PATTERSON AND WILDER CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 14965

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

Bobbye D. Spears, Regional Solicitor, USDOL

Charles T. Magarahan, 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'd 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 [*2] 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 (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the vacation of the 29 C.F.R. 1926.652(c) charge for the reasons stated in Judge Burroughs' decision which is attached hereto as Appendix A. However, I would also vacate the 29 C.F.R. 1926.651(i)(1) charge in its entirety because the cited standard is not applicable to trenches. Secretary v. D. Frederico Company, Inc., OSAHRC Docket No. 9879, October 13, 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.

APPENDIX A

DECISION AND ORDER

Nancy J. Spies and Carl B. Carruth, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Charles T. Magarahan, on behalf of respondent

STATEMENT OF CASE

BURROUGHS, [*3] Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent seeks review of a repeat non-serious citation and a repeat serious citation issued to it, pursuant to section 9(a) of the Act, on August 28, 1975. Review is also sought of the penalties proposed for the alleged violations.

The citations emanate from an inspection conducted as two workplaces located in Washington, Georgia, on August 15, 1975. Respondent was engaged in the business of installing sewer drain pipe at the time of inspection.

The repeat non-serious citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the safety standard published at 29 C.F.R. 1926.651(i)(1). The citation described the alleged violation as follows:

"Repeat of failure to store excavated materials at least two feet from the edge of the trench, exposing employees to the hazard of falling materials at:

a. Line A at Station 47 + 50

b. Line North of By-pass."

%a penalty of $285 was proposed for the alleged violation.

The repeat serious citation alleges a violation of the safety standard [*4] published at 29 C.F.R. 1926.652(c). The citation describes the alleged violation as follows:

"Repeat of failure to assure that sides of trenches in hard compact soil, 5 feet or more in depth, were shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them, exposing employees to the hazard of cave-ins on Line A at Station 47 + 50."

A penalty of $1900 was proposed for the alleged violation.

Respondent, by letter dated September 10, 1975, and received by complainant on September 11, 1975, timely advised complainant that it desired to contest the citations and proposed penalties.

A hearing was held in the case on December 5, 1975, in Atlanta, Georgia. No additional parties desired to intervene in the proceeding.

At the conclusion of complainant's evidence, respondent moved to dismiss that portion of the repeat non-serious citation pertaining to the line north of the by-pass. Respondent argued that the evidence failed to show that any employees were working in the trench. Judgment was reserved on the motion (Tr. 128-129).

JURISDICTION AND ISSUES

Respondent concedes that at all times pertinent to this [*5] proceeding it was engaged in a business affecting commerce within the meaning of of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Pars. I, II, Complaint and Answer).

The following issues are presented for determination:

1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the safety standards published at 29 C.F.R. 1926.651(i)(1) and 29 C.F.R. 1926.652(c)?

2. Were the violations, if they occurred, repeat violations within the meaning of section 17(a) of the Act?

3. Was the violation of 29 C.F.R. 1926.652(c), if it occurred, a serious violation within the meaning of section 17(k) of the Act?

4. What penalties, if any, should be assessed for any violations of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving the issues:

1. Respondent is a corporation and ws engaged in the business of installing sewer drain pipes in Washington, Georgia, at all times pertinent to this proceeding (Par. II, Complaint and Answer).

2. Respondent's main office is located in Pelham, Alabama. It conducts business [*6] operations in approximately eight southeastern states (Tr. 174-175).

3. On October 31, 1974, complainant, through a duly authorized compliance officer, conducted an inspection of a workplace located in Redman, Georgia. Respondent was installing a water pipe in a trench at the time of inspection. The trench was approximately 36 inches wide, in excess of eight feet in depth and over 40 feet long (Tr. 28, 33).

4. As a result of the inspection conducted on October 31, 1974, respondent was issued a serious citation and a non-serious citation on November 1, 1974. The serious citation alleged that respondent violated the standard published at 29 C.F.R. 1926.652(c). Item two of the non-serious citation alleged a violation of 29 C.F.R. 651(i)(1) (Exs. 1, 2; Tr. 28-30).

