Docket No. 13474

THE PIONEER COMPANY

OSHRC Docket No. 13474

Occupational Safety and Health Review Commission

January 4, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Dean E. Lewis, 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 was 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 Judge's decision. [*2] 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

Marshall H. Harris, Regional Solicitor and Matthew J. Rieder, U.S. Dept. of Labor

Dean E. Lewis, for the Respondent

Brennan, W. E.; A.L.J.

This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review Citations and proposed penalties issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) by the Secretary of Labor through the acting Area Director of the Occupational Safety and Health Administration for Charleston, West Virginia, (hereinafter Complainant), to the Pioneer Company, (hereinafter [*3] Respondent), following an inspection of a highway construction site at the Farnsworth Bridge, Charleston, West Virginia, (hereinafter worksite).

On May 9, 1975, Mr. Stanley Elliot, a duly authorized Compliance Safety and Health Officer (CSHO) of Complainant's Charleston, West Virginia office, conducted an inspection of Respondent's worksite.

As a result of this inspection, Respondent was issued two Citations for Serious Violations of 29 U.S.C. 654(a)(2) on May 9, 1975, together with a Notification proposing a total of $1,600 in penalties for the alleged violations (R. pp. 1, 2).

Through a letter dated May 22, 1975, from its Vice President, Respondent noted its contest to the Citations and proposed penalties (R. p. 3).

After a Complaint was filed, Respondent through its counsel filed a Motion to Dismiss this action on the ground that no company named in the Citations and Complaint, "Pioneer Construction Company" existed and the accurate name of Respondent was "The Pioneer Company." An Answer was filed on behalf of The Pioneer Company. Thereafter Complainant filed a Motion to amend the Citations and Complaint herein to reflect Respondent's accurate name. This Motion was granted [*4] and Respondent's Motion to Dismiss, supra, was denied (R. p. 8, 10). Complainant's Motion to Dismiss Respondent's Notice of Contest for failure to file an Answer was denied (R. p. 9).

Pursuant to prior written notice (R. p. J-1) this matter came on for trial at Charleston, West Virginia, both parties appearing through counsel. No affected employees or representatives thereof desired party status (TR. 4). No post-trial briefs have been filed.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

The following matters were stipulated to at the outset of the trial. Respondent, The Pioneer Company, is a West Virginia Corporation with its principal office located at 1500 Kanawha Boulevard, East, Charleston, West Virginia. At the times revelant herein, it was engaged in a business affecting commerce. No injuries are associated with this case. Respondent is a large construction company for [*5] its geographic area, doing 15 million dollars worth of business in the last fiscal year. It employs from 300 to 400 employees, and in the past has employed as many as 600.

In June of 1973 a Citation for Serious Violation was issued to Pioneer Investment Company, allegedly a "related corporation." In July of 1974 a Citation for Nonserious Violations, consisting of five Items was also issued to the same company. Neither of these Citations were contested and have become final orders of the Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a) (TR-5-8).

Based upon these stipulated facts it is concluded that Respondent is an employer engaged in a business affecting commerce who has employees, within the meaning of Sections 3(3), 3(5) and 3(6) of the Act, 29 U.S.C. 652(3), (5) and (6), and that the Act applies to the worksite involved herein, within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). Upon the filing of Respondent's Notice of Contest herein, the Review Commission has jurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).

The Citations and Occupational Safety and Health Standards cited therein, provide as follows:

Standard	Description of Alleged Violation
	Citation No. 1 - Serious
29-CFR 1926.652	The side of the trench, formed for a
(c)	retaining wall, and the vertical bank,
	constructed beneath the Farnsworth
	Bridge over Piedmont Road, in hard or
	compact soil, was not shored or other-
	wise supported; in lieu of the shoring
	the hard or compact soil side of the
	trench above the 5 ft. level, was not
	sloped a minimum of one-half ft. on
	the horizontal for each foot of depth
	to preclude collapse.

[*6]

Immediate abatement was ordered and a $800 penalty proposed.

29 C.F.R. 1926.652(c)

(c) 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, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

Citation No. 2 - Serious

29-CFR 1926.500	The retainer wall, used at a runway,
(d)(2)	beneath the Farnsworth overpass at
	Piedmont, was not guarded by a stand-
	ard railing, or the equivalent on all
	open sides, four or more feet above
	ground level.

Immediate abatement was also ordered and a $800 penalty proposed.

