VALMORE N. LECLERC, d/b/a MAJOR CONSTRUCTION CO.
OSHRC Docket No. 13740
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
Albert H. Ross, Regional Solicitor, U.S. Department of Labor
Frank O. Lind, Jr., 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.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The citation should be vacated because 29 C.F.R. § 1926.651(c) is inapplicable in this case. The cavity involved was a trench, and the occupational safety standards codified at 29 C.F.R. § 1926.651 apply only to excavations. See Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553, February 24, 1976 (dissenting opinion).
Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Furcolo's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
DECISION AND ORDER
Robert A. Yetman, For Complainant
Frank O. Lind, Jr., For Respondent
Furcolo, Judge
This is a proceeding pursuant to the Occupational [*3] Safety and Health Act of 1970, as amended (29 USC, § 651 et seq.) hereinafter called the Act. The Complainant alleges that the Respondent has violated § 5(a)(2) of the Act (§ 654) by not complying with Occupational Safety and Health Standards 29 CFR 1926.651(c) and .50(d)(1). The Respondent, by amendment allowed at the hearing, is an individual engaged in the business of construction; and the business affects the commerce of the United States.
The Respondent's worksite at Broadway and East Streets, Pawtucket, Rhode Island, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on May 27, 1975.
On June 2, 1975, the following citations, together with notice of proposed penalty, were issued against the Respondent:
Citation No. 1, Item No. 1, the serious violation of Standard 29 CFR 1926.651(c) . . . $700;
Citation No. 1, Item No. 1, the non-serious violation of Standard 29 CFR 1926.50(d)(1) . . . $0.
(Both citations were designated Number One.)
The pertinent words of the standards involved are:
1926.651(c) "The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring [*4] system, sloping of the ground, or some other equivalent means";
1926.50(d)(1) "Employers shall provide first-aid supplies."
At the hearing, the Complainant's motion to amend the complaint to read: "Valmore LeClerc, doing business as Major Construction Company" was allowed without objection . . . Transcript 5.
EVIDENCE
It was stipulated that the Respondent is a concern of middle or smaller size, averages six to seven employees daily, had total revenues amounting to $365,000 in 1974 and estimated total revenues of less than $100,000 for 1975, and has no previous violations . . . Transcript 5-6.
The Respondent's answer admitted the violation of Standard 1926.50(d)(1) . . . Answer, Paragraph 3-b.
The Respondent's Answer admitted that it handles goods that have moved across state lines in interstate commerce . . . Answer, Paragraph 1.
Stephen J. Simms, called by the Complainant, testified that he had been in safety work for thirty years, including twelve years as a Safety Specialist with the United States Department of Labor and six as Safety Director for Brown and Sharp (a machinery and tool manufacturing plant) and eight years as Assistant Safety Superintendent for the [*5] Naval Air Station at Quonset Point. During his four years as an OSHA Compliance Officer, he has made thirty to forty construction inspections with some ten to fifteen involving trenches or excavations . . . Transcript 6-8. He has not seen any excavation sites like the one here . . . Transcript 44, 59. At the construction site, he had estimated the excavation to be about thirty-six feet long, eleven feet high, and nine feet three or four inches in width (the height and width measurements vary slightly along the length) . . . Transcript 16, 18.
Nine wooden concrete froms in the excavation, each twelve feet high and four feet wide, made a dividing "wall" between the banks of the excavation, there being at the bottom sixteen inches between the "wall" and the southerly embankment and eight feet between the "wall" and the northerly embankment; and, at the top, it sloped back . . . Transcript 16, 20, 22, 23, 56. The northerly embankment was perpendicular for about five or six feet and then sloped back near the top . . . Transcript 17, 18. The southerly embankment was very steep . . . Transcript 16 . . . and was sloped at the tow from sixteen to thirty-six inches at various points . [*6] . . Transcript 24 and Exhibits C-1 -5. The wooden forms were braced by two-by-fours placed across them to each side of the excavation . . . Transcript 13, 43, and Exhibit C-2.
