Docket No. 13348

W. E. DALTON, M. L. DALTON, AND J. B. TRUELOVE, d/b/a E. L. DALTON AND COMPANY

OSHRC Docket No. 13348

Occupational Safety and Health Review Commission

April 4, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Joe F. Canterbury, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge J. Paul Brenton, dated December 24, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, disposed of two citations which alleged that respondent had violated 29 U.S.C. § 654(a)(2) by failing to comply with seven occupational safety and health standards. For the reasons that follow, the Commission affirms the Judge's decision.

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n1 Chairman Barnako does not agree to this attachment.

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Item "a" of Serious Citation Number 1 charges respondent with failing to store excavated material at least two feet or more from the edge of an excavation in contravention of 29 C.F.R. § 1926.651(i)(1). The Judge found respondent in noncompliance with the standard but held that the violation was [*2] nonserious in nature.

Commissioner Moran would vacate this item on the grounds that the cavity in question was a "trench," n2 while the cited standard applies only to "excavations." n3 Since this issue has not been raised by either party, Chairman Barnako and Commissioner Cleary decline to address it in the absence of compelling public interest. n4

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n2 Complainant's safety inspector testified that the cavity in question was 6' 10" deep, 3' 6" wide, and nearly 20' long. Although the Judge found that the depth of the cavity was probably a little less than the 6' 10" figure given by complainant, Commissioner Moran finds that the preponderance of evidence nevertheless establishes that the depth was greater than the width and that the cavity was therefore a trench. See Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553, February 24, 1976.

n3 See his dissenting opinions in Secretary v. Lloyd C. Lockrem, Inc., supra; Secretary v. D. Federico Co., Inc., OSAHRC Docket No. 4395, February 10, 1976.

n4 Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976. Commissioner Moran disagrees with their failure to consider the issue for the reason expressed in his dissenting opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976.

[*3]

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Item "b" of Serious Citation Number 1 charges respondent with failing to use serviceable lumber for shoring in contravention of 29 C.F.R. § 1926.652(d). The safety inspector testified that on the north side of one of the trenches a 2" X 12" upright had a crack in it. He also testified that a large sheet of 3/4" plywood, being used as an upright, was bent and cracked. Respondent's foreman testified that the plywood was used to keep dirt from falling down the collars of his workers at a part of the wall which was concave. He further testified that the "crack" observed in the 2" X 12" upright was actually tar on the wood.

On the basis of the foregoing, the Judge vacated this item of the citation. Specifically, he conclude that the plywood could not be deemed "unserviceable" since the bend was due to the concabe nature of the face of the trench to which it was applied and since complainant's photographs failed to support complainant's conclusions that the plywood was cracked. He also concluded that complainant failed to prove by a preponderance of the evidence that the alleged crack in the 2" X 12" [*4] upright was in fact a crack and not tar. n5

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n5 This conclusion was also partly predicated on photographs introduced into evidence by complainant.

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The Judge arrived at the above conclusions after having seen and heard the witnesses. All Commissioners agree that there is no basis for setting aside the credibility determinations he made in reaching these conclusions. Secretary v. Paul L. Heath, 20 OSAHRC 297 (1975). His vacation of this item is therefore affirmed. n6

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n6 Additionally, Commissioner Moran would vacate this item on the grounds that complainant has failed to prove that the trench required shoring in the first place. An explanation is set out in the discussion under item (d), infra.

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Item "c" of Serious Citation Number 1 charges respondent with failing to provide additional shoring and bracing for trenches which were subject to [*5] vibrations from railroad and highway traffic, as required by 29 C.F.R. § 1926.652(e). Complainant's safety inspector testified that he saw two large cement trucks traveling on the road adjacent to the trenches. Furthermore, he testified that there was a railroad line 50' from the trenches. Although he stated that he did not test for vibrations and could not say for certain that he felt vibrations in the area at the time of the inspection, he testified that about four months later he did feel surface vibrations as a train passed.