29 C.F.R. 1926.500(d)(2)

(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on [*7] the runway, a toeboard shall also be provided on each exposed side.

The evidence reveals that the worksite involved in this case was a retaining wall under construction some 40 to 50 feet away from a new overpass bridge, the Farnsworth Bridge in Charleston, West Virginia. An interstate highway was under construction, running in a north-south direction. Across this highway passed the Farnsworth Bridge, running roughly in an east-west direction. The interstate roadbed ran along the side of a hill. Part of the side of this hill had been excavated for this roadbed, which involved blasting operations as the hillside was rocky. Some six to eight months after the side of the hillside had been excavated, and after the Farnsworth overpass bridge and approach roadbed had been constructed, a concrete retaining wall was being built along the side of the interstate roadbed immediately adjacent to the face of the excavated hillside. (See Exhs. R-1, R-2.) Thus there was formed, between the side of the partially constructed retaining wall and the face of the excavated hillside, a trench. The retaining wall near the Farnsworth overpass bridge was 15 feet high, measured from the interstate roadbed. [*8] The design called for the wall to be about 720 feet in length, decreasing in height from 15 feet near the overpass to about 2 1/2 feet at either end. The trench formed by the retaining wall and the face of the excavated hillside measured about 15 feet deep, 22 to 26 inches wide at the bottom and about 40 inches at the top. On May 9, 1975, over ten linear feet of the retaining wall had been built, so the trench in question was not less than ten feet in length.

On May 9, 1975, one of Respondent's employees, Mr. James McCoy, was directed to go into this trench to clear the bottom of earth, mud and rock debris and water in preparation for the installation of drainage pipe. There was about a foot of water at the bottom of this trench, caused in major part by heavy rains which had drained into it during the prior few days. Mr. McCoy testified to seeing quite a bit of water seeping through the excavation face, which he described as "very loose shale, dirt, different types of rock" which had the appearance of "shattered rock." (TR 12). He believed the excavation face to be unsafe, and as exit from this trench was made by walking some distance along the trench to where the retaining [*9] wall had not yet been constructed, he came out of the trench telling his foreman of his belief. He was told by Respondent's Superindendent that if he didn't want to work under those conditions there was no further work available for him. Mr. McCoy left the job and, after speaking to his union steward, lodged a complaint with the OSHA area office which he, later that day, reduced to writing.

In the early afternoon of May 9 Compliance Officer Elliott went to this worksite to check on the conditions reported. He viewed the trench in question observing three of Respondent's employees working therein. He photographed this scene, which photographs were admitted as Exhibits C-3, C-4, C-5, and C-6. Mr. Elliott described the face of the excavation, i.e. the trench wall, to have consisted of "soft shale, shattered shale, weathered sandstone, possibly at the base, sand, grit.", with a "shattered, highly grandular, rocky, broken up. . ." appearance (TR 98). On the top of the excavation face, fill had been deposited to grade up to the approach roadway for the Farnsworth Bridge. Photographs C-4 and C-6 clearly show scrap reenforcing steel protruding from this fill. The grading of this [*10] fill is shown in photographs R-1 and R-2. He also testified that there appeared to be water seeping from the face of this excavation. He further testified to observing Respondent's foreman, Mr. Haner, walking along the 18 inch wide top of this retaining wall, as well as two other employees of Respondent. These individuals were using the top of this wall as a walkway, which was about 15 feet above the interstate roadbed on one side and the bottom of the trench on the other. No guardrails were existent. A ladder was placed against the highway side of this retaining wall. There was no ladder in the trench. Mr. Elliott did not consider the face of the excavation, i.e., one wall of the trench, to consist of either solid rock or hard shale, and since there was neither shoring nor adequate sloping (the face of the excavation being essentially vertical), the Citations herein thereafter issued.

Complainant also produced the testimony of Mr. Clyde Emigh, the project engineer for the jobsite in question, a registered professional civil engineer in the employ of the West Virginia Department of Highways. He testified that prior to any construction, test borings were made in close proximity [*11] to the site of the retaining wall. Further, that these borings revealed the following materials, ". . . ground sand, gray sandstone, shale, shale and hardstone lenses, down to dark gray shale, and hard sandstone lenses." (Boring hole #101, TR 39). A second test boring #104, in the same area revealed the following materials, ". . . gray sandstone, cross-bedded sandstone, shale, soft to medium hard gray sandstone, medium to fine" (TR. 41, Exh. C-1, C-2). These borings also established that the ground water level was found at elevation 643, approximately 9 feet below the top of the retaining wall (TR 41). Further that the retaining wall was being built to provide lateral support to the face of the excavation (TR 68-69).