There was a structure identified as a private dwelling house (hereinafter called the house) on the south side of the excavation about thirty inches from its edge . . . Transcript 31, 32, 49 and Exhibits C-1 -5.
The soil in the south wall of the excavation (going down from the top) consisted of a four foot layer of rock, pebbles, sand and back-fill; then a five foot layer of fine gravel; and then a two foot layer of sand . . . Transcript 27, 28. The soil in the north wall consisted of back-fill with debris of wood and metal. The soil was unstable, clumps of it had fallen away, and rivulets of sand were running down into the excavation . . . Transcript 28, 33, 34, 60. Two soil samples were taken from the banks . . . Transcript 35-37 and Exhibits C-7 and C-8. The soil from both embankments was dry . . . Transcript 38. The Respondent's superintendent or foreman, Parenteau, said that ten days before the inspection a large clump of earth had fallen into the south side of the excavation . . . Transcript 34. [*7] Both sides of the excavation are hazardous, the extreme hazard being caused by the proximity of the house on the south side . . . Transcript 33, 34, 60. There were four of the Respondent's employees in the excavation . . . Transcript 15, 16. The Respondent's foreman, Parenteau, was at the scene and agreed with the estimated measurements . . . Transcript 23. The Respondent's foreman said he knew of no way to shore the site because of the proximity of the house . . . Transcript 50. The Respondent was cooperative . . . Transcript 51. The house foundation supported the soil from falling towards the house but not from falling the other way "into the excavation" . . . Transcript 50, 61. He (Simms) never heard the expression "hot job" as used by the witness, Natyniak . . . Transcript 117.
James L. Dolan, Jr., called by the Complainant, testified that he has been a Compliance Officer for OSHA for four and one-half years, has conducted fifty to sixty inspections on excavations out of approximately eight hundred inspections, is a safety engineer, has a degree in Civil Engineering, and is knowledgeable in soil recognition and analysis . . . Transcript 62-65. From hypothetical questions [*8] and the photographs (Exhibits C-1 -5) the sides of the excavation are unstable and hazardous, do not have proper sloping, are not adequately shored, and there is danger of moving ground on both sides of the excavation . . . Transcript 70-75, 79, 80. The excavation's north wall could have been shored or sloped without unusual difficulty . . . Transcript 95. Shoring of the south wall would have been unusually difficult and expensive (because of the proximity of the house) but not impossible; sloping would be impossible (because of the proximity of the house) . . . Transcript 79, 89-92, 96. The situation is hazardous to anyone in or near the excavation because either wall could collapse . . . Transcript 79, 82.
Photographs were introduced that corroborated the description and measurements given by the witness, Simms. Exhibits C-7 and 8 were introduced, C-7 being a sample of the soil taken about six feet down in one bank and C-8 being a sample taken about nine feet down in the other . . . Transcript 36, 37.
Valmore LeClerc, called by the Respondent, testified that he owns the Respondent's business, has been in construction forty-two years and in the Concrete Form Business [*9] for the past twenty-five years, was with General Service and Construction for five years in World War II, and is knowledgeable about excavations and soil . . . Transcript 103-106. In all his experience, he has never had an accident from excavations caving in . . . Transcript 106. There was no hazard from the soil at the site or near the house on the south bay . . . Transcript 105, 111. His company did not do the excavating but, at his request, the general contractor had left the asphalt on top of the excavation to prevent erosion . . . Transcript 106, 111. There had been two rain storms without anything happening to the earth on the worksite . . . Transcript 108. There were never more than two men in the excavation at any one time . . . Transcript 109.
Roman F. Natyniak, called by the Respondent, testified that he was at the worksite soliciting a subcontract for steel erection when the Compliance Officer inspected . . . Transcript 113. He had some conversation with the Compliance Officer with reference to whether the inspection was influenced by suggestions from trade unions that resented the Respondent being non-union. The Compliance Officer said it was a "hot job", meaning [*10] the office had told him to make the inspection. To the witness Natyniak, a "hot job" meant one the trade unions wanted and use pressure to get . . . Transcript 115.
