1 of 264 DOCUMENTS

COLORADO PIPE LINES, INC., d/b/a CPL CONSTRUCTORS

OSHRC Docket No. 2805

Occupational Safety and Health Review Commission

December 31, 1975

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry C. Mahlam, Assoc. Regional Solicitor

Stow L. Witwer, Jr., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A March 1, 1974, decision of Review Commission Judge John J. Morris, in a case arising under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision is affirmed except insofar as it vacates the part of the citation alleging a violation of 29 U.S.C. 654(a)(2) for the respondent's failure to comply with the occupational safety and health standard codified at 29 C.F.R. 1926.652(c). n2

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n1 84 Stat. 1590, 29 U.S.C. 651 et seq., hereinafter the Act.

n2 This standard requires certain shoring or sloping procedures as a precaution against the cave-in of trenches which are "more than 5 feet in depth and 8 feet or more in length."

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Respondent was charged with willful violation of the Act for failure to comply with several different standards including this [*2] one. The Judge correctly concluded that there was insufficient evidence to support a willful violation. n3 He vacated all of the charges even though, in our opinion, the record clearly establishes that respondent failed to comply with the requirements of 1926.652(c).

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n3 As to the meaning of the term "willful," see Secretary v. Amulco Asphalt Company, 19 OSAHRC     (Docket No. 3258, July 29, 1975).

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Neither the citation, the notification of proposed penalties, nor the complaint contained any averment concerning the seriousness of the alleged violation. n4 Consequently there is an issue as to whether a violation of lesser magnitude may be affirmed under another section of the Act.

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n4 See 29 U.S.C. 666(j) for a definition of the term "serious violation." Any violation not specifically found to be willful, repeated or serious is, for lack of a better word, ordinarily referred to as "nonserious."

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Since the Commission has recently answered this question in the affirmative in Secretary v. Toler Excavating Company, 19 OSAHRC     (Docket No. 2637, July 29, 1975), we must determine which of the two types of lesser violations the evidence in this record establishes: serious or nonserious.

The trench therein was 30 feet long, 12 to 14 feet deep, 12 feet wide at the surface level, and 42 to 48 inches wide at the bottom. n5 The soil therein was hard and compact. The sides of the trench were not shored, adequately sloped, or otherwise protected from collapse. Excavated material stored closer than two feet from the edge thereof increased the probability of trench collapse. Actual exployee exposure thereto existed during the inspection. See Secretary v. Otis Elevator Company, 12 OSAHRC 127 (1974); Secretary v. Bechtel Corporation, 12 OSAHRC 774 (1974).

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n5 Respondent takes exception to the depth finding, believing it to be 11-1/2 feet. By computation, respondent therefore concludes that the trench complied with the one-half to one sloping requirement of the standard, and this no violation. There is contradictory testimony, however, and the preponderance of the evidence supports the Judge's evidentiary findings. See Secretary v. Armor Elevator Company, Inc., 5 OSAHRC 260, 261 (1973).

[*4]

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The evidence summarized above indicates that there was a "substantial probability that death or serious physical harm could result" if this trench had collapsed. This constitutes a serious violation within the meaning of 29 U.S.C. 666(j).

Respondent was fully aware that the seriousness of the violation was in issue because its counsel questioned complainant's regional administrator as follows about OSHA's practice of issuing a willfull violation to respondent's industry, as was done in this case: n6

"Q. Do you issue a willful violation in every case of a second serious violation involving excavating or trenching?

A. No." (Emphasis added.)

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n6 Respondent and previously been cited for serious violation of the excavation and trench standards codified at 29 C.F.R. 1926.651(c), (d), (e), (h), (i) and (l), and 1926.652(b). No contest was filed thereto, and so the citation and proposed penalties became final by operation of law. 29 U.S.C. 659(a).

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The evidence presented as well as respondent's cross-examination of complainant's regional administrator indicate that the seriousness of this violation was tried below. See Secretary v. Toler Excavating Company, supra. When this occurs, Rule 15(b) of the Federal Rules of Civil Procedure n7 mandates that the pleadings be amended accordingly. National Realty and Construction Co. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973).

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n7 Rule 15(b) states that: "[W]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

[*6]

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We therefore find respondent in serious violation of 29 U.S.C. 654(a)(2) for failure to comply with the requirements of 29 C.F.R. 1926.652(c). n8 Considering the entire record in conjunction with the factors enumerated in 29 U.S.C. 666(i), a penalty of $500.00 is hereby assessed.

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n8 Complainant argues that the same disposition should be applied to respondent's failure to comply with the requirements of 29 C.F.R. 1926.651(i)(1). Complainant originally cited respondent for a single willful violation although noncompliance with several standards were set forth in the citation. We agree with the Judge's conclusion that respondent did not willfully violate section 1926.651(i)(1). We also conclude that it would be wrong to bifurcate one charge into two. Therefore, in view of our consideration of the location of the excavated material in aggravation of the violaton affirmed herein, we find that complainant's contention is moot.

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CONCURBY: CLEARY [*7] (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur in the disposition insofar as it would find a failure to comply with 29 CFR 1926.652(c) at the north wall of the trench. I would make clear, however, that the south wall wall was adequately sloped. See the diagram which is appended hereto.

I join their holding that a violation of the Act may be found when the evidence shows a violation which is other than willful, and that the parties tried the question of seriousness.

