ADAMS AND MULBERRY CORPORATION

OSHRC Docket No. 2548

Occupational Safety and Health Review Commission

April 25, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: In this case Judge Ben D. Worcester determined to vacate the Secretary's amended citation alleging that Respondent was in willful and serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) for not having complied with certain trenching standards. For the reasons given hereinafter we conclude that Respondent committed a serious but not a willful violation of 29 C.F.R. 1926.652(b) by exposing two employees to the hazard presented by an unsupported, vertical sidewall of a trench dug in unstable soil.

The facts are these: Respondent was installing underground conduit for Southern Central Bell in Louisville, Kentucky. For this purpose it dug a trench from a manhole located on the north side of Broadway Avenue. The trench extended for about thirty-five feet into the avenue. It was from eight to ten feet deep and about two and one half feet wide. The sidewalls were vertical, sloughing occurred, and there was water in the bottom of the trench.

Before installing conduit Respondent's project supervisor determined that the [*2] sidewalls should be shored. Shoring was to be accomplished by placing four by eight feet sheets of three-quarter inch plywood against each sidewall of the trench. Two by eight inch stringers were to be nailed so as to overlap adjacent plywood sheets, and four by fours were to be used as cross bracing.

On February 20, 1973, each sidewall had been sheeted and braced as described with two plywood sheets. The stringers were located at the two and six foot levels and the cross braces were separated by seven feet. Two additional sheets for each sidewall were also in the trench and were located south of the braced sheets. The stringers from the braced portion overlapped only one each of the additional sheets and that by only twelve inches on each.

The project supervisor left the work site around 4:00 PM. Shorthly thereafter a yard or two of soil sloughed off from the eastern sidewall behind and at the bottom of the southern most piece of plywood sheeting. At about 4:30 PM employees Fulkerson and Hazelwood entered the trench for the purpose of bracing the four sheets of plywood. At about the same time Respondent's foreman left the trench to get a hammer.

According to [*3] instructions Fulkerson and Hazelwood were supposed to brace the unsupported sheets while remaining within the protection of the braced plywood. Instead, they went into the unbraced area and Fulkerson went beyond the sheets entirely. They did so in order to position the sheets against the sidewalls of the trench. While they were attempting to position the sheet against which earth had sloughed off Hazelwood noticed that the side wall of the trench immediately behind the sheet was "crumbling." He hollered at Fulkerson who then moved forward (north) between the sheets. Fulkerson was pinned and subsequently died. Fulkerson had only worked in trenches for one week and Hazelwood had only been employed for two months.

On these facts the Secretary alleged that Respondent had both willfully and seriously violated 29 C.F.R. 1926.652(b) and 29 C.F.R. 1926.652(i) because it did not (1) sufficiently shore, sheet or otherwise support the sidewalls of the trench when employees were working in it and (2) "carry along with the excavation the bracing and shoring of the trench." It is his basic theory that the standards have been violated because in his view the plywood sheeting did not comply [*4] with shoring requirements specified by 29 C.F.R. 1926.652, Table P2 or because Fulkerson and Hazelwood were working in an unbraced portion of the trench.

Judge Worcester answered the question whether the braced portion of the trench complied with the requirements of section 652(b) in the affirmative. We agree. The standard states that sidewalls of trench of five or more feet in depth and dug in unstable soil must 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 . . .

In this case the facts are that the means of support were plywood sheets. The only expert testimony of record was offered by Respondent and it was that the sheeting, when installed, was sufficient to prevent any kind of a cave-in. We also note the braced portion of sheeting did in fact hold. We therefore conclude that the braced portion of the trench was provided with "means of sufficient strength to protect the employees." As for Table P-2 it only purports to establish minimum shoring requirements. The Secretary, however, seems to argue that the Table establishes exclusive shoring requirements. [*5] His reading is contrary to the language of the standard and the title of the Table. In view of the unrebutted evidence that the braced sheeting was adequate we also find, as Judge Worcester did, that the minimum requirements of the Table were met as to the braced portion of the trench. Accordingly, if the two employees had been working from the braced portion of the trench, we would vacate.

But as the facts demonstrate, the employees were beyond the protection afforded by the braced sheeting. Indeed, Fulkerson was completely exposed to the very condition section 652(b) is designed to protect against. Nevertheless the judge vacated. He did so because he applied his findings made with respect to the braced portion of the trench to that portion which was not braced. In view of this extension of his findings he concluded that the Secretary failed to sustain his burden of proof. We cannot agree. The error is self-evident; the findings with respect to the braced portion have no application to the unbraced portion. Since the Secretary proved that the employees were in an area of trench where the sidewalls were not supported in any fashion whatsoever and because the soil was unstable [*6] as the judge determined n1, the Secretary has proven non-compliance.