On the basis of the foregoing, the Judge concluded that there was insufficient evidence to conclude that the sides of the trenches were in fact subjected to vibrations. Chairman Barnako and Commissioner Moran agree with the Judge and join in affirming his holding. Commissioner Cleary would reverse the Judge's holding on the grounds that it can be inferred from the proximity of the railroad tracks, which the record establishes were in service, and from the passing motor vehicles that the trenches were subject to vibrations. He also notes that respondent's testimony that employees were ordered out of the trench whenever a train passed raises an inference [*6] that the trenches were subject to vibration, and thus additional precautions were necessary.

Item "d" of Serious Citation Number 1 charges respondent with failing to meet several of the minimum requirements for trench timbering as set out in Table P-2, in contravention of 29 C.F.R. § 1926.652(g)(1). The Judge affirmed this item on the ground that the evidence established that in one single instance respondent failed to adhere to the requirements of Table P-2. n7 Respondent contends on review that the character of the violation should be reduced from serious to nonserious.

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n7 Specifically, the Judge found that respondent used 3/4" plywood for an upright instead of the minimum requirement of 3" X 4" or 2" X 6" timber.

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Chairman Barnako and Commissioner Cleary agree with the Judge's affirmance of a serious violation. The test for ascertaining whether a violation is serious is not whether the occurrence of an accident is probable, but whether it is substantially probable that death or serious physical harm could result [*7] in the event an accident occurs. Secretary v. Pack Kiver Lumber Company, 15 OSAHRC 608 (1975); 29 U.S.C. § 666(j).

Commissioner Moran would reverse the Judge and vacate this item of the citation on the ground that an employer cannot be held in noncompliance with a standard that imposes minimum shoring requirements unless complainant establishes the need for shoring in the first place. n8 Since there is no requirement for shoring in solid rock, hard shale, or hard slag, n9 and since complainant has failed to establish in any way the type of soil here in question, Commissioner Moran would hold that complainant has failed to establish the need for shoring the trench and that respondent cannot therefore be held in noncompliance with the standard for faulty shoring.

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n8 Since respondent asserts in its review brief that the Judge's decision should be affirmed except that this item should be recharacterized as nonserious, Chairman Barnako and Commissioner Cleary consider it inappropriate to address this issue. See footnote 4, supra, and the accompanying text.

n9 See footnote 1, Table P-2.

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Neither party challenges the Judge's affirmance of Item 1, Nonserious Citation Number 2, and all Commissioner agree to affirm it.

Complainant seeks the reversal of the Judge's vacation of Item 2 of Nonserious Citation Number 1 and Item "e" of Serious Citation Number 2, alleging noncompliance with 29 C.F.R. § § 1926.652(h) and 1926.652(j), respectively. All Commissioners agree with the Judge's vacation of these charges. The Judge properly vacated the § 1926.652(h) charge because the backfill in the trench provided an adequate means of exit. Secretary v. Paul Hutchinson & Sons, OSAHRC Docket No. 3301, June 11, 1976. His vacation of the § 1926.652(j) charge was also correct since the trench jacks were secured with "feet" attached to uprights in the south end of the trench and were driven 1/4 inch into the uprights in the north end of the trench, thus rendering them "secured to prevent sliding, falling, or kickouts."

Accordingly, the Judge's decision is affirmed.

APPENDIX A

DECISION AND ORDER

Jane Matheson, for the Secretary of Labor

Joe Canterbury, for the Respondent

Brenton, J.

STATEMENT OF [*9] THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting citations issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

The citations allege that as a result of the inspection of a workplace under the ownership, operation or control of the respondent, located at Rock Island Rd. by Irving City Hall, Irving, Texas, and described as follows: "Trenching contractor", the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

Both the serious citation and the non-serious citation which were issued on May 2, 1975, allege that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926.

