April 21, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

            This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

            In these circumstances, the Commission declines to pass upon, modify or change the Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975–78 CCH OSHD para. 20,426 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

            The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,367 (No. 4090, 1976).


It is ORDERED that the decision be affirmed.


DATED: APR 21, 1977




William S. McLaughlin

Executive Secretary



MORAN, Commissioner, Dissenting:

            All charges should be vacated because complainant failed to issue the citation with reasonable promptness as required by 29 U.S.C. § 658(a). See my dissenting opinion in the earlier decision in this case dated July 21, 1976. Also see Secretary v. Jack Conie & Sons Corporation, OSAHRC Docket No. 6794, June 25, 1976.

            Moreover, vacation of each of the charges is warranted for additional reasons. Vacation of item 5 is required because 29 C.F.R. § 1926.651(i)(1), applies exclusively to excavations and respondent’s cavity was a trench. See Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553, February 24, 1976 (dissenting opinion); Secretary v. Dobson Brothers Construction Company, OSAHRC Docket No. 3847, February 18, 1976 (concurring and dissenting opinion). Item 6 should be vacated on the basis that it was error to find respondent in violation of an amended charge. Because of the unique nature of citations under the Act, such amendments, made after the filing of a notice of contest, are inherently prejudicial and therefore should be prohibited except in the most extraordinary circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). Finally, vacation of item 7 is appropriate because the evidence establishes that an earthen ramp provided ‘an adequate means of exit’ from respondent’s trench. Secretary v. Paul Hutchinson & Sons, OSAHRC Docket No. 3301, June 11, 1976.

            Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, 1 disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Brennan’s decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

















September 2, 1976




Herman Grant, Regional Solicitor

219 South Bearborn Street Chicago, Illinois 60604

Attn: James P. White, Esq.



John L. North, Asst. Sec. Craig D. Lawrenz & Associates, Inc.

1942 Townline Road, Route #3 Beloit, Wisconsin 53511



Laborers’ International Union of North America, Local #931

616 W. Northland Avenue Appleton, Wisconsin 54911

International Union of Operating Engineers, Local #139

7283 W. Appleton Avenue Milwaukee, Wisconsin 55216


Brennan, W. H.; A. L. J.

            This is an action originally arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review three numbered items (5, 6, and 7) of a Citation for Nonserious Violations (7 Items),[1] and penalties proposed thereon issued pursuant to Sections 9(a) and 10(a) of the Act (29 U.S.C. 658(a) and 659(c)), on November 6, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Milwaukee, Wisconsin (hereinafter Complainant), to Craig D. Lawrenz & Associates, Inc., of Milwaukee, Wisconsin (hereinafter Respondent).

            This Citation alleges that Respondent on October 4, 1973, at a place of employment located at Highway 29 in Shawano, Wisconsin (hereinafter worksite), violated Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) due to its failure to comply with the Occupational Safety and Health Standards for trenching set forth at 29 C.F.R. 1926.651(i)(1), 1926.652(a) and 1926.652(h). This Citation set forth the following ‘descriptions’ of the alleged violations.


Item No. 5—29 CFR 1926.651(i)(1)

Employer failed to have excavated materials back at least 2 feet from an excavation in which men worked; i.e., but not limited to; the water pipe trench on highway 29.


Item No. 6—29 CFR 1926.652(a)

Employer failed to properly shore or lay back to a stable slope the sides of a trench; i.e., but not limited to; the water pipe trench on highway 29.


Item No. 7—29 CFR 1926.652(h)

Employer failed to have a ladder in a trench over 5 feet deep in which men were working; i.e., (a) the trench on Highway 29 for the sewer pipes; (b) the trench on county trunk H and Anderson Avenue.


            Abatement was to be accomplished ‘Immediately upon receipt of this Citation’ as to each Item and a penalty of $110 was proposed for each alleged violation.

            Pursuant to Section 10(c) of the Act (29 U.S.C. 659(c)), Respondent by a letter from its Assistant Secretary dated November 20, 1973, noted its’ contest to the three Items noted supra and the proposed penalties based thereon.