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n1 His determination as to soil stability was based on Respondent's actions. We agree with his determination because the sloughing off indicates the unstable condition of the soil. Moreover, the soil was analyzed as being sandy silt and the evidence shows water in the trench.

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Respondent argues that if there was non-compliance, it was due to employee misconduct because it had instructed the employees to stay in the braced portion. Certainly, in cases where non-compliance results because of factors beyond the control of the employer he should not be found in violation. Brennan v. OSHRC & Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir., 1975). But Judge Worcester determined that this was not such a case. He noted that the employees were inexperienced, and he specifically determined that their exposure resulted directly from Respondent's inadequate instructions and supervision. We agree.

We also agree with his [*7] determination that there was no violation of 29 C.F.R. 1926.652(i) n2 because on the facts Respondent was carrying along the shoring or sheeting with the excavation.

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n2 The standard provides,

Bracing or shoring of trenches shall be carried along with the excavation.

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We turn now to the question of the nature of the violation. On review, the Secretary argues that we should find a willful violation because Respondent was on notice concerning the hazardous condition and made no reasonable effort to abate. He also argues as an additional ground that Respondent had knowledge of the law.

Of course the problem with the argument is that Respondent was in fact making a reasonable effort to comply. It had adequately supported a portion of the trench. The violation resulted because the employees went beyond the protection afforded. The exposure, however, was not due to any intentional, knowing or voluntarily conduct on Respondent's part. United States v. Dye Construction Co., No. 74-1176 (10th Cir., January 29, [*8] 1975). And certainly it cannot be said that Respondent deliberately flaunted the Act. Frank Irey, Jr., Inc. v. OSHRC, No. 73-1765 (3d Cir., November 4, 1974), order vacated and petition for reconsideration en banc granted (December 20, 1974). On the other hand, there can be no question that Respondent should have known of the presence of the violation (29 U.S.C. 666(j)). Dirt had sloughed off; and Respondent knew the sidewalls required bracing. It also knew that Fulkerson and Hazelwood were inexperienced. Certainly, if it had exercised reasonable diligence in the circumstances, it could have discovered the existence of exposure to the unbraced sidewalls and therefore discovered the violation. Accordingly, the violation was serious.

Judge Worcester concluded that if a violation existed a penalty of $1,000 would be "fully justified." We agree. The gravity of the situation alone would justify the penalty. In addition, Respondent has about 275 employees, and we believe its omissions in this matter do not entitle it to credit for good faith.

Accordingly, the citation is modified to show a serious violation of 29 C.F.R. 1926.652(b) and is affirmed as modified, [*9] a penalty of $1,000 is assessed for such violation. It is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree with the conclusion of my colleagues that respondent did not commit a willful violation of the Act. I do not, however, agree with their conclusion that the evidence establishes a violation of 29 C.F.R. 1926.652(b).

That standard requires that trenches in unstable or soft material "be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them." The means selected by respondent to accomplish this was a shoring system. The sole purpose of the employees in the trench at the time of the fatal accident was to install shoring that would afford the protection required by the standard. It has been noted by Judge Carlson in a previous Commission case that involved an alleged violation of 29 C.F.R. 1926.652(b) when shoring was being installed that "[i]t is axiomatic that before a shoring system can protect employees it must be installed and someone must install it. Secretary v. Carson's Heating & Ventilating Co., 8 OSAHRC 439, 444 [*10] (1974).

The Commission has found that the portion of the shoring system that respondent had completed was of sufficient strength to satisfy the requirements of 29 C.F.R. 1926.652(b). It has, nevertheless, found respondent in violation of this standard because the shoring under construction did not meet the requirements of the standard. This finding appears to rest on the determination that the standard requires that shoring must be installed in a manner which does not require an employee installing the shoring to enter a portion of a trench where the shoring is not of sufficient strength to comply with the standard.

The facts of this case illustrate that such a requirement would undoubtedly be desirable. This standard, however, only delineates the specifications that shoring and the other enumerated forms of protection must meet. It is logical to assume that these specifications must be met only once the shoring is completed and not while it is under construction. Neither 29 C.F.R. 1926.652(b), nor any other standard, directs that an employee installing shoring not enter a trench, or a portion thereof, until the shoring meets the specifications of the standard [*11] or describes how this can be accomplished. The purpose of an occupational safety and health standard is to inform employers of what they must do in order to avoid workplace hazards. Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973). 29 C.F.R. 1926.652(b) can not be construed to govern the manner that shoring should be installed for the simple reason that it does not address the hazards that are involved in the installation of shoring.

