STATE CONTRACTING COMPANY, INC.

OSHRC Docket No. 1871

Occupational Safety and Health Review Commission

January 3, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter involves the questions of whether Judge Joseph L. Chalk, in error, (1) vacated a citation for an alleged non-serious violation of a construction safety standard which requires that workers be protected by hard hats when there is a danger of falling objects, and (2) assessed inappropriately high penalties for two other violations.

THE HARD HAT ISSUE

Respondent was cited for failing to provide two employees working in a trench with hard hats contrary to the requirements of 29 C.F.R. 1926.100(a) * and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). No penalty was proposed.

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* 29 C.F.R. 1926.100(a) provides as follows: "Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets."

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On the record it appears that Respondent [*2] provided its employees with hard hats and required their use. However, when its worksite was inspected two employees were observed in a trench. They were not wearing hard hats, and there was a danger of falling material.

The matter went to a hearing, and thereafter Judge Chalk issued his decision. He determined that the hard hat allegation must be vacated as a matter of law because Respondent was charged with a failure to provide hard hats whereas in fact it did provide them. If the record was limited as the judge's decision indicates, we would affirm. But the record is not so limited.

Rather, this is another of those cases where the parties actually tried a different issue. The issue was one of use rather than provision. All of Complainant's evidence went to the question of the failure to wear hard hats. Respondent's counsel cross examined on this issue. Moreover, it is clear from the pleadings, the post trial briefs, and the briefs filed on review that both parties understood the issue to whether Respondent violated the standard because its employees did not wear hard hats. Accordingly, and because the facts are that employees did not wear hats as required [*3] by the standard, we will affirm the citation. National Rlty. & C. Co., Inc., v. Occupational S. & H.R. Com'n., 489 F.2d 1257 (D.C. Cir. 1973).

A penalty was not proposed and in the circumstances we do not think it appropriate to assess one. Respondent is small in size and has no prior history. It had supplied the hats and on the record required their use. There is little evidence concerning gravity.

THE PENALTY ISSUES

On the evidence of record the Judge correctly concluded that Respondent was in serious violation of the Act for failing to shore or slope a trench contrary to the requirements of 29 C.F.R. 1926.652(c) and in non-serious violation of 29 C.F.R. 1926.652(h) for having failed to provide a ladder in the trench as a means of exit. He assessed a penalty of $1,000 for the serious violation and $200 for the non-serious. Penalties of $700 and $70 had been proposed for the respective violations.

In our view, the proposed penalties were appropriate. As noted above Respondent is small and has no prior history. In addition, we think the judge overestimated the gravity of the situation because he believed the trench had to be sloped from top to bottom. On the facts, [*4] the trench was dug in hard and compact soil. Therefore, under the cited standard, sloping was required only "above the 5-foot level." Finally, we note that Respondent had trench jacks at the site, albeit unused, and it did have a partially effective safety program.

Therefore, having reviewed the record the citation for violation of 29 C.F.R. 1926.100(a) is affirmed and no penalty is assessed therefor, an aggregate penalty of $770 is assessed for the violations of 29 C.F.R. 1926.652(c) and 652(h), and the judge's decision to the extent it is consistent herewith is adopted in all other respects. It is SO ORDERED.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with my colleague's disposition of this case insofar as it affirms the citation for serious violation for non-compliance with the standard at 29 CFR 1926.652(c) and the citation for non-serious violations for non-compliance with the standards at 29 CFR 1926.652(h) and 1926.100(a). I dissent from that portion of the lead opinion wherein it reduces the total penalty of $1200 assessed by the Judge to the $770 [*5] proposed by complainant.

It is well settled that the Commission has the power to assess a greater penalty than that proposed by the Secretary of Labor. When an employer chooses to contest a citation, we act de novo. Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973); Lipsky & Rosenthal, Inc., No. 690 (May 13, 1974); Luther Marvin Robbins, No. 789 (December 14, 1973); see also Thorleif Larsen & Son of Indiana, No. 370 (October 11, 1974).

