PUTERBAUGH ENTERPRISES, INC.  

OSHRC Docket No. 1097

Occupational Safety and Health Review Commission

July 1, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On January 8, 1973, Judge Henry F. Martin, Jr., issued his decision and order in this case, affirming the Secretary's citation and proposed penalty of $550 for one alleged serious violation, affirming the citation and proposed penalty of $25 for one alleged non-serious violation, vacating the citation and proposed penalty of $25 for another alleged non-serious violation, and vacating four alleged non-serious recordkeeping violations for which no penalties were proposed.

On February 8, 1973, the Commission directed that the decision and order of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq., hereinafter referred to as "the Act").

The Commission has reviewed the entire record in this case and adopts the Judge's decision and order to the extent that it is consistent with the following.

Respondent, a plumbing subcontractor, was engaged in trenching and laying a six inch sewer pipeline in Fordyce, Arkansas.   At one end of the trench was a manhole that was being completed by a bricklayer working for   [*2]   respondent.   From this point, the trench had been dug approximately 60 feet of the nearly 300 feet for the entire project.   The trench was about ten feet deep and two feet wide.   The walls of the trench were vertical.   No sloping, shoring, bracing, or sheeting of the trench walls was provided, although   there was some sloping around the manhole. In addition to the bricklayer, respondent had on the jobsite a backhoe operator and two employees working in and out of the trench laying the pipe.   On April 6, 1972, during a late morning break, the trench caved in, killing one of the pipe layers who had recently reentered the trench to resume work.

As a result of this fatal accident, respondent was inspected by authorized representatives of the Secretary of Labor on April 13 and 14, 1972.   On June 12, 1972, a citation was issued that alleged one serious violation and six non-serious items.   Those alleged violations are as follows:

Alleged Serious Violation

29 CFR §   1926.652(b) -- trenches unprotected by shoring, sheeting, bracing, sloping, or otherwise supported $550

Alleged Non-Serious Violations

Item 1 -- 29 CFR §   1903.2(a) -- OSHA poster not posted -- $0

Item 2 -- 29 [*3]   CFR §   1904.2 -- No log of occupational injuries and illnesses maintained -- $0

Item 3 -- 29 CFR §   1904.4 -- No detailed supplementary record of injuries and illnesses maintained -- $0

Item 4 -- 29 CFR §   1904.5 -- No annual summary of injuries and illnesses maintained -- $0

Item 5 -- 29 CFR §   1926.650(e) -- Lack of personal protective head equipment -- $25

Item 6 -- 29 CFR §   1926.652(h) -- Improper location of ladders -- $25

On September 19, 1972, a hearing was convened before Judge Henry F. Martin, Jr. On January 8, 1973, the Judge issued his decision and order that affirmed the citation for serious violation and proposed penalty of $550; vacated items 1, 2, 3 and 4 of the non-serious items on the grounds that the Secretary had failed to supply recordkeeping forms to respondent; vacated   item 5 and the $25 penalty proposed for this item because the Secretary failed to prove that personal protective head equipment was necessary; and affirmed item 6 and the $25 penalty proposed for this item.

On February 8, 1973, the Commission directed that the decision and order of the Judge be reviewed on the following issues:

1) Whether the citation and notification of proposed penalty [*4]   were timely issued and mailed to the respondent.

2) Whether alleged violations for failure to comply with 29 CFR §   1904.2, 29 CFR §   1904.4, and 29 CFR §   1904.5 were properly vacated for failure of the Secretary to furnish the designated forms.

3) Whether the alleged violation for failure to comply with 29 CFR §   1926.652(b) should be vacated for want of specificity in the standard.

4) Whether the alleged violation for failure to comply with 29 CFR §   1926.652(b) should be vacated for failure of the complainant to sustain his burden of proof that the sides of trenches were unstable or of soft material.

The first issue contained in the direction for review concerned the timeliness of the issuance of the citation and notification of proposed penalty, also known as "reasonable promptness." This was raised for the first time in the direction for review.   It was not raised before or during the hearing, and the issue is not something jurisdictional to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties.   See the majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., [*5]   No. 744 (January 24, 1974).   It is now well settled that under these circumstances the issue should not be examined.   See, e.g., Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).