If the Secretary of Labor wishes to promulgate a regulation that describes how shoring should be installed he has ample authority to do so. A reading of the standards suggests, however, that the failure to specify a procedure for installing shoring may have been intentional. Subparagraph (1) of section 652 prescribes in detail how shoring should be removed, n3 but no subparagraph of section 652 or any other standard instructs as to how shoring should be installed. This omission, as well as the clear language of 29 C.F.R. 1926.652(b) persuade me that the specifications in this standard are not applicable to shoring that is being constructed when the only employees in a trench are there for the sole [*12] purpose of installing this protection.

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n3 This standard provides:

Backfilling and removal of trench supports shall progress together from the bottom of the trench. Jacks or braces shall be released slowly and, in unstable soil, ropes shall be used to pull out the jacks or braces from above after employees have cleared the trench.

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[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises as the result of the filing of a notice of contest pursuant to 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. The Complainant, Secretary of Labor, after an inspection of a worksite under the control of the Respondent in Louisville, Kentucky on February 21, 1973, served a citation charging the Respondent with a willful violation of Section 5(a)(2) of the Act on February 20, 1973, and proposed a penalty of $8,000.00.

The case was heard in Louisville, Kentucky on July 11, 1973.

On February 20, 1973, [*13] the Respondent, a general contractor, was involved in the installation of an underground conduit in the City of Louisville, Kentucky, pursuant to a contract with the Southern Bell Telephone Company. On this date they had reached the intersection of Broadway and Barrett Avenue. It had been necessary to by-pass underground utility lines and sewers. After passing under an existing manhole the backhoe operator had excavated an additional 15 feet of trench to a depth of 8 to 10 feet.

The Respondent had concluded that the soil was of the type which might cave-in, so it instructed its foreman, Galloway to use 4 feet by 8 feet plywood sheets 3/4 of an inch thick, 2 X 8 inch oak stringers and 4 X 4 inch cross bracing. The Respondent's Vice President, Bates, testified that their employees were instructed to drop the plywood into the ditch, slightly overlapped so that a portion of the trench, eight feet high and approximately three and one half feet wide, was covered. When four pieces of plywood were in the trench (two on each side) the employees were supposed to nail the 2 X 8 inch stringers across the two sheets of plywood and then insert 4 X 4 inch braces across the ditch between the [*14] stringers.

The Secretary's compliance officer, Fewell, said that the proper way to do this was by working from the top down. The Respondent's project supervisor, Murray, disagreed. He said that once a set of plywood is cribbed (braced) the next set running along the trench should be braced from the cribbed portion of the trench because there would be danger of a cave-in at the bottom if the men who had cribbed the top then descended into the ditch to shore the lower half.

On this day, the trench was long enough to contain eight 4 X 8 foot sheets of plywood, four on each side. At the time the project supervisor left the site at approximately 4 p.m. four of the eight sheets had been braced. A few minutes after he left there was a sloughing off of a yard or two of soil from the bottom of the trench in the area where the unbraced sheets were located. This occurred at the bottom side behind one of the last two sheets. At approximately 4:30 p.m. two of the Respondent's laborers, Hazelwood and Fulkerson, were preparing to descend into the trench. At the same time the Respondent's foreman, Galloway, who was then the senior and only representative of management present, [*15] turned away from the ditch to go after a hammer. By the time he had gone 50 feet he heard a noise which startled him. When he returned to the ditch he saw that there had been a cave-in and Fulkerson had been caught between the last two unbraced plywood sheets which had been displaced by the cavein. He directed rescue operations, but Fulkerson's injuries were so severe that he was pronounced dead at the scene.