The Act, in section 17(j), sets out the criteria to be considered by the Commission in determining the appropriateness of the penalty. In Nacirema Operating Co., No. 4 (February 7, 1972), however, we noted:

We believe that the four criteria [in section 17(j)] in assessing penalties cannot always be given equal weight. Obviously, for example, a particular violation may be so grave as to warrant the assessment of the maximum penalty, even though the employer may rate perfect marks on the other three criteria.

In this case we are dealing with a trench having the approximate dimensions of 40 feet long by 20 feet deep by 30 inches wide. The trench consisted of loose, sandy dirt at its top [*6] which eventually developed into clay as the depth increased. It was neither shored nor sloped and, since no ladder was provided, the only means of egress from the trench was to scale the walls.

Judge Chalk found the gravity of the situation to be high. n1 He placed his emphasis on this element of the section 17(j) criteria. I agree.

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n1 Gravity is determined by reviewing the following elements: (1) the number of employees exposed to the risk of injury; (2) duration of exposure; (3) precautions taken by the employer against injury; and (4) the degree of probability of occurrence of injury. National Realty and Constr. Co., Inc., No. 85 (Sept. 6, 1972), rev'd on other grounds, National Realty and Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).

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The lead opinion would find that the Judge "overestimated the gravity of the situation because he believed the trench had to be sloped from top to bottom." The applicable standard requires sloping "above the five-foot level." My colleague fails to mention, [*7] however, Judge Chalk's finding that "the trench was not sloped at all" (emphasis added). Thus, even though the Judge may have been inaccurate in his interpretation of the standard, the fact remains that the trench, for its entire 20 foot depth, was neither sloped nor shored.

An experienced compliance officer testified that this trench was the worst he had ever seen and that the probability of a cave-in under these conditions was very high. At least two of respondent's employees were exposed to death or serious physical injury over a considerable period of time and absolutely no precautions were taken by the employer. I believe the gravity of the situation to be such as to completely outweigh any possible good marks for size, history, and good faith. Nacirema Operating Co., supra. Indeed, there is enough testimony on the record to cast serious doubt on respondent's good faith. Accordingly, I would affirm Judge Chalk's assessment of a $1,200 penalty.

MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the Commission's disposition of the 29 C.F.R. 1926.652(c) and (h) charges. I dissent, however, from the reversal of Judge Chalk's determination [*8] that the charge concerning the use of protective helmets should be vacated. I would affirm the Judge's decision as to that charge for both the reasons given therein and those stated below.

The well established rule of evidence in administrative hearings is that the proponent of the rule or order has the burden to bring forth facts in proof thereof. 5 U.S.C. 556; Davis, 2 Administrative Law Treatise, 14.14 at 326 (1958); McCormic, McCormick on Evidence, 355 at 853 (2nd ed. 1972). That rule has been specifically incorporated into the Act under which this proceeding was conducted. 29 U.S.C. 659(c).

In addition, our rules of procedure have placed the burden of proof in all proceedings commenced by the filing of notice of contest with complainant. 29 C.F.R. 2200.73. Part of that burden is to show that the employer knew of the existence of the alleged violation, or with the exercise of reasonable diligence, could have known. n2 Secretary v. The Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973). That is not the case here.

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n2 This knowledge rule makes eminent sense because one cannot prevent a hazardous condition if he is unaware of its existence -- and preventing such conditions is the reason this law was enacted.

[*9]

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The record is noticeably void of clear proof that respondent either did or should have known that two of its employees were not wearing protective helmets on the day of the inspection. The only evidence related thereto is the testimony of one of these employees that he "imagined" that the respondent's foreman knew about employees who were working helmetless in the trench. This alone does not prove either that the respondent knew or should have known of this violation. This matter could have been easily rectified if complainant had called the foreman to testify or adduced other evidence to sustain this essential element of his case.

