the standard’s requirement of adequate means of exit are apparently two-fold: (1) to afford employees working in trenches an accessible means of exit that is easy to use in case of cave-ins, so that employees will not be trapped by falling earth; and (2) to require the use of exits which employees may use without causing them strains and injuries.

So long as the means that are used meet this level of performance, the employer will be in compliance. If he is uncertain, he may simply use steps or ladders, as the standard expressly provides. Under this interpretation, the standard is not vague.

MORAN, COMMISSIONER, dissenting:

In my opinion, the two citations which were issued in this case should be vacated because their issuance did not conform with the mandatory requirement of the Act that each citation shall be issued ‘with reasonable promptness.’ 29 U.S.C. § 658(a).

Congress made it clear that, in the absence of exceptional circumstances, each citation was to be issued within 72 hours after a violation is detected by an inspector.[14] It did not relieve the complainant from complying with this rule when a cited employer does not establish that he is prejudiced by a delay in excess of 72 hours. Since the record in these cases establishes delays of more than 10 times longer than Congress allowed and fails to show any exceptional circumstances, the citations should be vacated because of the complainant’s failure to comply with the reasonable promptness requirement of section 658(a). My views on this matter are set forth in greater detail in Secretary v. Underhill Construction Corp., 20 OSAHRC 534 (1975); Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974); and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

The lead opinion’s reliance on the failure of the respondent’s employees to seek relief in this case is not well taken. Although a vast number of cases before the Commission have involved undue delays in the issuance of citations, I am unaware of any case in which an employee has sought relief for such a delay. This is not surprising because there is simply no beneficial relief which the Commission could provide an employee in the particular case before it. However, this does not excuse the Commission from taking stringent action to enforce the requirements of the Act. Such action by the Commission, like the invocation of the exclusionary rule in criminal cases, would prompt enforcement officials to comply with the law and, thus, provide greater protection to employees who are subjected to hazardous conditions in future cases.[15] But for as long as this Commission allows the Secretary of Labor to ignore the law requiring prompt service of citations, employees on the job will continue to be exposed to the dangers which result from sub-standard working conditions.

Finally, I am constrained to comment briefly on the concurring opinion’s assertion that ‘the Commission has no power to the declare a standard unenforceable by reason of vagueness.’ The Commission has asserted its authority to determine the validity of standards in numerous cases. Further questioning of that authority seems to have been obviated by several appellate decisions which have dealt with the correctness of the Commission’s action in some of those cases without questioning the Commission’s authority to so act. Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. OSAHRC & Santa Fe Trail Transport Company, 505 F.2d 869 (10th Cir. 1974); McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 5303 & 5304 (Consolidated)
COUGHLAN CONSTRUCTION COMPANY, INC.
Respondent.

August 9, 1974

DECISION

DUVALL, JUDGE:

This is a proceeding pursuant to Sections 9 and 10 of the Occupational safety and Health Act of 1970 (29 USC 651, et seq., hereinafter ‘the Act’) contesting two Citations and Notifications of Proposed Penalty in the total amount of $90.00 relating to two alleged non-serious violations of Sec. 5(a)(2) of the Act and the occupational safety and health standard set forth at 29 CFR 1926.652(h). The Citations, issued on October 26, 1973, were based on inspections made of worksites whereat Respondent was engaged in trenching operations, to-wit, on September 20, 1973, at the worksite located on West Second Street, Boston, Massachusetts, and on September 25, 1973, at the worksite located at Kneeland Street and Harrison Avenue, Boston, Massachusetts.

The Citations, which called for immediate abatement, described the alleged violations as follows:

Employer failed to assure that when employees are required to be in trenches 4 feet deep or more, an adequate means of exit such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

On motion of Complainant, I consolidated the aforesaid two Citations and Notifications of Proposed Penalty under the provisions of Commission Rule 9, and presided at a hearing of this consolidated matter on March 29, 1974, at Boston, Massachusetts. No affected employee or representative of affected employees of Respondent asserted party status in this matter, although given adequate notice and opportunity to do so in accordance with the Commission’s Rules of Procedure. Subsequent to hearing, the parties submitted proposed findings of fact and conclusions of law supported by briefs.

The principal issues raised for determination herein are:

(1) Were the Citations issued with reasonable promptness within the meaning of Section 9(a) of the Act?

(2) Is the cited occupational safety and health standard unenforceable as a matter of law by reason of vagueness?

(3) Is the cited occupational safety and health standard unenforceable because it was not properly promulgated as to projects not federally financed or federally assisted?

