Docket No. 1015

F.F. GREEN CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 1015

Occupational Safety and Health Review Commission

November 26, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Jerry W. Mitchell. Judge Mitchell affirmed Complainant's citations charging three serious violations and one non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), and assessed an aggregate penalty of $2925 therefore. We concur with this disposition.

The Judge furthermore affirmed Complainant's citation charging a non-serious violation of section 8(c)(2) of the Act, for which he assessed a civil penalty of $200.

We have reviewed the record. Contrary to the requirements of 29 C.F.R. 1904.8, n1 Respondent failed to notify the appropriate office of the Department of Labor that one of its employees had been electrocuted on the jobsite. Accordingly, Judge Mitchell correctly found Respondent in violation of Section 8(c)(2) of the Act.

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n1 The cited standard provides as follows:

Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone, or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

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However, we do not concur in the Judge's assessment of a penalty of $200 in the circumstances of this case.

The record establishes that Complainant had no office for the administration of the Act in the state of Alaska until he opened one in Anchorage just two days prior to the occurrence of the fatality at Respondent's worksite. In the absence of such an office, the practice in the state had been that when an employee was injured on the job, the employer would inform the state labor department, which in turn would contact Federal officials.

Respondent acted in accordance with this procedure by notifying state authorities on the day of the fatality. The state agency immediately telephoned the new Federal office. n2

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n2 It is apparent that the purpose of the cited regulation, prompt notification to Complainant of the occurrence of injury or death to an employee, has been satisfied in this case.

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We conclude that the local Federal office was established so recently prior to the fatality, that Respondent could not reasonably be expected to have been aware of its existence. By providing notification in the manner known to it at the time, Respondent has demonstrated its intention to comply with the Act.

It is therefore plainly evident from the record that Respondent acted in good faith in this matter. In view of the above we find it inappropriate to assess a penalty for a technical violation of the Secretary's reporting requirements.

Accordingly, the Judge's order is amended to assess no penalty for Respondent's violation of 29 C.F.R. 1904.8, and as amended, it is hereby ORDERED affirmed.

[The Judge's decision referred to herein follows]

MITCHELL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting Citations issued by the Secretary of Labor (Complainant) against F.F. Green Construction Company, Inc., (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "water improvements, City of Anchorage, Job No. 6-1972" located at Tudor and Muldoon Roads in Anchorage, Alaska, and allegedly under the ownership, operation or control of Respondent, was inspected on 24 April 1972 by a Compliance Safety and Health Officer (CSHO). During the inspection certain alleged violations were noted. Citations were issued on 31 May 1972 alleging Respondent's failure to comply with four (4) specific occupational safety and health standards on 19 April 1972 and one (1) standard on 14 April 1972. The standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register and are now codified at 29 CFR 1926 and 29 CFR 1904, respectively.

The alleged violations are described in the Citations as follows:

Citation 1 -- Item 1 (29 CFR 1904.8) (April 24, 1972):

Failure to report accident which resulted in a fatality to the nearest Area Office of the Occupational Safety and Health Administration within 48 hours of the occurrence thereof.

Date on which alleged violation must be corrected: Immediately.

Citation 1 -- Item 2 (29 CFR 1926.550(a)(15)(iv)) (April 19, 1972): Failure to designate a person to observe clearance of boom of Koehring Model 1066 Backhoe when working in close proximity to energized 115 KV Transmission Line and to give timely warning where it is difficult for the operator to maintain the desired clearance by visual means.

Date on which alleged violation must be corrected: "Immediately."

Citation for Serious Violation No. 1 -- (29 CFR 1926.550(a)(15)(ii)) (April 19, 1972):

Failure to maintain between energized 115 KV Transmission Line and boom of Koehring Model 1066 Backhoe sufficient clearance of either 10 feet plus 0.4 inch for 1 KV over 50 KV or twice the length of the line insulator, but never less than 10 feet.

Date on which alleged violation must be corrected: "Immediately."

Citation for Serious Violation No. 2 (29 CFR 1926.651(i)(1)) (April 19, 1972):

Failure to store and retain excavated materials 2 feet or more from the edge of excavation that employees are required to enter and work in.

Date on which alleged violation must be corrected: "Immediately."

Citation for Serious Violation No. 3 -- (29 CFR 1926, 652(b)) (April 19, 1972):

Failure to shore, sheet, brace, slope to angle of repose, or otherwise protect employees working in an open trench more than 5 feet deep and more than 8 feet long in non-homogenous soils.

