FLOYD S. PIKE ELECTRICAL CONTRACTORS, INC.

OSHRC Docket No. 12398

Occupational Safety and Health Review Commission

February 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicotor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

William H. McElwee, III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge John Patton is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq. [hereafter "the Act"]. Respondent, Floyd S. Pike Electrical Contractors, Inc., was cited for seriously violating section 5(a)(2) of the Act by failing to comply with the standard at 29 CFR 1926.652(b) n1 [hereafter "the trench shoring standard" or "the standard"] in that one of respondent's employees was exposed to an unshored area of a trench while installing shoring.

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n1 The standard provides in pertinent part: Specific Trenching Requirements (b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

[*2]

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Judge Patton vacated the citation after hearing on the ground that the trench shoring standard was not applicable to the operation of installing shoring. The Secretary's petition for review was granted by Commissioner Cleary on January 22, 1976. The questions presented are (1) whether the trench shoring standard is applicable to the operation of installing shoring, (2) if applicable, whether respondent failed to comply with the standard, and (3) if it failed to comply, what penalty should be assessed.

At all times material to this case, respondent was engaged in opening a ditch line in soft dirt 10 to 12 feet deep for the purpose of installing concrete ducts to accommodate electrical power cables. On January 20, 1975, a fatal accident occurred when an unshored portion of the trench n2 in which two of respondent's employees were installing shoring caved in. At the time of the cave-in, the deceased, Frank Riddle, Sr., was a working foreman in charge of a five-man crew engaged in shoring the trench. The shoring procedure that respondent maintains was to be followed by its employees was for a boom [*3] truck to lower four-foot by eight-foot sections of three-quarter inch plywood into the trench where they would be set into place by two employees who were in the trench. After nailing two-by-fours across the middle of the plywood, the employees were to lean out into the unshored area while remaining in a shored area and hold the plywood in place on the opposing walls of the trench until a jack was placed between the plywood sections. At the time of the cave-in, the two employees shoring the trench were about two feet beyond the shored area and were leaning against the newly placed plywood sections to keep them from falling until a jack was received and placed between the sections. The walls of the trench caved in, killing Riddle, Sr., but causing no injury to the other employee, Frank Riddle, Jr.

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n2 The ditch line is a trench within the meaning of the standard. See 29 CFR 1926.653(h).

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Riddle, Sr. had been employed by respondent since 1971 primarily as a line worker. He had no experience in shoring trenches before [*4] the two months spent shoring the trench in which he was killed, Respondent's area supervisor testified that Riddle, Sr. was selected to be the working foreman because he had been a good and careful employee.

Approximately three weeks before the shoring began, respondent's project foreman, area supervisor, and Riddle, Sr. discussed methods of installation. During the succeeding three weeks, these men decided to use the method described above. Riddle, Sr. was specifically instructed in the techniques he was to use.

The evidence does not indicate the extent to which the project foreman supervised the shoring installation, but the area supervisor testified that he was at the construction site three days each week, although he inspected work in addition to the shoring installation while at the site. On only one occasion did the area supervisor observe Riddle, Sr. step into an unshored area while installing shoring as he did at the time of his death. The supervisor called Riddle, Sr. aside, and instructed him to remain in the shored area while performing his job. No discipline other than this mild reprimand was administered. On one occasion respondent's vice-president discussed [*5] the proper method of installing shoring with Riddle, Sr., although the vice-president never had occasion to observe Riddle, Sr's. work. The vice-president testified that he was satisfied that Riddle, Sr. was aware of the proper method of installation.

Testimony was also taken from two members of the trench shoring crew. The crewman who was working with Riddle, Sr. at the time of the accident testified that he had never been instructed in the proper method of installing shoring, nor had any supervisor remarked to him about his work. He also testified that he was unaware of the danger attendant to entering an unshored area. Riddle, Jr. had no prior experience installing shoring, and only part of his work for respondent included installing shoring. Although the other crewman, Ralph Jordan, testified that he was aware of the proper method of installing shoring, there is no evidence that he had been trained in such method. On several occasions while working with Riddle, Sr., Jordan and Riddle, Jr. stepped into an unshored area for the same reason and in the same manner as Riddle, Sr. had at the time of the fatal accident. There is no evidence that disciplinary action was taken against [*6] Jordan for this behavior.

