Docket No. 11

HIDDEN VALLEY CORPORATION OF VIRGINIA

OSHRC Docket No. 11

Occupational Safety and Health Review Commission

February 8, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: The Commission has reviewed the entire record in this matter and adopts the Hearing Examiner's proposed findings and order with the exceptions noted below.

Section 17(j) of the Occupational Safety and Health Act of 1970 (84 Stat. 1606, 1607; 29 U.S.C. 666(i)) provides that "the Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

In order that there be uniformity in the determination of penalties proposed, the Secretary has set forth guidelines by which the officer charged with the responsibility for determining the amount of the proposed penalty is authorized to deduct as much as 20 percent for good faith, 20 percent for history of previous violations and 10 percent for size of the business. In accordance with those guidelines, the employer herein was allowed full credit for history of previous violations because this [*2] was his first citation under the Act, full credit for size of the business owing to the fact that the business operation was relatively small -- less than 20 employees -- and half credit for good faith. A total reduction of 40 percent of the maximum permissible penalty of $1000, or $400, was allowed the employer. The compliance officer stated that the allowance for good faith was based upon the fact that the president of the firm stated that the firm's foreman gave safety instructions as part of the job instructions.

The record reveals that the only such specific instructions on safety consisted of an admonition by the foreman to the employees to backfill the trenches as fast as the pipe was laid. Moreover, the good faith of the employer is disproved by the testimony of the firm's president, that, as a result of a conversation he had with the supervisor on the eve of the fatal accident, he knew that the backhoe operator was not following instructions on sloping and shoring. He testified that he did not reinstruct the operator because the latter had given notice that he was leaving the job. This testimony when viewed in the context of the entire record, leads the Commission [*3] to conclude that respondent lacked good faith.

While we find no reason to disagree with the Secretary's use of guidelines to assist his agents in determining the amount of a penalty to be proposed, we believe that the gravity of the violation charged in this case is of signal importance. The careless disregard of the extremity of the hazard created by the trenching operations of the employer when added to the lack of good faith override any consideration that might be given to other criteria such as history of previous violations or size of business.

Accordingly, the Commission does not adopt the Hearing Examiner's recommended Finding of Fact Number 14, Conclusion Number 9 and the recommended Order. We adopt, in place of the excepted material, the following:

FINDINGS OF FACT

14. Hidden Valley employed approximately seven in its construction crew (Tr. 16-17); that this was the first inspection made by the Department of Labor and this was the only violation recorded by said department (Tr. 61); that the president of the firm recognized the hazard of the lack of shoring or sloping at the site of the fatal accident on the eye thereof (Tr. 129-131).

CONCLUSION

9. A reduction [*4] of the penalty to be assessed from $1000 to $600 is not supported by the evidence of record.

It is hereby ORDERED that the Secretary's citation for serious violation is affirmed and a penalty of $1,000 is assessed against the employer.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur, but would point out that in my view a reduction of the penalty which results from a valid consideration of the size of the business of the employer being charged should not ordinarily be denied because of the inordinate gravity of the violation. Such a reduction of the penalty finds its purpose in considerations wholly apart from the nature of the violation or the conduct of the violator. Reductions based upon his good faith and violative history, or lack thereof, do not.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This case presents a rather basic issue for the Commission under the general duty clause, Section 5(a)(1) of the Act.

The place of employment here was an open construction site. Sewer pipe was being laid at the bottom on a ditch n1 which had been dug to a depth of about 9 feet. The soil at that place was a hard sandy material with a mixture of some clay. The [*5] sides of the ditch were neither shored nor sloped.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The word "ditch" and the word "trench" were used interchangeably throughout the record in this case. They presumably have the same meaning. That presumption also applies in this opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Because the Secretary initiated this action prior to the effective date of its coverage under the construction safety standards, the employer was not cited for violation of 29 CFR 1518.652(b) [36 Federal Register 7389] which provides that sides of trenches in unstable or soft material, four 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.

Had that standard been in effect and the employer properly cited thereunder, there is no question but that a violation thereof was established by the facts present in this case.

The issue here, however, is whether an employer who has provided its employees with a workplace consisting of a trench, as described above, violated [*6] the provision of the Act under which it was cited. More specifically, has the employer thereby violated its obligation to

furnish to each of his employees . . . a place of employment. . . free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees?

The evidence in this case is insufficient to establish this kind of violation.