Date on which alleged violation must be corrected: "Immediately."

The specific standards allegedly violated by Respondent provide:

Citation 1 - Item 1: 29 CFR 1904.8. Reporting of fatality or multiple hospitalization accidents.

Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employee so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

Citation 1 - Item 2: 29 CFR Subpart N. Cranes, Derricks, Hoists, Elevators, and Conveyors. 1926.550 Cranes and derricks.

(15) Except where electrical distribution and transmission lines have been de-energized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

(iv) A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means;

Citation for Serious Violation No. 1:

29 CFR Subpart N -- Cranes, Derricks, Hoists, Elevators, and Conveyors. 1926.550 Cranes and Derricks.

(15) (Same as quoted above under Citation 1 - Item 2)

(ii) For lines rated over 50 KV., minimum clearance between the lines and any part of the crane or load shall be 10 feet plus 0.4 inch for each 1 KV. over 50 KV., or twice the length of the line insulator, but never less than 10 feet;

Citation for Serious Violation No. 2:

29 CFR Subpart P -- Excavations, Trenching and Shoring. 1926.651 Specific excavation requirements.

(i)(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."

Citation for Serious Violation No. 3:

29 CFR Subpart P -- Excavations, Trenching and Shoring. 1926.652 Specific trenching requirements.

(b) Sides of trenches in unstable 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).

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated 31 May 1972 of a proposal to assess penalties in the amount of $200 and $225 on Citation 1, Item 1 and Item 2 respectively, and in the amount of $900 on each of the three Citations for Serious Violations for a total penalty of $3,125.

In a timely manner, Respondent contested each of the Citations and proposed penalties. A complaint was filed by Complainant and answered by Respondent. On 31 October 1972, the case was assigned to OSAHRC Judge Jerry W. Mitchell for hearing. The hearing, held at Anchorage, Alaska, convened on 16 November 1972 and was completed the same day. Briefs were filed by each party and Complainant filed a reply brief.

PROCEEDINGS AND EVIDENCE

Respondent was represented at the hearing by counsel but there was no appearance by or on behalf of any employees, even though counsel for Respondent clearly stated that all employees had been notified of the pendency of the proceedings. None of Respondent's employees are represented by a union. A week prior to opening the hearing, subpoenas were issued at Complainant's request, ordering the attendance of two of Respondent's employees as witnesses at the hearing. One witness, Respondent's Secretary-Treasurer, appeared in response to the subpoena but the other did not. At the conclusion of his case, Complainant's counsel waived the request for the non-appearing witness.

Complainant called three witnesses. The first, employed by the state of Alaska as a safety inspector, inspected Respondent's worksite several times before 19 April 1972, the date of the fatal accident. He also inspected the worksite on the morning following the accident. His testimony covered the safety violations observed in the ditch excavation and water line laying project during his visits to the worksite. He described the actions taken by him before the accident to encourage the observation of safety standards as well as the conditions observed at the worksite on the morning following the fatal accident.

The second witness was the Compliance Safety and Health Officer (CSHO). He testified that he received notice of the accidental death at Respondent's worksite via a telephone call made to him by a secretary in the state Department of Labor office in Anchorage. At the time of the call, which was made on the day of the accident, the witness was in Seattle. He conducted an inspection of Respondent's deserted worksite on 24 April, 5 days after the accident. He did not contact Respondent before the inspection. After many efforts, he met with Respondent's Secretary-Treasurer at least two weeks after his inspection. His testimony covered the conditions observed during his inspection of the deserted worksite.

The third witness was Respondent's Secretary-Treasurer. He admits that one of Respondent's employees was electrocuted at the worksite while the employee was guiding a pipe to position it in the ditch. His testimony covers the position of "oiler" on the backhoe with a description of his duties. He also describes the visits of the state of Alaska safety inspectors.

Respondent called two witnesses. The first was an engineer-surveyor employed by Respondent at the worksite. He testified concerning the conditions at the worksite at the time of the accident, particularly the burn marks he observed on the backhoe boom and the marks on the powerline following the accident. He also testified that Respondent's employee was electrocuted by current originating from the powerline and passing through the machine and the employee to the ground.

