C. N. FLAGG & COMPANY, INC.

OSHRC Docket No. 1734

Occupational Safety and Health Review Commission

September 19, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon our orders directing review of a decision rendered by Judge Abraham Gold. The Judge affirmed Complainant's citations alleging three non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") and assessed a penalty of $375 therefor. He also affirmed Complainant's citation whereby it was alleged that Respondent willfully violated section 5(a)(2) by failing to comply with the requirements of 29 C.F.R. 1926.652(b). n1 A penalty of $2000 was assessed for the willful violation. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The cited standard provides, in pertinent part, that "[s]ides 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 of protect the employees working within them. . . ."

n2 Section 17(a) of the Act, 29 U.S.C. 666(a), provides that any employer who commits a willful or repeated violation may be assessed a penalty of not more than 10,000.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have reviewed the record. Based on such review we concur with the Judge's disposition of the citations for non-serious violation. We further agree that Respondent was in willful violation of the Act as alleged by Complainant. However, we find the penalty assessed for the willful violation to be inappropriate. We assess a penalty of $1000. Therefore the decision of the Judge is adopted to the extent it is consistent with the following.

Respondent was installing a gas pipe along Robbins Avenue in Newington, Connecticut. For this purpose it had dug a trench six to seven feet deep and three to six feet wide in soft and unstable soil. The sidewalls were vertical. The trench was no more than five feet from the edge of the road, and Respondent's employees were in the trench while traffic was passing on the road. Respondent backfilled the trench at the end of each workday.

Respondent had fabricated seven steel trench boxes specifically for this worksite at a cost of over $10,000. Respondent required that the boxes be used whenever employees were working in the trench. The boxes were [*3] delivered during the first week of October, 1972, and were in use every day except October 31. They were adequate to protect employees. The trench had been shored prior to the receipt of the boxes.

On October 31, at about 7:30 a.m. Respondent's employees began to weld together lengths of pipe lying in the street while Respondent's backhoe was opening the trench. Respondent was forced to stop welding when an existing gas main in the trench began to leak. The leak developed between 9 and 9:30 a.m. and a gas company did not complete the repairs until 1:00 p.m. The welded pipe was lowered into the trench, and Respondent's welding crew of three men entered the trench to connect the pipe to the end of a pipe which had been installed on the previous day. A total of five lengths of pipe in two sections was installed in this manner. Due to the delay caused by the gas main break Respondent was not able to lay eight lengths, its normal daily production at this worksite. The trench boxes were not used.

Respondent's welding foreman, Robert Vanscoy, decided not to use the boxes because it was late in the day, the day was Halloween, and he wished to insure sufficient time to backfill. [*4] When he made this determination Vanscoy knew that he was violating the Act and the trenching standards under the Act.

During the period from November, 1971, through September, 1972, Respondent on five separate occasions had been ordered by an inspector for the state of Connecticut to remove its employees from inadequately sloped and unshored trenches. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Section 5.02 of the Connecticut Construction Safety Code requires that "[a]ll trenches five (5) feet or more in depth, in all types of earth, shall be effectively protected against the hazard of collapse. . . ." (adopted under authority of Conn. Gen. Stat. 31-46a (1958)).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We agree with Judge Gold that when used in the civil sense "willful" means intentional, knowing, or voluntary as distinguished from accidental conduct and may be characterized as conduct marked by careless disregard. United States v. Illinois Central R.R., 303 U.S. 239, 243 (1938), quoting United States v. Murdock, 290 U.S. 384, 394-395 (1933); Intercounty Construction Corp., [*5]