The Hearing Examiner made 15 findings of fact, but in none of them did he find that the condition of the employer's ditch was a recognized hazard either causing or likely to cause death or serious physical harm to his employees. Without such a finding of fact, I fail to see how a violation of the general duty clause can be established.

The closest the Examiner came was a finding of fact that

A trench more than 5' deep, unless in solid rock, constitutes a hazard unless the sides are shored or braced or sloped and is considered unsafe.

A "hazard" is a matter quite different from a "recognized hazard . . . causing or . . . likely to cause death or serious physical harm. . . ."

The words employed by Congress in Section 5(a)(1) were not hastily drafted. They are the careful product of both [*7] many months of spirited debate and purposeful legislative compromise. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 In my opinion a condition precedent to the establishment of a general duty clause violation is evidence of record that the place of employment included (or was not free from) recognized hazards that are causing or are likely to cause death or serious physical harm to the employees working there. This is the essence of the case and I don't believe it can be inferred, implied or assumed.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

With this decision, the Commission is converting a very precisely-worded legislative enactment into a sweeping general requirement that could well render useless the voluminous and detailed standards promulgated by the Secretary of Labor in order to make specific provision for safe and healthful workplaces. If a finding of fact that a certain condition which "constitutes a hazard" thereby establishes a violation of Section 5(a)(1) of the Act, why would the Department of Labor ever cite an employer under any other provision? And what guidelines would conscientious [*8] employers have?

It has often been said that difficult facts make bad law. Admittedly, the facts here are tragic -- two men were killed because of a trench cave-in that could have been prevented by the employment of occupational safety practices required by the law of many states. It is an understandably human reaction to seek to penalize the employer for the error of his ways.

This Commission, however, is not a court of conscience. It must interpret and apply the law as enacted by the Congress to the facts of the case as they are developed at hearing.

The facts of this case do not establish that this employer has violated the provision of the Act under which it was cited. I, therefore, dissent from the decision of the Commission.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act will be referred to as OSHA), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) and a proposed assessment of penalty thereon pursuant to Section 10(a) of OSHA.

The citation (P-1A), [*9] issued on July 18, 1971, alleges that Hidden Valley Corporation of Virginia, the employer (hereinafter Hidden Valley), in a work place under its ownership, operation, or control located at Aquia District, 4 miles south of Triangle, Virgina, in a "Mobile Home Park Development, between lots B-19 and B-20 . . . permitted employees to work in a trench which was ten feet deep and was not shored or sloped back to angle of repose. Side of trench broke off and killed one employee and one other person. This condition was a recognized hazard which caused death and was likely to cause death or serious physical harm to employees," which was in violation of "Public Law 91-596, 91st Congress, S 2193 Section 5(a)(1) -- Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

The citation requires that the alleged violation be corrected by July 10, 1971, and that the said violation was a serious violation according to Section 17(k) of OSHA.

A "Notification of Proposed Penalty" (P-1B), issued by the Secretary on July 18, 1971, [*10] proposed a penalty of $600.

Hidden Valley, by letter dated July 22, 1971 (P-1D), contested the Secretary's actions. Thereafter, on July 27, 1971, the matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of OSHA and on August 5, 1971, the undersigned was appointed and the within matter was assigned to him for hearing pursuant to Section 12(e) of OSHA.

Pursuant to notice and by agreement of the parties a pre-hearing conference and the hearing were held on August 25, 1971, at Stafford, Virginia.

Having heard the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

1. Respondent, Hidden Valley, is a Virginia corporation with its sole office and place of business located at Stafford, Virginia, where it is engaged both in the construction of a mobile home park and in the sale of mobile homes for use in that park. During the course and conduct of its business operations in [*11] the past 12 months the respondent has purchased and received, directly from points located outside of the Commonwealth of Virginia, goods and materials, including mobile homes, valued in excess of $10,000 (Tr. 6; 13).

2. Hidden Valley commenced the work of digging ditches for main line sewer pipe and connections about one year prior to August 25, 1971 (Tr. 106).

3. The soil on the site was a hard sandy material with a mixture of some clay (Tr. 28; 86).

4. The sewer line ditches were laid out by the construction manager and the grades and required depths were indicated by stakes bearing numerals for the depth in feet at 50 foot intervals (Tr. 19; 20; 21; 22; 28) with depths varying from 7 feet to 10 feet (Tr. 19-20).

5. None of the ditches were shored but construction manager issued instructions to backfill the trenches as fast as the sewer pipe was laid (Tr. 36; 38; 39; 106; 139).

