EASTWIND, INC.

OSHRC Docket No. 1394

Occupational Safety and Health Review Commission

September 5, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision rendered by Judge William Risteau. n1 Following a hearing, Judge Risteau assessed an aggregate total civil penalty of $600 for two admitted serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

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n1 Review was directed, inter alia, on the question of whether the citation was issued with reasonable promptness. The issue was not raised during the issue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company, Docket No. 744, BNA 1 O.S.H.R. 1485, CCH Employ. S. & H. Guide para. 17,187 (January 24, 1974).

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We have reviewed the entire record. The Judge's decision is adopted only to the extent it is consistent herewith.

Respondent is a small construction company [*2] operating out of Anchorage, Alaska. On July 14, 1972, it had been in business for only a few months, and it was engaged in digging a trench in wet, non-homogeneous soil. The trench was seven feet deep and had vertical sidewalls. Excavated material (spoil) was stored at the edges of the trench. Backfill material was also stored at the edges, and the combined height of backfill and spoil averaged 16 feet.

A portion of one wall gave way on July 14 partially burying two of Respondent's employees. Both men survived, and Respondent paid about $600 to reimburse the men for the loss of clothing, personal effects, and other incidentals. Since the accident Respondent has developed a safety program and has made its general manager directly responsible for safety.

As a result of the accident compliance inspections were made by Complainant and by the State of Alaska. The State inspector shut down the job for one week, and Complainant issued two citations for alleged serious violations of section 5(a)(2) of the Act.

One citation alleged a serious violation of 29 C.F.R. 1926.652(b) in that Respondent had failed to shore, slope or otherwise support the sidewalls of the trench. [*3] The other citation alleged a serious violation of 29 C.F.R. 1926.651(i)(1) in that Respondent had failed to store and retain excavated materials two feet or more from the edge of the trench. Complainant proposed a $600 penalty for each violation for a total penalty of $1,200.

The matter went to trial and Respondent admitted both violations at the commencement thereof. It requested mitigation of the penalties because it had learned its "lesson" and had taken positive steps towards compliance and because of the funds it had expended on behalf of the two employees.

Judge Risteau affirmed the citations and assessed a total penalty of $600. In assessing the penalties he offset the funds expended on behalf of the employees against the proposed penalties, and stated that the expenditure was a demonstration of good faith within the meaning of section 17(j). He rejected the proposition that an employer's post violation safety record may be used in mitigation because in his view penalties serve the purpose of improving safety records.

We must disagree with and reject the reason the Judge gave for assessing a total penalty of $600. As the Judge correctly noted, civil penalties [*4] imposed under this Act serve the purpose of improving safety records by obtaining future compliance. On the other hand, funds expended by way of recompense for actual losses sustained by employees as the result of an accident are not related to the abatement of hazards. Accordingly, we will not consider such payments as going to the employer's good faith as that term is used in section 17(j).

Nevertheless, we will assess an aggregate penalty of $600. The facts of this case depict an extremely grave situation. On the other hand, Respondent is of small size, and had been in business for only a few months at the time the violations occurred. It was then shut down for a period of one week. As a direct result of the incident Respondent has implemented a safety program, and insofar as this record reveals has taken positive steps to insure future compliance. As the Court of Appeals for the 8th Circuit has said: "'[g]ood faith'" . . . contemplates the post inspection performance of the employer in acting to correct the defect." Brennan v. Occupational Safety and Health Review Com'n. & Interstate Glass Company, 487 F.2d 438, 442, 443 n. 19 (1973). In the circumstances, the [*5] penalty assessed by Judge Risteau serves the purpose for which penalties are intended.

Accordingly, the decision of the Judge is affirmed to the extent it is consistent herewith. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: It has taken the Commission 18 months to decide that the Judge arrived at an appropriate penalty in an erroneous manner. To delay the decision for this length of time to produce such a result is wrong and unnecessary. Congress made it clear that, in the absence of exceptional circumstances, each citation would be issued within 72 hours after a violation was detected by the inspector. It did not condition that requirement upon its assertion "during the issue formulation stage." Since the record in this case reflects a delay more than six times greater than Congress allowed and fails to show any exceptional circumstances, I would vacate the citations for reasons expressed in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

Furthermore, the Commission errs in holding that the Judge could not consider the funds expended [*6] by the respondent on behalf of its employees in assessing the penalty.

