FANNING & DOORLEY CONSTRUCTION CO., INC.

OSHRC Docket No. 11008

Occupational Safety and Health Review Commission

August 12, 1977

[*1]

Before BARNAKO, Chairman and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Orlando Rodio and Aram A. Arabian, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Respondent, Fanning & Doorley Construction Co., Inc., is a general contractor specializing in construction work for utility companies. During the month of October, 1974, respondent was installing underground telephone ducts for New England Telephone & Telegraph Company along George Washington Boulevard in Lincoln, Rhode Island. On the morning of October 24, one wall of a trench at the construction site collapsed upon and killed one of respondent's employees. The site was inspected later that day by compliance officer Guido DiCenso. As a result of the inspection, respondent was issued two citations. Citation number one alleged willful noncompliance with the standard published at 29 CFR 1926.652(c) n1 [hereinafter the shoring standard]. Citation number two alleged noncompliance with the standard published at 29 CFR 1926.652(h). n2 Penalties of $6,500 and $70, respectively, were proposed by the Secretary.

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n1 The standard reads, in pertinent part, as follows:

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 . . .

n2 The standard reads as follows:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

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Respondent contested the citations and proposed penalties. The cause went to a hearing before Administrative Law Judge Robert P. Weil on April 24 and 25, and May 28, 1975. Judge Weil affirmed the citations and proposed penalties. Respondent, believing that the Judge's decision was erroneous as to both citations and the penalty assessed for citation number one, petitioned the Commission to review the Judge's decision. Former Commissioner Moran directed review of the decision on March [*3] 1, 1976.

Briefs have been received from both parties. The issues raised in the briefs and presented for review are: (1) whether the depth of the trench in which the accident occurred exceeded five feet; (2) assuming that a violation occurred, whether respondent's failure to shore the trench was willful; (3) whether the $6,500 penalty proposed by the Secretary is excessive if a willful violation occurred; and (4) whether respondent provided adequate means of exit from the trench such that no more than 25 feet of lateral movement would have been necessary to reach the exit.

I. The Shoring Violation

On October 24, 1974, respondent's foreman, Joseph Straight, directed the laying of ducts in a trench dug by respondent along the south side of George Washington Boulevard. As part of the operation, backhoe operator Benjamin Witt dug the trench while grader Salvatore Domenicone walked in the trench measuring its depth and communicating the depth to Witt. Following behind the grader, William McIntire and Anthony Domenicone laid ducts that were eight feet long. The trench was neither shored nor sloped. n3

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n3 The Judge found that respondent made no attempt to slope the trench. We agree. The backhoe operator, Witt, gave unrebutted testimony that he did not slope the trench walls. The compliance officer and McIntire testified that the walls were practically vertical, not sloped. In its brief, respondent argues that the small slope at the top of the trench, naturally created by the removal of dirt from the trench because no attempt was made to maintain perfectly vertical walls, was sufficient under the standard. It contends that very little sloping was required because the trench wall did not exceed five feet two inches and sloping is required only for the height above five feet. As discussed infra, we find that the trench walls were over six and one-half feet high. Because the evidence does not indicate the extent of natural sloping of the walls, and in light of the testimony of the compliance officer, McIntire, and Witt, we conclude that the evidence of sloping is unpersuasive.

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Just before 9:30 a.m. that morning, Straight left the construction site to obtain a cup of coffee. While at [*5] a cafe located approximately five minutes from the site, Straight called Donald Mulligan, respondent's safety coordinator and administrative assistant, to request that shoring material be delivered to the construction site because the trench was, in Straight's words, "running deep." Straight knew that the material was located at respondent's storage yard, which was less than twenty minutes from the construction. Mulligan informed Straight that he would respond to the request after checking stock. Straight then returned to the jobsite, and work was resumed. Mulligan never contacted Straight, and did not deliver the shoring material, having forgotten the request. At 10:40 a.m., a portion of the south wall of the trench collapsed, killing Domenicone.

The work on the job was to be performed according to plans and specifications drawn by New England Telephone & Telegraph Company that were contained in the construction contract. The plans indicate the terrain features that would be encountered and the manner in which each feature should be treated. The major portion of the work included the installation of multiple telephone-cable duct banks. The ducts were to be arranged in two-foot [*6] or two-and one-half foot banks, and were to be protected by cement and dirt cover ranging from two to four feet. For example, the plans indicate that a point in the trench located a short distance to the west of the location of the cave-in was required to have been dug to accommodate a two and one-half foot bank with four feet of cover (Ex. C-10, Plan 5). Thus, the depths to which the trench was to be dug could be determined by adding to the specified cover figure the vertical measurement of the duct bank that was to be installed.