(4) On September 20 and 25, 1973, was Respondent in violation of cited occupational safety and health standard?

(5) If so, are the proposed penalties appropriate under Section 17 of the Act?

DISCUSSION

On the first issue of whether the Citations herein were issued with ‘reasonable promptness,’ Section 9(a) of the Act provides in pertinent part as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . .

Respondent having raised this issue in its amended answer well over a month prior to hearing, it is consistent with the procedural requirements prescribed in the Commission’s decision in Chicago Bridge & Iron Co., OSHRC Docket No. 744, p. 6, footnote 7 (1–23–74). On the merits, a preponderance of the evidence of record supports a finding that the Citations here contested were issued by Complainant with reasonable promptness under Section 9(a) of the Act.

Respondent’s reliance on the Chicago Bridge & Iron Co., case is misplaced since the evidence herein clearly shows that the citations and proposed penalties were issued within 3 working days after the Area Director’s review and approval of them, consistent with the holding in the cited case. As in the Chicago case, due to the Area Director’s workload three weeks were required by him to act on the compliance officer’s recommendations. Unlike the Chicago case, where an additional delay of 9–16 days was unexplained on the record, the additional delay here of 8 to 11 working days, which occurred prior to submission of the recommended Citations and penalties to the Area Director, was reasonably explained in terms of the compliance officer’s consultation with an OSHA construction specialist (Mr. Dolan) within the week of the second inspection and writing up two separate reports with recommendations.

Respecting the second issue (vagueness of standard), the Commission has held that standards promulgated under the Act must be sufficiently specified as to put an employer on notice as to what is required (Secretary v. McDowell-Purcell, Inc., OSHRC Docket No. 507(11–10–72)), and stated clearly and plainly, uncolored by additional or subjective criteria. See Secretary v. California Stevedoring Co., OSHRC Docket No. 72 (6–16–27). Respondent here contends that the word ‘adequate’ in the standard language requiring an ‘adequate means of exit’ is fatally vague because it is subject to as many interpretations as there are inspectors (Respondent’s brief, p. 4). Respondent argues that since the Complainant’s three witnesses at the hearing were unable to identify what an adequate means of exit other than a ladder would be, this constitutes clear evidence that the standard does not set forth ‘a sufficiently definite warning of the proscribed activity.’ See Santa Fe Trail Trans. Co., OSHRC Docket No. 331 (12–20–73).

The fact is that the cited standard has been upheld as valid by the Commission. D. Federico Company, Inc., OSHRC Docket No. 4395 (5–14–74) (under review on other grounds); Cecil Sand & Gravel Company, OSHRC Docket No. 3667 (4–11–74); Staley & Lawrenz, Inc., OSHRC Docket No. 4145 (4–8–74). I cannot find the language of the standard unduly or unreasonably vague. The standard involves an application of the Act to the means of exit from deep trenches for the purpose of protecting employees from the hazards associated with such trenches. The standard has a direct and reasonable relationship to the accomplishment of this proper legislative purpose.

The words ‘adequate means of exit, such as a ladder or steps’ is reasonably clear and informative. As applied in the construction industry, these words reasonably mean a safe and reliable way to get out of a trench. Indeed, I believe that it even meets the due process requirement of a criminal statute[16] cited by Respondent, to-wh-it, that the statute neither forbids nor requires the doing of an act ‘in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ Respondent’s Brief, p. 4, citing Connally v. General Construction Company, 269 U.S. 385, 391 (1925). The very fact that Complainant’s three witnesses could not think of any means of exit other than a ladder as complying with the standard under the circumstances of this case shows that intelligent men need not necessarily disagree on the standard’s application.

The fact that many instances may occur when the standard’s application may be difficult merely emphasizes the nature of the administrative problem. It is practically impossible to encompass in one standard the degree of specificity Respondent suggests which would contain all the variable factors calling for different conclusions by different employers under different or even the same circumstances. Consequently, the standard must necessarily be expressed in general terms and depend for its application upon the circumstances of each case. See generally, Union Camp Corporation, OSHRC Docket No. 3905, pp. 11–12 (5–1–74). As stated by Judge Burroughs in Union Camp Corporation, supra at 12 (concerning a noise control standard):

The employer is required to think and use his expertise gained in the operation of his business in order to comply with the Standard. This is not grounds for declaring a standard vague and unenforceable. Due process does not require that an employer be informed as to every course of action he is to take.