Respondent urges that we uphold Judge Patton's decision that the trench-shoring standard does not apply to the extension of shoring because respondent was attempting to comply with the standard when the allegedly violative action was taken. By its plain terms, the standard applies when employees are working in trenches of unstable or soft material. There is no express limitation as to the type of work being performed which may be extending the shoring itself, and none is implied. See Adams and Mulberry Corp., BNA 3 OSHC 1077 (No. 2548, 1975). n3

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n3 This case is not reported by Commerce Clearing House.

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Respondent does not deny that it is possible to install shoring while complying with the standard. n4 To imply a limitation excluding shoring itself would be to act contrary to the purpose of the standard of protecting employees from cave-ins. In other words, we interpret the standard as impliedly requiring that its terms be met without needlessly exposing employees to the very [*7] risks to which the standard is addressed. n4a Therefore, we hold that the trench shoring standard applies to the process of extending shoring.

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n4 Respondent also admits that there is at least one other method in addition to the one it used which would also comply with the standard. There is no "Catch-22" situation here requiring employees to be exposed to the risks that the hazard is designed to prevent in order to eliminate the risks. Cf. U.S. Steel Corp. v. O.S.H.R.C., 537 F.2d 780 (3d Cir. 1976).

n4a For my own part, I note that if the standard did not apply, there could be an issue as to whether or not the Act's general duty clause in section 5(a)(1) would require safe shoring methods. But this issue is not addressed by the parties, and is therefore not examined here.

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Although Judge Patton did not reach the question of whether respondent complied with the standard, the issue was litigated.

We note at the outset that the employer used eight-foot plywood sheets for shoring. This would necessitate employees [*8] leaning into the unshored portion of the trench for a distance of two four feet.

Also, it is undisputed that the deceased employee entered an unshored area of a trench contrary to instructions. Respondent claims that it cannot be held responsible for its employee's misconduct because it was unforeseeable and, therefore, unpreventable. First, it contends that Riddle, Sr's. action was an "isolated occurrence" within the meaning of Standard Glass Co., Inc., BNA 1 OSHC 1045, CCH 1971-73 OSHD para. 15,146 (No. 398, 1972). It also contends that it did all that reasonably could be expected to prevent the alleged violation, within the requirements of the defense set out in Ocean Electric Co., BNA 2 OSHC 1705, CCH 1975-76 para. 20,167 (No. 5811, 1975).

In order to establish an "isolated occurrence" defense, respondent had the burden of proving that the allegedly violative conduct was a deviation from a company rule, policy, or instruction that was enforced, and that the deviation was unknown to or could not have been foreseen with the exercise of reasonable diligence by respondent. The evidence clearly establishes that Riddle, Sr. deviated from a company rule and instruction. [*9] The evidence equally clearly establishes that the rule was not enforced. The deceased foreman had deviated from the rule on several occasions before his accident yet respondent only once reprimanded him to remain in shored areas of the trench. No other disciplinary action was taken. "The fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of the policy is lax." National Realty and Construction Co., Inc., 489 F.2d 1257, 1264, Fn. 38 (2d Cir. 1975). Because the behavior of supervisory personnel sets an example at the workplace, failure to discipline Riddle, Sr. reasonably could be construed by other employees as accuiescence to his conduct by respondent. That two other employees on several occasions deviated from the work rule along with Riddle, Sr., without being disciplined indicates this inference was properly drawn.

Also, there is no evidence that the project foreman supervised the shoring installation process, and the area supervisor was at the worksite only three days each week during which time he inspected work in addition to that performed by the shoring crew.

Respondent's failure to enforce its rule is [*10] sufficient reason to reject the "isolated occurrence" defense.

The Ocean Electric doctrine substantially overlaps the "isolated occurrence" defense. Respondent has the burden of proving "that it took all necessary precactions to prevent the occurrence of the alleged violation," i.e., that Riddle, Sr. was adequately supervised. The weight of the evidence as discussed above indicates that this burden has not been sustained.

Judge Patton of course did not assess a penalty against respondent because of his disposition. Complainant proposed a penalty of $800. We adopt complainant's proposal.

In determining what penalty to assess, section 17(j) of the Act requires consideration be given to the following criteria: the size of the business of the employer being charged, the gravity of the violation, the employer's history of violations, and the good faith of the employer. Respondent is a company of substantial size that employs approximately 1,000 people and has an annual gross receipt of approximately $18 million. The gravity of the violation is high. Not only was the likelihood of death or serious bodily injury resulting from the violation great, we give some weight to [*11] the fact that another employee was in the unshored area of the trench with the deceased at the time of the cave-in. We also note in applying the "good faith" factor respondent's failure to inform all of its employees of the methods of shoring necessary to their safety.