  The third item of the direction for review, which conerns the question of whether the standard at 29 CFR §   1926.652(b) is sufficiently specific, was also raised as an issue for the first time in the direction for review.   It is our view that like the issue of reasonable promptness, this is not a jurisdictional issue to be raised at any time in the proceedings.

The second issue in the direction for review concerned the four alleged recordkeeping violations. Judge Martin vacated all four items on the grounds that the Secretary failed to provide respondent with the necessary forms and materials.   We disagree with this reasoning as to three of the four items.

Item 1 of the alleged non-serious violations alleged a failure to comply with 29 CFR §   1903.2(a), that requires each employer to post all pertinent OSHA materials, including an OSHA poster.   The regulation, however, clearly states that the material that is required to be posted [*6]   is "to be furnished" by the Secretary.   The record shows that no poster was ever furnished to respondent.   Therefore, we agree with the Judge's vacating of this item.

Items 2 and 3 charged that respondent failed to maintain logs and records of occupational injuries and illnesses in contravention of 29 CFR §   1904.2 and 29 CFR §   1904.4.   Although OSHA forms 100 and 101 are expressly for this purpose, the regulation does not require the use of these forms.   Any reasonable alternative will suffice.   As a result, respondent cannot evade its responsibility for recordkeeping under the Act merely because it was not supplied with the OSHA forms.

Item 4 alleged a failure to comply with 29 CFR §   1904.5, that requires that an annual summary of occupational injuries and illnesses be maintained.   Unlike the injury records discussed in items 2 and 3,   this annual summary must follow OSHA form, No. 102.   The form and the instructions, thereto, are published in the Code of Federal Regulations as an appendix to Part 1904. n1 The initial publication was at 36 Fed. Reg. 12613 (July 2, 1971).   Accordingly, respondent was properly cited under section 9(a) of the Act for failure to maintain this [*7]   important record.

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n1 The appendix also publishes Form No. 101, the Supplementary Record of Occupational Injuries and Illnesses. The information required for the Log of Occupational Injuries and Illnesses is adequately described in section 1904.2.

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The final item in the direction for review concerns the significant factual question of whether the Secretary proved that the sides of the trenches were unstable or of soft material.   The Judge found that the Secretary did meet his burden of proof.   We agree.

Although differing in their opinions as to the hardness of the soil, both complainant's and respondent's witnesses agreed that the soil was composed of clay, sand, and gravel.   Table P-1 specifically states that "clays, silts, loams or non-homogenous soils require shoring and bracing." In fact, as footnoted in Table P-2, the only type of soil not requiring shoring is solid rock, hard shale, or hard slag.   There is no evidence at all that the completely vertical trench was dug into this latter type of soil. Despite [*8]   the absence of actual soil tests the preponderance of the evidence supports the Judge's finding that the soil was not hard.

Respondent's brief also was addressed to the ladder violation, item 6.   The Judge concluded that there was only one ladder in use at the trench site, located at the manhole. This was some 60 feet from the workers who were fitting the pipe, and therefore constituted a failure to comply with the provisions of 29 CFR   §   1926.652(h) requiring a ladder be within 25 feet of every worker in a trench. We have reviewed the record and completely agree with Judge Martin in this regard.

In view of the low gravity and clear good faith of the employer, we assess no penalty for the recordkeeping violations discussed above.   Concerning the remaining violations, we affirm the penalties assessed by the Administrative Law Judge for the reasons assigned by him.

Accordingly, it is ORDERED that the citation for serious violation and proposed penalty of $550 is affirmed; the non-serious violations and penalties proposed therefor in items 1 and 5 are vacated; the non-serious recordkeeping violations and $0 proposed penalties alleged in items 2, 3, and 4 are affirmed; the [*9]   non-serious violation charged in item 6 and $25 penalty proposed for this item is affirmed.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: Although an employee died as a result of the trench cave-in, there was a delay of 59 days between the inspection and the issuance of the citations.   This was 56 days longer than Congress intended.   For the reasons expressed in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,   658(a).