In any event, a standard does not violate substantive due process merely because it is imperfect. Union Camp Corporation, supra at 11, citing Dandridge v. Williams, 397 U.S. 471 (1970); Ryder Truck Lines, Inc. v. Secretary of Labor, No. 73–3341 U.S.C.A., 5th Cir. (1974).

Where an employer takes a course of action pursuant to a standard which is general in nature (such as in this case), he will be judged on the basis of whether his action was reasonable under the facts. Union Camp Corporation, supra at 15. The Commission, speaking through Judge Burroughs, has fully stated its position on the doctrine of reasonableness:

The standard of reasonableness as applied to conduct or actions is an old one and long accepted in the law of this nation. It is based on the assumption that the actions of the reasonable average person may be used as a standard by which to measure conduct. While it attempts to measure subjective reaction of the assumed reasonable person in certain circumstances, the test is external and objective.

The employer who takes a reasonable course of action in complying with a general standard is fully protected by the Act from arbitrary or unreasonable requirements deemed essential by the complainant. He can bring his case before the Commission to seek an impartial determination of whether his course of action was reasonable. Union Camp Corporation, supra at 15–16.

In the present case, it would appear that Respondent is an experienced contractor well-versed in the need for adequate exit in the trench circumstances here involved. Respondent’s Vice President testified that ladders were available (but not in use) at both worksites and that the shoring for the trenches was constructed with a view to providing a means of exit. Furthermore, Mr. Coughlan’s testimony that reliance on laid pipes and shoring as means of exit from trenches over four feet deep was acceptable practice in the construction industry was substantially rebutted, at least in the circumstances of the cited trenches, by the contrary creditable testimony of James Dolan, a civil and safety engineer with over 35 years’ experience in the construction industry (Complainant’s Exhibit C–5).

Respecting the third issue (validity of promulgation of standard), contrary to Complainant’s contention (Complainant’s Brief, p. 7), this issue was properly raised by Respondent by pleading, in effect, an affirmative defense in its answer (Case File, Item J–6) and argued at the hearing and in the briefs (Respondent’s Brief, pp. 12–13; Complainant’s Brief, pp. 6–7).

While the Act does not expressly vest jurisdiction in the Commission to review the standards of the Secretary for validity of promulgation, Section 2(b)(3) of the Act created the Commission ‘for carrying out adjudicatory functions under the Act’. This statutory provision has been deemed ample authority for the Commission to determine the validity of the promulgation of a standard under the Act. Oberhelman—Ritter Foundry, Incorporated, OSHRC Docket No. 1572 (7–30–73).

Complainant further contends that Respondent is estopped from raising the issue of validity of the standard by Section 6 of the Act, subparagraph (f) thereof, which provides in part that ‘Any person who may be adversely affected by a standard issued under this action may at any time prior to the 60th day after such standard is promulgated file a petition challenging the validity of such standard with the U.S. court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.’ The standard cited herein having been first promulgated as an occupational safety and health standard under the Act on October 4, 1972 at 29 CFR 1910.12 (37 F.R. 22102–22104 (October 18, 1972, I agree with Complainant’s contention that Respondent is now precluded from attacking the validity of the cited standard on the grounds that is was not properly promulgated over 11 months prior to issuance of the subject citations.

Even if Respondent could legally raise this issue now, it has not clearly shown by a preponderance of the evidence of record, including its brief, the impropriety of the promulgation of the cited standard in light of Section 6(a) of the Act which provides in part that ‘Without regard to chapter 5 of title 5, U.S. Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate, as an occupational safety and health standard and national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees.’ Furthermore, the federal safety and health regulations for construction which were subsequently adopted as occupational safety and health standards, were the subject of rule making proceedings duly conducted by the Secretary in 1971 (29 CFR Part 1518; 36 F.R. 7340, April 17, 1971).

Respecting the fourth issue (alleged violations), the cited standard clearly can be satisfied by an ‘adequate means of exit’, such as a ladder or steps, without limitation to those means. Complainant’s witnesses Bojakian (OSHA compliance officer for 2 years, 200 inspections performed) Fiatarone (OSHA Area Director 2–1/2 years, Assistant head of safety at Boston Naval Shipyard 15 years, including trenching) and Dolan (OSHA safety engineer 2–1/2 years: 450 inspections conducted, 98% in construction or trenching, including comparable trenches in Boston; 35 years’ experience in construction and trenching business as civil professional engineer, Complainant’s Exhibit C–5), testified that a ladder (portable or affixed to the trench side), in their opinions, was the only adequate means of providing exit from the two trenches herein cited.