The description of the alleged violations contained on the serious citation number 1 states:

Item 1.a) "29 CFR 1926.651(i)(1) Excavated material was not effectively stored at least 2 feet [*10] or more from the edge of the excavation at the following location: Rock Island Rd. by Irving City Hall, Irving, Texas."

Item 1.b) "29 CFR 1926.562(d) The employer did not ensure that only good, serciceable [sic] lumber be used for shoring. Square sections of 3/4 inch plywood used in place of uprights were bent and cracked and a 2 X 12 upright was broken off at the point where the cross brace connected in trench #1."

Item 1.c) "29 CFR 1926.652(e) Additional precautions were not taken by way of shoring and bracing to prevent cave-ins or slides where excavations were subjected to vibrations from railroad or highway traffic. The excavations were adjacent to a heavily traveled road and were approximately 50 feet from a railroad. Also, machinery was in operation next to the trench."

Item 1.d) "29 CFR 1926.652(g)(1) The employer failed to meet the minimum requirements for trench timbering as outlined in Table P-2. Plywood, 3/4 inch, was used for uprights in place of lumber of 2 X 6 strength and uprights were spaced beyond the maximum distance. No stringers were run for additional support."

Item 1.e) "29 CFR 1926.652(j) Cross braces and trench jacks were not secured to prevent sliding, [*11] falling or kickouts."

"The above combined violations subjected employees to a serious hazard of being caught in a cave-in."

These standards as promulgated by the Secretary provide as follows:

Item 1.a) "Section 1926.651 -- Specific Excavation Requirements

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation."

Item 1.b) "Section 1926.652 -- Specific Trenching Requirements

(d) Materials used for sheeting and sheet piling, bracing, shoring, and underpinning, shall be in good serviceable condition, and timbers used shall be sound and free from large or loose knots, and shall be designed and installed so as to be effective to the bottom of the excavation."

Item 1.c) "Section 1926.652 -- Specific Trenching Requirements

(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source."

Item 1.d) [*12] "Section 1926.652 -- Specific Trenching Requirements

(g)(1) Minimum requirements for trench timbering shall be in accordance with Table P-2."

Item 1.e) "Section 1926.652-Specific Trenching Requirements

(j) Cross braces or trench jacks shall be placed in true horizontal position, be spaced vertically, and be secured to prevent sliding, falling, or kickouts."

The description of the alleged violations contained on the non-serious citation number 2 states:

Item 1 "29 CFR 1926.650(f) The employer failed to ensure the use of warning vests where employees were exposed to vehicular traffic. For example - employees directing traffic on Rock Island Rd. by the Irving police station did not have on warning vest."

Item 2 "29 CFR 1926.652(h) Adequate access was not provided for employees working in trench at the following location: Trench #2 - Rock Island Rd. by Irving police station."

These standards as promulgated by the Secretary provide as follows:

Item 1 "Section 1926.650 -- General Protection Requirements

(f) Employees exposed to vehicular traffic shall be provided with and shall be instructed to wear warning vests marked with or made of reflectorized or high visibility material." [*13]

Item 2 "Section 1926.652 -- Specific Trenching Requirements

(h) 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."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated May 2, 1975, from W. E. Hargrove, Area Director of the Dallas area, Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess penalties for the violations alleged in the amount of $500.00.

After respondent contested this enforcement action, and a complaint and an answer had been filed by the parties, the case came on for hearing at Dallas, Texas, on August 26, 1975.

FINDINGS OF FACT

1. Respondent by its answer admits that its business activities affect commerce.

2. At the time of the alleged infractions of the Act respondent was engaged in performing work in two separate open trenches which it had made, each of which, exhibits C-2 and C-13 respectively, was parallel and adjacent to a public street in the city of Irving, Texas.

3. An employee of respondent [*14] was observed and photographed in this public street encountering vehicular traffic without wearing a warning vest.

4. Reference to these trenches, although at times confused by the witnesses, were, upon the record, designated as trench one and trench two.