Additionally, the Commission errs in not addressing the issue of whether 29 C.F.R. §   1926.652(b) is sufficiently specific to qualify as an occupational safety and health standard.

We have previously held that the role of this   Commission is to function as an appellate court.   Secretary v. Wetmore & Parman, Inc.,   As such, we should apply the plain error rule as it is applied by the appellate courts.   See United Brotherhood of Carpenters & Joiners of America    [*10]   v. United States, 330 U.S. 395, 412 (1947); United States v. Atkinson, 297 U.S. 157 (1936); United States v. Harris, 79 F.2d 341 (9th Cir. 1935); United States v. White, 77 F.2d 757 (9th Cir. 1935); 5 C.J.S.   Appeal & Error §   1239 (1958).   Also, since the Act provides for the Commission to direct review of a case even though there has been no petition therefor by the parties, I consider it our duty to invoke the plain error rule when it is applicable.   29 U.S.C. §   661(i); see United States v. McGee, 464 F.2d 542 (5th Cir. 1972).

To qualify as an occupational safety or health standard under 29 U.S.C. §   652(8), it is essential that a regulation clearly and comprehensively identify the hazard to be corrected and specify what must be done to prevent its occurrence.   Secretary v. Santa Fe Trail Transportation Company,   If an agency promulgates a regulation that does not conform to what Congress authorized, it is void.   See Utah Power & Light Company v. United States, 243 U.S. 389, 410 (1917); Federal Maritime Commission v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964).

A decision holding that [*11]   a respondent violated a void regulation is also void.   Of course, like a court, the Commission can set aside a void judgment on its own motion after giving notice of the contemplated action and affording the adversely affected party an opportunity to be heard.   See United States v. Milana, 148 F. Supp. 153 (E.D. Mich. 1957). Furthermore, a question of subject matter jurisdiction is raised when   the validity of a standard is in issue.   See Secretary v. Stevens Equipment Company,   Jurisdictional issues may be raised by the Commission at any time on its own motion.   See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir. 1941); Fed. R. Civ. P. 12(h)(3).

[The Judge's decision referred to herein follows]

MARTIN, JUDGE, OSAHRC: This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), hereinafter referred to as the Act, to review a citation and proposed penalties issued by the Secretary of Labor, hereinafter referred to as the Complainant, pursuant to Section 9(a) and 10(a) of the [*12]   Act.

The citation for serious violation was issued June 12, 1972, alleging a violation of Section 29 CFR 1926.652(b) for failure to shore, brace, sheet or slope a trench more than 5 feet deep which Puterbaugh Enterprises, Inc., hereinafter referred to as Respondent, was digging in Fordyce, Arkansas, on April 6, 1972.   A notice of proposed penalty was issued simultaneously, proposing a penalty of $550.00.

The citation also alleges nonserious violations of Sections 29 CFR 1903.2(a), 1904.2, 1904.4 and 1904.5, which relate to the failure to display the Occupational Safety and Health Administration poster, and failure to comply with certain record keeping requirements.   No penalty was proposed for these items.   The citations further alleged violations of   Sections 29 CFR 1926.650(e) and 1926.652(h) for failure to wear protective head equipment; i.e., hard hats, and failure to have a ladder in a trench within 25 feet laterally from employees.   A $25.00 penalty was proposed for each of the foregoing items in the citation.

On June 28, 1972, Respondent's counsel notified Complainant that it wished to contest the citation and the proposed $600.00 penalty. Subsequently, on July [*13]   12, 1972, Complainant issued his formal complaint, setting forth substantially the same matters referred to in the citation and notification of proposed penalty. Respondent, on July 20, 1972, filed an answer to the complaint.

This case was assigned to the undersigned and pursuant to notice, a hearing was held in Little Rock, Arkansas, on September 19, 1972.   Subsequent to the hearing, Complainant and Respondent submitted briefs and proposed findings of fact and conclusions of law.