5. The serious and non-serious citatios issued to respondent on November 1, 1974, were not contested (Tr. 30).

6. At the conclusion of the inspection on October 31, 1974, a closing conference was held with Sidney Hand. The alleged violations were discussed with him (Tr. 30-31).

7. Complainant, through a duly authorized compliance officer conducted an inspection of respondent's worksite in Washington, Georgia, [*7] on July 23, 1975. Respondent was engaged in trenching and installation of sewer pipe at the time of the inspection (Tr. 39-40, 44).

8. Citations were issued as a result of the July 23, 1975, inspection. They were not contested by the respondent (Tr. 42). The trenches observed on July 23, 1975, were in compliance with the shoring and sloping requirements of the Act (Tr. 45).

9. At the closing conference on July 23, 1975, the complaince officer discussed shoring procedures with Sidney Hand, respondent's superintendent, and gave him pamphlets on excavation and trenching (Tr. 43, 69-70, 115).

10. Redman, Georgia, is located in Dekalb County, Georgia, and is over 100 miles from Washington, Georgia (Tr. 35, 166).

11. Complainant, through a duly authorized compliance officer, conducted a follow-up inspection of two of respondent's worksites in Washington, Georgia, on August 15, 1975 (Tr. 39, 45-46). The worksites were approximately 5 miles apart and were identified as line A at station 47 + 50 and the line north of the by-pass (Tr. 45-46, 52, 53, 54). Respondent was installing sewer drain pipe at the two sites (Exs. 3, 4, 7-11; Tr. 48-50).

12. Sidney Hand was in charge of the [*8] respondent's activities in Washington, Georgia, and accompanied the compliance officer on the walk around inspections (Tr. 46, 56).

13. When the compliance officer arrived at line A at station 47 + 50, respondent's employees were excavating and installing sewer pipe (Exs. 10, 11; Tr. 55-56, 108-109, 134).

14. Two employees were observed in all areas of the trench at line A at station 47 + 50 installing two six foot sections of pipe (Exs. 10, 11; Tr. 56-57, 58, 116-117, 140, 151). The employees climbed down the ladder and into the trench shortly after the compliance officer arrived at the site (Tr. 57, 58, 66, 109, 111, 131). After the two sections of pipe were installed, the trench was back filled (Ex. 6; Tr. 59, 63, 109-111).

15. The employees were observed working adjacent to the ladder in the trench (Ex. 12; Tr. 66, 119). The ladder was in the trench at an angle approximating 45 degrees. There was 12 inches between each rung of the ladder (Ex. 6; Tr. 153, 167).

16. A 15-inch sewer pipe was being laid on a grade of approximately 33/100's rise per 100 feet. The outside diameter was approximately 23 inches. It was a gravity flow sewer (Tr. 135, 136, 164). The terrain [*9] in which the sewer pipe at line A at station 47 + 50 was being laid was generally level (Tr. 135, 160).

17. The trench at line A at station 47 + 50 was excavated with a backhoe (Tr. 63). The bucket on the backhoe was 42 inches wide (Tr. 140-141).

18. The trench in which the pipe was being installed was between 42 inches and four feet wide at the bottom (Ex. 12; Tr. 63, 67-68, 86, 87, 120, 140-141). The width of the trench where the cut was made at the ground level was 11 feet at the ladder and 14 feet some distance from the ladder (Ex. 12; Tr. 67-68, 85-86, 87, 90, 101, 143, 163).

19. The vertical walls of the trench were straight and uniform from the bottom up to a point of approximately 4 to 4 1/2 feet above the bottom at the location of the ladder. The trench then sloped outward on both sides (Exs. D, 6; Tr. 64, 68, 85, 91, 120, 140, 141, 145, 160).

20. When the compliance officer arrived at line A at station 47 + 50, the trench was 23 feet long (Ex. 12; Tr. 79, 111).

21. The compliance officer measured the depth of the trench at line A at station 47 + 50 at four separate locations (Tr. 64). The depth from ground level to the bottom, as measured by him, was 10 feet [*10] at three of the locations and 12 feet 6 inches at the fourth location (Ex. 12; Tr. 65-66, 85, 102, 104).