DISCUSSION
There was virtually no controversy about the physical layout of the worksite, including the measurements of the excavation and the proximity of the house to it. The excavation was roughly thirty-six feet long, eleven feet deep, and eight feet wide at the bottom on one side of the concrete formed wall and sixteen inches on the other side of it. The sloping of the banks averaged about twenty inches on the southerly side and considerably more on the northern side, as agreed by the witnesses and corroborated by the photographs. If the sides of the excavation were to be supported by sloping, it obviously was insufficent on either side. On the question of the composition of the soil, the testimony of the Compliance Officer, Simms, was corroborated by Exhibits C-7 and C-8 and was not contradicted by any witness for the Respondent, although the Respondent called two witnesses who were at the worksite at the time of the inspection.
Although the witness, Dolan, also testified to the soil's composition, he [*11] based his opinion on his interpretation of Photographs C-7 and C-8 and not from observations on the scene. For that reason, my conclusion that the soil in question was unstable is based primarily on testimony of the witness, Simms.
With reference to the impossibility of shoring the south embankment because of the proximity of the house: there was no contradiction of the testimony of Compliance Officer Dolan that such shoring was difficult but not impossible; and although more expensive, that additional expense is normally figured in the contract. In any event, those considerations did not apply to the shoring of the north embankment. While the peril was perhaps greater from the south embankment, the north embankment was also hazardous to employees of the Respondent. The obvious hazard from the situation was serious injury or death to an employee due to a collapse of one or both walls of the excavation. The Respondent's foreman (Parenteau) and the owner of the business (LeClerc) both had knowledge of all the circumstances surrounding the alleged violation.
FINDINGS OF FACT
Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings [*12] of Fact are made.
1) At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across stated lines;
2) As concerns Item No. 1 of Citation No. 1 pertaining to first-aid supplies in Standard 1926.50(d)(1), the Respondent had not provided such supplies as required;
3) As concerns Item No. 1 of Citation No. 1 pertaining to Standard 29 CFR 1926.651(c): the excavation was not guarded by a shoring system, sloping of the ground, or any other equivalent means; the excavation was approximately thirty-six feet long, nine feet four inches wide, and eleven feet deep; and the soil in the walls and faces of the excavation was unstable;
(Both citations were designated Number One.)
4) The conditions described in Item No. 1 of Citation No. 1 pertaining to the serious violation of 29 CFR 1926.651(c) exposed the Respondent's employees to sustaining serious or fatal harm because of the hazard of the collapse of the excavation due to moving ground;
5) One or more officers or supervisors of personnel of the Respondent was aware of the hazardous conditions described in Paragraph 3, above, and knew that employees were exposed to such hazard.
CONCLUSIONS [*13] OF LAW
1) At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.
2) At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.
3) On the date in question, the Respondent was not in compliance with Standards 29 CFR 1926.651(c) and .50(d)(1) and the Complainant has sustained the burden of proving the Respondent violated § 5(a)(2) of the Act (§ 654).
ORDER
The whole record having been considered, and due consideration having been given to 29 USC § 666(j), and taking into consideration the situation where the shoring of one bank was unusually difficult and expensive, and also taking into consideration the stipulation that the Respondent's total revenues for 1975 were decreased to less than $100,000 from 1974 revenues of $365,000, it is ORDERED:
Item 1 of Citation No. 1, for the serious violation of 29 CFR 1926.651(c) is affirmed and a penalty of $250 assessed therefor;
Item 1 of Citation No. 1, for the non-serious violation [*14] of 29 CFR 1926.50(d)(1) is affirmed and a penalty of $0 assessed therefor.
So ORDERED.
Foster Furcolo, Judge, OSAHRC
Dated: February 25, 1976
Boston, Massachusetts