The basic issues to be determined herein are whether there have been violations of the various safety standards as alleged in the citation and complaint.   If a violation of 29 CFR 1926.652(b) occurred, the question arises as to whether the violation was of a serious nature as specified in Section 17(k) of the Act.   In the event any violations occurred, a further determination must be made as to the appropriate penalties, if any, to be imposed under the Act.

The alleged violations herein arose as a result of an inspection of Respondent's work site at a sewer line excavation at Fordyce, Arkansas, in April 1972, following a cave-in fatality.   Counsel for the Secretary and Respondent stipulated that Respondent's [*14]   full name is Puterbaugh Enterprises, Incorporated, located at 909 West 4th Street, Fordyce, Arkansas;   that it is engaged in a business affecting commerce; that the agency has jurisdiction over the subject matter herein; that Respondent employs an average of 32 employees; that Respondent is one of the smaller contractors in the Fordyce area doing underground sewer work, and that its net worth is between $75,000.00 and $100,000.00.   It was further stipulated that the citation and notice of proposed penalty were properly served on Respondent and that the citation and notice of hearing were properly posted.

Items 1, 2, 3, and 4 of the citation, for which no penalty was proposed, are set forth as follows:

Item 1. -- 29 CFR 1903.2(a). -- Occupational Safety and Health Poster was not posted in a conspicuous place where notices to employees are customarily posted.

Item 2. -- 29 CFR 1904.2 -- Occupational Safety and Health Administration OSHA Form #100 or private equivalent was not maintained readily available in the establishment to record all recordable occupational injuries and illnesses.

Item 3. -- 29 CFR 1904.4. -- Occupational Safety and Health Administration OSHA Form   [*15]   #101 or acceptable alternative record was not maintained at the establishment.

Item 4. -- 29 CFR 1904.5. -- Occupational Safety and Health Administration OSHA Form #102, Annual Summary of Occupational Injuries and Illnesses, was not compiled, posted, nor available for review.

The regulations pertinent to the foregoing items are as follows:

29 CFR 1903.2 -- Posting of notice; availability of the Act, regulations and applicable standards.   (a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.   Such notice or notices shall be posted by the employer in each establishment in a   conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

29 CFR 1904.2 -- Log [*16]   of occupational injuries and illnesses. Each employer subject to the Act shall maintain in each establishment, a log of occupational injuries and illnesses. Each employer shall record on the log each recordable occupational injury and illness within 2 working days after receiving information that a recordable case has occurred.   Occupational Safety and Health Administration Form OSHA No. 100 n1 shall be used for this purpose and shall be completed in the form and detail provided for in the form and the instructions contained therein.   The log may be maintained in another manner if approved in accordance with provisions of §   1904.13.

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n1 Filed as part of the original document.

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29 CFR 1904.4 -- Supplementary record.   In addition to the log of occupational injuries and illnesses provided for under §   1904.2, each employer subject to the act shall maintain at each establishment a supplementary record of occupational injuries and illnesses on which he shall record each recordable occupational injury of occupational illness [*17]   in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101.   Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101.   If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

29 CFR 1904.5 -- Annual summary.   (a) Each employer subject to the act shall compile an Annual Summary of Occupational Injuries and Illnesses, based on the information contained in the Log of Occupational Injuries and Illnesses. Occupational Safety and Health Administration Form OSHA No. 102 shall be used for this purpose and shall be completed no later than 1 month after the close of each calendar year (including calendar year 1971) in the form and detail provided for in the form and the instructions contained therein.   (b) The summary shall be maintained at each establishment. Each employer shall   post a copy of the summary at each establishment in a conspicuous place where notices to its employees are customarily posted. Each employer shall [*18]   take steps to insure that such notices are not altered, defaced, or covered by other material.

Respondent's answer admits the aforementioned recordkeeping violations.   Respondent's counsel, in his opening statement, amended the answer so as to include the contention that the Secretary never provided the Respondent with the necessary posters to advise Respondent's employees of the protection and obligations provided in the Occupational Safety and Health Act of 1970, and did not furnish other pertinent documents.   The evidence in the record shows that Respondent was not furnished copies of the aforementioned posters and other OSHA forms (Transcript, pages 113 and 114) until the date of inspection conducted on April 13 and 14, 1972.   Accordingly, no violation of Sections 29 CFR 1903.2(a), 1904.2, 1904.4 and 1904.5, will be found.

