OLD FORGE CONTRUCTION CO., INC.  

Occupational Safety and Health Review Commission

March 26, 1976

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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Donald J. Ball, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge David H. Harris, dated April 3, 1974, is before this Commission for review pursuant to 29 U.S.C. §   661(i).   That decision held respondent in violation of the safety standards codified at 29 C.F.R. §   1926.651(i)(1) n1 and §   1926.652(c).   We affirm the holding with respect to the charge of noncompliance with §   1926.651(i)(1).   We reverse as to the §   1926.652(c) charge.

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n1 Actually respondent was found to be in violation of §   1926.651(h)(i)(1).   This was clearly erroneous, in that .651(h) and .651(i) are two separate and distinct standards.   Complainant cited respondent for violating .651(h)(i)(1), and apparently all participants, including the Judge, failed to perceive the mistake.   Nevertheless, since respondent was obviously aware of what was intended in admitting the violation in its answer to the complaint, we find no prejudicial error therein.

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The citation charged respondent with failure to comply with 29 C.F.R. §   1926.652(b). n2 Throughout the hearing complainant sought to prove a violation of this standard.   No motion to amend was made during or after the hearing.   Nevertheless the Judge, finding the evidence insufficient to support the violation as charged, concluded that respondent was in violation of 29 C.F.R. §   1926.652(c) n3 and amended the citation to so charge.

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n2 That standard provides:

"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."

n3 That standard provides:

"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."

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Although this Commission has seen fit at times to invoke Rule 15(b) of the Federal Rules of Civil Procedure, which provides for liberal amendment of pleadings, it has permitted such amendments only when the new issues have been tried by the express or implied consent of the parties and no undue prejudice would result therefrom.   See Secretary v. Isaacson Structural Steel Company, 17 OSAHRC 496 (1975), Secretary v. Park Construction Company, 17 OSAHRC 343 (1975), Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132 (1973).

We find that respondent did not consent, either expressly or impliedly, to an amendment in this case.   Not only was the possibility of a .652(c) violation never raised at the hearing, n4 but respondent specifically objected to any testimony relating to it.   The following colloquy between complainant's attorney and his principal witness amply demonstrates this:

"Q.   Could you basically describe the dimension of this trench as you observed it?

A.   We measured the trench. It was 6 feet deep. It was approximately 24 inches wide, and about 12 feet long.

MR. BALL:   [*4]   If the Court please, I am going to object to any testimony as to the length of the trench, in that the citation, that the section which the citation issued - deals only with depth and stability of the ground, and that the length of the trench is immaterial and should not be testified to at this time.

THE COURT: Well, I think it is important to know whether it was a trench or not.   If the length isn't important, and it might well be a hole.   I think that the length goes to the description of the excavation of the trench. Overruled."

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n4 The only notice received by respondent concerning the possibility of amending the charge was a letter sent to it by complainant prior to the hearing stating that, if the evidence was insufficient to show a violation of .652(b), complainant might move to amend to charge a violation of .652(c).   This was insufficient, however, since complainant never did make such a motion.   Furthermore, complainant stated in its summation as follows:

"It is clear, from the pictures, that this [soil] is a weak substance, and there is no consistency to remain stable. . . .

We maintain that this was unstable as provided by the definition." These closing remarks could only lead respondent to believe that it was unnecessary to defend itself on the .652(c) charge, hence obviating the need to respond in anyway to the letter.

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The foregoing, in addition to demonstrating respondent's lack of consent to the trial of the issues raised by the subsequent amendment, also demonstrates the prejudice that accrued to respondent by the Judge's sua sponte amendment after the hearing.   The Judge's aforementioned reply was clearly misleading.   At the very least either the Judge or complainant should have mentioned the possibility of amending the citation at this point.   Respondent's defense would probably have been substantially different if it had known that the charge was a violation of .652(c).   For example, respondent may have challenged evidence that the trench was "vertical." In this respect, we note that the standard for "compact" soil requires sloping only above the 5 foot level at a 1/2:1 ratio.   Since the evidence established the trench to be between 5'8" and 6 feet deep, only a 4 to 6 inch widening at the top of the trench was necessary.   Respondent, thinking it was defending a .652(b) violation, which required sloping the entire trench, was never given the opportunity to defend on this matter.   Accordingly, we hold the Judge [*6]   erred in amending the citation.

Furthermore, even if the citation had been amended during the trial, a violation of 29 C.F.R. §   1926.652(c) could not be affirmed.   As noted above, if respondent sloped back the top 8 to 12 inches of the trench a mere 4 to 6 inches, it would have been in compliance with this standard.   Considering the small amount of sloping required, we find the evidence insufficient to establish a violation of the standard.   The naked eye cannot detect such fine distinctions.   Accordingly, complainant should have measured the width of the trench both at the five-foot level and at ground level to establish the violation.   Failure to make these measurements is fatal to complianant's case.   A violation cannot be affirmed on the basis of mere speculation and conjecture. n5

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n5 Secretary v. Forth Worth Enterprises, Inc., 10 OSAHRC 280, 284 (1974).

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Detracting still further from complainant's case is the fact that approximately 18 to 24 inches of the upper portion of the trench consisted of macadam and [*7]   reinforced concrete. Such material is equivalent to rock or cemented lime in which no sloping or shoring is required by the two tables appearing in 29 C.F.R. §   1926.652.

For the foregoing reasons, we reverse the Judge and vacate the aforementioned citation and penalty assessment therefor.   The remaining findings of the Judge are affirmed.  

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur with Commissioner Moran in his affirmance of the Administrative Law Judge's decision holding that respondent violated 29 CFR §   1926.651(i)(1).   I further concur in his decision to reverse the Administrative Law Judge on the 29 CFR §   1926.652(c) allegation.   My concurrence in the 29 CFR §   1926.652(c) issue is limited to the result reached by Commissioner Moran.   In my opinion the Administrative Law Judge acted properly in this case when he amended, on his own motion, the citation and complaint to allege the §   1926.652(c) violation.   This was simply a matter of conforming the pleadings to the evidence.

The facts of this case reveal that the top 18 to 24 inches of this trench were cut through blacktop and concrete for a distance of approximately eight of the trench's twelve-foot length.   They further [*8]   reveal that the trench was a maximum of six-feet deep in this area.   The depth of the remaining portion of the trench was not clearly established.

I hold that respondent complied with the requirements of 29 CFR §   1926.652(c).   In pertinent part that standard requires the following:

§   1926.652 Specific trenching requirements

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(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. . . (emphasis added).

On the specific facts, the sides of this trench above the five-foot level were "otherwise supported" by the blacktop and concrete comprising the top 18 to 24 inches of the trench.