The only eye witness is the surviving laborer, Hazelwood. His testimony was almost unintelligible. His articulation was poor. His recollection of the event was vague and marked by uncertainty. His answers to questions, while not evasive, were so imprecise, rambling and disconnected that the exact course of events after he and Fulkerson descended into the ditch is not clear. It is established that there were 8 sheets of plywood in the trench. From the site of the manhole facing south there were 4 sheets on the left and four on the right. Sheets 1, 2, 3 and 4 (the first two pairs) were shored and braced. Fulkerson proceeded to a point south of the last two sheets (7 and 8) and turned back north to help Hazelwood who was holding the other end to put this sheet in place [*16] for bracing. Act that time both were in an unshored portion of the trench. Hazelwood noticed that the soil behind the sheet they were holding started to move. He shouted a warning to Fulkerson and jumped back. Fulkerson jumped forward. This placed him in a position between the 7th and 8th sheets, and he was crushed between them. This resulted in the issuance of a citation for violation of:

29 CFR 1926.652(b)

As adopted by 29 CFR 1910.12

On or about February 20, 1973, Adams and Mulberry Corporation at its workplace and place of employment, located at Barrett Avenue and East Broadway, in Louisville, Kentucky, the employer, willfully failed to shore, sheet, brace, slope, or otherwise support by means of sufficient strength, to protect the employees working therein, the sides of the trench having a depth in excess of five (5) feet and sides in soft or unstable soil, and;

29 CFR 1926.652(i)

As adopted by 29 CFR 1910.12

The employer willfully failed to carry along with the excavation the bracing and shoring of the trench.

On February 21, 1973, the next day after the alleged violation, the Secretary's Area Director, Flanagan, who has enforcement responsibility [*17] for the State of Kentucky, read a report of the incident in the local newspaper, the Courier-Journal. He immediately directed one of his compliance officers, Steven R. Fewell, a graduate civil and safety engineer, to make an investigation.

Fewell, arrived at the scene of the accident between 8:30 and 9:00 a.m. but discovered that work on the project had been suspended, so he went to the Respondent's office where he talked to Vice-President Bates and several other unnamed persons. He was told that the foreman, Galloway, would not be available until after Fulkerson's funeral, so Fewell had no opportunity to talk to Galloway until February 26th. The Respondent in an attempt to blunt the allegation of willfulness through the testimony of Galloway adduced evidence that Galloway was both step-father and father-in-law of Fulkerson. The Secretary exerted similar efforts to discredit Galloway's testimony through post-hearing documentary evidence n1 asserting that both marriages from which the relationship arose had been dissolved prior to February 20, 1973. The efforts of both parties might properly be described as much ado about nothing. Both men in the trench were inexperienced. [*18] Hazelwood said that he had been working for Adams and Mulberry less than two months. The Respondent's Vice President said that Fulkerson had only one week of ditch digging experience. It is obvious that these two employees had not been adequately trained and supervised by the Respondent. Otherwise they would not have disobeyed what the Respondent's witnesses said was a company rule never to work beyond the cribbed portion of the trench. It is plain to be seen that Galloway's acquaintance with Fulkerson was immaterial except to delay completion of the investigation.

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n1 See affidavit of Catherine May Galloway.

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Fewell was not able to see Galloway until February 26th. On the 28th of February the Respondent submitted its own written findings of the cause of the accident. n2 This document was admitted in evidence over the Respondent's objection. Because this hearsay document represents the Respondent's conclusions based upon hearsay it has neither reliable nor probative value, but it is properly a part of the record [*19] because Fewell and Flanagan, for some reason which is not clear, considered this document to be evidence of willfulness on the part of the Respondent. As a result, they continued their interrogation of witnesses until the 8th of March. They consulted their regional office in Atlanta, Georgia, and counsel. Flanagan, who said that this was the first time we had ever recommended that a citation for a willful violation be made, was so concerned about his public image n3 and the gravity of the alleged violation that he took the file home with him on the week-end and completed his work so that the necessary documents could be completed by Monday morning. Flanagan's performance of his responsibilities and his unusual but commendable contribution of his own time over a weekend are to be admired, but apparently neither he nor those who recommended a citation for willful violation understand what the elements of such a charge are. In addition, he made an erroneous assumption.

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n2 Exhibit C-2.

n3 "In the meantime, I had contacted the regional office, because sometimes publicity gets out -- if there's a fatality . . ."

[*20]

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He concluded on the basis of the newspaper report that the shoring had collapsed and he said that "the foregone conclusion was that it was inadequate if it collapsed . . ." The shoring which was braced did not collapse. The cave-in occurred at an unbraced point. This would tend to support the opinion of the Respondent's expert witness that the protection which was installed according to the Respondent's specifications was adequate.

His other bases for concluding that there was willfulness included a report of previous sloughing off, a report that another employee, Deacon, had complained about the shoring being inadequate, the Respondent's conclusion in its written report that men were presumed to have been working beyond the cribbed area contrary to company rules and the fact that the Respondent knew of its responsibilities under the standards.