There is, however, sufficient evidence to indicate that this was an isolated incident. The respondent did provide its employees with protective helmets and required the wearing thereof under the circumstances present in this case. n3 But, on the day of the inspection the two employees in the trench neglectfully left them "in another truck."

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n3 Respondent's president and owner testified:

Q. . . . what safety equipment did you provide for your men?

A. . . . . I . . . provided hard hats . . . .

Q. What instructions did you give them as to the hard hats . . .?

A. I told them they had to wear them in an area where something may fall on them. . . .

[*10]

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The Commission's decision to hold respondent in violation of this standard under these circumstances is contrary to the remedial purpose of the Act; to prevent personal injuries and illnesses arising out of work situations. As the Court said in National Realty and Construction Company, Inc. v. OSAHRC et al., supra.

Actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury. The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.

Nowhere in this decision does the Commission indicate what measures this respondent could have taken to prevent this momentary absence of protective helmets from the heads of two employees. What we have here is another instance of the Commission acting as though it were a criminal law enforcement agency punishing an employer for violating a regulation.

I am persuaded that the Judge properly found no violation in this instance and that the Commission is in error in overruling that finding. [*11]

[The Judge's decision referred to herein follows]

CHALK, JUDGE: Respondent, n1 a Delaware based company doing business in both Delaware and Maryland, was issued a Citation for Serious Violation and a Citation for two nonserious violations, accompanied by a Notification of Proposed Penalty, on November 27, 1972. This action was initiated as a result of an inspection of its worksite at Route 40, Northeast, Maryland, on November 22, 1972. Respondent filed a Notice of Contest with regard to both citations on November 30, 1972. The hearing of the cause was held in Baltimore, Maryland, on April 3, 1973.

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n1 All record documents filed by Complainant up to and including the Complaint referred to Respondent as State Contracting Company, Inc. Thereafter, the title of Respondent was amended by Motions Judge Henry K. Osterman to read Diamond Triangle Contracting Company, Inc. At the hearing, it became apparent that the former is the correct title and that one of Respondent's employees contributed to the confusion that ultimately promoted the erroneous amendment. Accordingly, all erroneous references in the record file and at the hearing are herewith corrected and amended to read "State Contracting Company, Inc." Respondent interposed no objection to this action (Tr. 13-15).

[*12]

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The standards involved and the allegations and proposed penalties are as follows:

SERIOUS VIOLATION

29 CFR 1926.652(c) -- Allegation -- Proposed Penalty.

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. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion. -- Employees were permitted to work in a trench, approximate dimensions 40 ft. long X 20 ft. deep X 30 in. wide, which was not shored or sloped to the angle of repose. -- $700.00.

NONSERIOUS VIOLATIONS

29 CFR 1926.652(h) -- Allegation -- Proposed Penalty

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 [*13] travel. -- Employees were permitted to work in a trench, approximately 20 ft. deep, without a ladder to provide a means of exit. -- $70.00.

29 CFR 1926.100(a)

Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets. -- Employees were permitted to work in a trench, approximately 20 ft. deep; were not provided with a protective helmet to protect them from falling objects. -- None proposed.

Mr. William C. Knight, a Department of Labor compliance officer, conducted the inspection on November 22, 1972 of Respondent's worksite on Route 40, North East, Maryland, where Respondent was installing a sewer line in a trench. He was accompanied by Mr. Morton Schunick, a State of Maryland safety supervisor.