The citation for the alleged serious violation is set forth as follows:

Item 1 -- 29 CFR 1926.652(b) -- Sides of trenches in unstable or soft material and greater than 5 feet in depth were not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

Section 29 CFR 1926.652(b) provides [*19]   as follows:

Sides of trenches in unstable or soft material, five 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.)

The evidence disclosed that on April 6, 1972, Respondent, at its workplace at the intersection of Jackson Street and Hollywood Drive, in Fordyce, was engaged in a trenching operation for the purpose of installing a six inch clay sewer pipe.   A manhole was   located at the aforementioned intersection, and from this point a trench was dug due west for approximately 60 to 61 feet. The trench was approximately ten feet deep and 24 or 25 inches wide.   The walls of the trench were vertical.   No sloping, shoring, sheeting, bracing or other means of support for the walls of the trench were provided by Respondent.   A bricklayer was working, laying brick at the manhole site, two employees were working in and out of the trench placing sections of clay pipe in the trench, and a backhoe operator was operating his equipment, digging the trench in a westerly direction.   After the trench was dug,   [*20]   the four foot long sections of pipe were lowered into the trench and fitted together on a small amount of backfill.   Subsequently, the trench was backfilled as the work progressed.   During a late morning break, the south side of the trench caved in, n1 killing one of the pipe layers, Mr. Parnell, who had just returned to his place of work in the trench. Subsequent to the cave-in, the backhoe operator dug into the side of the trench to assist in getting the workman out.   Mr. McGriff, Respondent's supervisor, stated that when work was resumed, the trench was sloped to the angle of repose (Tr. 40).   Respondent also provided hard hats for all employees.   Respondent scheduled weekly meetings where employees were cautioned to be "safety conscious."

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n1 Respondent's president testified that about 3 feet of earth sloughed off into the trench (Tr. 163).

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None of the foregoing facts were in dispute.   The principal controversy arose over the type of soil at the trench site -- whether it was soft and unstable, or hard and compact.   [*21]   Four of Respondent's employees, as well as its president, testified that in their opinion the soil   was hard and not liable to cave-in. They described the soil as a "sandy clay type of soil," "hard clay," (Tr. 28); "gray type sandy clay -- fine gravel and sandy soil" (Tr. 63, 65); "kind of a hard, looked like a clay soil dirt" (Tr. 72); "kind of like soapstone, grayish mixture in there" (Tr. 81); "clay, sandy-type soil -- more clay than there was sand" (Tr. 163).   They testified that they were not aware of any cave-in fatalities in the Fordyce area.

An Arkansas State Inspector, Mr. Benning, described the soil as "light clay with sand -- sandy loam, a few pebbles -- less than hard -- more into the soft side -- medium -- liable to cave." He referred to Arkansas as "cave-in country," but he was unaware of any accidents of this type in the Fordyce area (Tr. 95).

Two Occupational Safety and Health Administration inspectors, Messrs.   Griffin and Johnson, testified that the soil was soft and unstable. One was of the view that the soil was sandy clay with "more sand and gravel" than clay (Tr. 117).   The other inspector described the soil as "mixture of sand, gravel and pieces [*22]   of clay." He was uncertain as to the percentage of each component (Tr. 130).   He admitted that no soil analysis was made at the accident site.

In Section 29 CFR 1926.653 unstable soil is defined as follows:

Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.

Webster's New World Dictionary has described the word "soft" as follows:

Giving way easily under pressure, as a feather pillow or moist clay.

  and, "hard" as follows:

Not easily dented, pierced, cut, or crushed; resistant to pressure; firm and unyielding to the touch, rigid; solid and compact.

While there are, of course, varying degress of hardness and softness, it is clear to the undersigned from all of the opinions expressed by the various witnesses that the soil in the trench on the date of the cave-in was unstable or soft as those terms were used in the applicable regulations. A careful reading of the entire section of 29 CFR 1926.652 leads to the definite conclusion that sloping, shoring, sheeting or bracing is required where employees [*23]   may be exposed to moving ground or cave-ins.