The other witness, an expert in soil mechanics, testifies concerning the properties of soil which govern the angle-of-repose at which material will lay when piled. He also describes the two reasons why excavated material is required to be piled at least two feet from the side of an excavation. He admits that he did not visit Respondent's worksite at any time pertinent hereto.

DISCUSSION

Respondent concedes in its answer that at all pertinent times it was engaged in construction work and in the use of raw materials, machinery and other goods brought directly or indirectly to it from points outside of the state of Alaska. Respondent also concedes that it utilizes the mails, telephone and other facilities of interstate commerce. Respondent is therefore an "employer" engaged in "commerce" as defined in Section 3 of the Act and is subject to the jurisdiction of the Occupational Safety and Health Review Commission. (Commission hereinafter).

Respondent's worksite involved herein is a ditch excavation and water line laying project located in Anchorage, Alaska. On 19 April 1972 one of Respondent's employees at the worksite was electrocuted while he was guiding a pipe being hoisted by Respondent's backhoe. Electricity originating from a nearby one hundred fifteen thousand (115,000) volt power line traveled through the backhoe and wire holding the pipe to and through the employee to the ground, electrocuting him. Following the accident work was halted at the worksite for at least a month.

Respondent reported the fatality to the Alaska State Department of Labor who in turn reported it to Complainant's compliance officer by telephone on the same day as the accident. Respondent did not report the fatal accident directly to the compliance officer nor to anyone connected with the Occupational Safety and Health Administration (OSHA). The CSHO was in Seattle when he received the telephoned accident report. When he returned to Anchorage, location and details of the accident were obtained from the Alaska Department of Labor. He inspected the deserted worksite on 24 April, the fifth day following the fatality. At the time of his inspection, the backhoe was located at the end of an open ditch thirty to forty feet long and twelve to fourteen feet deep.

The CSHO made several attempts to communicate with Respondent but was unable to make any contact for at least two weeks following his inspection of the worksite. When Respondent's Secretary-Treasurer was finally located, all of the events leading to the accident and the condition of the ditch and the excavated materials at the time of the accident were fully discussed with him.

Under the provisions of Section 8(e) of the Act, Respondent (as employer) should be given an opportunity to have a representative accompany the CSHO on the inspection of the worksite. The apparent purpose as stated in the section is that of "aiding such inspection." The presence of a representative of the employer will permit him to instantly discuss any alleged violation. The employer will thus not only be able to point out any special condition or circumstance which may tend to reduce the seriousness of the violation or even excuse it; he will be able to order the immediate abatement of a dangerous condition or practice.

This accompaniment requirement is not, however, a mandatory requirement. Failure to give Respondent such an opportunity does not necessarily invalidate an inspection made in the absence of Respondent or his representative. See Chicago Bridge & Iron Company, The circumstances of the inspection in the instant matter are such as to bring this situation within the ambit of the ruling in Chicago Bridge & Iron Company, supra.

The worksite to be inspected by the CSHO was deserted following the electrocution of Respondent's employee. Neither Respondent nor anyone representing him, was present when the CSHO arrived at the worksite 5 days after the fatality. In fact, Respondent could not be located for two weeks after the inspection. The CSHO inspected the deserted site and then fully discussed the entire matter with Respondent's Secretary-Treasurer when communication was finally established. This is an entirely reasonable approach to inspection of a worksite that is deserted. An employer cannot, and will not, be permitted to frustrate the inspection provisions of the Act, especially following a fatality, by pulling his employees away from the worksite. Standards promulgated pursuant to the Act require the immediate (within 48 hours) reporting of a fatality and in this regard certainly anticipate an inspection. There is no indication here that Respondent intended to frustrate the inspection provisions by deserting the worksite. The halting of work was because of the fatality and the need to settle a right-of-way problem and for no other reason.

Respondent has not raised any question as to the validity of the inspection; and indeed, even if Respondent did raise an objection on this ground, the decision would be the same. The inspection was, under these particular circumstances, valid. There is no indication that Respondent has been prejudiced in any way whatsoever by not being able to accompany the CSHO during the inspection. It is concluded that the inspection was valid.

CITATION 1 -- ITEM 1

This citation results from Respondent's failure to report the fatal injury of an employee directly to OSHA as is required by the cited standard, 29 CFR 1904.8. On the day of the accident, Respondent reported the fatality to local and state authorities and apparently relied on them, the local and state authorities, to make the required report. Respondent does not claim that the required report was made by it or that it caused the report to be made. However, Respondent does insist that OSHA was notified of the fatality in a timely manner. Complainant concedes this fact through the testimony of its CSHO who admits he received word of the accident on the day of its occurrence.

