CLIFFORD OLSEN and MELVIN OLSEN, a partnership d/b/a OLSEN EXCAVATING

OSHRC Docket No. 13097

Occupational Safety and Health Review Commission

April 19, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Altero D'Agostini, Regional Solicitor, USDOL

Clifford Olsen, Olsen Excavating, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed [*2] Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Sandra K. Rogers, for Complainant

Clifford Olsen and Melvin Olsen, partners, owning Olsen Excavating, for Respondents

STATEMENT OF THE CASE

Jerry W. Mitchell, 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.) contesting a serious Citation issued against Olsen Excavating (Respondent) by the Secretary of Labor (Complainant) under the authority vested in Complainant by Section 9(a) of the Act.

A place of business and employment under the operation and control of Respondent, described as "a trenth about 67 feet in [*3] length dug for the placement of corrugated metal pipe" located at 24th Street and Hill Road, Boise, Idaho, was inspected by a representative of the Secretary of Labor on April 8, 1975. During that inspection alleged violations of four specific safety standards were noted. As a result of the inspection Citation Number One (Non-Serious, 3 Items) and Citation Number Two (Serious, 1 Item) were issued to Respondent on April 16. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, at Parts 1926 and 1903.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act Respondent was duly advised by a Notification of Proposed Penalty, dated April 16th, of the proposal to assess penalties of $0 in connection with Citation Number One and $500 in connection with Citation Number Two.

In a timely manner Respondent contested Citation Number Two by a letter dated April 23rd. The violation alleged in Citation Number Two is described in the following language with the cited safety standard quoted immediately thereafter:

Citation Number Two --

"A trench located [*4] adjacent to the inter-section of 24th Street and Hill Road dug parallel to Hill Road was cut in soft material. The sides of the trench walls were not shored, sheeted, braced, adequately sloped or otherwise supported to protect the employees working in it. The trench was about 12 feet 4 inches deep, about 67 feet in length and about 3 feet at the base to about 6 feet 4 inches at the top."

ABATE "Immediately upon receipt of Citation"

STANDARD -- 29 CFR

"1926.652(b) 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. See Tables P-1, P-2 (following paragraph (g) of this section).

A complaint was filed and answered by Respondent pro se. Respondent denied all allegations of Articles IV and V of the complaint but did not refer to any other Articles. The trial, originally set for September 9th, was held on September 11th in Boise, Idaho.

PROCEEDINGS AND EVIDENCE

When the trial convened Complainant was represented by legal counsel and Respondent was represented by its [*5] owning partners, Melvin and Clifford Olsen, father and son respectively. In a discussion preliminary to the receipt of evidence Respondent admits its business affects commerce, that it had one (1) employee at the time of the inspection, and that Citation Number One is not contested. Respondent denies that anything about the complaint is correct.

Complainant presented its case through the testimony of three witnesses:

1. Paul W. Thomas, Compliance Safety and Health Officer (CSHO), describes his inspection of the worksite which involved the digging of a trench for a storm sewer. He first identified himself to the general contractor at the worksite and subsequently to Melvin Olsen. He observed Clifford Olsen and one employee working on the bottom of a trench where the walls were not safeguarded. He measured the width and depth and stepped off the length. The soil was uniformly sandy from top to bottom without stratification. Some cracking of the sides was noted.

2. Richard C. Jackson, OSHA Area Director, accompanied the CSHO on the inspection. He describes his general observations. He obtained samples from one side of the trench at the 1, 4 and 9 foot depth levels. The [*6] samples were given to Thomas for transmittal for testing.

3. Richard D. Kanemasu, President of Northern Testing Laboratory describes the tests run by him on the samples taken at Respondent's worksite by Jackson. Analysis of the samples resulted in a classification an sand. He identifies tension cracks on the photographs introduced as evidence.

Respondent presents its case through the testimony of the two partners who own Respondent:

1. Melvin Olsen, father of the other partner, describes the conditions existing and comments with regard to each of the exhibits offered. He was at the worksite and states that the trench was 30 - 36 inches wide on the bottom.

2. Clifford Olsen, son of the other partner, states he ran the backhoe to dig the trench. He used the backhoe to pull the side down and some of it sloughed off at that time. He insists that the vertical side was safe and that the one employee in the trench with him during the inspection was not in an unsafe position.