(a) Trench one, accoridng to Thomas Marple, complainant's inspector, was six feet 10 inches in depth, three and one half feet in width, and was in excess of eight feet in length.

(b) According to Bill Faust, respondent's foreman, trench one was approximately five feet in width and four and one half feet in depth. He did not testify as to its length.

(d) The sole testimony concerning the length and width of trench two was by Bill Faust that it was 16 to 17 feet in length and 11 feet in width. He also stated that it was 4'9" in depth. It was in the process of being backfilled and ramps at each end, made by the backfill, were each at a 45 degree angle.

5. Excavated material from trench one was stored on the side of this trench opposite the street side some of which extended up to its edge. The crown of this material was nine feet from the edge. [*15] There was a two and one-half feet drain ditch which ran parallel with and adjacent to this edge where the spoil bank had been created.

6. Two employees were engaged in an emergency activity in trench two during the backfilling process and no ladder was provided for exit. At this time each ramp was less than 25 feet from the point of operation by the employees.

7. In these trenches the uprights used for shoring were new 2" X 12" lumber except at one location in trench one a piece of plywood 3/4" thick and three feet long was used. These uprights were spaced 3 1/2' to 4'9" apart. The top of one upright was broken off at a point above the level of the edge of this trench.

8. Rock Island railroad tracks paralleled the trenches at a distance of 50 feet. There was vehicular traffic including perhaps two cement trucks which traversed the adjacent street.

9. No earth vibrations were detected by any human sense from any source during the inspection. About four months later Thomas Marple while standing near the trench site maintained he felt surface vibrations of the earth as a train passed by 45 feet away. The sides of the adjacent drain ditch were not disturbed.

10. No stringers [*16] were provided in the shoring system in either trench, however, complainant's case for the absence thereof was directed solely to trench one.

11. Cross braces and trench jacks were secured to the uprights, the wood braces by nailing and the jacks by a foot on one end and four spikes on the other end.

12. There was an observable crack in the adjacent spoil bank which did not extend into the face of the trench.

13. Soil samples were taken from the sides of trench one by Thomas Marple and delivered to a testing laboratory, however, the results of tests, if any, were not disclosed.

14. Thomas Marple would not classify the soil constituting the sides and faces of trench one and complainant admitted that Thomas Marple was not qualified to judge the quality of soils.

15. Trench one had been open for five days at the time it was inspected by Thomas Marple for the complainant.

16. At one end of trench one an existing manhole which had been uncovered was in excess of 2'4" below the surface of the ground. In excavating around the open end and part of one side of this manhole fill was encountered in a portion thereof. Respondent flaked this fill off the side which left a concave [*17] depression in the face which prompted the use of the plywood at this point instead of a 2" X 12" upright. Also at this point the width of the trench was about seven feet.

17. There was telephone cable encased in duct work located in the center of the bottom of trench one. The soil had been excavated from the sides of the duct and according to exhibit C-5 the top of the duct was about knee high on the workman in this trench.

18. At the hearing Thomas Marple maintained one upright in trench one was cracked at its connection with a cross brace while Bill Faust maintained it was simply tar on the board. In Marple's citation 1, at item 1.b) he states the upright is broken off at this point. Marple did not call to Faust's attention during the inspection and cracked upright.

19. Several trains pass daily, at 50 feet distant, the location of the trenches, and there was no sloughing or cracking of the sides of trench one at any time. Also there was an embankment about 13 feet in height and 38 feet from the railroad with a perpendicular side and this side was never disturbed by any vibrations at any time.

OPINION

Respondent violated 29 CFR 1926.650(f) because it permitted [*18] at least one employee to direct traffic on Rock Island Rd. adjacent to the work site without causing him to wear a warning vest. (Exh. C-1).

Respondent did not violate 29 CFR 1926.652(h) because in trench two the backfill at each end provided an adequate means of exit and neither required more than 25 feet of lateral travel from the point the employees were performing an emergency task. Moreover, the specific charge, citation 2, item 2, alleges failure to provide adequate access. The regulation is designed to give an employee an avenue of escape from a trench four feet deep or more at each 25 feet interval in the event of a nearly collapse at any point of operation. Complainant's evidence failed to establish the existence of the elements necessary to make a cas for violation of this standard.