The standard in question requires that ". . . the employer of any employees so . . . killed shall report the accident either orally or in writing . . ." to the nearest OSHA office within 48 hours. Certain specific information is also required in the report. There is no quibbling. The employer shall make the report and furnish certain specific information. Respondent cannot avoid this responsibility by reporting to some third party and then rely on the third party to make the required report to the proper office. A direct report to OSHA would give the OSHA personnel an opportunity to obtain full details of the location and circumstances of the accident as well as to arrange for an inspection. OSHA was not afforded such an opportunity in this instance because the report came from a gratuitous intermediary third party rather than directly from Respondent. Thus, technically Respondent did not comply with the requirements of the standard even though in practicality timely notice was given and inspection accomplished with reasonable dispatch.

Complainant has proposed a penalty of $200 in connection with this item. Under the circumstances here the proposal appears to be reasonable in all respects. Direct reporting would probably have alleviated the problem of communication with Respondent experienced by the CSHO after his return to Anchorage. Complainant's practice is to propose a set penalty on the occasion when a report is not made and to give no reductions or credits as in other violations. The Citation and Proposed Penalty are affirmed.

CITATION 1 -- ITEM 2

This citation arises from Respondent's failure to designate a person to observe the clearance of the backhoe's boom from the nearby energized 115,000 volt transmission line and to give timely warning where it was difficult for the operator to maintain the desired clearance by visual means.

The standard cited, 29 CFR 1926.550(a)(15)(iv), requires that:

A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means (Emphasis added). (Paragraph (a)(15) of the standard makes it abundantly clear that the clearance to be observed is from electrical transmission lines.)

The presumed reason for promulgation of this particular safety standard is to provide for the assignment of an additional pair of eyes to assist in maintaining a safe distance between equipment in use near transmission lines and the lethal voltage carried by them. If the equipment approaches close enough to touch the transmission line (as in this instance) or to draw an are from the line, the high voltage electric current will "short" and pass through the equipment (backhoe here) to the ground, injuring or killing any person who unfortunately happens to become a part of the path the electricity takes in traveling from the transmission line to the ground.

Under the circumstances established by the evidence here, where the backhoe was being used as a crane to lift water pipe located in the direction of and near the transmission line, the standard requires designation of an observer with specific instructions to watch the clearance and give timely warning to the backhoe operator. This designation and these instructions are the direct responsibility of the employer, Respondent in this instance.

The evidence offered establishes that an "oiler-observer" was employed by Respondent and assigned to the backhoe. However, there is no evidence that the "oiler-observer" was given any instructions by Respondent or any of Respondent's employees to observe the boom clearance from the transmission line. Testimony of Respondent's employees is that, although the "oiler-observer" was Respondent's employee, instructions as to his duties were given to him by a state safety inspector. This does not free Respondent from the duty imposed by the standard. Respondent's Secretary-Treasurer and Respondent's Engineer assigned to the worksite each insist that the "oiler-observer" had the primary duty of watching for the safety of the men working in the ditch. They also stated that he was responsible for general safety about the backhoe. Neither of them was aware of any specific instructions given to him to observe clearance of the backhoe boom from the transmission line, even though everyone involved (including the oiler-observer) was aware of its proximity. There is no evidence that Respondent even attempted to fulfill its duty under the standard. I conclude that Respondent did not discharge the duty imposed.

Complainant recommends an unadjusted penalty of $500 in connection with this violation. Under Complainant's practices, this places it in the most severe category of non-serious violations. The facts establish a very real probability that death or serious injury could result from failure to keep the backhoe's boom clear of an energized high voltage transmission line. This is a potential result which should be apparent to anyone working with such equipment. Evaluation of the entire situation here could result in classing this violation as either serious or non-serious, depending on the weight given the various factors.

The testimony is that the assignment of an "observer" to such a machine as the backhoe is new in Alaska. Respondent was aware of the new requirement that an "observer" be assigned but apparently thought the "observer's" primary duty was to protect the men working in the excavation. This is the instruction Respondent gave the "observer" with an additional assignment to watch for the general safety of all men near the backhoe. No specific instruction was given to watch for overhead clearance. In these circumstances it is reasonable to class this violation in the most severe category of non-serious violations as Complainant has done. The penalty was adjusted downward, giving Respondent 10% credit for size and an additional 50% reduction for abatement. Under the situation here these reductions are also found to be reasonable. The recommended penalty of $225 is affirmed.