Specific attention is also directed to the Tables P-1 and P-2 of the same section.   In the note to Table P-1 the following language is used:

Clays, silts, loams or non-homogenous soils require shoring and bracing.   The presence of ground water requires special treatment.

Table P-2, which sets forth minimum trenching requirements for various types of soils, contains a footnote to the effect that "Shoring is not required in solid rock, hard shale, or hard slag." While Respondent and his employees may have thought that the soil was stable and although the Secretary's inspectors were of the opinion that the soil was unstable and "less than hard," the most convincing testimony was given by Mr. William Benning, the Arkansas State Inspector, who has performed safety work for more than nine years, who is generally familiar with soil conditions in Arkansas, and who has had considerable experience in construction and excavation work.   Inspector Benning arrived on the scene on the day following the accident, and made a determination that the soil was "medium soft." He   found the dirt to be slightly damp and discovered a spring (Tr. 95)   [*24]   some 20 feet above the trench (on the south side). n2 Mr. Benning testified that the spring could have been observed by others since it was not in a hidden location.   He testified that he discussed this dampness or spring with Respondent's superviosr, Mr. McGriff (Tr. 96, 97). n3 It is of interest to note that seepage or water was one of the factors which led Respondent to slope the trench as it was progressing south toward the manhole at the intersection of Jackson Street and Hollywood Drive.   The evidence discloses that the cave-in occurred only 61 feet west of the manhole. According to Respondent's Exhibit 1, Jug Creek is approximately 175 feet from the point of the cave-in. Since the ground was wet enough to cause Respondent to slope the section of the trench north of the manhole site, it would appear that good judgment would have dictated the sloping of the area immediately to the west of the manhole.

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n2 The cave-in occurred on the south side of the trench.

n3 Mr. McGriff was not questioned regarding the existence of the spring or as to any discussion about the matter with Inspector Benning.

  [*25]  

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Mr. Ragan, who was laying brick at the manhole (Complainant's Exhibit 3), testified that he had the backhoe operator slope the soil to the angle of repose as he had always had a fear of cave-ins since he was partially covered up in 1956 (Tr. 78-80).   Mr. Ragan's fear of cave-ins may well have resulted in the saving of his life, especially since there was evidence of softer dirt near the surface.

Based upon a careful review of all of the evidence, the undersigned concludes that the soil in the trench west of the intersection of Jackson Street and Hollywood Drive was unstable and that the same   should have been sloped, sheeted, braced and otherwise supported to protect employees working in the trench. The witnesses were in general agreement that the soil was composed of clay, sand and some small amount of gravel or pebbles, and the undersigned must therefore conclude that the soil was not "hard." This determiniation is made in spite of Respondent's contention that no core analysis or other scientific testing of the soil was made.   While such tests might have been of assistance to the trier of [*26]   the fact, it is abundantly clear from the testimony of several witnesses who have had considerable excavation experience that the ground was not "hard," but was instead a mixture of clay, sand, and some pebbles.   Although Respondent recognized the need of sloping the sides of the trench along Jackson Street, he failed to exercise the same degree of caution as to the excavation immediately to the west of the manhole where there was some water on the surface or a spring only 20 feet to the south of the ditch.   Respondent has cited the case of the Secretary of Labor v. The Waterville Company, Inc.,   Admittedly, the evidence in the case at hand is not as "open and shut" as that in the Waterville case. n4 However, the cited case does point up the seriousness of moisture and ground water in trenching operations which, according to the regulations, require special treatment.

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n4 There the soil was extremely wet and small slides had been noted prior to the cave-in.

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Item 5 of the citation alleges [*27]   a violation of Section 29 CFR 1926.650(e) in that Respondent's employees were not equipped or wearing protective head equipment.

  Section 29 CFR 1926.650(e) provides as follows:

All employees shall be protected with personal protective equipment for the protection of the head, eyes, respiratory organs, hands, feet, and other parts of the body as set forth in Subpart E of this part.