According to Mr. Knight, the trench, lacking any bracing or sloping and consisting of loose dirt at the top that partially developed into clay further down, was approximately forty to fifty feet long, seventeen to twenty feet deep, and three feet wide at the bottom. Wet clay tends to slide "in huge sections" (Tr. 46). While it "may have belled [*14] at the top to 4 or 5 feet," its sides were verticle (Tr. 35). The proper angle of repose would have required an opening at the top of about forty feet. Because Mr. Knight considered that the trench created an "imminently dangerous condition," he requested Respondent's foreman to remove his two employees working in the trench at the time, asserting that legal action would be undertaken if the foreman did not do so. The foreman complied with the request. Mr. Knight further described the trench as the type "you generally see in training manuals as to how not to do it," and as the worst he had ever seen in conducting over one hundred similar inspections (Tr. 36-37). He was aware of an "incredible" number of cave-ins of such trenches and the probability of such an occurrence in this instance was high (Tr. 36, 55).

Mr. Schunich generally agreed with Mr. Knight's description of the trench and its dimensions. He said that it was not sloped or shored, that it had overhanging banks, and that its soil consisted of sandy clay that could give away at any time. n2 He had inspected one thousand to fifteen hundred such trenches in the past and this one was "very poor" (Tr. 65). He [*15] stated further that there had been "quite a few fatalities" in the state "in this type of excavation" (Tr. 65).

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n2 This witness took five photographs of the trench that were received in evidence as Exhibits C-1 through C-5.

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Neither of the two men working in the trench was wearing hard hats, although such hats were furnished by Respondent. Only one of these employees appeared as a witness, and he testified that he forgot to bring his hard hat to work that day. There was no ladder located anywhere in the trench to provide a ready means of egress. Mr. Schunick observed the men get out of the trench by climbing "the bank" (Tr. 72).

Another State of Maryland inspector, Mr. Edward W. Green, inspected a different portion of the trench on November 21, 1972, the day before the inspection in question. n3 The five men who were working in the trench at the time were not wearing hard hats. Because of the condition of that portion of the trench, similar to that involved in this case, Mr. Green issued a written order that employees [*16] were not to work therein until the trench was properly sloped to the angle of repose or shored and braced (Ex. C-6). The order also indicated the absence of a ladder in the trench at the time of that inspection. Although the order was addressed to the prime contractor, Respondent's foreman told Mr. Knight that he had received it.

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n3 It is clear from this witness' testimony, as well as that of one of Respondent's witnesses, that Respondent was continually backfilling the trench as the pipe was installed and that the trench was completely filled in at the end of each day.

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The owner of Respondent company testified that he tried to visit the worksite every day or every other day, but he was unable to say whether he was there on either November 21 or 22, 1972. He denied any knowledge of the written order issued by the state inspector on November 21, 1972. The trench Respondent was continually digging at the site consisted of hard clay from about one foot from the top on down to the bottom, it was a "good [*17] solid trench," creating "no trouble with moving, cave-ins or otherwise"; and it should not have been deeper than thirteen feet at any point (Tr. 127). Ladders and hard hats were provided and the employees were instructed to use them. Also, the best type of trench jacks were provided and these jacks, according to the manufacturer, eliminated the need for shoring material. He "preached to [his] people to either use the shoring or to V the trench back to an adequate angle of repose to insure safety" (Tr. 127). Respondent's foreman had the authority to decide whether the use of the jacks was necessary. Although he had never read the construction standards (29 CFR 1926 series), the owner believed the proper angle of repose was a "1 to 1 slope above a five foot depth," and that the photo graphs taken during the inspection reflected a proper angle of repose in this instance (Tr. 129, 136; Exs. C-1 to C-5).

In computing the proposed penalties in the case, Respondent was given no credit for good faith because the compliance officer was of the opinion that Respondent had no safety program. Also in regard to good faith credit, the compliance officer considered the fact that Respondent [*18] was issued the "same work orders" the day before by the state inspector and chose to ignore them (Tr. 42). Respondent was given the maximum credit for the size of its business and its lack of prior history of violations. Because of the possibility of a fatal accident were the trench to cave-in, the gravity of the violations was considered to be serious.

