OSHRC Docket No. 16152

Occupational Safety and Health Review Commission

April 11, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer



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 of an unreviewed Judge's decision.   [*2]   Leone Costr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



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.



Robert A. Fitz, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Joe M. Stevens, Jr., on behalf of respondent


BRENTON, Judge: By virtue of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) complainant issued to respondent, on November 14, 1975, two citations alleging repeated non-serious and serious violations of section 5(a)(2) of the Act together with a Notification of Proposed Penalty for the violations in the amount of $1,720.

This action followed complainant's November 7, 1975, inspection of respondent's work site, an underground [*3]   utility construction project in Houston, Texas.

Respondent timely contested the citations and the penalties.   Thereafter, these matters came on for hearing upon a complaint and answer on April 15, 1976, in Houston, Texas.


The citations charge and allege as follows:

Citation 1, Item 1, Repeated Non-Serious

"29 CFR 1926.652(h) Adequate access was not provided for employees working in trench at the following location: a trench located at Development at Westpark and Briar Park Drive, Houston, Tx."

Citation 2, Item 1, Repeated Serious

"29 CFR 1926.652(b) Sides of trench in unstable material at the following location were not shored, sheeted, braced, sloped or otherwise supported to protect the employees working within it: a trench at Development at Westpark and Briar Park Drive, Houston, Tx."

The citations alleged to have been violated provide:

29 CFR 1926.652(h)

"When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel."

29 CFR 1926.652(b)

"Sides of trenches in unstable or soft material,   [*4]   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.   See Tables P-1, P-2 (following paragraph (g) of this section)."


Respondent concedes that its business operations are conducted national and internationally.


Respondent's activity at the inception of the inspection by two of complainant's compliance officers consisted of making an excavation, by means of a backhoe, to a depth of eight and one-half to eight and three-fourths feet and just wide enough from the bottom to the five-foot level to accommodate soil pipe having an outside diameter of 58 inches.   Two employees were in the trench on the bottom at the end of the pipe last installed, preparing this pipe to receive the next pipe to be laid, and one was sitting on this installed pipe apparently directing certain of the operations.

At this time respondent's crew was in the process of bringing the installation into a manhole where a turn would be made.   The entire operation was continuous.   The pipe was in six-foot lengths and each was lowered and placed in the trench [*5]   by means of a crane.   Backfilling was continuous as was the opening of the excavation as the work progressed.

Complainant's compliance officer, Joseph McGrath, testified that the width of the trench at the top was 5'10" and at the bottom 5'10" or 12".   Further that its length was 100 feet but that only 25 to 30 feet was open where work within the trench was in progress.   That there was no shoring, sheeting, or sloping of the sides of the trench and that there was no ladder or steps provided within the trench for exit. The soil was described as black, silty, clay-type gumbo.   He obtained a soil sample, a clod, one foot in diameter, which was carried and remained in a plastic bag for about three days until delivery to the testing laboratory, where it arrived intact and stable.   Mr. McGrath from his visual observation concluded that the soil constituting the sides of this excavation was soft and unstable. Neither compliance officer made any measurements of the various dimensions of the trench except the observation of a grade pole which was dropped into it by an employee of respondent.

There was little or no conflict with regard to the depth of the trench. But respondent's evidence [*6]   shows that its width in the area where the employees were observed was measured at 16 to 18 feet across the top and the manhole at 25 feet. That the bottom where the pipe was installed was six inches wider than the diameter of the pipe. Respondent's employees working within the trench could exit by traveling no more than 15 feet in the bottom to the manhole ane each could then continue to walk up its very gradual slope. Some employees chose to climb upon the top of the installed pipe and then climb or jump out of the remainder of the side of the trench.

Mr. James Gibson, respondent's underground foreman with 18 years' experience, testified that the soil was black gumbo clay and that it was sticky-type dirt, that the sides of the trench above the level of five feet were in fact sloped, that there had been no sliding, cracking or sloughing at any place during the entire operation, and that the soil was stable.


Complainant's case for a violation of 29 C.F.R. 1926.652(h) is based upon the proposition that neither a ladder or steps were provided as a means of exit for employees working in the trench because climbing upon the pipe and walking up the slope [*7]   from the five-foot level was not an adequate means.

Whereas respondent argues that because the evidence clearly shows there was less than 25 feet of lateral travel to reach the easily ascendable slope at the manhole, complainant did not prove the truth of the facts alleged.