Subsequent to receipt of the transcript Complainant filed a brief and Respondent filed a letter stating: "The only real evidence shown to the review commission, shows clearly that Bruce Barker was in a safe [*7] place."

DISCUSSION

JURISDICTION --

The jurisdictional allegations of the complaint are not denied in Respondent's answer. In addition, Respondent's owning partners agreed at the outset of the trial that Respondent had an employee and was engaged in a business affecting commerce at the time of the inspection on April 8, 1975. Jurisdiction is thus clearly conceded.

THE VIOLATION --

The Citation contested here alleges that a trench 12 feet 4 inches deep, 3 feet wide at the base and 6 feet 4 inches wide at the top was cut in soft material without being shored, sheeted, braced or adequately sloped or otherwise supported to protect the employees working in it.

Respondent admits that its one employee was working on the bottom of the trench with one of the owning partners at the time of the inspection. Respondent argues, however, that the evidence shows that the employee was working in a safe place. This argument is not supported by any evidence of record herein. In fact, all of the evidence is contrary to Respondent's argument.

All of the witnesses agree that the trench was 30 to 36 inches wide on the bottom and that the southern side (the right side on Exhibit 2) was [*8] vertical. They also agree that the other side was practically vertical except for an area near the previously existing sewer manhole where the upper part of that side had apparently sloughed off or been dragged down in digging the trench. Tension cracks were apparent in the area of sloughing. Even at the widest area, where the apparent sloughing had occurred, the top of the trench was only 6 feet 4 inches wide by actual measurement. The trench was measured to be 12 feet 4 inches deep. It was about 67 feet in overall length. At least 26 feet of that total length went to the full depth of 12 feet 4 inches. Some of the remaining length was partially backfilled and thus not as deep. The single employee was observed working on the bottom of the deepest portion of the trench with one of the owning partners. The trench had a single vertical shoring or brace consisting of two vertical pieces of lumber held apart by 2 horizontal pieces of lumber appearing to be 2 inches by 4 inches in dimensions. There was no other shoring or bracing anywhere in the trench and no apparent deliberate sloping of the sides.

The soil in which the trench was excavated was sandy without any stratification. [*9] Samples taken tested out to show a composition of 61% sand, 30% silt, 8% clay, and 1% gravel. The evidence thus clearly demonstrates that the trench was excavated in soft, unstable material. Combining this conclusion with the narrow, deep, vertical walled dimensions of the trench as discussed in the previous paragraph clearly establishes a violation of the cited standard.

THE VIOLATION WAS SERIOUS --

Under the terms of Section 17(k) of the Act a violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition existing -- in this instance the sides of the trench that were not shored, braced or sloped as required. It is not necessary that there be a substantial probability of an accident occurring because of the existing hazard -- only that there be a substantial probability that if an accident does occur the resulting injury will be serious n nature or that death will result. See Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, 1325 (1973).

In the instant case any collapse of the sides of the trench [*10] will almost certainly trap any man unfortunate enough to be working on the bottom of the trench at the depth of 12 feet 4 inches where Respondent's employee was observed working. He would have little, if any, opportunity for escape. The weight of all of that height of sandy soil falling on him from above would very probably seriously injure him -- if he was lucky enough to avoid suffocation. The presence of the tension cracks identified at the top of the northern side of the trench only makes it much more likely that a cave-in will occur.

Section 17(k) also requires that an employer know of the violation before the violation can be found to be serious. In the instant case this requirement is fully satisfied through the presence of one of the owning partners in the dangerous trench with the employee that was in immediate danger. The other owning that was in immediate danger. The other owning partner was at the worksite and also had actual knowledge that the employee was working in the bottom of the trench. Thus Respondent had actual knowledge of the danger. The violation established by the evidence in this record is, without doubt, SERIOUS in nature.

APPROPRIATE PENALTY [*11] --

In determining the appropriateness of any penalty assessed in connection with this proven serious violation it is necessary to give due consideration to the criteria (history, size of business, good faith, and gravity) set forth in Section 17(j) of the Act.

