OSHRC Docket No. 13488

Occupational Safety and Health Review Commission

January 12, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Reg. Sol., USDOL

Stuart M. Gordon, for the employer



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 of 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 by affirmed.  



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.



Bruce C. Heslop, for the Secretary of Labor

Stewart M. Gordon, for the respondent


By citations issued April 30, 1975, as amended, the Secretary of Labor alleges that on April 24, 1975, the respondent committed three non-serious and one serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (the Act), in that respondent failed to company with the trenching regulations provided in 29 C.F.R. 1926.652(b), (e), (h) and (g)(1).   Penalties were proposed in the following amounts: Citation No. 1, Item 1 - zero; Item 2 - $200; Item 3 - $200; and Citation No. 2 - $800.   Timely [*3]   notice of contest was filed as to all items except Citation No. 1, Item 1, which therefor became a final order of this Commission by operation of law.

The proceeding was assigned to the undersigned judge for hearing and adjudication.   Hearing was held at Columbus, Ohio, on October 16, 1975, at which evidence was introduced by the complainant in support of its complaint.   At the conclusion of that evidence, respondent moved for dismissal of the complaint on the ground that the complainant had failed to make out a prima facie case, and the motion was granted.

It is admitted on the pleadings that respondent was at the time of the inspection engaged in laying underground service lines in a trench at the Kannon Drive substation in columbus, Ohio.   It employed at this workplace about five employees who regularly handle material that has moved in interstate commerce.   I conclude that respondent is an employer engaged in a business affecting commerce within the meaning of the Act.

As stated, the serious citation alleges violation of section 652(b), while the two remaining items of the non-serious citation allege violations of section 652(e) and (g)(1).   The cited regulations provide [*4]   as follows:

(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).

(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.

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

The evidence in support of the complaint consists of the testimony of one Robert Compton, the inspecting compliance officer, and 14 photographs.   It establishes that employees of respondent were working in a trench that was about 25 feet long and 8 to 10 feet deep.   The width of the trench was about 34 inches at the bottom and it had vertical sides in the lower half; the upper half was sloped so that the width at the top was from 7 to 9 feet. From these dimensions, it appears that the [*5]   sloping approximated 3 in 5.

The trench was sheeted and shored with an elaborate system of 4 by 8 plywood sheets supported by hydraulic jacks.   There was some open space between plywood sheets, varying from a few inches in some places to a few feet in others.   Some of the plywood sheets were placed with the 8 foot dimension in an upright, vertical position, whereas some of the sheets lay horizontal with their 8 foot dimension lengthwise of the trench. In the latter case, there was no sheeting or bracing of the upper half of the wall of the trench where it was sloped away from the vertical.

There was a backhoe parked, not in operation, beyond one end of the trench with its front loader bucket facing the end of the trench and its wheels several feet back from the end of the trench. There is no evidence as to whether the weight of the bucket was resting on the ground or whether it was supported by hydraulic pressure from the machine, though the weight of the machine was clearly supported by its wheels.

Complainant contends that there was a serious violation of section 652(b) because the upper half of the trench was not shored in some places.   As stated, however, it was sloped and [*6]   the regulation by its terms recognizes sloping as an alternative means of protecting employees.   So the question becomes whether the sloping was adequate, and this depends upon an application of Table P-1, which shows "approximate" angles according to specified soil conditions.   Accordingly, competent evidence as to the soil condition is requisite to any finding of a violation at this point.

Similarly, item 2 of non-serious citation number 1, depends upon soil condition.   For here the complainant contends that a violation of section (g)(1) resultes from leaving a space between the plywood sheets. As to this the standard refers to Table P-2, which requires "close sheeting" only in the case of "soft, sandy or filled" earth or in the case of hydrostatic pressure.   Again the soil condition is determinative.

On direct examination, Compton simply called the soil "wet and muddy" and he repeated this several times, without any reference to the terms of either Table P-1 or P-2.   On cross examination by counsel for respondent, and under prodding from the judge, the witness testified that the soil was "loose." This was amplified at page 44 of the transcript, as follows:

Q: All right.   Going [*7]   back again, did you say the kind and condition was wet or muddy or loose?