22. The plans for the trench called for a depth of 9 1/2 feet (Tr. 139, 173).

23. Excavated soil from the trench at line A at station 47 + 50 was stored up to the edge of the trench (Exs. 7, 8, 9; Tr. 48-50, 60, 117, 163). The pile of excavated soil was approximately six feet high and 20 feet across (Tr. 60-61).

24. The vertical walls of the trench at line A at station 47 + 50 were not shored, sheeted or braced (Exs. 6, 10, 11; Tr. 76-77, 164).

25. The soil at line A at station 47 + 50 was sandy clay (Tr. 117, 121). It was hard and compact (Tr. 121, 140, 154, 155).

26. Excavated soil from the trench at the line north of the by-pass was stored up to the edge of the trench (Exs. 3, 4; Tr. 61-63).

OPINION

On August 15, 1975, a follow-up inspection was conducted by a compliance officer at two separate work locations of respondent in Washington, Georgia. The worksites were identified as line A at station 47 + 50 and line north of by-pass. Respondent was excavating and installing 15-inch sewer pipe.

Respondent was issued a repeat non-serious citation for failure [*11] to store excavated material at least two feet from the edge of the excavations in violation of 29 C.F.R. 1926.651(i)(1). A repeat serious citation was issued for the failure to shore, sheet, brace, slope or otherwise support the sides of the trench at line A at station 47 + 50.

I. 29 C.F.R. 1926.651(i)(1)

Complainant alleges that respondent failed to store excavated materials at least two feet from the edge of the trenches at line A at station 47 + 50 and at the line north of the by-pass in violation of 29 C.F.R. 1926.651(i)(1). n1 Respondent submits that it was not in violation of the standard.

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n1 29 C.F.R. 1926.651(i)(1) provides:

"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."

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A. Line A at Station 47 + 50

The compliance officer testified that excavated soil from the trench was stored within two feet of the edge of the excavation (Tr. 49, 60, 117). Respondent's pipeline [*12] foreman, Jerry Adams, testified that the excavated soil was not stored within two feet of the edge (Tr. 148-150). Photographs introduced as exhibits 7, 8 and 9 clearly show excavated soil up to the edge of the excavation. On cross-examination, Adams was asked to mark on exhibit 8 where the excavated material commenced (Tr. 163). The mark he placed on exhibit 8 corroborates the compliance officer's testimony that the excavated material was within two feet of the edge of the excavation.

The Standard requires excavated material to be stored at least two feet from the edge of an excavation in which employees may be required to enter. There is no dispute over the fact that two employees were working in the trench. The violation has been established.

B. Line North of By-Pass

The compliance officer testified that excavated soil from the trench at the line north of the by-pass was stored up to the edge of the trench (Tr. 61-63). Photographs introduced as exhibits three and four corroborates his testimony. Respondent offered no testimony as to the location of the excavated material. Respondent submits that the alleged violation should be dismissed for the reason that no evidence [*13] was introduced to show that any employees were at the site.

The standard requires a greater burden on the part of complainant than merely showing that excavated material was within two feet of the edge of the excavation. There must be a showing that employees "may be required to enter" the trench. If employees do not have to enter the trench, the excavated material within two feet of the edge would pose no hazard to employees. No evidence was introduced by complainant to establish that employees had to enter the trench. Indeed, as aptly stated by respondent, there has been no showing that any employees were at the site. The Commission cannot assume facts which are not in the record. Complainant has failed to meet his burden. Respondent's motion to dismiss as to the line north of the by-pass is granted.

II. 29 C.F.R. 1926.652(c)

Complainant submits that the vertical walls of the trench at line A at station 47 + 50 were six and one-half feet at the point where the ladder was in the trench. Employees were observed working in this area. Respondent contends the vertical walls were approximately four and one-half feet.