29 U.S.C. 666(i) provides that:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

We have held that this provision requires the Commission to give independent consideration to the four statutory criteria enumerated therein when assessing civil penalties. Secretary v. Dreher Pickle Company, 2 OSAHRC 497 (1973).

Although the statute makes consideration of these criteria mandatory, it certainly does not limit the Commission's consideration to only those matters which can be compartmentalized under one of the four criteria. To the contrary, except for requiring consideration of those criteria, 29 U.S.C. 666(i) bestows full discretion upon the Commission to assess appropriate penalties within the limits of the law. n2 Therefore, the Commission may in the exercise of its discretion consider any extenuating circumstances [*7] and mitigating factors that justify amelioration of the penalty proposed by the Secretary of Labor.

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n2 29 U.S.C. 666; Madden v. Hodgson et al., F.2d. (9th Cir., No. 72-1874, decided July 29, 1974).

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A Judge's determination regarding matters in extenuation or mitigation should be overturned only when there has been a clear abuse of discretion. I find no such abuse of discretion in the Judge's consideration of the funds expended by the respondent to recompense his employees for financial losses they incurred as the result of the trench cave-in.

Finally, the quoted portion of footnote 19 of the court's opinion in Brennan v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973), is incomplete in that it improperly infers that good faith is limited to the quoted matter. Cotrariwise, the first sentence of the footnote states that "'[g]ood faith' . . . can be a broad tent." See Secretary v. Nacirema Company, Inc., 1 OSAHRC 33, 35-36 (1972), for several other matters which fall under the "broad tent" [*8] of good faith.

[The Judge's decision referred to herein follows]

RISTEAU, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting two Citations issued by the Complainant against the Respondent under authority vested by Section 9(a) of the Act. These Citations allege that as a result of an inspection of a workplace under the ownership, operation, or control of the Respondent, located at Anchorage, Alaska, and described as Lakeview Terrace Water Main Installation, 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.

The Citations, which were issued on August 2, 1972, allege violations resulting from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR Section 1926. The description of the alleged violation set forth in said Citations states:

Citation for Serious Violation Number 1, 29 CFR 1926.652(b)

Failure to shore, sheet, brace, slope [*9] to angle repose, or otherwise support the sides of an open trench more than 5 feet deep and more than 8 feet long in non-homogeneous soils, in order to protect employees working therein.

Citation for Serious Violation Number 2, 29 CFR 1926.651(i)(1)

Failure to store and retain excavated materials 2 feet more from the edge of an excavation that employees are required to enter and work in.

The standards as promulgated by the Secretary provide as follows:

Citation Number 1, 29 CFR 1926.652(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.

Citation Number 2, 29 CFR 1926.651(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.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated August 2, 1972 from R. L. Beeston, Area Director of the Occupational Safety and Health Administration, United States Department [*10] of Labor, who proposed to assess penalties for the violations alleged in the amounts of $600.00 for Citation Number 1 and $600.00 for Citation Number 2, or a total of $1200.00.

After Respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for hearing at Anchorage, Alaska, on January 16, 1973. At the hearing, and prior to the taking of evidence, Respondent admitted, among other things, that it was a business engaged in (or affecting) interstate commerce (Tr.2).

DISCUSSION

Respondent has admitted (Tr. 2) and the evidence shows that the alleged violations of regulations were committed and that such violations were serious ones as defined in the Act. It is, however, maintained that the proposed penalties are excessive. Specifically, Respondent states (Tr. 3) that it has already expended approximately $600.00 on the two employees injured as a result of the violations, including replacement of damaged clothing and lost cash. On this basis, as well as representations (Tr. 4-6) that the Secretary's action has caused it to become exceedingly safety conscious and to institute additional and effective safety measures, [*11] Respondent asks that the proposed penalties be reduced.