The evidence discloses that none of Respondent's workmen had been provided hard hats for the trenching operation.   Mr. Ragan, the bricklayer at the manhole location, (Complainant's Exhibit 3), had his own hard hat which he customarily wore at all times.

Respondent contended that no violation of the regulations occurred inasmuch as there was no danger of head injury from falling or flying objects on the date in question.   Section 29 CFR 1926.100 under Subpart E (Personal Protective and Life Saving Equipment), provides that "employees working in areas where there is a danger of head injury from impact or from falling or flying objects . . . shall be protected by protective helmets."

Since there is no testimony in the record that there were any falling or flying objects which could injure workmen [*28]   in the trench on April 6, 1972, it is concluded that Respondent was not in violation of Section 29 CFR 1926.650(e).   No employees were in the trench when the batter boards were being erected so there was no danger of shovels, hammers or other tools falling on them (Tr. 68).   The only falling objects might possibly be dirt or some small pebbles from the backhoe bucket.

Item 6 of the citation alleged a violation of Section 29 CFR 1926.652(h) in that Respondent did not have a sufficient number of ladders in the trench so as to provide a means of exit for employees without more than 25 feet of lateral travel.   The regulation provides as follows:

  Where employees are required to be in trenches three feet deep or more, ladders, extending from the floor of the trench excavation to at least three feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.

Respondent's supervisor, Mr. McGriff, testified on cross-examination that there were two aluminum ladders in the trench, one at the manhole where Mr. Ragan was laying brick, and another one which was being moved along down the trench so as to   [*29]   be within 20 or 25 feet of the men at all times.   However, on redirect examination, he admitted having given a statement to one of the OSHA inspectors, Mr. Griffin, after the cave-in, to the effect that there was only one ladder in the ditch located at the manhole about 61 feet away (Tr. 43).   He later admitted the possibility that one of the ladders might have been on one of his trucks, or one of Mr. Puterbaugh's, since he was positive that there were two ladders on the job.   Two of the employees who were at the job site, Mr. Marks and Mr. Belen, were not sure of the location of any ladder except the one at the manhole near Mr. Ragan.   Since Mr. McGriff was in the ditch on the morning of the cave-in, he was certainly in a position to know where the ladders were located.   It must be assumed that his memory was better at the time of the inspection or investigation than it was several months later at the hearing.   Because the evidence does not show more than one ladder in the ditch, which was at the manhole site some 60 feet or more from the cave-in, it must be found that there was not a ladder within 25 feet of Mr. McGriff, Mr. Marks, and Mr. Parnell, the deceased, and that a violation [*30]   of Section 29 CFR 1926.652(h) resulted.

Having concluded that Respondent violated the provisions of Section 29 CFR 1926.652(b) by failing   to slope, shore, sheet, brace or otherwise support the walls of the trench 10 feet deep and approximately 24 or 25 inches wide, the walls of which were vertical and composed of unstable material, the question remains as to whether there was a serious violation within the meaning of Section 17(k) of the Act.   Section 17(k) provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

It is clear from the wording contained in Section 17(k) that this Commission must base its determination that a violation is a serious one upon a finding that there is a substantial probability that death or serious physical [*31]   harm could result from an existing condition or operation.   The wording "substantial probability that death or serious physical harm could result" in essence means that there is a likelihood or probability that an accident might occur as a result of the violation of the quoted regulation, and further, that serious consequences could result from said accident.   The evidence here established that the sides of the trench were composed of a mixture of sand, clay and small pebbles, that the sides of the trench were vertical and in view of its extremely narrow width, it would be impossible for an employee to take any sort of evasive action in the event of a slide or cavein.   Respondent's employees appeared to have been willing to gamble on the stability of the soil, since it appeared to them to be drier than the soil in the trench on Jackson Street.   Since Respondent's employees   recognized the need for the sloping of the trench along Jackson Street because of moisture, it would appear that sound judgment would have required them to continue the sloping operation in the trench just west of Jackson Street and especially in view of its close proximity to the moisture on the surface.   [*32]   With due diligence it is felt that Respondent's employees could have observed the dampness or spring which Inspector Benning noted just 20 feet south of the point where the earth caved in.