Respondent contends that the cited trenches had adequate means of exit in that the shoring of said trenches, consisting of 6 by 8 foot cross braces spaced vertically about 3 feet apart, plus the horizontal pipes in the trenches, provided a ladder like means of exit which, on the testimony of Mr. Coughlin (Respondent’s Vice President with civil engineer degree and over 20 years’ experience in construction with Respondent) has never caused any difficulty for Respondent’s employees. Mr. Coughlan further testified that putting a ladder in the West 2d Street trench would have congested the trench so that its employees could not work in it; and in the Kneeland Street trench a ladder would have increased the hazard to employees due to the heavy vehicular traffic there.

The West 2d Street trench was 11 feet deep, 9 feet 4 inches wide, and 8 feet long. Two of Respondent’s employees were working in this trench at the time of inspection. They were standing on a steam pipe at the bottom of the trench breaking up the concrete casing of the pipe with air hammers. One of the employees was observed exiting the trench by standing on the steam pipe which had broken cement on it and climbing the cross braces of the trench shoring and ‘drag themselves up to the top of the cross members and walk across and get out of the trench.’ There was no ladder in the trench. Mr. Bojakian testified that the means of exit here used was not adequate because footing on the debris-covered steam pipe was unstable and climbing the cross-braces of the shoring spaced 3 feet apart without rails or posts to grasp increased the hazards of falling or injury due to muscle strains.

Buttressing Respondent’s contention of adequacy, there was unrebutted testimony by Mr. Coughlan that in his opinion, employee exit from such a trench using this type of shoring as a step ladder would take 5 to 10 seconds, versus 30–45 seconds by use of a ladder located 25–30 feet away in another less congested part of the trench. The probative value of this testimony hinges on Respondent’s argument that the trench (for at least its 8 foot length) was too congested to permit use of a ladder. The record indicates that the trench contained, in addition to an air duct hose, a 2 foot steam pipe at the bottom of the trench and a gas pipe in the upper portion of the trench, both running the length of the trench. Mr. Coughlan considered the congestion particularly bad in the 3 foot by 4 foot area where photograph C–2 shows the hard hat of an employee working. But his testimony suggests that a ladder could have been placed in the larger area of the manhole excavation (forefront of C–2), even though it would have required employees in the more confined area to duck down under the bracing above the steam main and drop 3–4 feet down to the lower level of the trench in the larger area before reaching a ladder that might be placed there (Respondent’s Exhibit R–1). Even crediting the testimony of Mr. Coughlan (who did not see the cited trenches on the dates of inspection) with respect to the situation in the confined area, based on the credible testimony of Mr. Bojakian, the inspecting officer, and Mr. Dolan, and the photographs of the trench on the critical date, there appears to be adequate space for a ladder of a portable or permanent (cleated to the wall of the trench) type.

Under cross examination Mr. Bojakian admitted the possibility that said trench might have been 2–3 feet deep at its end away from where the employees were working, suggesting an adequate means of exit within 25 feet in accordance with the cited standard. In this connection, Respondent cites Judge Chalk’s decision in D. Federico Co., OSHRC Docket No. 4395 (4–11–74, under Commission review). However, there is no affirmative evidence of record proving the depth of the other end of this 8 foot trench and the differing circumstances of the Federico case clearly distinguish it from the one at bar, to wit, in Federico the employee was only a step or two away from a level that was two feet higher and had no difficulty in scaling the remaining 4–1/2 feet that was sloped. Here the trench height was 11 feet and the trench was not sloped in the area where the employees were.

Respondent’s contention that the means of exit it employed here was consistent with industry practice is substantially rebutted by the contrary expert testimony of Mr. Dolan.

Respecting the Kneeland Street trench, it was 5 feet 9 inches deep, 3 feet 10 inches wide, and 8 feet long. Two of Respondent’s employees were working in this trench, which was located at a busy vehicular intersection, requiring part of the trench to be covered with metal covers and protected by barricades. There was no ladder or pipes in the trench. At the time of inspection the shoring consisted of 3 by 10 sheeting that went down into the ground on the left side with no cross braces or whalers, and similar shoring was in process on the right side of the trench.

Mr. Bojakian testified that there was no adequate means of exit from this trench; that employees had to pull themselves up over the side of the trench and crawl out. He further testified that there was adequate space to have used a conventional ladder or a vertical ladder cleated to the existing shoring and that such a ladder would not have increased the existing hazard of inadequate means of exit in event of emergency. Mr. Fiatarone and Mr. Dolan concurred in this testimony. Respondent’s further contention that a ladder projecting 3 feet above ground (as required) would imperil employees at such a busy intersection lacks creditability given proper placement of barricades and steel plates and the fact that such a projection might constitute another protective danger signal to errant motorists.

