TIP-TOP PLUMBING AND HEATING CO.
OSHRC Docket No. 14946
Occupational Safety and Health Review Commission
March 3, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor
Glenn W. Ladd, President, Tip-Top Plumbing and Heating Co., 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 [*2] of an unreviewed 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.
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
ROBERT S. BASS, U.S. Department of Labor, Office of the Solicitor, for the Complainant
MR. GLENN W. LADD, President, Tip-Top Plumbing and Heating Co., pro se
Wienman, Judge, OSAHRC:
STATEMENT OF 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 a citation issued to respondent August 25, 1975, under the authority vested in complainant by section 9(a) of that Act. The citation, resulting from an inspection of a worksite at 85th Kenwood, Kansas City, [*3] Missouri, on August 21, 1975, alleged a serious violation of the occupational safety regulations codified as 29 CFR 1926.652(c) n1 and 29 CFR 1926.652(e). n2 A penalty in the sum of $700 was proposed in connection with the alleged violations.
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n1 Regulation 29 CFR 1926.652(c) provides:
"(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."
n2 Regulation 29 CFR 1926.652(e) provides:
"(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."
[*4]
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Respondent filed a timely notice of contest. After a complaint and answer had been filed by the parties, a hearing was held at Kansas City, Missouri, on January 8, 1976, with complainant and respondent present and participating.
THE ISSUES
No jurisdictional issues are in dispute, the respondent not having controverted the allegations of paragraph II of the complaint which alleged that respondent was an employer engaged in a business affecting commerce within the meaning of the Act. The issues to be decided are whether the respondent violated occupational safety regulations as alleged in the citation, and, if so, what penalty is appropriate.
SUMMARY OF THE EVIDENCE AND DISCUSSION
Each side presented one witness. OSHA Compliance Officer Stephen Barker testified he inspected respondent's worksite at 85th and Kenwood, Kansas City, Missouri, on August 21, 1975 (T. 10). He observed that respondent had opened an excavation shaped like a barbell with large openings at the end. At the time of the inspection respondent was conducting a search for a water pipe. Barker's interest was in a narrow [*5] portion about 12-feet long where one employee was working (T. 13-15). Barker estimated this section was about 30 inches wide, approximating the width of a backhoe bucket. He dropped a tape measure into the excavation and estimated the depth at 9 feet (T. 13).
Respondent's lone witness, Lawrence L. Stafford, the respondent's foreman, agreed that the Compliance Officer's testimony as to dimensions was "more or less accurate." (T. 55)
Barker described the soil as a black to brown humus containing clay. He believe it to be a hard compact soil undisturbed prior to digging. However, there was a sewer line running at a 90 degree angle to the trench and an employee was digging underneath it (T. 14). Barker understood that respondent was making connection on an existing waterline so pipe could be extended underneath the sewer line (T. 15).
The deep portion of the excavation was approximately 11 feet from 85th Street, a heavily traveled artery (T. 22). There was no shoring, nor any additional precautions taken because of the nearby traffic (T. 24). Barker also believed the lack of shoring and sloping was especially hazardous because of the proximity to the backfilled area where the [*6] sewer line had been excavated (T. 24). Since death or serious injury could result from an accident, the alleged violation was classed as serious and a $700 penalty proposed after giving respondent certain credits for size, good faith, and history (T. 25-28). After a conference with the Area Director respondent was given additional credit for good faith and history, and the proposed penalty reduced to $500.
Respondent did not dispute the allegations that the trench had been neither sloped nor shored. In lieu of sloping or shoring Stafford testified a large backhoe was stationed at the trench site ready to insert its bucket and hold the ditch firmly in the event the banks appeared to weaken (T. 38). The backhoe bucket was approximately 7 feet long and 4 feet deep (T. 54).
Respondent had elected to proceed without shoring or sloping because of the considerations relating to public convenience. Respondent was engaged in laying storm sewers and also had a contract with the city water company to move water lines if they conflicted with the sewers (T. 34). In the area of the inspected site the water line was four feet deep and it was to be lowered to a 5-1/2 foot level. Stafford [*7] testified that after a water line was severed there were about eighty families without water. Respondent then discovered that the water line at the 5-1/2 foot level conflicted with the sewer, and the excavation had to be deepened (T. 36). After discussing the risks, respondent concluded there was little work to be done, and it would proceed without shoring (T. 37).
Stafford disputed Barker's observation that the traffic on 85th Street created vibrations. He agreed that 85th Street had considerable traffic, but said it was traveling at a rather slow speed because of obstructions and the installation of safety flashers (T. 57). In his opinion there were no vibrations (T. 58). He also disputed that the extent of prior excavations near the deep area of the trench, pointing out that the prior excavations for sewer or water pipe had been at a 90 degree angle (T. 50).
It was respondent's plan to complete the job quickly without shoring or sloping and turn the water back on for the affected families by 4:00 o'clock in the afternoon. One man would work in the deep trench approximately 30 to 40 minutes although he would be bent over part of the time. In the event of a cave-in it was [*8] thought the backhoe could apply pressure perpendicular to the sides of the ditch to hold it in place (T. 60-61). Stafford stated this had been done quite frequently on this type of construction (T. 61).
