MID-STATES CONSTRUCTION CO., INC.
OSHRC Docket No. 10932
Occupational Safety and Health Review Commission
January 16, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Howard C. Ladd, President and Melvin Meyer, Safety Consultant, Mid-States Construction Co., Inc., for the employer
OPINION:
BY THE COMMISSION:
The Secretary of Labor cited Mid-States Construction Company for allegedly violating several OSHA construction safety standards. Judge Paul E. Dixon found that the company violated 29 C.F.R. 1926.652(g)(1) by inadequately shoring a trench, and 29 C.F.R. 1926.550(a)(9) by not barricading the swing radius of a crane. He vacated an item of the citation alleging that Mid-States violated 29 C.F.R. 1926.300(b)(2) by not guarding certain moving machine parts, and denied the Secretary's motion to amend to allege that the unguarded parts violated other standards. The Commission members agree that the Judge correctly disposed of the crane barricading charge, but disagree on the proper disposition of the remaining allegations. In view of the absence of a third member since April 28, 1977, and the statutory purpose of expeditious adjudication, the members agree to resolve their impasse by affirming [*2] the Judge's decision, but according his decision, insofar as it disposes of the charges on which they disagree, the precedential value of an unreviewed Judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977).
Alleged Violation of 29 C.F.R. 1926.652(g)(1) n1
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n1 This standard provides that "minimum requirements for trench timbering shall be in accordance with Table P-2." Insofar as here relevant, Table P-2 states that, for trenches five to ten feet deep in hard, compact soil, the uprights and cross braces of a shoring system shall have a maximum horizontal spacing of six feet, and the cross braces must not be spaced more than four feet apart vertically.
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Mid-States had dug a trench to lay a storm sewer. The trench was six feet wide, seven feet three inches deep, and was dug in hard, compact soil. The sections of sewer pipe were six feet long and four feet in diameter.
The sides of the trench were vertical, and Mid-States had [*3] installed a shoring system to prevent them from collapsing. Uprights were installed on each side of the trench at six foot six inch intervals along the length of the trench. Each pair of uprights was supported by a single cross brace located five feet three inches from the bottom of the trench. The Secretary alleged that Mid-States violated the standard by spacing the uprights at intervals greater than six feet, and by failing to install a second cross brace for each pair of uprights within four feet of the first. Mid-States' foreman testified that the shoring system suggested by the Secretary would have prevented the placement of the six foot long, four foot diameter pipes in the trench. In his opinion, the soil was unusually hard and the existing shoring system was adequate to support the sides of the trench.
Judge Dixon concluded that Mid-States violated the standard because its shoring system deviated from the minimum requirements of Table P-2. n2
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n2 The Judge refused to permit the Secretary to amend his citation to allege that Mid-States also violated 29 C.F.R. 1926.652(c), which provides:
Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. . . .
The Secretary contends that the Judge erred in denying the amendment, but notes that the error was not prejudicial because the Judge affirmed the 1926.652(g)(1) charge.
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Chairman Cleary agrees with the Judge's conclusion that Mid-States failed to comply with the mandatory minimum requirements of Table P-2. n3 He rejects the company's contention that the pipe could not have been laid if lower cross braces were installed or if the cross braces were more closely spaced. Protection against a cave-in can be achieved by sloping, instead of shoring, the sides of the trench, and Mid-States' foreman admitted that the sides could have been sloped. Thus, Mid-States cannot successfully argue that compliance was impossible. See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).
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n3 Chairman Cleary agrees with the complainant's contention that two cross braces should have been used to support each pair of uprights. He also finds that the instant case is distinguishable from D. Federico Co., infra, as that case did not involve a violation of 1926.652(g)(1).