Section 1926.652(c) n2 requires that a trench in hard [*14] or compact soil which is more than five feet in depth must be shored or otherwise supported. In lieu of shoring, the standard permits sloping of the sides of the trench above the five foot level. The parties agree that the soil was hard or compact. The dispute centers on the height of the vertical walls of the trench at the location of the ladder in the trench. The compliance officer conceded that the vertical walls of the trench at another area where a measurement was made were only four feet high (Tr. 91-93, 120).

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n2 29 C.F.R. 1926.652(c) states:

"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."

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The compliance officer testified that the height of the vertical walls of the trench at the ladder was six feet and six inches (Exs. B, C; Tr. 91-92, 93, 119). He testified that he measured the depth of the vertical walls at the ladder by standing on the ladder at about the six and one-half foot level (Tr. 94). He then held his measuring tape along the vertical wall to the bottom of the trench, reached down and then pulled it back up. He did not enter the trench to make the measurement (Tr. 95-96).

Respondent's foreman, Jerry Adams, estimated the vertical walls to be approximately 4 to 4 1/2 feet (Tr. 140, 145). He did not take an actual measurement but eyeballed it (Tr. 145, 160). He was present and observed while the trench was being dug (Tr. 141).

The preponderance of the evidence supports respondent's position that the vertical walls of the trench at the ladder was from 4 to 4 1/2 feet high. Exhibit 6 is a photograph of the ladder in the trench. The evidence establishes that the rungs are 12 inches apart. The ladder is at an angle of approximately 45 degrees. A total of five rungs are shown from the bottom of the ladder to the point where [*16] the slope commences.

Exhibit 6 clearly shows the sloping of the trench. The width at the point where the ladder is in the trench also appears to be a little narrower at that point.

There are several discrepancies in the compliance officer's testimony that cast some doubt on his accuracy of the vertical wall measurement. Exhibit B, which was drawn by the compliance officer at the hearing, varies from the drawing made at the time of the inspection (Exhibit C) which reflected a slope in the trench. The compliance officer indicated in exhibit B that the trench was dug on a slope so that one side was two and one-half feet above the other side. This gave him a measurement of twelve feet and six inches on one side of the ladder and ten feet on the other side. Respondent's foreman, Jerry Adams, testified that the terrain was flat pasture land (Tr. 135, 160). The photographs introduced as exhibits fail to show a 30 inch slope in the terrain. It appears the compliance officer had difficulty discerning where the ground level ended and the spoil pile commenced.

The depth measurement of twelve feet and six inches made at the area of the ladder does not appear to have been accurate. [*17] In taking this measurement of depth, the compliance officer testified that he "put it [measuring tape] down to the bottom of the trench, and held my hand down even with the ground at that point" (Tr. 85). He later testified that he measured from the bottom of the trench to the point where the grass met the trench, i.e., where the cut at the ground level commenced. This procedure would have measured the vertical wall and slope of the trench. This distance would be greater, because of the slope, than a straight measurement from the bottom of the trench to a point even with the ground level. The depth of the trench would appear to have varied somewhere between 9 1/2 to 10 feet for the full length of the trench (Tr. 102, 103-104).

Complainant had the burden of proof to establish that respondent violated 29 C.F.R. 1926.652(c). His evidence and brief were directed to a violation of 29 C.F.R. 1926.652(c) on the basis that a vertical wall of the trench at a specific point was six feet and six inches without shoring or sloping. There has been no contention by complainant that the sloping was improper if the vertical wall was determined to be five feet or less. The issue is decided [*18] for respondent.

III. Repeat Violation

Complainant alleges that the violation of 29 C.F.R. 1926.651(i)(1) at line A at station 47 + 50 was a repeat violation within the meaning of section 17(a) n3 of the Act. A non-serious citation issued to respondent on November 1, 1974, which was not contested, alleged a violation of 29 C.F.R. 1926.651(i)(1). The citation issued on November 1, 1974, resulted from an inspection at a worksite of respondent's located in Redman, Georgia, which is over 100 miles from the site of the violation in this case.

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n3 Section 17(a) states:

"Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation."