At the hearing, foreman Straight testified that he had followed the plans to the best of his ability. The trench was dug in an easterly direction. The bottom was level and followed the grade of the street it paralleled. According to the plans and the testimony of McIntire and Witt, the trench became deeper the further east it extended because the ground into which the trench was moving inclined while the street declined. Nevertheless, Straight also testified that he had attempted to keep the depth of the trench under five feet. He stated that he believed that the maximum depth to which the trench had been dug was five feet or five feet two inches. [*7] In three prior sworn statements, however, one of which was made on the day after the fatal accident, Straight stated that the trench was between five and one-half and six feet deep at the point of the cave-in. Straight took no measurements before or after the accident, and was working in the trench at a point more than fifty feet from the cave-in at the time of the accident.

The compliance officer measured the depth of the trench to be seven feet two inches deep at a point 15 feet west of the collapsed wall, and six feet nine inches at the point of the accident. n4 One of respondent's employees, McIntire, who was working in the trench approximately 16 feet from the cave-in, testified that the trench wall extended several inches above his head. The employee placed his height at six feet-one inch.

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n4 The latter measurement was taken after rescuers dug into the trench to uncover Domenicone's body. There is no evidence to indicate that the digging went below the floor of the trench, and reason would lead one to conclude that the digging would not go deeper. Moreover, this measurement is consistent with the plans and the other measurement recorded by the compliance officer.

[*8]

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Judge Weil found that the trench exceeded five feet in depth. He specifically credited the testimony of McIntire and the compliance officer over Straight's testimony where there was conflict. Respondent excepts to both of these findings. We generally will not reverse a Judge's credibility finding, Evansville Materials, Inc., 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). We have found no reason to reverse Judge Weil's credibility findings, and therefore, we affirm the Judge's finding that the trench was more than six and one-half feet deep. n5

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n5 Respondent urges us to vacate the citation because the Secretary was unable to produce at the hearing the compliance officer's original notes containing trench measurements made during the inspection. Although the compliance officer had sent the notes to the Area Director as part of the case file, which the Secretary had at the hearing, the notes were not in the file and there is no evidence that they existed at the time of the hearing. After direct examination of the compliance officer, however, the Secretary did produce a sketch of the trench made by the compliance officer within two business days after the inspection. The compliance officer testified that the sketch, which was based on the inspection notes and included with the case report sent to the Area Director, locates the point of the cave-in and the points at which measurements were taken, and reflects accurately all the measurements in the inspection notes. The sketch, therefore, provided respondent with the documents necessary to search the compliance officer's credibility and memory. See, e.g., United States v. Jiminez, 484 F.2d 91 (5th Cir. 1973); United States v. Spatuzza, 331 F.2d 214 (7th Cir. 1964), cert. denied 379 U.S. 829 (1964); Fed. R. Ev. 612, Advisory Committee Notes.

[*9]

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II.

Judge Weil concluded that respondent's failure to comply with the standard was willful under section 17(a) of the Act because respondent, while fully aware of the requirements of the standard, permitted its employees to work in an unprotected trench that was more than six and one-half feet deep. Respondent excepts to the Judge's conclusion on the ground that the case relied upon by the Judge, F.X. Messina Construction Corp. v. O.S.H.R.C. & Brennan, 505 F.2d 701 (1st Cir. 1974), is distinguishable. Respondent states that: the soil relevant in the Messina case was muddy and unstable; during that same year but previous to the case, the Messina Corporation had been found in noncompliance with the same standard; and no action had been taken by Messina's foreman to protect the Corporation's employees. In contrast, respondent states that: the soil in the instant case was hard and stable; respondent has not been cited previously for failing to comply with the standard herein under consideration; and respondent's foreman had attempted to obtain shoring one hour prior to the collapse of the trench [*10] wall.

The test of willfulness applied by the First Circuit in the Messina case was whether a decision was made consciously, intentionally, deliberately, and voluntarily, regardless of venal motive. The Commission uses this test. See, e.g., C.N. Flagg & Co., Inc., 74 OSAHRC 66/A2, 2 BNA OSHC 1195, 1974-75 CCH OSHD para. 18,686 (No. 1734, 1974). Under this test, the differences raised by respondent are not relevant to the issue of respondent's willfulness. If a trench requires protection according to the shoring standard, the degree of soil cohesion does not alter an employer's duties. An employer may not assess independently the need for protection. n6 Messina Corporation's previous violation of the standard was relevant only to establish that the requirements of the standard were known. Respondent's knowledge of the shoring standard is not disputed. n7 Finally, we find the conduct of Messina's foreman to be indistinguishable from Straight's. Both men knowingly permitted employees under their supervision to work in an unprotected trench. Moreover, the construction plans indicate that the trench had reached depths in excess of five feet before Straight requested [*11] shoring. It is this disregard for the standard designed to protect men working in trenches that the Messina court and the Commission hold to be willful. See also Western Waterproofing Co., Inc., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977). Respondent is responsible for Straight's conduct. C.N. Flagg & Co., Inc., supra.