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Commissioner Barnako would find that the shoring system was adequate. He notes that, regardless of whether the citation is amended to allege a violation of 1926.652(c), (see n.2, supra), the cited standard, 1926.652(g)(1), must be read in conjunction with 1926.652(c), which is the basic standard applicable to trenches dug in hard or compact soil. In his view, Table P-2 does not establish exclusive shoring requirements, but only serves as a guideline. D. Federico Co., 4 BNA OSHC 1790, 1976-77 CCH OSHD para. 21,233 (No. 9879, 1976), and cases cited therein. The ultimate question is whether the shoring system is adequate to support the walls of the trench. In this case, the shoring system deviated only slightly from Table P-2; if the uprights had been six inches closer, and the cross braces had been one foot three inches lower, the requirements of the table would have been met. Combined with the foreman's testimony that the soil was unusually hard, and his uncontradicted opinion that the shoring as installed was adequate, the preponderance of the evidence establishes the trench complied with the applicable standards.
Alleged Violation of 29 C.F.R. 1926.550(a)(9) [*6] n4
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n4 This standard provides:
Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.
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The sections of pipe were lowered into the trench by means of a truck-mounted crane located near the edge of the trench. Mid-States' employees entered and existed the trench by means of a ladder near the crane, the thus had access to the swing radius. A physical barricade was not used to guard the swing radius. Instead, a flagman was supposed to watch for personnel who may be near the crane, and the crane operator relied on the flagman to warn him if anyone approached the crane.
Judge Dixon concluded that the flagman was not an adequate barricade because he had other duties to perform than simply watching for personnel who may be near the swing radius. He therefore found Mid-States in violation.
The Commission has held that the standard [*7] requires a physical barricade instead of reliance on a flagman. Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD para. 21,269 (No. 5692, 1976), pet. for review filed, No. 77-3007 (6th Cir. Jan. 7, 1977). Therefore, regardless of whether the flagman had other duties to perform, Mid-States violated the standard. Mid-States' argument that the installation of barricades in nearly impossible because of the frequent moves the crane must make is not supported by any evidence of record, and we have previously rejected a similar argument. Concrete Construction Co., supra. Accordingly, we affirm the Judge's disposition of this item.
Alleged Violation of 29 C.F.R. 1926.300(b)(2) n5
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n5 This standard is located in Subpart I of the Secretary's construction safety standards. Subpart I is headed, "Tools - Hand and Power." Subsection 300(b)(2) provides:
Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institute, B51.1.-1953 (R1958), Safety Code for Mechanical Power-Transmission Apparatus.
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The citation alleged that the starter pulley for the motor of a wheel mounted cement mixer and the drive chain for the conveyer of a trench liner excavating machine were not guarded against accidental contact.
Approximately six weeks prior to the hearing, in response to a request for admissions, Mid-States contended, "it is our belief that the rules and regulations covering these two pieces of equipment are found in other sub-parts of the Standards and anyone trying to comply with the standards would not look under the subpart topic of Tools - Hand and Power." At the outset of the hearing, the Secretary conceded that 1926.300(d)(2) did not apply to the cited machines. He moved, however, to amend the citation to charge that the cement mixer violated 1926.700(a), n6 and the trench liner violated 1926.602(b)(3). n7 He argued that Mid-States would not be prejudiced by the amendment because the nature of the charges - failure to guard moving parts - remained the same. He also contended that Mid-States would not be surprised by the amendment because the company was already aware that standards other than [*9] those cited were applicable, as shown by its response to the request for admissions. Mid-States objected to the amendment, arguing it was not prepared to defend against standards other than that cited.
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n6 This standard provides:
All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9 - 1970, Safety Requirements for Concrete Construction and Masonry Work.
Section 5.2.14 of ANSI A10.9 - 1970 is identical to 1926.300(b)(2), quoted supra, n. 4.
n7 This standard provides:
(b) Excavating and other equipment. . . (3) The safety requirements, ratios, or limitations applicable to machines or attachment usage covered in Power Crane and Shovel Association Standards No. 1 and No. 2 of 1968, and No. 3 of 1969, shall be complied with, and shall apply to cranes, machines, and attachments under this part.