Mr. Coughlan’s testimony that the Kneeland Street trench was in the process of being shored (with cross braces, comparable to the other trench), while credible, does not excuse the absence of any adequate means of exit at the time, especially in view of Mr. Coughlan’s admission that there was room for a ladder in the trench.

Notwithstanding Respondent’s active safety program and the apparent satisfaction of its utility company clients with its safety procedures, I believe, on balance, that a preponderance of the evidence of record shows that the means of exit used by Respondent in the cited trenches on the dates of inspection were not adequate within the meaning of the cited standard (29 CFR 1926.652(h)) and therefore constitute violations under Section 5(a)(2) of the Act.

The proposed penalties for the two cited violations ($45.00 each), based on consideration of the gravity of the violation, and Respondent’s size, good faith and history of previous violations under the Act, are deemed appropriate within the meaning of Section 17 of the Act.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is a relatively small Massachusetts Corporation with approximately 150 employees which had a gross volume of business of approximately $2 million in 1973 engaged in construction and trenching, including the receipt, handling and work in goods moving in interstate commerce (Complaint and Answer).

2. As a result of OSHA inspections of Respondent’s trenching worksites at West 2d Street, between D Street and E Street, Boston, Massachusetts on September 20, 1973, and at Kneeland Street and Harrison Avenue, Boston, Massachusetts on September 25, 1973, Complainant issued to Respondent on October 26, 1973, two Citations for nonserious violations of the occupational safety and health standard set forth at 29 CFR 1926.652(h) under Section 5(a)(2) of the Act, together with two related notifications of proposed penalties, issued on the same date, in the total amount of $90.00 ($45.00 for each violation) (Citations and Notifications of Proposed Penalty, Case File, Items 1 & 2).

3. Respondent filed its notices of contest respecting both citations on October 31, 1973. (Notice of Contest, Case File Item 3).

4. On October 20, 1973, the West 2d Street trench was 11 feet deep, 9 feet 4 inches wide, and 8 feet long, with a 24 inch steam pipe in the bottom portion and a gas pipe in the upper portion running the length of the trench; the trench was shored with sheeting, 6 6 cross braces and whalers, with the lowest cross brace about 18 inches above the steam pipe and thereafter cross braces at 3 foot intervals vertically upward to the top of the trench (Complainant’s Exhibits C–1 & 2).

5. Two of Respondent’s employees were working in this trench using air hammers to chip away the cement casing of the steam pipe on which they were standing.

6. Employees exited this trench by stepping on the steam pipe and climbing up the cross braces of the shoring to the gas pipe or braces at the top of the trench from which they could walk or crawl out. There was no ladder or other type of steps in this trench.

7. The aforesaid means of exit from this trench required stepping on a debris-covered steam pipe and taking upward steps on the cross braces ranging from 18 inches to 3 feet per step-up, and climbing out of the trench without the benefit of rails or posts projecting above the top of the trench to grasp, thus presenting the hazard of injury by falling or muscle rupture or strain due to unstable footing, insufficient self-support, and the excessive space between vertical cross braces substantially exceeding the normal 12 inch step.

8. There was sufficient space to place a portable or permanent (cleated to a trench side) ladder in the larger portion of this trench without inhibiting the work of Respondent’s employees therein or adding substantial hazards to the means of exit.

9. In determining the proposed penalty for the alleged violation respecting this trench, Complainant considered the gravity of the violation, the size of Respondent’s business, Respondent’s good faith and history of violations under the Act.

10. On September 25, 1973, the Kneeland Street trench was 5 feet 9 inches deep, 3 feet 10 inches wide, and 8 feet long; it was in the process of being shored, with sheeting already installed on one side, no cross braces, and partially covered on top with steel plates because of its location at an intersection carrying heavy vehicular traffic from which it was barricaded.

11. Two of Respondent’s employees were in this trench, which had no ladder or steps.

12. Employees exited this trench by pulling themselves up over the side of the trench and crawling out, thus incurring substantial hazard of injury due to falls or strains or inability to exit quickly in case of emergency.

13. There was sufficient space to place a portable or permanent (cleated to the trench side) ladder in this trench without inhibiting the work of Respondent’s employees therein or substantially increasing the hazards of exit.