At this point, prior to discussing the three serious violations, it is to be noted that in order for a violation to be classed serious it must meet the criterion of the Act as set forth in Section 17(k). Each of the three serious citations herein meet the requirements of that section.

The failure to maintain the specified clearance between the backhoe boom and the energized transmission line, storing excavated material to the very edge of the excavation rather than at least 2 feet from the edge and failing to sheet, shore, brace or properly slope the sides of the ditch are each such conditions as will raise the substantial probability that death or serious physical harm could result therefrom. In fact, death of an employee did result from violation of the clearance from a powerline requirement and an injury resulted from the excavated material rolling back into the ditch. It is also easy to recognize the danger of the sides of an excavation collapsing and injuring or killing the workers below when they are left very steep rather than sloped appropriately. In each of these three circumstances, the danger is obvious. There is no reason why Respondent could not and did not know of the presence of the violations and their concommitant dangers. Each of the three violations classed as serious by Complainant are found to indeed be serious violations.

CITATION FOR SERIOUS VIOLATION -- NO. 1

This citation arises from Respondent's failure to maintain the required distance between the boom of its backhoe and the nearby energized 115,000 volt transmission line.

Although two of Respondent's employees testified, neither witnessed the electrocution and thus could not give percipient evidence. However, they testify to the occurrence of the electrocution and admit that, at the time of his death, the unfortunate employee was touching and guiding a pipe being lifted by a sling attached to the bucket of the backhoe. They also admit that the pipe was laying on the side of the ditch nearest the nearby high-tension transmission line and that the transmission line was the source of the electricity causing his death (Tr. 59, 60, 91 and 92).

The evidence describes the backhoe as being one of the largest in use in Alaska. Its boom can reach horizontally a distance of 52 feet. One of Respondent's employees who worked with the backhoe gave a "rough estimate" that the boom would be from 30 to 35 feet high when being used to lift a pipe as it was doing at the time of the electrocution. The nearest wire of the transmission line was 35 feet from the centerline of the ditch and 29 feet above the ground. These facts clearly establish the physical possibility of the boom touching the wire when the backhoe turned toward the transmission line to lift the pipe.

Even though Respondent argues that there is no evidence of actual physical contact between the boom and the wire, the testimony taken as a whole makes it abundantly clear that the boom did actually touch it. Three witnesses described burn or arc marks on the back of the boom. These are located near the outer end of the boom, about 18 inches from the "knuckle." One of the witnesses testified that the location of the marks indicated that the boom was raised under the wire in such a way that the wire hit it at least three times. Residue from the aluminum insulation or outer coating on the transmission line was observed adhering to the boom at the location of the are marks. These same witnesses also observed burn marks and breaks or knicks in the insulation or outer coating of the transmission line. The tenor of their testimony is that the boom touched the wire (Tr. pp. 11, 12, 24, 35, 36, 56, 57, 58 and 81).

It is to be noted that the standard requires that clearance between the transmission line and any part of the equipment be a minimum of 10 feet where the line is carrying more than 50,000 volts. Thus Complainant is not required to prove that the boom actually touched the wire. Complainant only has to show that it came within the proscribed distance. The weight of the evidence discussed above clearly supports the conclusion that the boom actually touched the wire. Complainant has carried its burden. This Citation is affirmed.

Respondent argues that the flexible wire could not deflect the massive boom. There can be no disagreement with this argument. However, it gains Respondent no advantage. It is equally as obvious that when an object such as the boom hits a wire festooned between poles, the wire will freely sway away and back, striking the boom a number of times as long as it is in close proximity. This is undoubtedly what occurred in this instance and explains the three separate arc burns. In any event it is concluded that the boom actually touched the wire, drawing the lethal voltage to the ground through the unfortunate employee.

Complainant proposes assessment of the maximum penalty in connection with this citation. The maximum is reduced 10% for size of Respondent's business. No reduction is recommended for history or good faith. Since a death did result from this violation, the severity is of the highest order. In view of all of the circumstances outlined herein, it is found that the $900 penalty is reasonable and will effectuate the purpose and intent of the Act. The penalty of $900 is affirmed.

