A.G. PINKSTON COMPANY, INC.
OSHRC Docket No. 1750
Occupational Safety and Health Review Commission
January 7, 1975
Before MORAN, Chairman; VAN NAMEE and CLEARY. Commissioners.
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision by Judge Ben Worcester. The judge, inter alia, affirmed Complainant's citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) and of the standard published at 29 C.F.R. 1926.652(b). He assessed a penalty of $250.
The issue on review is whether the assessment of a $250 penalty was inappropriately low. We have reviewed the entire record and find no error in the judge's disposition.
Accordingly, it is ORDERED that the judge's decision be and the same is hereby affirmed.
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE: This proceeding arises from the filing of a notice of contest filed by the A.G. Pinkston Company, Inc., hereinafter referred to as the Respondent on November 11, 1972, under authority of the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter referred to as the Act). In citations dated November 3, 1972, the Respondent was [*2] charged with violations of Section 5(a)(2) of the Act at Virginia Beach, Virginia on November 2, 1972. The matter came on to be heard at Norfolk, Virginia on March 13, 1973.
The Secretary pursuant to the responsibility placed upon him by Section 6(a) of the Act, has promulgated standards applicable to all employers. The Respondent was charged with violation of 29 C.F.R. 1926.652(a). A penalty of $500.00 was proposed for this alleged violation. The Secretary was permitted to amend at bar to an allegation of violation of subparagraph (b) instead of (a), in the following language:
On or about November 2, 1972, the A.G. Pinkston Company, Inc. did allow its employees to work in a trench, 7 ft. in depth, without benefit of the trench being shored or sloped to the correct angle of repose.
The two subparagraphs (a) and (b) are essentially the same. The title of the section refers to "trenching requirements." Subparagraphs (a) provides that "Banks more than 5 feet high shall be shored, laid back to a stable slope . . . . where employees may be exposed to moving ground . . . ." Subparagraph (b) refers to "Sides of trenches in unstable or soft material, [*3] 5 feet or more in depth, shall be shored . . . . sloped . . ." (Underlining) added
Both paragraphs refer to Tables P-1 and P-2 which are a part of this section. It is plainly specified therein that, regardless of whether there is a bank "more than 5 feet high" or a trench "5 feet or more in depth," unless the bank or sides are solid rock, hard shale, concrete or hard slag, that there must be shoring or sloping. It makes no difference whether the material to which employees in the ditch are exposed is "moving ground" or "unstable or soft soil" The basic issue in either situation is whether trench workers are subjected to the danger of a cave-in of banks or sides more than 5 feet high. It is so obvious that such exposure could result in serious injury or death that the facts speak for themselves. This fact is recognized by the most prominent members of the construction industry, the Associated General Contractors of America, Inc. The Respondent is a member of this organization (Tr. 20). They have recognized the hazard to employees where a ditch is unshored. They have concluded that, regardless of the type of soil, unless it is solid rock or the banks are sloped, the trench [*4] must be shored. See what the Association General Contractors of America, Inc., in their Manual of Accident Prevention in Construction say about trenching in Section 24-7 of the Manual:
Trenching operations are common to many types of construction and maintenance projects and are inherently dangerous. Due to the great exposure, numerous accidents in connection with trenching occur every year. A few simple precautions, is observed, can serve to take most of the risk out of trench construction.
1. Shoring and/or bracing should be placed in every trench over four feet in depth, regardless of soil type, except solid rock, unless banks are sloped to the angle of repose recommended under paragraph 24-4.
2. Shoring and bracing should be carried down with the trench.
3. Shoring and bracing should be placed in every trench regardless of length of time the trench will be open.
4. All excavated materials should be placed a minimum of two feet back from the edge of the trench.
5. No man should be allowed to work in the area of operation of any excavating machine.
Men working in trenches should be separated to avoid being struck by fellow workmen's tools, 12 foot spacing [*5] is recommended. All men should wear safety shoes, and should wear hard hats in trenches. Ladders should be provided at a minimum of 50 foot intervals in trenches for safe egress.
The evidence shows that there were unshored and inadequately sloped banks, defined as a mass of soil rising above a digging level, 29 C.F.R. 1926.653(c) and that there were unshored and inadequately sloped sides of trenches. There is no proof that the sides of the trench observed by the Secretary's inspector on November 2, 1972, was solid rock, hard shale, hard slag or concrete (cemented sand and gravel).
The Respondent's foreman, Owens, testified that some of the soil from the side of the trench sloughted off a day or two before the Secretary's inspection (Tr. 208). He explained that the trench had been open 2 or 3 days before this happened. The Respondent's president testified that, in spite of unusually heavy rainfall after the trench was dug, that it had remained in place without a cave-in ever since the autumn season of 1972 because of local litigation between two municipalities which had stopped all work on the project. This testimony shows that the Respondent's employees have [*6] had the good fortune to escape being buried in a cave-in. This is not proof that no cavein could have occurred. According to the standard such a hazard always exists unless the material is solid rock, shale, slag or concrete. The soil at the worksite involved was described by the Respondent's own expert witness, a civil engineer, as a "fairly stiff, silty, clayey" (Tr. 226), not rock or other solid, immovable materials. Pinkston described it as the type of clay that is good digging soil but poor backfill material (Tr. 202). He explained that the meant that it is cohesive until it is disturbed. After being excavated it will no longer hold together in a compact mass. The sample of soil exhibited at the trial fits that description. It was no solid material.