III

Respondent predicates its defense to the alleged serious violation, the five combined charges in citation 1, upon the proposition that trench one, to which the charges and the evidence thereon was directed, was less than five feet in depth and thus not required to be shored. The preponderance of the evidence, however, tends to establish that it was at least five feet in depth because [*19] adjacent to the manhole the depth exceeded five feet. Respondent's measurement of 4'6" was to the top of the duct, however, at least one employee was observed with his feet resting on the bottom of the trench which was below the top of the duct at knee length. It is apparent that the length of his legs from his knees to the bottom exceeded six inches. Complainant's measurement of 6'10" for the depth of this trench was probably inaccurate considering the use of a string, plumb bob, squating on the edge, reaching out to the string for an approximation of the top, and laying out the string for measurement by tape. Nevertheless, the whole thereof lends credence to the proposition that this trench was subject to the requirements of 29 CFR 1926.652(d), (g)(1) and (j) with respect to its depth.

In complainant's effort to sustain these three alleged violations he failed to show by a preponderance of the evidence the kind or condition of the earth with respect to the faces or sides of trench one. It is true Thomas Marple insisted that the crack in the spoil bank extended into the side of this trench. He was also impressed that there was other evidence of cracking because of a conclusion [*20] he reaches from one instance where it appeared some soil had sloughed off. He did not see any sloughing from the faces of this trench and his expertise with excavations and trenches was very minimal. Moreover, Marple claimed it was not his job to classify soil, and complainant, upon the cross-examination of Marple, insisted that Marple was not qualified to judge the quality of soil. Therefore, complainant's conclusion on the record, through the testimony of Marple, that the earth on the face of trench one was of a kind "likely to crack" should be and is found to be without merit.

There is no hard direct evidence in this case as to the kind or condition of the earth constituting the sides of trench one. It is apparent, however, that respondent was of the opinion that the earth on its sides was hard and compact because its shoring system in place conformed to or exceeded the requirements of table P-2 as referenced by 29 CFR 1926.252(g)(1) except for one upright which was a small piece of plywood. There was no evidence that the earth of the sides of this trench was under any hydrostatic pressure and none to the effect that it was soft or sandy. There was evidence that there had [*21] been fill around the manhole, the upper part of which had been flaked out and then covered with a sheet of plywood.

From all these facts and circumstances there is but one rational conclusion which is that the bulk of the earth constituting the sides of trench one was hard and compact. At this point it is interesting to note that complainant argued by way of testimony that there was little difference in the shoring requirements as between hard and compact earch and earth likely to crack.

III

Respondent violated 29 CFR 1926.651(i)(1) because it failed to store the excavated material from trench one at least two feet from its edge. Complainant's argument that this violation placed an overburden upon the face of the trench thereby affecting its stability is rejected because this regulation was not fashioned for the prevention of an overburden. In view of the alternative provided in subparagraph (2) of this regulation its sole purpose is to prevent material from falling into the excavation. This violation should be adjudged non-serious.

Respondent did not violate 29 CFR 1926.652(d) because the materials used for shoring and bracing was in good serviceable condition and the timbers [*22] used were sound and free from large and loose knots. It is true that the one piece of plywood in use was slightly bent, however, this same about due to the concave nature of the portion of the face of the trench to which it was applied. Although Thomas Marple indiicated this plywood was cracked and splintered neither he by his photographs nor the photographs, exhibits C-5, C-6, and C-7, standing alone demonstrate the alleged deficiencies. Complainant failed to tip the scales in favor of finding the one 2" X 12" upright in either a broken condition as alleged or in a cracked condition as testified to by Thomas Marple. Bill Faust stated it was not cracked. Exhibit C-4 tends to favor the proposition that the alleged crack is tar. The irregular marking is dark. There does not appear to be an open space which a crack would in all common probability depict.