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n6 Discussing the shoring standard, the Messina Court noted that "[t]he regulation unambiguously forecloses such discretion." at 701.

n7 Straight, respondent's foreman, testified that he had actual knowledge of the requirements of the shoring standard. This knowledge is imputed to respondent. C.N. Flagg & Co., Inc., supra.

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III.

The Secretary of Labor proposed that a penalty of $6,500 be assessed against respondent because of the willful violation. The Judge accepted the proposal, noting that respondent's violative conduct was the result of a course of conduct, not an isolated event. Respondent contends that the penalty [*12] is excessive in light of respondent's good faith, n8 as evidenced by respondent's safety training program. We reject respondent's contention, and affirm the proposed penalty.

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n8 Respondent also contends that the Judge while deciding the willfulness issue, improperly considered respondent's failure to contest a citation that alleged noncompliance with a different standard. It is clear from the Judge's opinion, however, that the Judge considered the history of respondent's violations only with regard to penalty assessment, which he may do since it is within the history of the employer's previous violations. See 29 U.S.C. 666(i).

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Respondent's safety training program is inadequate. For two months following the creation of the Occupational Safety and Health Administration in 1970, respondent held weekly safety meetings for foremen. Attendance at these meetings was not mandatory. Subsequent to that time no meeting schedule was established. During the two years before the incident giving rise to this case, only [*13] six safety meetings for foremen were held. Attendance at these meetings was not mandatory. No safety meetings were held for non-supervisory personnel. There is no evidence indicating what training was received by supervisory or non-supervisory personnel. Moreover, respondent has no written safety program to which employees may refer. Respondent's program evinces a general indifference toward the safety of employees.

Section 17(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661(i), directs the Commission to consider three factors in addition to good faith when assessing penalties: the size of an employer's business, the gravity of the violation, and the history of an employer's violations. Respondent's business is moderate in size. During calendar year 1974, respondent employed an average of 60 employees and had gross income of approximately $2,000,000. The gravity of the violation is high. The evidence of record establishes that during the morning of October 24, at least three employees were exposed to violative conditions that posed the danger that resulted in a fatal injury. Finally, a citation alleging that respondent failed to shore or slope an excavation [*14] as required by the standard published at 29 CFR 1926.651(c), which is similar to the standard relevant herein, was issued and became final less than four months before the issuance of the instant citation. A penalty of $6,500 is appropriate on the record.

IV.

Turning to the 1926.652(h) issue, respondent does not dispute that the walls of the trench exceeded four feet, thus giving rise to the requirement of providing adequate means of exit specified in the standard. It excepts to the Judge's conclusion that use of the duct banks as a step did not constitute an adequate means of exit. We agree with the Judge's conclusion. No duct banks were located to the east of the deceased employee; the duct bank nearest to him was located approximately 16 feet to the west. At that point, however, the trench was over seven feet deep while the duct bank was only two and one-half feet high. The plans indicate that the trench was required to be at least six and one-half feet deep for a distance of more than ten feet from the end of the bank. The compliance officer's measurements, and Straight's testimony that he attempted to follow the plans, support the inference that the depths specified [*15] by the plans were the actual depths. It may be deduced therefore that even by using the duct bank as a step, the height of the remaining step from the trench would be four feet, the very height that triggers the operation of the standard. We conclude therefore that respondent did not provide an "adequate means of exit" within the meaning of the standard. Cf. Mohawk Excavating, Inc. v. O.S.H.R.C. and Usery, 549 F.2d 859 (2d Cir. 1977).

Accordingly, we affirm both citations and the penalties of $6,500 and $70 proposed therefore.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur in the result, but I do not join in my colleague's extended discussion of the evidence. Judge Weil found the shoring violation willful because Straight, knowing the circumstances required shoring, deliberately allowed the work to continue without providing shoring. In addition, the judge also concluded that Mulligan's forgetfulness was equivalent to a deliberate act. He also found that the ductwork, once installed, would be covered with cement before being backfilled; he concluded that a duct bank so covered would not be an adequate means of exit within the meaning of 29 C.F.R. 1926.652(h).

We [*16] do not ordinarily reweigh a judge's evidentiary determinations. Okland Construction Company, 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976). In my opinion, Judge Weil's disposition of the 1926.652(h) charge is appropriate for the reasons he assigned, and no further discussion is necessary. Similarly, I would adopt his decision insofar as he found the shoring violation willful based on Straight's conduct and assessed the penalty proposed. There is no need to consider whether Mulligan's conduct also constitutes willfulness on the part of Respondent, and I express no opinion on that question.