ONONTARIO OF FLORIDA, INC.  

OSHRC Docket No. 15593

Occupational Safety and Health Review Commission

April 18, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, USDOL

Donald R. Fleury, President, Onontario of Florida, Inc., 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.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would vacate the citation in its entirety.   The standards cited therein apply exclusively to excavations. Since respondent's cavity was a trench, those standards are inapplicable in the instant case.   See Secretary v. Lloyd C. Lockrem, Inc., OSHAC Docket No. 4553, February 24, 1976 (dissenting opinion); Secretary v. Dobson Brothers Construction Company, OSAHRC Docket No. 3847, February 18, 1976 (concurring and 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 Brady'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 [*3]  

Carl Carruth, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Mr. Robert T. Jones, Pro Se

STATEMENT OF CASE

BRADY Judge: This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C., 651, et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest two citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act.   The citations, which were issued October 3, 1975, allege that as a result of an inspection of respondent's workplace located at Bonita Beach Road, Route 865, Bonita Shores, Florida, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof.   A notice of proposed penalty was issued with the citation.

Pursuant to notice, respondent timely contested citation number two which alleges violation of the standard at 29 C.F.R. §   1926.651(c) and (e) while engaged in excavation work and sewer pipe installation. The hearing was held January 5, 1976, in Ft. Meyers, Florida, and no additional parties   [*4]   sought to intervene.

Mr. Francis Silverberg, compliance officer, testified that he conducted the inspection which gave rise to the issuance of the citation.   He stated that he observed the excavation operation which involved high spoil banks and a well point system that had fallen into the excavation (Exh. C-1, Tr. 3).   A well point system is described as a system of pipes driven into the ground for de-watering purposes for excavation. It was indicated that the walls of the excavation had collapsed and slid into the excavation carrying with it the well points and some header pipes. A cave-in was also observed in another area where a manhole was to be installed.   There were approximately three employees in the trench, about 10 to 15 feet from this cave-in area (Tr. 7-9, Exh. C-6).

The trench excavation was measured to be approximately 12 feet deep, 150 feet long and approximately 15 feet wide at the top; although he did not measure the bottom, he noted that it had been dug with a backhoe using a 48-inch wide bucket (Tr. 10-12)

While present at the worksite, Mr. Silverberg also observed four cave-ins, and at no time was shoring present (Tr. 14-16, Exh. C-8).   He indicated that the [*5]   soil in the area was of an unstable sugar-sand type.

Mr. Silverberg stated that as a result of his comments about the working conditions, a trench box was placed in the trench. Soon thereafter, a cave-in occurred causing soil to slide within a foot from the top of the six-foot trench box (Tr. 16-18).

Mr. Silverberg testified that he had made a previous inspection of respondent's worksite on August 11, 1975, which resulted in the issuance of a citation.   The citation was issued for violation of the standard at 29 C.F.R. §   1926.651(c), and it was not contested (Exh. C-12).   He indicated that at both inspections the same foreman was present, and requirements of the standard were previously discussed (Tr. 37).

Mr. Donald Fleury, president, testified that following the first inspection he ordered trench boxes and instructed the job superintendent to use them (Tr. 65, 67).   It was pointed out, however, that the superintendent was present at the jobsite at the time of the second inspection, but the trench box was not in use until recommended by the compliance officer (Tr. 60).

Mr. Silverberg testified that when he arrived on the jobsite September 29, 1975, Mr. Marshall, the foreman,   [*6]   and Mr. La Fleur, the superintendent, were in the vicinity observing employees working in the trench without protection against slides or cave-in hazards (Tr. 69).   The testimony indicates that respondent ordered trench boxes following issuance of the first citation, and one trench box was apparently at the worksite during the second inspection. It must be held, however, that the standard was violated as alleged.   The presence of the foreman and job superintendent while unprotected employees were working in the trench clearly establishes knowledge of the violation by respondent.   The respondent, therefore, must be held responsible for the protection of its endangered employees.

The evidence also shows that the previous citation issued respondent for violating the standard at 29 C.F.R. §   1926.651(c) was not contested. Therefore, the citation and the proposed penalty are affirmed as the final order of the Commission.

The computation of the proposed penalty for the repeated violation is set forth by the compliance officer (Tr. 36).   Considering all the factors for determining penalties pursuant to section 17(j) of the Act, including respondent's good faith efforts to seek compliance,   [*7]   it is held that a penalty in the amount of $1,000 is reasonable and appropriate.

FINDINGS OF FACT

1.   Onontario of Florida, Inc., is a corporation doing business among other places at 1286 South Military Trail, West Palm Beach, Florida, where it is engaged in excavation and pipe installation.

2.   On August 11, 1975, authorized representatives of the Secretary conducted an inspection of respondent's workplace which resulted in the issuance of a citation for a serious violation of the standard at 29 C.F.R. §   1926.651(c) on August 19, 1975, with notification of proposed penalty. The citation and proposed penalty were not subsequently contested.

3.   On September 29, 1975, authorized pepresentatives of the Secretary conducted an inspection of respondent's workplace at Bonita Beach Road, Bonits Shores, Florida.   As a result of such inspection on October 3, 1975, a citation for repeat violation was issued for violation of the standard at 29 C.F.R. §   1926.651(c).   Notice of proposed penalty was issued with the citation.

4.   Respondent's employees were exposed to danger from moving ground while working in an excavation approximately 12 feet deep and 15 feet wide, while in the process [*8]   of laying sewer pipe.

5.   On September 29, 1975, there was substantial probability that death or serious physical harm could result to respondent's employees working within the excavation.

6.   Respondent is responsible for the protection of its endangered employees.

7.   The penalty proposed for the repeat violation in the amount of $1,000 is found to be reasonable and appropriate.

CONCLUSIONS OF LAW

1.   Onontario of Florida, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter herein pursuant to section 10(c) of the Act.

2.   Respondent is, and at all times pertinent hereto, required to comply with safety and health regualtions promulgated by the Secretary pursuant to section 6(a) of the Act.

3.   The citation, which was issued August 19, 1975, is affirmed as the final order of the Occupational Safety and Health Review Commission.

4.   On September 29, 1975, respondent was in violation of the standard at 29 C.F.R. §   1926.651(c) and (e) as charged in the citation.   The violation [*9]   constituted a serious violation within the meaning of section 17(k) of the Act.

5.   Respondent failed to comply with the regulations thereby violating section 5(a)(2) of the Act.

6.   A penalty in the amount of $1,000 is assossed for the repeated violation as alleged in the citation.

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

1.   That the citation and proposed penalty are hereby affirmed, and a penalty in the amount of $1,000 is assessed.

Dated this 11th day of August, 1976.

PAUL L. BRADY, Judge