Section 8.1.11.4 of PCSA No. 1 provides:
Safety Guards - Insofar as practicable all moving machine parts exposed to contact by personnel while following normal and proper operating and maintenance procedure shall be provided with suitable guards.
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Judge Dixon denied the motion to amend. He did, however, permit the Secretary to introduce, as an offer of proof, the testimony of the compliance officer who had inspected Mid-States' worksite. This witness testified that the moving parts were unguarded as alleged.
Chairman Cleary would reverse the Judge's ruling and permit the amendment. In his view, the amendment would not alter either the factual allegations of the citation or the means of abating the alleged violative conditions, but merely would change the section of the standards Mid-States allegedly violated. Such amendments are consistent with the particularity requirement of 29 U.S.C. 658(a), and should be routinely allowed. Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2nd Cir., August 29, 1977), unofficially reported 5 BNA OSHC 1793; Kaiser Aluminum & Chemical Corp., 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD para. 21,692 (No. 3685, 1977), pet. for review filed, No. 77-2280 (9th Cir., June 10, 1977). Because the amendment did not change the factual allegation, and because Mid-States was aware that an improper standard [*11] had been cited, granting the amendment would not have prejudiced Mid-States' defense. Moreover, even if Mid-States would have been prejudiced, the proper course would have been to grant a continuance. Cornell & Co., 76 OSAHRC 122/C11, 4 BNA OSHC 1715, 1976-77 CCH OSHD para. 21,118 (No. 9054, 1976), pet. for review filed, No. 75-2513 (3rd Cir., Nov. 19, 1976); Usery v. Marquette Cement Mfg. Co., supra.
Chairman Cleary finds that the Secretary established a prima facie case by showing that the cement mixer pulley and the trench liner chain were unguarded. Since the Judge denied the motion to amend at the hearing, however, Mid-States did not have a full opportunity to present its defense. Chairman Cleary would therefore remand to permit Mid-States to present evidence on the alleged violations. See Big "6" Drilling Co., 77 OSAHRC 151/E9, 5 BNA OSHC 1683, 1977-78 CCH OSHD para. 22,039 (No. 13973, 1977).
Commissioner Barnako agrees that amendments of this type, which do not change the factual allegations of the citation, should normally be allowed. Kaiser Aluminum & Chemical Corp., supra. It is, however, within the Commission's discretion to deny such amendments [*12] in appropriate circumstances. "Justification for denying leave to amend might be the bad faith of the moving party, undue prejudice to the opposing party, or undue delay." Usery v. Marquette Cement Mfg. Co., 5 BNA OSHC at 1976 (citations omitted).
Mid-States informed the Secretary well in advance of the hearing that it thought the cited standard was inapplicable. The Secretary could have moved to amend prior to the hearing; had he done so, Mid-States could have appeared at the hearing prepared to defend against the amended charge. Instead, Mid-States reasonably believed that the Secretary would proceed under the original charge, and appeared at the hearing prepared to defend against that charge. The Secretary then moved to amend. In order to receive a fair opportunity to defend against the amended charge, Mid-States would have had to seek a continuance.
Employers who appear before the Commission are entitled to a fair opportunity to be heard. In a case of this type, involving a violation alleged to be nonserious in nature and a proposed penalty of $40, the necessity to seek a continuance may so increase the cost of trying the case that the employer's right to a hearing [*13] is effectively denied. While this may be unavoidable in some cases, in this case the motion could have and should have been made earlier. Commissioner Barnako concludes that the Secretary was guilty of undue delay in making the motion, and would deny it on that basis. See Roof Engineering Corp., 77 OSAHRC 2/D11, 4 BNA OSHC 1942, 1976-77 CCH OSHD para. 21,416 (No. 6972, 1977) (concurring opinion).
Accordingly, the Judge's decision is affirmed.