It is ORDERED that the Judge's decision be reversed, that the citation against respondent be affirmed, and that respondent be assessed a penalty of $800.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Patton's vacation of the citation is correct for the reasons stated in his decision which is attached hereto as Appendix A. His decision should therefore be affirmed.

I have previously commented on the incorrect application of 29 C.F.R. 1926.652(b) in Secretary v. Adams and Mulberry Corporation, 17 OSAHRC 410, 415 (1975) (dissenting opinion), where I stated:

"Neither 29 C.F.R. Sec. 1926.652(b), nor any other standard, directs that an employee installing shoring not enter a trench, or a portion thereof, until the shoring meets the specifications of the standard or describes how this can be accomplished."

As is apparent on its face, the standard requires that trenches be shored, sheeted, braced, sloped, or otherwise [*12] supported, but it does not prescribe any particular manner for installing this protection. n5 Therefore, the requirements enumerated in the standard are applicable only after the shoring itself has been completed.

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n5 See footnote 1 of the majority opinion for the text of the pertinent portion thereof.

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The sole purpose for respondent's employees being in the trench at the time of the fatal accident was to install shoring that would afford the protection required by the standard. Respondent, therefore, was in the act of complying with the standard at the time of the accident, which is not a violation since the standard does not specify how the shoring should be installed.

The death of Frank Riddle, Sr., occurred as the result of his willful disobedience of the express orders of both the respondent's vice president and its area supervisor. n6 Although respondent was aware of his failure to follow these orders on one previous occasion, there was no reason for respondent to believe that he would continue to do so. Under [*13] these circumstances, it is clear that the evidence is insufficient to establish that respondent possessed the requisite knowledge of the alleged violation which is an essential element of any violation of the Act. n7 See Secretary v. Fry's Tank Service, Inc., OSAHRC Docket No. 4447, August 13, 1976 (Moran, Commissioner), and the authorities cited therein.

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n6 The majority opinion implies in footnote 4 and the accompanying text that respondent's method of installing the shoring was defective. To the contrary, however, complainant's inspector testified that it was adequate, and complainant concedes in its review brief that "respondent's method was well-conceived."

n7 The majority opinion improperly deals with this question as a matter pertinent to the defense of "isolated occurrence." See my dissenting opinion in Secretary v. Ocean Electric Corp., OSAHRC Docket No. 5811, November 21, 1975, where I pointed out that the use of the term "isolated occurrence" is used as a pretext for shifting the burden of proof to the respondent rather than placing it on the complainant where it belongs.

[*14]

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Appendix A

DECISION

Ellis V. Cruse, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

William H. McElwee, III, on behalf of respondent

STATEMENT OF THE CASE

Patton, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation, and control of the respondent located at 15th Street and Walton, Way, Augusta, Georgia, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health standard 29 C.F.R. 1926.652(b). Hearing was held in Augusta, Georgia, on May 20, 1975. The parties were represented by counsel and presented evidence, and, subsequent to the hearing, have filed written briefs. There was no motion to intervene.

LAW AND ISSUES IN THE CASE [*15]

It was alleged that the respondent violated standard 29 C.F.R. 1926.652(b) in that a trench more than five feet in depth, in unstable or soft material, was not shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength. It was alleged that while installing bracing, the respondent's employees were exposed to danger, and the bracing was not performed safely enough. The issue for determination, therefore, is whether the action of the respondent, in permitting its employees to be in the trench engaged in said activity, constituted a violation of standard 29 C.F.R. 1926.652(b).

EVIDENCE IN THE CASE

The answer of the respondent admitted that it is a corporation having a place of business, among other places, at a construction site located at 15th Street and Walton Way, Augusta, Georgia, where it is engaged in construction or installation of electrical conduit or wiring as a part of the Georgia Power Company's electrical system. It was admitted that equipment and materials used in construction work were produced at, or shipped from points outside the State of Georgia, and said electrical system will serve commercial users, among others in the area. It [*16] was admitted that respondent engages in communications by mail and telephone to and from its office in North Carolina with points located outside the State of North Carolina. The respondent conceded that it is engaged in a business affecting commerce within the meaning of the Act.