Respondent did not violate 29 CFR 1926.652(e) because the evidence fails to show that the sides of trench one were in fact subjected to vibrations from any source.

Complainant predicated his case for violation of 29 CFR 1926.652(g)(1) on the proposition that respondent did not meet the minimum requirements for shoring its trench [*23] with respect to the dimension of its timber used for uprights, that spacing of uprights exceeded the maximum allowed, and failure to provide stringers all as set forth in table P-2. The truth of these facts alleged has been shown to exist in only one single instance which was the use of the 3/4" plywood for an upright instead of the minimum requirement of 3 X 4 or 2 X 6 timber. All other uprights exceeded the maximum dimension inasmuch as each was 2 X 12 timber. Hard and compact earth does not require stringers in the shoring system of a trench 10 feet in depth or less. And the maximum spacing allowed is six feet. In the instant case the maximum spacing in one instance was 4'9" and the remainder varied down to 3 1/2'. Therefore, respondent is found to have violated 29 CFR 1926.652(g)(1) in respect to one isolated instance which is the use of 3/4" plywood for one lone upright.

Respondent did not violate 29 CFR 1926.652(j) because there has been no showing by a preponderance of the evidence that any trench jack was not secured, as required by this regulation, to prevent sliding, falling or kickouts.

Complainant's $500.00 proposed penalty for the combined alleged violations [*24] of citation 1 is inappropriate. The sole hazard alleged to have been unguarded is the possibility of a cave-in while an employee was required to be in trench one.

In accordance with the foregoing findings and opinion of the evidence complainant has established just one single instance of a variation in the shoring system as required by the regulations which could possibly contribute to a cave-in.

Here respondent knew that it had not strictly met the requirement of the regulation in using the 3/4" plywood but management in charge felt its use under the circumstances here served a purpose which was to keep some remaining sloughing material from falling around the collar of the workmen and at the same time give adequate support to the existing face of the trench at the particular place. Regardless, there has been a clear violation but it does not extend throughout the whole length and depth of the trench. Obviously if the plywood gave way permitting a cave-in at the time an employee was exposed within the trench at the location of the plywood there is a substantial probability that death or serious physical harm could result. Thus, this lone violation is a serious violation under [*25] section 17(k) of the Act.

The evidence is inconclusive as to whether more than one employee was exposed to this isolated violation. The duration is unknown. Respondent had taken many precautions against injury. Certainly the degree of probability of any injury occurring is exceedingly low. That is, the possibility of a cave-in from this lone violation, considering all the facts and circumstances, is on the border line. Thus, the gravity of the violation is very low. The evidence shows that respondent had no previous history of violations, that it is a small business operation and that its good faith is beyond reproach. Accordingly the proposed penalty should be modified by reducing it to the sum of $100.00.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. Respondent's violation of 29 CFR 1926.651(i)(1) is adjudged non-serious and no penalty is appropriate therefor.

3. Respondent did not violate 29 CFR 1926.652(d), 29 CFR 1926.652(e), and 29 CFR 1926.652(j) as alleged in citation 1 and the complaint.

4. Respondent did violate 29 CFR 1926.652(g)(1) in only one respect as alleged which has herein above been delineated. [*26]

5. Respondent did violate 29 CFR 1926.650(f).

6. Respondent did not violate 29 CFR 1926.652(h).

ORDER

Wherefore, it is Ordered that:

Tiem 1.a) of citation 1 be modified by designating this violation as non-serious and as so modified it is affirmed without penalty assessment.

Items 1.b), 1.c), and 1.e) of citation 1 be and each hereby is, vacated.

Item 1.d) of citation 1 be and it hereby is, affirmed as a serious violation.

The notification of proposed penalty to be assessed for serious violation be and it hereby is, modified by striking therefrom the sum of $500.00 and substituting therefor the sum of $100.00.