A: As we agreed upon in the office to go, I believe, with sufficient sandy or fill.   When I say "wet, muddy, loose", there is a terminology that is quite frequently used in the office among the compliance officers, which is this.

They go to Table P-2 and determine what condition it is from the chart.

Q: Now, when you made your evaluation --

THE COURT: Just a minute.   I want to understand what he is saying.

Are you new saying, when you say "wet, muddy and loose," that in your mind is the same thing as saying "soft, sandy or filled"?

THE WITNESS: Well, sir, this is something that you know when you see soil. You determine what it is, and then you come back and make a comparison.   You try to determine from the chart on which area to go as far as a possible citation; and if there is nothing in here --

THE COURT: Are you saying that the soil you observed in the trench was soft, sandy or filled?

THE WITNESS: It was soft. There was sand and it had been backfilled, yes.

THE COURT: All right.   Excuse the interruption.

Q: Are you saying, Mr. Compton, that the soil from the ground level to the bottom of the   [*8]   trench was soft?

A: Yes, sir.

Q: Are you also saying that it was sandy?

A: In some areas, yes.

Q: Are you also saying that it was filled?

A: In some areas, yes.

Q: What do you mean by "filled"?

A: Filled, previously filled.

The south end of the trench had been filled previously.   I don't know as far as to how long, but there was a manhole there, there was evidence of sand in that area, that had been filled.

Q: How much sand?

A: I have no idea.

Nowhere did the witness relate the soil conditions observed to the terms of Table P-1 with respect to sloping, apparently because he did not recognize the propriety of sloping as authorized by paragraph 652(b).

The observations upon which the witness based his characterization of the soil were limited to eyeballing the trench from above and to feeling the soil that clung to his boots as he walked to one side of the trench and the other (R. 33).   As to this the witness admitted that the soil he felt was disturbed material (R. 48); it thus did not constitute evidence as to the sides of the trench, which had not been disturbed. The witness did not make the simplest of tests, such as poking between the plywood sheets or feeling of the [*9]   soil on the sides of the trench. He stated that there had been a half inch of rain the night before and the soil was wet, with some little water down in one end of the trench, but no evidence of hydrostatic pressure was offered.   The observations made were simply insufficient to support a finding as to what the soil condition was within the meaning of the tables.

The witness did not make up in expertise what he lacked in direct observation.   He admitted he was not a soil expert, did not know what "sheer strength" meant and was unfamiliar with soil testing techniques; no soil samples were taken or tests made.   I do not hold that the taking of samples and the making of tests is requisite to making out a prima facie case under regulation. But some evidence as to the condition of the soil in the trench is certainly necessary, and this is not supplied by feeling the disturbed soil on the bank and eyeballing the sides of the trench.

I conclude that, for lack of evidence, the complainant has failed to make a prima facie case under paragraphs (b) and (g)(1).

The remaining allegation relates to paragraph (e), under which complainant contends that additional shoring was [*10]   required by the presence of the backhoe as a "superimposed load." Related to this is the witness' contention that respondent should have shored the end of the trench. As to the latter, it is noted that paragraph (b), which provides the basic trenching requirements, provides only for supporting the "sides" of trenches. Moreover, paragraph (e) says nothing about superimposed loads, only vibrations from traffic or machinery.   Beyond that, however, I find from the photographs and all the testimony related hereto, that the size of the backhoe and its location with respect to the trench constituted a negligible factor when compared with the shoring that was actually provided.

In the premises, the respondent's motion to dismiss is granted because the complainant has failed to establish a prima facie case of the alleged violations.

It is ORDERED that the citations herein, as amended, and the proposed penalties be and the same are hereby vacated and that this proceeding be and the same is hereby discontinued.

Robert N. Burchmore, Judge OSAHRC

Dated: December 4, 1975