It was stipulated at the hearing that the respondent does business throughout the southeast, including Georgia, with an approximate total value of business of $18 million. Respondent employs approximately 1,000 employees. It was further stipulated that on January 20, 1975, Frank Riddle, Sr., an employee of the respondent, died as a result of a cave in of a ditch while working in Augusta. It was stipulated that Mr. Riddle was the supervisor of a five-man crew and was engaged in opening and shoring a ditchline at the time of said accident. The line was being opened for the purpose of installing concrete ducts to accommodate electrical power cables. It was further stipulated that Mr. Riddle started working for respondent in May 1971. He and all employees received an employee's manual setting forth safety instructions. He signed a receipt for said manual on October 9, 1973. By signing the receipt, [*17] he agreed to familiarize himself with the contents and comply with the company's rules. The manual covers ditching and shoring. At the time he came to work, a prior manual was in existence, and he is receipted for each (Tr. 4, 5, 6, 7). The later manual and receipts were introduced into evidence as complainant's exhibits 1, 2(a), and 2(b) (Tr. 7, 8). It was further stipulated that the accident occurred in the following fashion: the respondent was opening a ditch on January 20th. On the day of the accident, there had been a strip or area of ditchline opened for the laying of conduit for electrical cables. The area immediately behind Mr. Riddle and his crew had already been shored with steel plates, or plywood with jacks. Mr. Riddle was a working foreman and had the most seniority on the job. He was in charge of seeing that construction was carried out. Mr. Riddle, in the company of his son, walked past the shored area of the ditch. Mr. Riddle held a piece of plywood, four-by-eight, three-quarters-inch thick, against one wall of the ditch. The ditch was anywhere from 10 to 12 feet deep. On the other side of the wall, Mr. Riddle's son was holding a piece of four-by-eight, [*18] three-quarter-inch plywood. They were receiving from above them a jack which they were going to put between these two pieces of plywood so as to secure or shore the walls. The wall of the trench on Mr. Frank Riddle, Sr.'s side caved in, suffocating or crushing him (Tr. 8, 9, 10).

The Penalty Sheet, as well as certain photographs, were admitted into evidence by the Stipulation. It was agreed that Mr. Riddle, Sr. was in charge of the crew (Tr. 14, 15).

Mr. Frank Riddle, Jr., son of the deceased, testified on behalf of the complainant. Mr. Riddle, Jr. testified that he was in the employ of the respondent on the day of the accident and was putting shoring in the ditch. His father was working with him (Tr. 17). He stated that the plywood was lowered with a cable off a boom truck. He sat it where he wanted it, which was next to the steel. It was placed against the edge of the steel. The plywood was held against the side of the trench with their hands after nailing a two-by-four-inch board across the middle of it (Tr. 18, 19). The supervisor was Mr. Mike Blackmon. Mr. Riddle, Jr. denied that he had received any instructions as to how the shoring was to be put in place (Tr. 21, [*19] 22). He stated his father was in the trench before any bracing or jack had been put in place. They were about to put the jack on at the time there was a cave in. He and his father were holding the plywood in place until the brace could be put in place (Tr. 32). No one had told them they were doing this wrong (Tr. 32, 33). When they were not hauling dirt, they would shore up the ditch using steel plates, whalers, and jacks (Tr. 34). The area immediately behind them had been shored (Tr. 34). The witness and his father were in the process of extending the shoring approximately four feet by putting in a four-by-eight feet sheet of plywood (Tr. 35). He and his father had proceeded about two feet beyond the protected area. There was shoring on one side, the material consisting of a four-by-eight, three-quarter-inch thick sheet of plywood, two-by-fours, and jacks (Tr. 36).

Mr. Zack Blackmon is the vice president of the company in charge of the entire project; Mr. Michael Blackmon is the area supervisor; and, Mr. Bobby Riggs is the project foreman. Mr. Frank Riddle, Sr. was working foreman under Mr. Riggs (Tr. 59). Mr. Zack Blackmon testified that he was on the project on the [*20] 14th and the 15th of January and discussed with Mr. Riddle, Sr. the shoring that was in place, the number of jacks that were between shoring and use of plywood versus steel sheeting, and he was pleased with Mr. Riddle's knowledge (Tr. 62). He had known Mr. Riddle a number of years and considered him to be a safe and good working foreman (Tr. 62). He specifically discussed shoring operation of the ditch, and told him under no circumstances should an employee get into a ditch more than five feet deep unless it had been properly shored (Tr. 62, 63). He told Mr. Riddle at no time should he get into an unshored area. In placing plywood and whalers, they could lean forward and install the bracing, and they could stand on a ladder in a shored area and do it, but under no circumstances should they allow a man to be in an unshored area (Tr. 68, 69). This conversation occurred the last day Mr. Blackmon was on the job before the accident.