Respondent defends this action by arguing that the face of the excavation, i.e. the trench wall, was cut in "solid rock, and hard shale." Testimony to this effect was elicited from Mr. Freddie Kissmore, on cross-examination, who was Respondent's general foreman on May 9, 1975, but was employed by another company at the time of trial (TR 121). Respondent cites Table P-1 which follows the "Specific Trenching Requirements" at 29 C.F.R. 1926.652, which in pertinent [*12] part provides that a trench wall cut in "solid rock, shale or cemented sand and gravels" may be vertical. Also cited is the footnote following Table P-2 of these trenching standards which in part provides that, "Shoring is not required in solid rock, hard shale, or hard slag."

Respondent's agrument is not persuasive in the face of the preponderance of the creditable evidence that the trench wall in question here was not cut from "solid rock, hard shale or hard slag." In my view the testimony of Mr. McCoy, who had worked in the trench, Compliance Officer Elliott, who examined and photographed this trench, and the results of the test boring, as to the material which made up this trench wall, are more persuasive than the cross-examination testimony of Respondent's former general foreman. Additionally, photographic Exhibits C-3 and C-5 clearly show the shattered face of this trench wall, a condition which can hardly be construed as solid rock or hard shale within the meaning of the Tables relied upon. This is particularly so when it is remembered that the excavation in question had, in part, been accomplished by blasting.

As to Citation No. 2, concerning the use of the top of the [*13] retaining wall as a walkway, the evidence clearly establishes that it was so utilized by a number of Respondent's employees, including foreman Haner. Although Respondent's former general foreman testified on cross-examination that "Nobody was allowed to walk on the wall." (TR 118), he further stated that some employees in fact did and no disciplinary measures were ever taken against such employees. Further, he never explicitly forbade any one from walking on the top of this wall (TR 118-119).

Upon the creditable evidence of this record, it is concluded that Respondent was in violation of the Act as alleged.

As to the proposed penalties of $800 for each Serious Violation, in my view such penalties are excessive. Compliance Officer Elliot testified that he returned to this jobsite on Monday, May 12, 1975, and found that sheeting had been installed in part of this trench and backfill had been placed in other portions thereof (TR 92-95). n1 Although Respondent is a large company, only three of Respondent's employees were seen in the trench and walkway on the top of the retaining wall. Each violation is accurately denominated "serious" within the meaning of Section 171(k) of the Act, [*14] 29 U.S.C 666(j), because either a cave-in of the excavation wall or a fall from the top of the unguarded retaining wall, 15 feet to the roadbed or trench bottom below, could result in death or serious physical harm. The probability of a cave-in was relatively small although present. The probability of a fall from the top of the wall was greater.

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n1 Photographs taken on May 12, 1975, were admitted as Exhibits C-7, C-8 and C-9. They were withdrawn for copying and never resubmitted for this record.

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There is no evidence of record to indicate any lack of good faith of Respondent. As to past history, the prior Citations, which had become final orders because of the lack of any contests involved a "related corporation," Pioneer Investment Company (TR-7, 8). What the relation to the Respondent herein was, was never established in this record. Thus the Respondent corporation herein, a different legal entity from Pioneer Investment Company, cannot be assessed any increase in any appropriate penalty based upon any history [*15] of prior violations.

After an independent consideration of the penalty factors set forth at Section 17(j) of the Act, 29 U.S.C. 666(i), it is concluded that a civil penalty of $250 for each serious violation herein found to have existed is reasonable and appropriate.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, 29 U.S.C. 549(c) and 661(i), it is hereby,

ORDERED: That,

1. The two Citations for Serious Violations of 29 U.S.C. 654(a)(2) for noncompliance with the Standards set forth at 29 C.F.R 1926.652(c) - Citation No. 1, and 29 C.F.R. 1926.500(d)(2) - Citation No. 2, are AFFIRMED.

2. A Civil penalty of $250 for each Serious Violation, totaling $500 is ASSESSED.

WILLIAM E. BRENNAN, Judge, OSAHRC

Dated: February 26, 1976, Hyattsville, Maryland