1. Respondent had not been previously inspected under the OSHA program.

2. Respondent is extremely small in size with only one (1) employee at the worksite.

3. Respondent's good faith is not in question. The CSHO accorded Respondent full credit for good faith and there is no apparent reason to do otherwise.

4. The gravity here in moderate because of the softness of the soil in which the trench was excavated, the presence of the tension cracks, and because of the depth at which the employee was working. Only 1 employee was exposed to the hazard.

Giving due consideration to all of the factors involved it is considered that a penalty of $100 is appropriate under the circumstances of record here. This is particularly true because of the minimal size of Respondent's operation. Such a penalty should serve in the instance of this small employer to effectuate the provisions of the Act and should encourage Respondent to [*12] comply with the trenching requirements in its future operations.

Consequently, based upon the evidence adduced, the arguments made and the briefs submitted we make the following:

FINDINGS OF FACT

1. On April 8, 1975 and at all tmes material hereto Clifford Olsen and Melvin Olsen, a partnership doing business as Olsen Excavating, Respondent herein, was engaged in business as a construction contractor. On that date the partners and one employee were engaged in excavating a trench for and laying a 24 inch storm sewer in Boise, Idaho. Respondent was engaged on that date in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. (Record-failure to deny in answer. Transcript pgs 12-15.)

2. On April 8, 1975 a Compliance Safety and Health Officer (CSHO) inspected Respondent's workplace at 24th Street and Hill Road, Boise, Idaho on behalf of the Secretary of Labor. As a result of that inspection Citation Number One (Nonserious, 3 Items) and Citation Number Two (Serious, 1 Item) were issued to Respondent on April 16th. The Notification of Proposed Penalty issued to Respondent on the same date sought penalties of $0 [*13] in connection with Citation Number One and $500 in connection with Citation Number Two. On April 23rd Respondent contested Citation Number Two and the accompanying proposed penalty. (File and Transcript pgs 8-10.)

3. On April 8, 1975 Respondent's one employee was working on the bottom of a trench with one of the owning partners of Respondent. The trench was 12 feet 4 inches deep. It was no more than 36 inches wide on the bottom and was 6 feet 4 inches wide at the widest portion at the surface. One side (the southern) was vertical and the other side was nearly so with some minimal sloping where material had sloughed or been pulled down in the area near the previously existing sewer manhole. Tension cracks were present in the northern side at the top near the sewer manhole. The only shoring present consisted of two single pieces of lumber installed vertically in the trench at one point. The vertical lumber was held apart by two horizontal pieces of lumber appearing to be 2 inches by 4 inches in dimension. There was no apparent deliberate sloping of either side of the trench. (Transcript pgs 16-21, 30-38, 41-43, 46, 53, 59, 66-70, 72-74 and Exhibits 1, 2, 3, 4, 5, 7, 8 and [*14] 9.)

4. The trench was excavated in sandy soil that was not stratified or layered. Analysis of the soil revealed that it was 61% sand, 30% silt, 8% clay and 1% gravel. (Transcript pgs 21-23, 39-40, 46-47, 49-52, 56, 59-63, and Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10.)

5. One of the owning partners of Respondent was actually working in the trench beside Respondent's single employee at the time of the inspection. The other owning partner was present at the worksite within 30 feet of the trench at the time of the inspection. (Transcript pgs 15-18, 31-32, 34-35, 41, 46, 66-70, 73, and Exhibits 1, 2, 3, and 8.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all time material hereto Clifford Olsen and Melvin Olsen, a partnership doing business as Olsen Excavating, Respondent herein, was an employer engaged as a construction contractor in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On April 28, 1975 Respondent filed a letter contesting Citation Number Two herein. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction [*15] of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.

2. Respondent's failure to shore or brace or slope the trench as found in Finding 3 is a serious violation of the safety standard codified at 29 CFR 1926.652(b).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown it is ORDERED that:

1. Citation Number Two be, and the same hereby is, AFFIRMED; and that

2. The penalty of $500 proposed in connection with Citation Number Two be modified to $100 and as so modified be, and the same hereby is, AFFIRMED and ASSESSED.

Dated this 26th day of February 1976.

JERRY W. MITCHELL, Judge