The meaning of the term "willfull" is well settled. Judge Gold said in Secretary of Labor v. Intercounty Construction Corporation,

The next issue is whether the violation was willful. The term "willful" [*21] has been defined as meaning an act committed intentionally, knowingly, or voluntarily as distinguished from accidentally, but is susceptible to varying interpretations. It may mean one thing in civil matters and quite another in criminal prosecutions. When used in the latter, generally it has been construed to mean an act done with evil motive, bad prrpose, or corrupt design. United States v. Mardock, 290 U.S. 389, 54 S. Ct. 223 (1933). Wilson v. United States, 250 F.2d 312, 319 (9 Cir. 1957). When used in a statute calling for a civil penalty, it was interpreted as meaning purposely or obstinately, and as describing the attibude of a doer who, having a free will or choice, either disregards the statute or is plainly indifferent to its requirements. United States v. Illinois Central R. Co., 303 U.S. 239, 58 S. Ct. 533 (1938). In Levy v. United States, 140 F. Supp. 834, 836 (D.C. W.D. La. 1956), which involved a suit to recover from the Government the amount of a civil penalty assessed against plaintiff for failure to pay social security and withholding taxes, the Court noted that the term has been interpreted to mean consciously, intentionally, [*22] deliberately, or voluntarily as distinguished from accidentally.

The cases cited in the Complainant's brief do not support the allegation of willfulness. They include charges of making a false report by a clerical employee where a teenage clerk loafed on the employer's premises after finishing work without punching the time clock; the meaning of the word "intent" as a basis for injunctive relief in an action brought under the Civil Rights Act of 1964; a case involving the meaning of "intent" under the Equal Employment Opportunity Act; a case involving the word "intentionally" under the Civil Rights Act of 1964; and the meaning of the word "deliberately" under the Civil Rights Act of 1964 where there was an airline rule against employment of married stewardesses.

There is no evidence of record that the Respondent intentionally, knowingly or voluntarily caused two employees to be working beyond the shored portion of the trench. There is no proof that they were exposed to this hazard because of the Respondent's disregard for or indifference to the Act and the standards.

Fewell and Flanagan both mentioned knowledge of the standards as one of the elements they considered. [*23] All employers are presumed to have knowledge of the standards. If ignorance of the law could be plead as a defense no standard could be enforced. On the other hand, where an employer has made a special effort to become well informed it does not follow that any violation charged to him was deliberate and intentional unless there are acts which show that this was true. There is no evidence of such conduct in the case at bar.

The sloughing off occurred only a few minutes before the fatal cave-in. There is no evidence that Galloway ordered Hazelwood of Fulkerson to venture into that area after that. Deacon's assertion that he complained about the inadequacy of the shoring is uncorroborated. There was no cave-in in the area which Hazelwood retreated. This portion of the trench held. The fact that shoring was installed shows that the Respondent knew the soil was unstable, but Fewell said that the shoring did not meet the requirements of the standards. The Respondent's expert witness, said that the shoring was sufficient to prevent a cave-in. The Complainant offered no evidence to rebut this statement. Moreover, there was no cave-in where there were 4 X 8 plywood sheets braced [*24] by means of 2 X 8 stringers and 4 X 4 cross pieces. The shoring did not collapse as Flanagan said it had. His reliance upon the hearsay document n4 containing conclusions based upon hearsay, assuming arguendo that it has probative value, would not show willfulness. This document is evidence of the Respondent's intention to comply with the Act and nothing else. Unfortunately, these good intentions were not executed well and a young man of 23 lost his life needlessly. Nevertheless, the allegation of willfulness is not sustained by the proof.

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n4 Ex. C-2.

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Even more deplorable is the fact that the Complainant's investigation and prosecution of the Respondent was so ineptly done that, even though the evidence shows conclusively that Adams and Mulberry (albeit carelessly though not willfully) permitted employees to be exposed to a hazard which not only could but did result in an accidental death, no penalty can be assessed.

The testimony of the Respondept's expert witness, Dr. Renda, that the shoring which [*25] was installed by the Respondent was sufficient to prevent any kind of cave-in means that the citation for violation of Section 652(b) cannot be sustained on the basis of the use of different sized stringers than the standard required. Since the Complainant offered no evidence to the contrary it must be concluded that Dr. Renda was right and that the shoring installed did meet the minimum requirements of Table P-2. There is accordingly a failure to sustain the burden of proof that the Respondent failed to support the sides of the trench by means of shoring of sufficient strength to protect the employees working in it as required by Section 652(b).