It may be that the likelihood of a cave-in where there is an excavation in such soil is remote, but the standard has made it a condition of compliance that, even where that fact is conceded, there must be shoring or sloping. The Respondent did not comply.
Exhibit R-7 shows that there was some sloping of the trench. This evidence together with the fact that the Respondent abated the violation immediately can be taken into [*7] consideration in determining the amount of an appropriate penalty.
The Secretary argues that the proposed penalty is inadequate and suggests that a penalty in excess of $500.00 should be assessed. The Secretary bears the burden of proof that it is appropriate. He has failed to sustain that burden in the case at bar. Moreover, the method of computation appears to be in conflict with the statute. Section 17(b) of the Act makes a penalty mandatory where there is a serious violation but the penalty could be as low as one cent and as high as $1000.00. In the method used by the Secretary the penalty could never be less than $500.00. The record shows that the Respondent was given appropriate credit for good faith, size and history (Tr. 136), but gravity was not considered (Exhibit C-14).
The Review Commission has said (See Secretary v. Nacirema Operating Company, House Emp. Safety and Health Guide, February 7, 1972) that no matter how desirable uniform treatment of violations may be, a mathematical formula cannot suffice to assure a just result in every case. This is the objective in determining penalties. Even [*8] if there is a serious violation, where there is justification for it, a penalty of less than $500.00 may be assessed. In the case at bar, when the prompt abatement is considered together with the fact that the Respondent, Pinkston, was convinced, although erroneously, that there was no possibility of a cave-in, the gravity of the violation is not substantial. For that reason, a penalty of $250.00 is considered to be appropriate.
The Respondent was also charged with a violation of 29 C.F.R. 1926.450(b)(12) in the following language:
On or about November 2, 1972, A.G. Pinkston Company, Inc. did allow its employees to work in the above said trench without benefit of a proper access ladder; ie, cleats of ladder was neither inset into rails or blocked.
The Respondent exhibited the subject ladder at the trial. It was conceded that this ladder did not meet the requirements of the standard precisely. It did not have wood cleats, but it did have much longer and stronger nails than specified by the standards. They were 16 penny nails (Tr. 228). The rungs and side rails were made of 2 X 4 lumber. The likelihood of failure of this ladder is remote but, in any event, the Respondent [*9] replaced it with a metal ladder immediately when told that it did not comply with the standards. The violation was de minimis. No penalty should be assessed for this violation.
FINDINGS OF FACT
Upon consideration of the evidence the following findings of fact are made:
1. The Respondent, a Virginia Corporation, is and was at all times relevant to the issues in the instant case a corporation engaged in construction work in the States of Virginia and North Carolina.
2. The Respondent was in control and dominion over the job site at Little Neck Road in Virginia Beach, Virginia, on November 2, 1972, which the Secretary's compliance officer inspected on that date.
3. No injuries resulted from the violations committed by the Respondent.
4. There is no record of previous violations of the Occupational Safety and Health Act of 1970 by this Respondent.
5. The Respondent had an approximate gross income of over one million dollars in the calendar year 1972 from not less than 12 construction projects. Its number of employees varied from time to time between 20 and 50.
6. On November 2, 1972, employees of the Respondent were exposed to the sides of a trench in unstable [*10] material. The trench was more than five feet in depth. It was not shored, braced, sloped or otherwise supported so as to protect these employees from the danger of serious physical harm or death from a cave-in.
7. A ladder furnished to employees working in the trench on November 2, 1972, did not have cleats inset into the side rails. It was not supported by filler blocks.
8. The Respondent caused the trench to be properly sloped and the ladder replaced as soon as possible after being told by the compliance officer that, in his opinion, they were in violation of the standards.
CONCLUSIONS OF LAW
1. The Respondent is and was at all times relevant to the issues in this proceeding, an employer engaged in business affecting commerce within the meaning of the Act and subject to the jurisdiction of this Commission.
2. On November 2, 1972, the Respondent violated the following Occupational Safety and Health Regulations at Virginia Beach, Virginia:
(a) 29 C.F.R. 1926.652(b)
(b) 29 C.F.R. 1926.450(b)(12)
3. The violation of 29 C.F.R. 1926.652(b) was a serious violation as defined in Section 17(k) of the Act. The assessment of a penalty of from one cent to a maximum [*11] of $1000.00 is mandatory under the provisions of Section 17(b).
4. The violation of 29 C.F.R. 1926.450(b)(12) is a violation not of a serious nature within the meaning of Section 17(c) of the Act. Although a penalty of as much as $1000.00 may be assessed, no penalty is required, when, as here, the violation was de minimis.
5. Giving due consideration to the size of the business, the fact that there is no evidence of previous violation, good faith and gravity, it is concluded that the proposed penalty of $500.00 for violation of 29 C.F.R. 1926.652(b) is excessive and that the penalty should be reduced to $250.00.
6. The proposed penalty for violation of 29 C.F.R. 1926.450(b)(2) of $50.00 should be reduced to no penalty because there was only a de minimis violation.
It is hereby ORDERED that:
1. The Citations for violation of 29 C.F.R. 1926.652(b) and 29 C.F.R. 1926.450(b)(12) be affirmed.
2. The Secretary's proposed penalties of $500.00 and $50.00 respectively be vacated and in lieu thereof the Respondent is assessed a penalty of $250.00 for the serious violation and no penalty for the de minimis violation.