            On December 19, 1973, the Complainant filed his Complainant herein, followed on January 2, 1974, with the filing of Respondent’s Answer.

            After assignment of this case to the undersigned and issuance of my usual Prehearing Order, to which both parties responded, the Complainant on May 6, 1974, filed a Motion for Leave to File an Amended Complainant by which the wording of paragraph IV(a)(2) of the original Complaint was to be changed to conform more closely with the wording of Item No. 6 of the Citation, and the Standard cited in the Citation upon which Item No. 6 was based was to be corrected from 29 C.F.R. 1926.652(a) to 29 C.F.R. 1926.652(b).

            The ‘description’ of the alleged violation for Item No. 6 of the Citation, supra, clearly charged a failure to shore or slope the sides of a water pipe trench on Highway 29. However, the Standard cited was inaccurate (29 C.F.R. 1926.652(a)), which by its terms applies to ‘Banks’ and trenches less than five feet in depth. These inaccuracies were repeated in the original Complaint (par. IV(a)(2)). Respondent objected to this proposed amendment.

            In order to correct these inaccuracies, and in the absence of any showing of prejudice to the Respondent, Complainant’s Motion was granted by Order dated May 14, 1974, with time allowed to May 22, 1974, to file an Amended Answer if desired, upon the authority of National Realty & Construction Co. v. OSHRC et al., 489 F.2d 1257 (D.C. Cir., 1973) (R. P. J–8).

            Paragraph IV(a)(2) of the Amended Complaint charged as follows:

‘Failed to provide that sides of a trench in unstable or soft material, five feet more in depth, be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within it. (For example: The water pipe trench at Highway 29 in which men worked.) [29 C.F.R. 1926.652(b)] (Item 6 of the Citation)’[2]


            At the outset of the trial held on May 23, 1974, Respondent orally moved to amend its Answer to include two affirmative defenses; that the Citation should be dismissed because an unreasonable length of time had elapsed between the date of the inspection, October 4, 1973, and the issuance of the Citation, November 6, 1973, and secondly that the inspection should be considered void because the Compliance Officer allegedly failed to follow the mandatory procedures set forth in the Compliance Operations Manual (TR. 12).

            The Complainant objected to this amendment (TR. 13).

            Respondent’s motion to amend was granted and because this was the first point in these proceedings that these issues had been raised, additional time was granted the Complainant, if desired by counsel, within which to either present evidence or legal argument tending to rebut these two affirmative defenses (TR. 16).

            No additional time was requested by Complainant, although argument in Brief was addressed to these affirmative defenses.

            On December 3, 1974, the undersigned issued his ‘DECISION AND ORDER’ in this case, vacating the three contested Items of the Nonserious Citation under consideration because of Complainant’s failure to issue the Citation herein with ‘reasonable promptness,’ as required by Section 9(a) of the Act, 29 U.S.C. 658(a) as interpreted, at that time by the Review Commission in Secretary of Labor v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1/23/74).

            On January 2, 1975, Review of this DECISION AND ORDER was directed by the Review Commission (R. p. 12).

            On July 21, 1976, the Commission issued its DECISION AND REMAND herein, which reversed the undersigned’s 1974 DECISION AND ORDER, based upon the Decision of the United States Court of Appeals for the Seventh Circuit in Secretary of Labor v. Chicago Bridge and Iron Company and OSAHRC, 514 F.2d 1082 (Decided on April 22, 1975), which reversed the Commission’s 72-hour rule announced in 6 OSAHRC 244 (1974), (R. p. 26) and subsequent Commission Decisions.[3]

            This case was remanded for a determination of the contested Items (numbers 5, 6, and 7) of the Nonserious Citation.

            Having reconsidered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

            The following relevant matters were stipulated to by the parties:

            Respondent is a Wisconsin corporation with its principal office located at 1942 Townline Road, Beloit, Wisconsin. It is engaged in the business of installing water and sewerage systems which affects commerce. No injuries were associated with this case. Respondent classifies itself as a medium-sized contractor with sales during 1973 of approximately three million dollars with about 59 employees on the average. At the time of the inspection herein, October 4, 1973, it had no known history of prior violations of employee health and safety laws.