In dealing with these contentions, it may first be noted that the Commission and its Judges are not bound by the recommendations of the Secretary or the methods of computation used by him. In this case, however, considering in particular the gravity of the violations, the recommended amount of $1200.00 is a reasonable one, all other factors being equal.

However, there appears to be considerable merit to Respondent's argument that out-of-pocket payments to employees should be considered in determining the amount of penalty. Section 17(j) of the Act designates good faith of the employer as an element to be considered in determining the amount of the penalty, and there would appear to be few more constructive ways of demonstrating good faith than prompt assistance given to the involved employee. It is the belief of the undersigned, therefore, that any penalties assessed against Respondent should be reduced ny $600.00.

On the other hand, there would appear to be no provision in the Act which would mitigate a penalty by reason of an employer's safety record following a violation. Indeed, the penalties which the Act contemplates [*12] were intended to have the very effect of improving such a safety record. There can, therefore, be no reduction in the amount of penalty for this reason.

FINDINGS OF FACT

1. On July 14, 1972, Respondent's employees were working at a construction site in Anchorage, Alaska; their activities included digging a trench and installing a sewer line in the trench. On the same date two of Respondent's employees were injured while working in the trench when a cave-in occurred.

2. The trench, as described above, was 50 inches wide and 7 feet deep at the point where the accident occurred; prior to the cave-in the sides of the trench at this point were essentially vertical.

3. The soil at the sides of the trench was blue clay; such a material is non-homogenous, with the result that the walls of the trench were prone to collapse.

4. The sides of the trench were not shored, sloped to an angle of repose, or otherwise supported to protect against the hazard of falling soil or collapse of the sides of the trench.

5. There was a substantial probability that death or serious physical harm could result to the employees of the Respondent working in the trench due to the condition [*13] of the sides of the trench.

6. Excavated material was stored within two feet of the sides of the trench at various places and in various heights up to 16 feet; material so stored is not effectively stored in that it will tend to fall back into the trench and will cause the sides of the trench to become increasingly unstable due to its weight.

7. There was a substantial probability that death or serious physical harm could result to Respondent's employees because excavated material was not stored effectively within two feet of the edges of the trench.

8. The two employees of Respondent who were injured, as described in Finding 1, above, were working within that portion of the trench where excavated material was stored within two feet from the edge.

9. The Department of Labor initially recommended that, as serious violations, the penalty for each of the two alleged offenses be set at $1,000.00, or a total of $2,000.00. These recommended penalties were then reduced because of the firm's history of no prior violations, and because of Respondent's size and "good faith." After reductions, the final recommended penalties were $600.00 for each of the two violations, or a [*14] total of $1,200.00.

10. In arriving at the above recommendations, it was not considered that Respondent had been completely in "good faith" because the inspector of the Department of Labor who noted the violations had previously discussed the requirements of the Regulations with persons employed by Respondent on July 14, 1972.

11. Following the accident on July 14, 1972, Respondent made expenditures of approximately $600 in compensating the two injured employees for losses which they had incurred in the accident.

12. Following the accident on July 14, 1972, Respondent has instituted a more stringent safety system program and has operated without further injury to its employees; at no time was Respondent other than cooperative with government officials who inspected its work sites.

CONCLUSIONS OF LAW

1. Respondent is an "employer" and a person engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act.

2. On July 14, 1972, Respondent violated Sections 1926.652(b) and 1926.651(i)(1) of Title 29, Code of Federal Regulations, comprising safety standards promulgated by the Secretary pursuant to the Act; each of these was a "serious" [*15] violation as defined in the law.

3. Penalties of $600.00 for each of the violations here noted are appropriate on the fact of the case; such penalties should, however, be reduced by $300.00 for each offense by reason of Respondent's reimbursement of $600.00 to its injured employees.

ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that the citation issued herein on August 2, 1972, be and the same is AFFIRMED. It is further ORDERED that the total of the proposed penalties for the cited violations, be reduced to $600.00 and that amount be assessed.