CITATION FOR SERIOUS VIOLATION -- NO. 2

This citation results from Respondent's failure to store and retain the excavated materials (spoil) two feet or more from the side of the ditch. Respondent relies on selected portions of the testimony and concludes that Complainant has failed to sustain its burden of proof in connection with this citation.

Respondent's engineer at the worksite testifies generally that the spoil was always placed at least a foot and one-half to two feet from the edge of the ditch. This witness does not testify as to the specific distance the spoil was back from the edge on any given day. Respondent's Secretary-Treasurer only testified that after the spoil remains beside the ditch for a period of time in warm weather, it has a tendency to spread or flatten out due to melting of the frozen spoil. This is apparently offered to show that the spoil did just this in the five days between the accident and the inspection by the CSHO. Respondent would thus negate the testimony of the CSHO. But his testimony is fully supported by that of the state safety inspector.

Respondent correctly quotes the testimony of the state safety inspector but gives it no weight. This witness visited the worksite on several occasions before the accident as well as on the morning following the electrocution. His testimony is clear.

Q. Do you recall where the excavated material was located with respect to the edge of the ditch? Was the material right at the edge of the ditch or was it removed --

A. That's another problem we had. On almost every job inspection we had to get them to keep their spoil back within two foot of the side of the ditch which is in accordance with our code.

Q. I assume from your answer that the material was located next to the ditch.

A. Yes, it was. In fact, my boss, Smith, called it to our attention about the spoil. That morning it was piled right at the edge of the ditch. It wasn't back two foot (sic) (Emphasis added) (Tr. 11).

Q. Yes, that morning. What was the condition of the walls?

A. They were sloped pretty well that next morning, but the spoil was piled right alongside (sic) of the ditch (Emphasis added) (Tr. 13).

Q. Well, getting back to the excavated material, where, generally, was the material located on your earlier inspection? Was it located right next to the ditch?

A. Yes, most of the time. It was never two foot (Emphasis added) (Tr. 14 and 15).

There is no doubt. The spoil was piled right to the edge of the ditch on the morning following the electrocution. There was no time for it to spread or flatten as Respondent implies. Nor is there any reason to question the testimony of this disinterested, percipient witness.

One other point raised by Respondent requires mentioning. The testimony of Respondent's engineer to the effect that there was never any problem with the spoil falling back in the ditch is cited in support of the conclusion that the spoil was always placed a safe distance from the side of the ditch. The testimony of the CSHO is to the contrary. He testifies that one of Respondent's employees was hit and injured by some spoil which fell back into the trench (Tr. 51). This testimony came on cross-examination of the CSHO with no later attempt by Respondent to refute it. Respondent's engineer at the worksite confirms the injury (Tr. 87).

The credible evidence is clear. The spoil was piled to the very edge of the ditch in violation of the cited standard. The above noted falling of some of the spoil into the ditch causing injury to one of Respondent's employees is exactly the type of danger toward which the standard is directed. The need to pile the spoil at least two feet from the edge would be even greater under the circumstances here where the frozen spoil can melt and spread and thereby move or fall back into the ditch. This Citation is affirmed.

Again Complainant recommends assessment of the maximum penalty and gives 10% credit for size of the business. No further credits are given. In view of the record of a number of warnings by the state safety inspector with regard to the distance from the edge of the ditch at which the spoil should be stored and the previous injury to one of Respondent's employees by falling spoil, the penalty of $900 is considered reasonable and appropriate. The purpose and intent of the Act will be effectuated by such an assessment. The penalty of $900 is affirmed.

CITATION FOR SERIOUS VIOLATION -- NO. 3

This citation arises from Respondent's failure to sheet, shore, brace, slope to angle of repose, or otherwise protect employees working in the open ditch. The testimony on this point is conclusive. During all of the inspections made by the state safety inspector there was never any indications that any sheeting, shoring, or bracing had been used (Tr. 18). A trench shield was not used (Tr. 34).

The only possible safety precaution taken by Respondent in this regard is the sloping of the sides of the ditch. However, the testimony establishes that the sides were not sloped in accordance with the provisions of the standard. The slope (angle of repose) required by the cited standard for ditches excavated in unstable material such as that involved here, is "1/2 to 1". That is -- for every foot of rise from the bottom of the ditch the side must be out from the vertical a distance of at least 6 inches. Thus, in a ditch 12 feet deep the width of the ditch at ground level must be at least 12 feet plus the width of its flat bottom. This results from equal sloping of each side.