            Based upon these stipulated facts it is concluded that Respondent is an employer engaged in a business affecting commerce who has employees, within the meaning of Sections 3(3), 3 (5) and 3 (6) of the Act, 29 U.S.C. 652(3), (5), and (6), and that the Act applies to the worksite involved herein, within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). Upon the filing of Respondent’s Notice of Contest herein, the Review Commission has jurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).

The Standards cited provide as follows:

Item No. 5 29 C.F.R. 1926.651(i)(1)

(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.


Item No. 6—as amended 29 C.F.R. 1926.652(b)

 (b) Sides of trenches instable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P–1, P–2 (following paragraph (g) of this section).


Item No. 7 29 C.F.R. 1926.652(h)

(h) 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 October 4, 1973, Compliance Officer Krohn, a 1972 graduate of the University of Wisconsin, conducted an inspection of Respondent’s worksite along the shoulder of Highway 29 outside of Shawano, Wisconsin. At this worksite, Respondent was digging trenches and installing water pipes on the south side and immediately adjacent to Highway 29. Items numbered 5 and to involve this trench (hereinafter water pipe trench). About one quarter of a mile east of this water pipe trench, on the north side and immediately adjacent to Highway 29, Respondent was also digging a trench in connection with the installation of a sewer line. Item number 7 involves this trench (hereinafter sewer pipe trench).

            Upon his arrival at this worksite, Officer Krohn, pursuant to directions from his superiors under a then effective ‘special emphasis’ program, conducted an inspection of this site. He first took photographs of the worksite. This was done, as was the usual practice, for two reasons. First, the ever-changing nature of trenching sites, and second, the worksite was immediately adjacent to a public highway, open to public view. These photographs were admitted as Exhibits C–1, 2, 3, 4, 6, 7, 8, 9, 10, and 11 over Respondent’s objection.[4]

            Exhibits 1 through 4 show the spoil pile above the water pipe trench having a continuous slope with the side of this trench. This spoil pile was not set back any distance from the lip of this trench nor was this pile retained in any way. The photographs (Exhibits C–1 through 4) show two workmen in this trench identified by Respondent as its employees. Exhibits C–1 through 4, together with the testimony of Officer Krohn conclusively establish the violation alleged in Item number 5 of the Nonserious Citation herein (TR. 24–37).

            After taking his photographs of this worksite, the Compliance Officer asked a workman for the man in charge of the trenching activity and was directed to Mr. Vertz, Respondent’s foreman of the crew working in and on the water pipe trench. The Officer, after identifying himself and explaining the reason for his inspection, conducted an opening conference with Mr. Vertz. The Compliance Officer then conducted a so-called ‘walk around’ inspection of this worksite with Respondent’s representative Vertz. They were later on, during the course of this inspection, joined by Respondent’s site superintendent Zuege. During the opening conference, the Compliance Officer advised Mr. Vertz that employee representatives were entitled to join in the inspection. The Compliance Officer interviewed employees of both the laborers’ union and equipment union, and a representative of the laborers’ union joined the inspection party (TR. 60–68).

            Photographic Exhibits C–6 and 7 relate to Item number 6 of the Citation herein and depict the left side of the water pipe trench. This trench was dug in ‘loose sandy soil’ (TR. 39) and was between 7 and 8 feet deep. This depth was established by the Compliance Officer who asked the job foreman Vertz its depth, who replied 7 or 8 feet (TR. 39). This statement was confirmed by the testimony of foreman Vertz (TR. 149). The sides of this trench were neither shored, sheeted, braced nor sloped in conformity to the recommendations appearing in Table P–1 in the Trenching Standards, as specifically referenced in 1926.652(b). Compliance Officer Krohn accurately estimated the width of this trench at its bottom to be about 2 feet. Foreman Vertz measured the top of this trench and told the Compliance Officer it was 14 feet wide. Table P–1 under ‘Compacted Sharp Sand,’ the type of soil closest to that in which this trench was dug, provides for a slope of 1 1/2 feet horizontally for every 1 foot of vertical distance. Thus, in order to comply with the cited Standard, the top of this trench should have measured 21 feet across (1 1/2 x 7 depth = 10 1/2 per side of trench x 2 = 21). Exhibits C–1 through 7 clearly show two of Respondent’s employees working in this water pipe trench. Thus, the photographic exhibits plus the testimony of the Compliance Officer conclusively establish the violation alleged in Item number 6 of the Nonserious Citation herein (TR. 37–46).