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In Secretary v. General Electric Co., Inc.,    OSAHRC    (April 21, 1975, Docket No. 2739), the Commission, in commenting on the term "repeated" stated: [*19]

". . . The term 'repeated' is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved. . . ."

The language used by the Commission suggests that a repeat violation should be determined in those situations where the subsequent violations occurred in a manner which flaunts the reuirements of the Act. The evidence in this case does not support a finding that respondent was flaunting the requirements of the Act.

In Secretary v. Bethlehem Steel Corporation, 20 OSAHRC    , (September 17, 1975, Docket No. 8392), the sole issue presented to the Commission involved the question of what constitutes a repeat violation. The Commission rejected the argument that a repeated violation must result from more than simple neglect. The Commission held in Bethlehem Steel:

". . . Furthermore, there is no language in the Act or its legislative history indicating [*20] that a second violation must result from any particular state of the employer's mind in order to be a repeated violation within the meaning of section 17(a)."

To the extent that this language appears inconsistent with General Electric Company, Inc., supra, it is concluded that the language used in Bethlehem Steel is controlling. The Commission further stated in Bethlehem Steel that "[t]he repetition may be the consequence of simple negligence, or they may be the result of greater degrees of carelessness or intentional flaunting of the Act's requirements." Thus, it is clear that simple negligence will sustain a repeat violation where all other factors have been established.

In both General Electric Co., Inc., supra, and Bethlehem Steel Corp., supra, the Commission held that a citation for non-compliance with a standard at one worksite may be the basis for finding a repeated violation at a different worksite where the same standard is involved. The two violations of 29 C.F.R. 1926.651(i)(1) committed by respondent at the two different sites involved the same type working environment and safety techniques. The violation of 29 C.F.R. 1926.651(i)(1) [*21] is determined to be a repeat violation.

PENALTY DETERMINATION

The trench in which two employees were working was no less than 11 feet wide at the ground level. In some areas it was 14 feet wide. Excavated material was placed at the edge of the trench. The excavated material sloped backward from the edge. After the consideration of the factors required by section 17(j) n4 of the Act, a penalty of $100 is assessed.

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n4 Section 17(j) of the Act provides:

"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."

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CONCLUSIONS OF LAW

1. Respondent was, at all times material hereto, engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. Respondent was, at all times material hereto, subject to the requirements [*22] of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. On August 15, 1976, respondent was engaged in trenching and installing sewer drain pipe at two locations in Washington, Georgia. The locations were identified as line A at station 47 + 50 and the line north of the by-pass.

4. The trench at line A at station 47 + 50 was some 23 feet long and from 11 to 14 feet wide. The trench was 9 1/2 to 10 feet deep and was sloped from a point 4 to 4 1/2 feet from the bottom. Respondent was not in violation of 29 C.F.R. 1926.652(c).

5. Excavated material was stored within two feet of the edge of the trench at line A at station 47 + 50 in violation of 29 C.F.R. 1926.651(i)(1). Employees were working in the trench. Respondent previously violated 29 C.F.R. 1926.651(i)(1). The violation at line A at station 47 + 50 was a repeat violation. A penalty of $100 is assessed for the violation.

6. Excavated material was stored within two feet of the edge of the trench at the line north of the by-pass. Complainant failed to show that employees were in the trench or may have been required to enter the trench. [*23] Respondent was not in violation of 29 C.F.R. 1926.651(i)(1).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED: (1) That the repeat non-serious citation issued to respondent on August 28, 1975, is modified to vacate the violation of 29 C.F.R. 1926.651(i)(1) as it pertains to the line north of the by-pass and to affirm the violation as to line A at station 47 + 50;

(2) That the repeat serious citation issued to respondent on August 28, 1975, is vacated;

(3) That the penalty proposed for the repeat serious violation is vacated and the penalty proposed for the non-serious violation of 29 C.F.R. 1926.651(i)(1) is modified to assess a penalty of $100.

Dated this 16th day of June, 1976.

JAMES D. BURROUGHS, Judge