The ditch in question here did not meet the standard. By measurement the ditch was found to be 12 to 14 feet deep five days after the fatality. Actual measurement revealed that it was only 10 feet wide at its widest point (Tr. 34). These measurements were taken after there had been some "sluffing" from the sides which tended to slope them more. Even with such "sluffing" the slope did not meet appropriate standards.

In several inspections of the worksite prior to the accident, the state safety inspector found that the sides of the ditch were not sloped at the ratio of 1/2 to 1 as is required by the cited standard and by the state code. His testimony is clear.

Q. Do you recall how wide it was?

A. Well, it varied at different times. A lot of times we got out there, it wasn't dug to the angle of repose so we'd (sic) make them widen it.

Q. Were the sides of the ditch you observed, were they sloped?

A. Not always, we had a problem with that particular job. We had to be on them all the time.

Q. Were the sides sloped?

A. Well, on some occasions they were and other occasions they weren't. A number of times when I went out there I'd have to make them get the men out of the ditch and slope it (Tr. 7 and 8).

The credible evidence supports a finding that the sides of the ditch were not sloped in accordance with the cited standard. The testimony of the CSHO with regard to the dimensions of the ditch is accepted over that of Respondent's engineer. The CSHO actually measured the dimensions whereas the engineer estimated them generally. The CSHO's testimony is also confirmed by that of the disinterested state safety inspector. Respondent did not comply with the applicable standard. The Citation is affirmed.

Again Complainant recommends an unadjusted penalty of $1000 and reduces that figure 10% for Respondent's size. No other credit is given. In view of the circumstances. Respondent is not entitled to any further credit. The repeated warnings and actual requirement of halting work to widen the ditch and slope its sides is indicative of Respondent's general disregard of safety requirements in this ditch excavation. The penalty of $900 is affirmed as being reasonable under the Act.

FINDINGS OF FACT

1. F.F. Green Construction Company, Inc., Respondent herein, is a corporation with its principal office located at 536 East 48th Ave., Anchorage, Alaska.

2. On 19 and 24 April 1972, and at all other times pertinent hereto, Respondent was engaged in construction work and was digging a ditch and laying a waterline in Anchorage, Alaska. In this construction work, Respondent used raw materials, machinery and other goods brought directly or indirectly from points outside the state of Alaska. Respondent also utilized the mails, telephone and other facilities of interstate commerce.

3. Respondent employed four or five employees at the worksite at the times pertinent hereto.

4. As the result of an inspection of Respondent's worksite on 24 April 1972. Respondent was issued a citation dated 31 May 1972, alleging violation of 29 CFR 1904.8 in that Respondent failed to report a fatality within 48 hours after its occurrence. On the same Citation and as the result of the same inspection, it is alleged that Respondent violated 29 CFR 1926.550(a)(15)(iv) on 19 April 1972 in failing to designate a person to observe clearance of the boom of Respondent's backhoe while the backhoe was working in close proximity to an energized 115,000 volt transmission line.

5. As the result of an inspection of Respondent's worksite on 24 April 1972, Respondent was issued three (3) Citations for Serious Violations dated 31 May 1972, alleging that on 19 April 1972, Respondent violated the following standards:

No. 1 -- 29 CFR 1926.550(a)(15)(xi) in failing to maintain sufficient clearance of at least 10 feet between the boom of a backhoe and an energized 115,000 volt transmission line.

No. 2 -- 29 CFR 1926.651(i)(1) in failing to store and retain excavated material 2 feet or more from the edge of an excavation that employees are required to enter and work in.

No. 3 -- 29 CFR 1926.652(b) in failing to shore, sheet, brace, slope to angle of repose, or otherwise protect employees working in an open trench more than 5 feet deep in non-homogenous soils.

6. On 31 May 1972 Respondent was issued a Notification of Proposed Penalty proposing the assessment of penalties of $200 and $225 respectively on the non-serious violations and $900 on each of the three serious violations for which Respondent was cited.

7. Respondent contested each of the Citations and corresponding proposed penalties in a timely manner. A Complaint and Answer were filed and the matter came on in due course for hearing pursuant to notice.