The gist of the command of this standard is that an adequate means of exit shall be provided and so situated that an employee can reach it without having to travel laterally. more than 25 feet. Moreover, if the means is commensurate for a particular purpose it is adequate.   Also it appears that the employees preferred to utilize the exposed pipe and slope above the five-foot level as a means of exit. Therefore, under the facts and circumstances then and there existing, this means of exit likewise has the appearance of being adequate.

Complainant simply failed to carry his burden of making his case for a violation here by a preponderance of the evidence.


Here complainant bases his case for violation of 29 C.F.R. 1926.652(b) on the sole proposition that the sides of respondent's trench were vertical.   The evidence, of course, does not show that this trench was excavated in solid rock.   Therefore,   [*8]   if the sides are not supported by a proper angle of repose some other means must be utilized to protect the employees required to work within the trench.

Respondent's case for no violation as charged rests on the proposition that the sides of its trench were indeed sloped to an angle of repose sufficient to afford proper protection.

Complainant introduced into evidence six photographs, exhibits C-1 through C-6, in an effort to show the conditions of the trench as found upon arrival at the worksite.   These photographs, admittedly, offer no aid to complainant's case.   Mr. Joseph McGrath was simply of the opinion, based on personal observation, that there was not a proper slope. There was some endeavor by him through his testimony to leave the impression that the sides of the trench were vertical.   In this regard he indicated that its width at the top was 5'10".   He made no effort to measure it or cause it to be measured.   He relied upon what he thought had been said to him concerning its width by one of two employees of the respondent.   On the other hand, the totality of his testimony shows that he was aware that there existed an angle of repose. His ultimate approach was that the [*9]   slope wasn't good enough because he had made up his mind that the soil was soft and unstable which requires at least a one to one slope.

This decision of the compliance officer was made on the scene without the benefit of the findings to be derived from tests of the soil sample.   Testimony concerning the tests conclusively show that the soil was hard and compact.

James Kountz, Houston City Inspector, who had 30 years experience in and around excavations, and did go into this trench, estimated its width at more than 10 feet at its top. Moreover, he stated that it was a sloped trench.

The difficulty with this case stems from the fact that no witness gave the degree of the slope nor was any witness specifically requested to attempt to estimate its angle of repose. Moreover, the angle cannot be determined with any degree of satisfaction because of the conflicting testimony concerning the dimensions of the trench.

The evidence does show, however, that the soil was hard and compact, that the sides above the five foot level were sloped, and that throughout the entire operation there had been no sliding or sloughing of soil from the sides of the trench. Therefore, it is reasonable   [*10]   to infer that the angle above the horizontal plane was great enough to permit the soil of the sides of the trench to lie without sliding. Also it seems reasonable to infer that, at the very least, the slope was not steeper than a one-foot rise to each one-half foot horizontal.   Based on some of the reliable evidence it may have even been one to one or more.

It should therefore be concluded that the preponderance of all the evidence simply fails to make a case of a failure to properly guard the sides of respondent's trench in violation of any standards.


Complainant on the record conceded that he could not prove his repeated violations as charged.

Having determined that respondent was not in violation of the Act in any respect, penalty consideration is moot.


1.   The Review Commission has jurisdiction to hear and decide this case.

2.   29 C.F.R. 1926.652(h) has not been violated where there exists, in a trench, four feet or more in depth, an adequate means of exit situated no more than 25 feet from the place of the work being performed.

3.   The trenching and excavation standards together with the Review Commission's Rules [*11]   of Procedure cast a heavy burden upon the complainant in making his investigation and inspection of any given excavation with respect to the nature of the soil of its sides, reasonably accurate measurements of its dimensions, and computation of its angle of repose, if any, in the absence of shoring, sheeting, bracing, or other support.

4.   Evidence which shows the material constituting the sides of a trench have remained intact without movement is tantamount to a showing that the slope above the horizontal plane was made at an angle great enough to cause those particular earth materials to lie and stand without sliding or movement, absent reliable and probative evidence to the contrary.

5.   Complainant failed to sustain his burden of proving the truth of the facts alleged to make a case for violation of either 29 C.F.R. 1926.652(h) or 652(b).


It is Ordered that:

Citations 1 and 2, and the Notification of Proposed Penalty in the amount of $1,720.00 be and each hereby is, vacated.

So Ordered.

J. Paul Brenton, JUDGE

Dated: July 29, 1976

Atlanta, Georgia