Respondent's representative, Glenn W. Ladd, concluded: "And we had a job we had to do and we felt like we were doing it in the best interests of the public and the employees." (T. 64)
The testimony of the Compliance Officer, unrebutted with respect to particulars relating to the nature of the soil, the dimensions of the excavation, and the absence of shoring or sloping, establishes a prima facie violation of regulation 29 CFR 1926.652(c). This regulation mandates that the sides of trenches opened in hard or compact soil be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet in length, or sloped above the 5-foot level in lieu of shoring. Respondent's deliberate decision to eschew shoring or sloping in the interest of speed and the convenience of homeowners temporarily without water placed one employee in a position where his life would be imperiled be sudden collapse of a trench wall. Respondent's judgment that such an event was unlikely may have [*9] been well-founded, but it would have been cold comfort to the hapless employee if in error.
We are not favorably impressed with Stafford's testimony that the exposed employee was provided with ample protection by having a backhoe at the ready to prevent a cave-in. Although the respondent's testimony in this regard was unrebutted, we frankly doubt the efficacy of the means when a 4-foot bucket is to serve as shoring for a 9-foot trench. Moreover, Exhibit G-3, a photograph taken by the Compliance Officer at the time of the inspection, depicts an employee laboring at the bottom of the excavation with no backhoe nearby. We reject respondent's contentions that (1) public convenience in the form of uninterrupted water service excuses compliance with trenching safety regulations, or, (2) that the requirements of section 1926.652(c) may be supplied in some alternate fashion by the presence of the backhoe and bucket.
The proof with respect to the alleged violation of regulation 29 CFR 1926.652(e) is not clear or convincing. The trench was excavated at an approximate distance of 11 feet from 85th Street which carried heavy traffic at fairly slow speeds. The testimony was close, but we [*10] cannot conclude that the excavation was in fact subjected to vibrations. Also, while there were backfilled areas from earlier excavations for utilities in the area, there was dispute as to their location and the hazards they presented after compaction. In any event we would be hard put to determine from a study of regulation 29 CFR 1926.652(e) what, if any, additional precautions would have been necessary to satisfy the regulation if the trench had been properly shored or braced in compliance with section 1926.652(c). Absent more conclusive testimony about either the vibrations from vehicular traffic or dangerously disturbed soil from previous backfill, we are not persuaded that a violation of 1926.652(e) has been established.
In attempting to assess an appropriate penalty for the violation of 1926.652(c) we are mindful of the fact that one employee would labor in the bottom of the trench with handtools a period of about 30 to 40 minutes. Having given due consideration to the gravity of the hazard, as well as respondent's size, good faith and safety history, we conclude that the penalty in the sum of $350 is appropriate under the circumstances.
FINDINGS OF FACT
Having held [*11] a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative, and substantial evidence supports the following findings of fact:
(1) Respondent, Tip-Top Plumbing and Heating Co., is a corporation with a principal place of business located at 8710 Hillcrest Road, Kansas City, Missouri.
(2) Respondent at all times relevant hereto employed approximately seven workmen at a sewer excavation site at 85th and Kenwood, Kansas City, Missouri.
(3) At the aforesaid site on August 21, 1975, respondent was engaged in sewer excavation work and the relocation of certain water lines.
(4) On August 21, 1975, one of respondent's employees was laboring in a portion of an excavation with nearly vertical or perpendicular sides approximately 30 inches in width, 9 feet in depth, and 12 feet in length. No shoring, sheeting, or bracing was in place in the excavation.
(5) The aforesaid excavation was approximately 11 feet from 85th Street upon which there was a flow of slow moving vehicular traffic. The evidence failed to establish the effect, if any, of the traffic upon the excavation.
(6) Certain utilities were present at or near the excavation [*12] indicating that a portion of the soil materials may have been backfilled material, but the extent of the backfill or the hazard if any, it presented, was not established.
CONCLUSIONS OF LAW
(1) At all times material hereto respondent was an employer within the meaning of section 3 of the Act.
(2) The Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter under section 10 of the Act.
(3) On August 21, 1975, respondent violated occupational safety and health standard 29 CFR 1926.652(c). There was substantial probability that death or serious physical harm could result from said violation; respondent knew or with the exercise of reasonable diligence, could have known of the presence of the violation, and the aforesaid violation was serious within the meaning of section 17(k) of the Act. Due consideration having been given to the gravity of the violation, respondent's good faith, size and history, it is concluded that a penalty of $350 is appropriate.
(4) On August 21, 1975, respondent was not in violation of safety regulation 29 CFR 1926.652(e).
ORDER
Based on the above findings of fact and conclusions of law, it is [*13] hereby ORDERED that the portions of the citation for serious violation issued to respondent August 25, 1975, relating to occupational safety regulation 29 CFR 1926.652(c) are hereby affirmed and a penalty in the sum of $350 is assessed thereon; all portions of the aforesaid citation relating to occupational safety regulation 29 CFR 1926.652(e) for alleged failure to take additional precaution because a trench was subjected to vibrations from vehicular traffic or excavated in prior backfilled area are vacated.
Date: May 24, 1976
Alan M. Wienman, Judge, OSAHRC