14. In determining the proposed penalty for the alleged violation respecting this trench, Complainant considered the gravity of the violation, the size of Respondent’s business, Respondent’s good faith and history of violations under the Act.

CONCLUSIONS OF LAW

1. At all times relevant hereto Respondent was and is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein.

2. At all times relevant hereto Respondent was and is subject to the requirements of the Act.

3. The two Citations and Notifications of Proposed Penalty, issued on October 26, 1973 to Respondent herein, were issued with reasonable promptness under Section 9(a) of the Act.

4. Respondent has not shown by a preponderance of the evidence of record that the cited occupational safety and health standard set forth at 29 CFR 1926.652(h), as applied to the circumstances of this consolidated case, is unenforceable by reason of vagueness under the Act and the due process clause of the Fifth Amendment to the U.S. Constitution.

5. Respondent’s collateral attack on the validity of the promulgation of the Standard cited herein is precluded under Sec. 6(f) of the Act. Additionally, Respondent has not shown by a preponderance of the evidence of record herein that the occupational safety and health standard cited herein is unenforceable because it was not properly promulgated under the Act as to projects not federally financed or assisted.

6. On September 20 and 25, 1973, Respondent violated the occupational safety and health standard set forth at 29 CFR 1926.652(h) and the citations and notifications of proposed penalty pertaining thereto should by affirmed as reasonable and appropriate under Sections 5(a)(2), 6 & 17 of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Respondent’s pending notion to dismiss is denied.

2. Complainant’s Citation Number 1, based on inspection conducted on September 20, 1973, and Citation Number 1, based on inspection conducted September 25, 1973, both issued to Respondent on October 26, 1973, are affirmed.

3. Complainant’s Notifications of Proposed Penalty relating to the aforesaid Citations, issued to Respondent on October 26, 1973, each in the total amount of $45.00, are affirmed.

[1] This standard states:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

[6] In Chicago Bridge & Iron, we held that a citation was not issued with reasonable promptness if, absent exceptional circumstances, it was issued more than three working days after the time the Area Director formed his belief that a violation existed.

[7] Other court decisions that interpret standards in light of the ‘reasonable man’ test are McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8, 10–11 (4th Cir. 1974) and Brennan v. O.S.H.R.C. & Sante Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974)

[8] Significantly, the Ryder court never applied the ‘reasonable man’ test as a standard of care, but only to prescribe the level of hazard recognition expected of employers. The first use of the ‘reasonable man’ test as a standard of care was in Cape & Vineyard Div. of New Bedford Gas & Edison Light Co. v. O.S.H.R.C., 512 F.2d 1148, 1152 (1st Cir. 1975). The First Circuit relied heavily upon Ryder but went further on the standard of care.

[9] Section 3(8) reads as follows:

(8) The term ‘occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

[10] A careful distinction should be drawn here between the duty of employers to ascertain hazards, and to abate them. The level of hazard recognition required by the general duty clause in section 5(a)(1) is measured against industry experience and employer knowledge. National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973); Brennan v. OSHRC & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974). But under the special duties required under section 5(a)(2), employers may be required to take more stringent steps to ascertain hazards than industry practice may call for. See e.q., Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 481–482, 484–488 (D.C. Cir. 1974). But cf., Cape & Vineyard Div. of New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).

However, both the Secretary’s standards and the general duty clause may require that work practices and safety precautions be radically altered or upgraded in the interest of employee safety and health. Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir.), cert. denied 95 S. Ct. 1998 (1975) (section 5(a)(2)); National Realty, 489 F.2d at 1265 n.34, 1266 n.37 (section 5(a)(1)); cf. Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 352 (2d Cir. 1973).

[11] The word is used in the Act itself, albeit in a different context. See section 6(b)(5) (first sentence).

[12] Interestingly, ‘adequate’ care requires more than the amount of care exercised by a reasonable man. Nagle v. City of Billings, 250 P. 445 (Mont. 1926).

[13] An interpretation of a standard which uses performance criteria as clarifying aids is consistent with the Act. See the last sentence of section 6(b)(5).

[14] Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).

[15] An employer is not required to abate a hazardous condition until a citation is served upon him. Secretary v. Pleasant Valley Packing Co., 2 OSAHRC 185, 188–189 (1973).

[16] While Section 17(c) of the Occupational Safety and Health Act is penal in nature, the Act as a whole is primarily designed to regulate civil conduct. Union Camp Corporation, OSHRC Docket No. 3905, p. 8 (5–1–74).