            After completing the inspection of the water pipe trench, the inspection party next traveled to the sewer pipe trench about a quarter of a mile down Highway 29. Photographic Exhibits C–8, 9, 10 and 11 depict this worksite. This sewer pipe trench was over 4 feet deep. One wall of this trench was about 8 feet, the other side about 12 feet. From two to four of Respondent’s employees were working in this trench, and there was no ladder or steps or other adequate means of exit from this trench, the employees climbing out the lower side of this trench unaided. Exhibit C–10 clearly depicts fractures in one side of this trench. Thus, the photographic exhibits, plus the testimony of Officer Krohn, conclusively establish the violation set forth in Item number 7 of the Nonserious Citations herein (TR. 48–52).

            Upon the conclusion of the ‘walk around’ phase of this inspection, a closing conference was held by Officer Krohn with Respondent’s Superintendent Zuege. Each of the conditions observed were discussed and abatement times, as set forth in the Citation herein, were agreed to by Superintendent Zuege. The inspection in its entirety took about three hours.

            Based upon the creditable evidence of this record, Respondent’s second defense, i.e., that the inspection should be considered void because the Compliance Officer allegedly failed to follow the mandatory procedures set forth in the Compliance Operations Manual (TR. 12), must fail.

            The inspection conducted by Officer Krohn not only complied with the statutory provisions of Section 8 of the Act, 29 U.S.C. 657, but also substantially complied with the instructions and procedures set forth in the Compliance Operations Manual to that degree necessary to assure the effective and uniform implementation of the Act—the directive contained in the Forward of this Manual (TR. 59–69; 99–101).

            Officer Krohn testified at length concerning how the proposed penalty of $110 for each of the three Nonserious Violations was computed (TR. 53–55, Exhibit C–12). Maximum allowable deductions of 20 percent were allowed this Respondent for its good faith and absence of any history of prior violations, as well as 5 percent for its size. The Compliance Officer recommended adjusted penalties of $55 per violation, which were raised by the Area Director to $110 after Officer Krohn consulted with a more experienced Compliance Officer in the Area Office as well as discussing the matter with the Area Director.

            Based upon an independent consideration of the factors mandated by Section 17(j) of the Act, 29 U.S.C. 666(i), in the light of the evidence of this record, it is concluded that the penalties as proposed by the Area Director are appropriate and reasonable.

            Based upon the foregoing findings and conclusions and pursuant to the provisions of Section 10(c) and 12(j) of the Act, 29 U.S.C. 659(c) and 661(i), it is hereby,


            1. That Items numbered 5, 6, and 7 of the Citation for Nonserious Violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for failure to comply with the Occupational Safety and Health Standards set forth at 29 C.F.R. 1926.651(i)(1), 1926.652(b) and 1926.652(h), and the penalties proposed thereon, are AFFIRMED.

            2. A total civil penalty of $330 is ASSESSED.



Dated: September 2, 1976


Hyattsville, Maryland

[1] Items numbered 1, 2, 3, and 4 of this Citation were not contested and thus have become the Final Order of the Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a).

[2] At the beginning of the hearing herein, argument was heard on the propriety of allowing this amendment. Based upon these arguments and the authorities cited, the ruling allowing the amendment was confirmed (TR. 2–11).

[3] See Secretary of Labor v. Couahlan Construction Company, 20 OSAHRC 641 (10/23/75); Secretary of Labor v. Jack Conie & Sons Corp., —— OSAHRC —— DOCKET NO. 679 —(6/25/76).

[4] See: Accu-Namics, Inc. v. OSHRC et al, 515 F.2d 828 (CA 5, 1975).