Mr. Blackmon asked Mr. Riddle how he was installing support for the wall, and Mr. Riddle, Sr. described leaning forward from the shored area to put on his whalers (Tr. 68). Mr. Blackmon stated that a shored ditch has to be braced. Steel sheeting is not [*21] totally safe to get between unless there are jack splices between them. He told Mr. Riddle not to get between them until a jack or brace was in place. He watched the work progressing for approximately 15 minutes on January 15th (Tr. 69, 70). They were not engaged in shoring at that time (Tr. 70). He had, however, observed Mr. Riddle, Sr. shoring on prior visits to the job (Tr. 70, 71). They were placing steel shoring in the ditch while standing in the shored area between the steel jacks that existed. They leaned forward and put a steel jack between the next two sheets of steel that had been driven in on each side. They were standing between two jacks and leaning forward to the next sheet of steel (Tr. 71). The sheeting weighed 700 or 800 pounds. It was placed in the ditch by machinery. After the sheet is put in, a jack is put between it. The sheet is put in with a hydraulic boom guided by an individual in proximity to it (Tr. 72). When it hits the bottom with 800 pounds, it will sit on the bottom and not move. An employee will lean forward and accomplish the bracing. Mr. Zack Blackmon never saw Mr. Riddle step forward to put the jack in place. He never had knowledge [*22] of any employee working at any time in an unshored area (Tr. 73, 74).

Mr. Michael Blackmon, area supervisor, testified that he observed ditching and shoring on occasions. He stated that they began work in the middle of November, and there was a discussion in the field office between Mr. Riggs, Mr. Riddle, Sr. and himself about how they were going to shore the ditch, how many jacks would be used, the best method to get the jacks in, the best method to get the material in, and what material would be used. These discussions occurred over a two or three-week period of time before actually starting on the ditch (Tr. 77, 78). They discussed coming down from the top of the ditch using a ladder, but decided this would not be feasible. That decision was reached because they were of the opinion that in case there was a cave in, before a man could get his jack in, he would step down the ladder and still be between it (Tr. 78, 80, 81).

On the other hand, Mr. Perry Collins, compliance officer for complainant, testified that the most practical way was to come down from the top, put a jack in, go down four more feet, and then put in another jack. That method would build the protection ahead [*23] of the employee (Tr. 52, 53). He stated that when they removed braces between the sheeting or whatever type shoring was used, they would reverse that operation, removing the bottom one, possibly tying a rope to it and coming up four feet, pulling the jack or brace up, then coming up the next four feet. Mr. Collins admitted that the method normally used by the respondent of leaning forward from a secured area and attaching a jack was an adequate method, although, in his opinion, not the best method (Tr. 55, 56).

Mr. Michael Blackmon stated that they started from the manhole which was shored and went to the next manhole and put in the head and the ditching jacks. The witness was on the project approximately three days out of five and on one occasion saw Mr. Riddle step into an unshored area. He called Mr. Riddle out of the ditch and told him again that no one was to get in front of those jacks. He stated Mr. Riddle inadvertently got ahead of himself. He stated he knew of no occasion subsequent to that time when Mr. Riddle did not carry out instructions (Tr. 79, 80). He observed Mr. Riddle after that and noticed that he was following instructions (Tr. 80). Mr. Riddle, Sr. has [*24] worked for Mr. Michael Blackmon ever since he (Mr. Michael Blackmon) started working with the corporation. He has known Mr. Riddle, Sr. for five or six years (Tr. 80). They would put a manhole in before they started ditching and then go from manhole to manhole (Tr. 81). They would dig the ditch, put shoring down in it, stand behind the jacks, reach out ahead and put in the jacks. One day he would watch Mr. Riddle; the next day he would watch the work in the manhole.

Mr. Ralph Jordan, who is an employee of the respondent, confirmed the fact that Mr. Michael Blackmon told Mr. Riddle, Sr. not to get into the ditch if it was unsafe or unshored. He stated he overheard the conversation. He stated that for a short period of time we was in Mr. Riddle, Sr.'s crew. They usually tried to shore in front of themselves and put the jack in, although they did not always do this. Someone would step forward and hold the bracing in place (Tr. 86, 87). Mr. Riddle did that on occasion and sometimes Mr. Jordan did it (Tr. 87). One would hold and the other would put in the jack (Tr. 87). He stated when he said he would step forward, he meant he would lean forward. He tried to stay in a safe [*25] area, although at times they did step forward and get careless (Tr. 89). He was instructed to lean forward and not step forward. It was stipulated that there was no sloping of the trench (Tr. 90).