Regarding the appropriateness of the penalty, it is noted that authority to assess civil penalties rests exclusively with the Commission.   Section 10(c) of the Act places upon the Commission the responsibility for affirming, modifying or vacating citations issued by the Secretary, as well as penalties proposed by the Secretary.   The Commission under Section 17(j) of the Act is required to find and give due consideration to the size of the employer's business, gravity of the violation, the good faith of the employer, and history of previous violations in determining the appropriateness of any civil penalty.   Inspector Griffin testified regarding the methodology which he used in arriving at the proposed penalty of $550.00 for Respondent's violation of 29 CFR 1926.652(b).   A twenty percent reduction was allowed for good faith, five percent for the size of the employer's operation, and twenty percent for history of previous violations.   While Respondent was cited by the Arkansas Department of Labor [*33]   for an improper electrical ground wire and inadequate toilet facilities, the record shows no prior violations of the Occupational Safety and Health Act of 1970 or any previous infractions arising from trenching operations.   After carefully considering Inspector Griffin's testimony and all of the evidence in the record, the undersigned finds that the   proposed penalty of $550.00 is reasonable and appropriate in the premises.

Regarding Respondent's violation of Section 29 CFR 1926.652(h), the Secretary proposed a penalty of $25.00.   After carefully reviewing all of the evidence of record, including Inspector Griffin's testimony, the undersigned concludes that said penalty is appropriate under all the circumstances.

Based upon all of the foregoing, and the record in its entirety, the undersigned makes the following

CONCLUSIONS OF LAW

1.   At all times mentioned herein, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   At all times mentioned herein, Respondent was subject to the provisions of the Occupational Safety and Health Act of 1970, and standards and regulations [*34]   promulgated thereunder.   The Commission has jurisdiciton of the parties and of the subject matter herein.

3.   That Respondent, on April 6, 1972, was in violation of the regulation duly promulgated pursuant to Section 6 of the Act; to wit, Section 29 CFR 1926.652(b), in that it had workmen engaged in the excavation of a trench in unstable material; to wit, sand and clay, ten feet deep and 24 or 25 inches wide, without sloping, shoring, bracing, sheeting or otherwise supporting the walls of said trench.

4.   The violation referred to in 3 above constituted a "serious" violation within the purview of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could   result therefrom and an appropriate penalty for said serious violation is $550.00.

5.   That Respondent was in violation of Section 29 CFR 1926.652(h) by reason of its failure to provide a sufficient number of ladders in the aforementioned trench, which was in excess of three feet deep, so as to provide a means of exit for said employees without more than 25 feet of lateral travel, and that a penalty of $25.00 is appropriate for said violation.

6.   That Respondent, on [*35]   April 13 and 14, 1972, was not in violation of Sections 29 CFR 1903.2(a), 29 CFR 1904.2, 29 CFR 1904.4 and 29 CFR 1904.5 of the regulations inasmuch as it was not established that the Secretary had furnished Respondent with the necessary forms in order to comply with said regulations.

7.   That it has not been established by reliable and probative evidence that Respondent violated Section 29 CFR 1926.650(e) by failing to provide protective head equipment for employees since there was no showing of danger from impact or falling or flying objects.

ORDER

Based upon the foregoing findings and conclusions, and upon the entire record, IT IS ORDERED that:

1.   Respondent was in violation of Section 29 CFR 1926.652(b) and that the citation and proposed penalty of $550.00 be and the same are hereby affirmed.

2.   Respondent was in violation of Section 29 CFR 1926.652(h) and that the citation and proposed penalty of $25.00 be and the same are hereby affirmed.

  3.   The citation, alleging violations of Sections 29 CFR 1903.2(a), 29 CFR 1904.2, 29 CFR 1904.4 and 29 CFR 1904.5, be and the same is hereby vacated.

4.   The citation, alleging a violation of Section 29 CFR 1926.650(e),   [*36]   and the proposed penalty of $25.00, be and the same are hereby vacated.