8. Prior to 19 April 1972, Respondent's worksite at Anchorage, Alaska was inspected by state safety inspectors on several occasions. These inspectors frequently noted violations of the state safety standards with regard to placement of the excavated materials (spoil) and sloping of the sides of the ditch. On occasion the inspectors required Respondent to move the spoil further from the ditch so as to comply with the state safety standards. The inspectors also required the employees to come out of the ditch while it was widened to the appropriate slope (angle of repose). The state inspectors instructed Respondent's employees with regard to safety standards and procedures.

9. The standards enforced by Alaska require that spoil be placed at least two feet from the side of the excavation which is the same as the OSHA requirement. The state standards as well as the OSHA standards require that the sides be sloped at a ratio of 1/2 to 1 (Tr., pgs. 8, 11, 34, 35, 49 and 54).

10. On 19 April 1972 one of Respondent's employees working at the Anchorage worksite was electrocuted. At the time of his death the unfortunate employee was holding and guiding a pipe suspended from a sling attached to the boom of Respondent's backhoe. The boom was turned toward the nearby energized 115,000 volt transmission line to pick up the pipe. It touched the transmission line and drew sufficient current from that source to electrocute the employee (Tr., pgs. 60, 70, 71, 90 and 91).

11. The death of Respondent's employee was reported to state officials by Respondent but was not reported directly to OSHA. Respondent did not report the fatality to OSHA or cause it to be reported. OSHA learned of the death from the state safety officials through a telephone call to the OSHA CSHO on the date of the death.

12. On 19 April 1972 one of Respondent's employees was assigned to the backhoe as an oiler-observer. Respondent instructed him to watch for the safety of the men working in the ditch and for general safety around the backhoe. He was not instructed by Respondent to observe the clearance from the nearby transmission line (Tr., pgs. 69, 78 and 79).

13. The transmission line carried 115,000 volts and was energized. It was the source of the lethal charge of electricity. The wire nearest the ditch was 35 feet from the centerline of the trench and 29 feet above the ground (Tr., pgs. 54 and 58).

14. The ditch being excavated by Respondent in Anchorage, Alaska on 19 April 1972 was 12 to 14 feet deep and 10 feet wide at its widest point. The soil was composed of sand and gravel with an overburden of approximately 3 to 5 feet of muskeg or tundra. On 19 April 1972, the ground in the area of the excavation was frozen to a depth of 3 to 5 feet (Tr., pgs. 7, 12, 21, 24, 25 and 33).

15. Most of the excavated materials were stored on the side of the ditch nearest the transmission line. These materials were piled right to the edge of the ditch on 19 April 1972 (Tr., pgs. 10 and 11).

16. Prior to and on 19 April 1972 the sides of the ditch being excavated by Respondent in Anchorage, Alaska were not shored, sheeted or braced. A trench shield was not in use. The slope of the sides of the ditch were steeper than a ratio of 1/2 to 1.

CONCLUSIONS OF LAW

1. At all times material hereto, Respondent, F.F. Green Construction Company, Inc., was an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding.

2. Respondent violated 29 CFR 1904.8 in failing to report the death of one of its employees at its worksite in Anchorage, Alaska within 48 hours after the death which occurred on 19 April 1972.

3. On 19 April 1972 Respondent violated 29 CFR 1926.550(a)(15)(iv) at its worksite in Anchorage, Alaska in failing to designate a person to observe the clearance of its backhoe boom from a nearby energized 115,000 volt transmission line.

4. On 19 April 1972 at its worksite in Anchorage, Alaska Respondent violated the standards set forth at 29 CFR 1926.550(a)(15)(ii), 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(b).

5. The violations listed in Conclusions 2. and 3. are non-serious. The three violations listed in Conclusion 4 are serious violations within the meaning of Section 17(k) of the Act.

6. Penalties of $200 and $225 respectively for the violations referred to in Conclusions 2 and 3 above and $900 for each of the three serious violations referred to in Conclusion 4 above are appropriate and reasonable under the circumstances and are in full accord with the requirements of law and fulfill the intent and purpose of the Occupational Safety and Health Act of 1970.

ORDER

Based upon the entire record herein, the foregoing Findings and Conclusions, for good cause shown and in accordance with Section 10 of the Act, it is hereby

ORDERED that the Citations and corresponding proposed penalties herein, and each of them, be and the same are hereby AFFIRMED.