EVALUATION OF THE EVIDENCE

It is contended by the respondent that it was in the act of shoring at the time of the accident and was trying to comply with the Act, rather than violate it. It is the further contention of the respondent that Mr. Riddle, Sr., by stepping beyond the shored area, violated instructions. The respondent did all in its power to see that instructions were followed; and, therefore, should not be found in violation of the Act. It is further the position of the respondent that the Act is unconstitutional for various reasons.

An Administrative Law Judge has no authority to declare the Act unconstitutional. The respondent properly raised the constitutional issue at the administrative level, but in view of the fact that an Administrative Law Judge cannot rule upon the constitutionality of the Act, this ground of respondent's defense must be denied.

It would appear, however, that the respondent has not violated the standard cited. The standard is as follows: [*26]

"Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. . . ."

It should be noticed that the above quoted standard requires that trenches:

". . . shall be shored, sheeted, braced, sloped, or otherwise supported. . . ."

The respondent was in the very act of attempting to shore and brace the trench. The respondent was, therefore, in the act of complying with the standard at the time of the accident. The standard does not in any way require that the shoring be done by a particular method. Even if it was conceded that the method used was unsafe, standard 29 C.F.R. 1926.652(b) does not in any way deal with that problem, and it does not state that shoring, sheeting, bracing, sloping, and so forth, must be done in a safe manner or in any particular manner, but simply requires one thing, and that is that trenches he shored, sheeted, braced, and sloped. The employees in question were in the trench for no purpose other than to shore or sheet. If employees had been sent into the trench for any other purpose prior to shoring [*27] being performed, the Act would clearly have been violated. Sending the employees into the trench, however, for the purpose of engaging in the performance of activities required by the standard cannot be held to be a violation of the Act. The Secretary is empowered to promulgate a standard requiring that the shoring be done by either of the two methods suggested in the evidence or be done by some other method. The Secretary, however, has not seen fit to do so, and unless the Secretary does promulgate such a standard, section 5(a)(2) is not violated by adopting a method of shoring which the complainant feels to be unsafe. Of course, the shoring itself must be safe when it is erected, but that is not an issue in this case. There must have been danger in the method adopted by Mr. Riddle, Sr., as there was a cave in which costed him his life. This is a most unfortunate occurrence. This Judge, however, cannot create a standard to deal with the situation, and no standard has been cited which covers the apparent danger. It definitely is not covered by standard 29 C.F.R. 1926.652(b).

In view of the above holding, it is unnecessary to reach the question of whether the respondent was [*28] responsible for the actions of Mr. Riddle, Sr. in disobeying respondent's specific instructions, which action costed him his life. The complaint, therefore, has not been sustained.

FINDINGS OF FACT

1. Respondent is a corporation engaged in construction or installation of electrical conduit or wiring. Equipment and materials used in the construction of a project at 15th Street and Walton Way, Augusta, Georgia, were produced at or shipped from points outside the State of Georgia, and the said electrical system will serve commercial users, among others, in the area.

2. On or about January 22 and 23, 1975, respondent's employees were at 15th Street and Walton Way, Augusta, Georgia, working in a trench more than five feet in depth, in unstable or soft material.

3. Mr. Frank Riddle, Sr., a working foreman, and his son were shoring and bracing the sides of the trench on January 20, 1975.

4. Mr. Riddle, Sr. had been instructed by the respondent to never go beyond a braced area, but to lean beyond it in erecting bracing in the next area of the trench.

5. Mr. Riddle, Sr. and Mr. Jordan, another employee of the respondent, on some occasions, violated the instructions of the [*29] company by going beyond the protected area to lay the shoring and bracing.

6. Mr. Riddle, Sr., on January 20, 1975, went beyond the braced area, and the wall of the trench collapsed, suffocating or crushing him, causing his death.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Act.

2. Standard 29 C.F.R. 1926.652(b) only requires that sheeting and bracing be performed and does not require that the sheeting and bracing be performed in any particular manner.

3. Respondent did not violate the requirement of the standard that sheeting and bracing be performed, and, therefore, has not violated said standard.

ORDER

It is therefore ORDERED that:

The citation and complaint alleging violation of section 5(a)(2) of the Act and standard 29 C.F.R. 1926.652(b) has not been sustained and hereby is dismissed.

Dated this 23rd day of December 1975.

JOHN S. PATTON, Judge