6. On July 9, 1971, a trench was begun running from lot B-19 to lot B-20 (Tr. 27); this trench was not sloped, neither were the sides shored (Tr. 38).

7. On July 10, 1971, an employee of Hidden Valley (Tr. 51-52) with another person, were in the trench when the sides caved in and they were killed [*12] (Tr. 30).

8. The trench at the point of collapse was approximately 9 feet deep (Tr. 96); the cave-in was caused by a crack running longitudinally with the side of the ditch (Tr. 71; 72; 89).

9. The American National Standards Institute, as well as the Safety and Health Regulations for construction (29 CFR Part 1518), requires that the walls of a ditch in average soil such as sand or gravel, dug to a depth of 4 feet or more, should be angled at the rate of 1 foot cut back for 1 foot of depth which produces a 45 degrees angle (Tr. 42; 45-46; 72).

10. A trench more than 5 feet deep, unless in solid rock, constitutes a hazard unless the sides are shored or braced or sloped and is considered unsafe (Tr. 80; 81; 82).

11. Approximately 10 to 12 deaths occur annually in Virginia caused by caved in ditches over 5 feet deep which had not been angled to the point of repose (Tr. 76; 83; 84).

12. Work was suspended when the accident occurred and was not recommenced until August 24, 1971 (Tr. 101).

13. None of the employees of Hidden Valley expressed a desire to participate in the proceedings as parties (Tr. 4).

14. Hidden Valley employed approximately seven in its construction [*13] crew (Tr. 16-17); has no previous violations of record (Tr. 61) and showed interest in safety by giving safety instructions as part of its job instructions (Tr. 60).

15. Hidden Valley was allowed a reduction from the maximum penalty of $100 for good faith; of $100 on account of its size and of $200 for its history of no previous violation (Tr. 61; 62; 65-66).

CONCLUSIONS OF LAW

1. Hidden Valley, at all times herein, was an employer engaged in a business affecting commerce within the meaning of Section 3 of OSHA and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein.

2. Pursuant to the authority granted to him by 40 U.S.C. 333, the "Contract Work Hours and Safety Standards Act," the Secretary of Labor on April 17, 1971, promulgated Title 29, Part 1518, "Safety and Health Regulations for Construction." Respondent was not subject to those standards at that time.

3. Pursuant to the duty imposed upon him by Section 6(a) of the Act, the Secretary of Labor, on May 29, 1971, published in the Federal Register 29 CFR Part 1910, "Occupational Safety and Health Standards -- National Consensus Standards and Established [*14] Federal Standards." Part 1910.12 thereof, "Construction Work," expressly adopted the pre-existing Federal standards prescribed by Part 1518 of Title 29, which had been in effect on April 28, 1971.

4. Part 1910 further provided effective dates for applicability of the national consensus and pre-existing Federal standards. For those employers not previously subject to certain enumerated statutes, a 90-day delay in the effective date of those standards was provided in order to give those employers and their employees an opportunity to familiarize themselves with the standards; however, no such delay in the effective date was granted as to employers already subject to the enumerated statutes, as such familiarity was deemed to exist already. Likewise, Part 1910 served notice that no employer would be relieved of any duty imposed upon it by Section 5(a)(1), the general duty clause, of the Act. Therefore, although respondent would not be subject to the provisions of Part 1518 until August 27, 1971, it was subject, from May 29, 1971, forward, to the provisions of Section 5(a)(1) of the Act. That section requires each employer to furnish to each of his employees employment and a place [*15] of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

5. Hidden Valley, at all times herein was and is subject to the provisions of OSHA and of Section 5(a)(1) thereof which provides as follows:

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

6. The failure to shore, brace or slope the walls of a ditch or ditches in soil of a sand and clay mixture having a depth of 4 feet or more creates a substantial probability that death or serious physical harm is likely to result to employees who are required to work in such ditch or ditches.

7. On July 10, 1971, and on various other occasions within a period of three weeks prior to said date, Hidden Valley violated said Section 5(a)(1) of OSHA by requiring its employees to work in a ditch and ditches the walls of which were not shored, or braced or sloped to the angle of repose and which constituted recognized hazards.

8. A determination that the violation [*16] herein was a serious violation pursuant to Section 17(k) of OSHA is not unreasonable.

9. A determination that a penalty of $600 be assessed against Hidden Valley, under the circumstances herein, is not unreasonable.

ORDER

In view of the foregoing, it is therefore ORDERED that the Secretary's citation and proposed penalty herein be and the same are hereby affirmed.