The Complainant has also failed to sustain the burden of proof that there was a violation of Section 652(i). The undisputed evidence is that the Respondent's employees were carrying along the shoring and bracing when Fulkerson was killed. It was the manner in which Fulkerson and Hazelwood exposed themselves to unprotected sides which resulted in Fulkerson's death, not a failure to carry along the shoring. Both the Respondent's Vice-President, Bates, and its project supervisor, Murray, testified that company rules require installation [*26] of braces in the unshored ditch while standing in the previously cribbed area, so it is only a question of whether the Respondent can be held responsible for an employee violation which is also a violation of company rules. An employer is not a guarantor of compliance by his employees. Secretary of Labor v. Standard Glass Co., Inc., OSHRC Docket No. 259; Secretary of Labor v. Clements Paper Co., Secretary of Labor v. Hanovia Lamp Division, Canrad Industries, Inc.,

On the other hand, employers cannot escape responsibility for violations committed by employees when the employer has either failed to properly instruct the employees with regard to safety procedures or, has failed to properly supervise them. If the evidence showed that the Respondent had told Hazelwood and Fulkerson that they were never, under any circumstances, to venture out of the cribbed part of a trench and that appropriate disciplinary action would be taken against them if they did, then the Respondent would not be accountable for an isolated violation. According to the Respondent's vice-president, Bates, their safety director held a monthly meeting [*27] with the foremen. Their safety program also provided for tailgate sessions of 15 minutes each Monday morning and 5 minutes each day after that. Galloway testified that he had safety talks with his crew in the mornings and during the lunch hour. In view of what occurred on February 20, 1973, assuming that the testimony of Bates and Galloway is reliable and accurate in all respects, company supervision obviously was not effective. Both Fulkerson and Hazelwood did what they were told not to do the moment their foreman stepped out of sight. This is conclusive proof that the Respondent had not made sure that its employees not only understood what the safety rules were but also that no deviation from them would be tolerated. Failure of employees to provide proper protection for themselves does not relieve the employer of responsibility. Secretary of Labor v. Pacific Food Products Co., Inc., In the case at bar the Respondent's inadequate supervision through its supervisor, Galloway, n5 resulted in the death of an employee for which it should be held responsible. Considering the 4 elements mentioned in Section 17(j) of the Act, size of the business, the [*28] gravity of the violation, the good faith of the employer and history of previous violations, the maximum penalty of $1,000.00 would be fully justified because of the tragic consequences of the cave-in, but there is no evidence which shows that there was a violation of the standards mentioned in the citation. A through review of the record fails to reveal even a scintilla of evidence that the death of Fulkerson was due either to inadequate shoring or failure to carry along shoring with the excavation. It was due entirely to the Respondent's failure to properly instruct and supervise its employees so that they would not venture into an unprotected area at any time.

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n5 "It is the duty of the respondent to exercise such reasonable control as may be necessary to see that regulations are complied with when the supervisory employee fails to require compliance failure is imputed to the employer." Secretary of Labor v. Ecology Constructors, Inc.,

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Upon consideration of the record as [*29] a whole the following facts have been established:

1. There is jurisdiction of the Respondent and the subject matter.

2. The delay between inspection and citation was fully justified due to the extra time required for gathering of evidence when a willful violation was suspected.

3. The shoring which had been braced was adequate to prevent cave-ins.

4. The Respondent's employees were carrying along the shoring and bracing of the trench but in such a manner as to expose themselves to a hazard which resulted in the death of one of these employees because of a cave-in.

5. The failure of these employees to properly protect themselves was the result of the failure of the Respondent's supervisor, Galloway, to properly instruct and supervise them.

6. The hazard which existed because of the Respondent's inadequate supervision was due to carelessness not willfulness.

Upon consideration of the foregoing findings of fact the following conclusions of law are made.

1. The motion of the Respondent made at the conclusion of the trial to strike so much of the citation as alleged that there was a willful violation should be granted.

2. The Complainant failed to sustain the burden of [*30] proof that the shoring was inadequate under the provisions of 29 CFR 1926.652(b).

3. The Complainant failed to sustain the burden of proof that the Respondent did not carry along the shoring and bracing with the trench as required by 29 CFR 1926.652(i).

ORDER

Upon consideration of the foregoing findings and conclusions it is hereby ordered that the citation and proposed penalty be vacated and that this proceeding be dismissed.