Little if any discussion is necessary to support the conclusion I reach that the evidence, as a matter of law, overwhelmingly establishes Respondent's violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(c). Not only was it undisputed that the trench was not shored and braced, but the testimony, fully supported by the photographic exhibits, establishes beyond dispute that it was not sloped to even the basic angle of repose required in the standard cited. In reality, the trench was not sloped at all, in so far as the requirements of the standard are concerned, for that standard clearly requires the angle of repose to be sloped toward, and to extend all the way to the bottom of the trench. Unquestionably the acts of Respondent's foreman in making such an excavation and allowing employees to work [*19] in its were the acts of Respondent ( Secretary of Labor v. Cape Vineyard Division, New Bedford Gas and Edison Light Co., Docket No. 1186, December 11, 1972; Secretary of Labor v. J. T. Clark and Sons of Maryland, Inc., Docket No. 410, December 5, 1972).

To prove a serious violation of the Act, as charged in this instance, the Secretary must show that the employer was aware of the hazard, that there was a possibility that an accident would occur as a result of the hazard, and that there was a substantial probability that death or serious bodily injury could result if an accident occurred. ( Secretary of Labor v. Standard Glass and Supply Company, Docket No. 585, April 27, 1973). That burden has been more than met by the Secretary, especially in light of the evidence showing an "incredible" number of trench cave-ins, and "quite a few fatalities" resulting from cave-ins of trenches similar to the one in question. Accordingly. I find that the violation was indeed a serious one as a matter of law.

There was absolutely no evidence to dispute the established facts that there was no ladder in the trench and that the only means of egress from it was to climb the [*20] walls. Considering the condition of the trench, a high level of gravity or seriousness of the violation is apparent, although the violation was charged as a nonserious one. Accordingly, this violation was established by the evidence, as a matter of law.

Because of the factual allegation pertaining to the remaining charge to the effect that Respondent did not provide protective helmets to its employees, and the undisputed evidence to the contrary, item number two of the Citation, alleging a non-serious violation of 29 CFR 1926.100(a), cannot, as a matter of law, be sustained. In light thereof, there is no need to resolve the question raised by the pleadings as to whether an employer is required, under the standard, to furnish such protective equipment, as opposed to the employer's obligation to require such equipment to be worn under the conditions specified, as the standard appears to require (see 29 CFR 1926.28(a) and 29 CFR 1926.100(a)). At the very least, this pleading delict appears to dictate the need and desirability, on the part of both area directors and solicitors of the Department of Labor, to draft pleadings that not only conform to the evidence but constitute [*21] allegations of acts of commission or omission that are actually proscribed by the standard relied upon (see 29 CFR 1926.28(a), and 29 CFR 1926.100(a)).

I have fully considered the provisions of Section 17(j) of the Act, and the entire record in assessing penalties in this case ( Secretary of Labor v. Dreher Pickle Co., Docket No. 48, February 13, 1973).

Based upon the entire record, I reach the following:

FINDINGS OF FACT

1. Respondent is and was at all times in question a Delaware based company doing business in both that State and the State of Maryland.

2. That at the time and place in question, Respondent had two employees working in a trench, the sides of which consisted of hard or compact soil that was more than five feet in depth and eight feet or more in length, that was not shored or otherwise supported or sloped to the required angle of repose.

3. That at the time and place in question, there was no ladder or other appropriate means of egress placed in said trench for the use of said employees in the event of an emergency or for any other reason.

4. That at the time and place in question, Respondent's two employees working in said trench were not wearing [*22] protective helmets, although such helmets had been furnished said employees by Respondent.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(c).

3. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(h).

4. That Respondent was not in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1926.100(a).

5. That the penalties herein assessed are appropriate in light of the entire record and Section 17(j) of the Act.

Item number two of the Citation (nonserious violations) is vacated. The Citation for Serious Violation and item number 1 of the Citation (nonserious violations) are affirmed. Penalties of $1,000.00 and $200.00, respectively, are hereby assessed for the affirmed violations.

It i