TEXACO, INCORPORATED
OSHRC Docket No. 13137
Occupational Safety and Health Review Commission
October 11, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
Charles L. Irvin, Texaco, Inc., for the employer
Earl R. Campbell, International Representative, Oil Chemical and Atomic Workers International Union, for the union
OPINION:
DECISION
BY THE COMMISSION:
A decision of Review Commission Judge Harold A. Kennedy, dated April 27, 1976, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the "Act"). The issue in this case is whether Texaco violated the safety standard at 29 C.F.R. 1926.651(c) requiring protection for employees working in excavations. n1 Judge Kennedy found that Respondent violated the standard and assessed a penalty of $600. We affirm his decision.
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n1 29 C.F.R. 1926.651(c) provides:
The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some equivalent means.
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Texaco dug an excavation in order to repair a leaking underground water pipe at its oil rafinery in Tulsa, Oklahoma. The excavation was eight to nine feet deep and approximately five feet wide. Water was continually seeping into the hole, necessitating the use of a pump to eliminate the water accumulation. The pumping operation caused considerable sloughing of the nearly-vertical walls, resulting in a three to four foot overhang on the north and west sides of the excavation.
In order to protect the employees in the excavation from the possibility of the walls collapsing, Texaco fabricated a two-stage trench box. The first stage was approximately five feet square and four feet high. The second stage, which was to fit on top of the first, was five feet square and two-and-one-half feet high. At the time of the alleged violation, only the first stage was in place in the excavation. One employee was inside the box at the bottom of the excavation inspecting the leak, one had a foot on the ground and the other on a ladder, one was standing on the flange on top of the trench box and a fourth was standing on a [*3] concrete conduit, the top of which was two feet below ground level within the excavation.
Texaco primarily argues that the Secretary did not prove that it violated the standard because the Secretary's witnesses were not credible. However, Texaco does not dispute that employees were in the excavation before the second trench box was installed. Furthermore, Texaco does not argue that the excavation would have been safe without the protection of the trench boxes; indeed, the very reason Texaco fabricated the trench boxes was because it thought that they were necessary to protect the employees working in the excavation. Thus, the credibility of the Secretary's witnesses does not affect the resolution of this case.
Texaco also contends that it did not violate the standard because employees may have to enter an excavation in order to install the necessary shoring. Yet, Texaco does not dispute the testimony of the chief inspector of its engineering department, who stated that he was in the bottom of the excavation before the second trench box was installed in order to inspect the water leak. Thus, even if it was necessary for employees to be in the excavation in order to install the [*4] second trench box n2, the fact is that at least some of the employees who were in the trench at the time of the alleged violation were there for another purpose and were unnecessarily exposed to the hazard.
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n2 If employees are in an unshored trench to install shoring, and alternative methods of installation are available, the employer will then not be excused from non-compliance with the standard. Floyd S. Pike Electrical Contractors, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD para. 21,584 (No. 12398, 1977), pet. for review filed, No. 77-1659 (5th Cir., March 28, 1977).
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Texaco further contends that the overhanging material did not extend over the first stage of the trench box and therefore did not present a hazard to the employees in the box; also, that employees were only in the excavation for a short period of time before the second trench box was installed. In some sections of its brief, Texaco argues that these factors mitigate against the finding of any violation of the standard; in others, [*5] it implies that they establish that the violation should not be classified as "serious". We conclude that a serious violation was proven. Although the overhanging material was not directly above the trench box, it was adjacent thereto and could have fallen into the box. If this happened, it is likely that any employee in the box would have suffered death or serious harm. Thus, even though the duration of the exposure was brief, a serious violation occurred. Bearden Company, 75 OSAHRC 21/E7, 3 BNA OSHC 1854, 1975-76 CCH OSHD para. 20,245 (No. 2999, 1975).
We also reject Texaco's contention that only a minimal penalty should be assessed. Although the duration of exposure was brief, several employees were exposed to the possibility of death or serious harm. The Judge properly considered the statutory factors n3 in assessing the penalty and we conclude that his assessment of $600 is appropriate.
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n3 29 U.S.C. 666(1).
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Accordingly, the Judge's decision is affirmed.