On the merits, I agree that the violation was serious. The overwhelming evidence establishes that there was a substantial probability that death or serious physical harm could have resulted to the employees working in the trench had the 14-foot wall collapsed, and respondent knew, or with the exercise of reasonable diligence would have known, of the violative conditions. n9 The probability of collapse is immaterial, California Stevedore & Ballast Co. v. O.S.H.R.C., 517 F.2d 986, 988 (9th Cir. 1975), though this factor is relevant in penalty assessment. National Realty & Constr. Co., Inc., 1 OSAHRC 731, 736, 1 BNA OSHC 1049, 1951-1052, CCH 1971-73 OSHD [*8] Para. 15,188 at 20,265-20,266 (No. 85, September 6, 1972), rev'd on other grounds 489 F.2d 1257 (D.C. Cir. 1973).

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n9 A lack of knowledge is a defense to an allegation of a serious violation. Atlas Roofing Co. v. O.S.H.R.C., 518 F.2d 990, 1001 (5th Cir. 1975). Knowledge is not an element of the Secretary's proof. D.R. Johnson Lumber Co., 17 OSAHRCO 426, 428, 3 BNA OSHC 1124, 1125, CCH 1974-75 OSHA Para. 19,695 at 23,494 (No. 3179, April 25, 1975) (dissenting opinion). Cf. 518 F.2d at 1001 n.37.

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I also concur in the finding that the evidence of willfulness was insufficient, but I do not adopt the Judge's reasoning.

Less than three months before the instant inspection, an inspection of respondent's worksite in Arapahoe County, Colorado, on January 13, 1973, resulted in an uncontested $500 citation for a serious violation of the Act. That citation alleged non-compliance with the trenching and excavation standards at 29 CFR 1926.651(c), (d), (e), (h), (i), and (l), and 1926.652(b). [*9] Respondent's President paid the $500 penalty, and stated that corrective measures had been taken, and that respondent "was fully aware of the hazard involved in trench excavation and will exercise every precaution to prevent a recurrence." Due to respondent's fifteen years of experience in trenching and excavation work, it had a thorough knowledge of the required safety practices. Moreover, at the time of the earlier inspection, respondent's superintendent and foreman discussed with an OSHA compliance officer the proper methods of shoring as well as the required angles of repose. The foreman indicated his knowledge of the relevant standards. Indeed, respondent had distributed to its employees a booklet of safety and health regulations which required trenches to be sloped or shored. Yet less than three months later, essentially the same violation was found at this worksite.

Respondent's method of communicating to its employees the angle of repose to which the trench walls should be cut was to plant stakes outlining the intended grade. Respondent's backhoe operator followed the stakes in cutting the trench.

On the other hand, respondent did make an effort to comply with the standard [*10] which was very nearly successful, as can be seen in the appended diagram. This fact tends to rebut an inference of willfulness that could be drawn from the evidence relied upon by the Secretary. On this record, I cannot say that the Secretary proved an intentional disregard of the requirements of the law, or plain indifference thereto, or knowledge that the cited behavior might violate the law. Intercounty Constr. Co. v. O.S.H.R.C., 522 F.2d 777 (4th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 328 (U.S. October 17, 1975) (No. 75-594). However, I am constrained to note that respondent's good faith belief that the sloping required by the standard is too stringent is irrelevant. An employer may be found to have willfully violated the Act, regardless of his good faith belief that the violative conditions are not dangerous or that the degree of sloping required by the standard is excessively stringent. "The regulation unambiguously forecloses such discretion." F.X. Messina Constr. Corp. v. O.S.H.R.C., 505 F.2d 701 (1st Cir. 1974).

I emphatically dissent, however, from the lead opinion's denial, in no more than a footnote, of the Secretary's request [*11] that we also find non-compliance with 29 CFR 1926.651(i)(1). The stated rationale is that the Secretary's contention is "moot" because "it would be wrong to bifurcate one charge into two."

Putting aside the frailty of this logic, the majority's disposition is legally deficient on the matter of mootness. A moot case is one in which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights; a case seeking a judgment which, when rendered, cannot, for any reason, whave any practical legal effect upon a then existing controversy; or a case in which no relief can be granted. 1 C.J.S. Actions 17(c) at 1016-1017. See also, Holy Eagle v. Towle, 32 FRD 591 (D.S. Dak. 1963).

The Secretary seeks both an abatement order based on the respondent's breach of 29 CFR 1926.651(i)(1), and a monetary penalty therefor. Plainly, this controversy is live and actual. Eastern Associated Coal Corp. v. Interior Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974) (penalty in issue, case not moot). Walling v. Helmerich & Payne, 323 U.S. 37, 43 (1944) (abatement order in issue, case not moot). [*12] There is also nothing of record making it "absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur," United States v. Concentrated Phosphate Export Association, Inc., 393 U.S. 199, 203 (1968). Indeed, respondent's repeated violation of trenching standards and its continued participation in the trenching business suggest the contrary. Cf. 323 U.S. at 43-44.

Moreover, a refusal to affirm this citation and assess a penalty may have important collateral consequences. If respondent again breaches the standard, no additional penalties for failure to abate, nor citations for a repeated violation could be issued, nor will the instant violation be cognizable in determining the employer's history of prior violations. On these grounds alone, this controversy is not moot. See generally, Carafas v. LaValle, 391 U.S. 234, 237-238 (1968).

If the majority's disposition is actually based on the doctrine of merger of offenses, it is equally unjustifiable. That criminal-law doctrine does not, even by its own terms, forbid a finding that the same act breached two different regulations, the violation of one not being a lesser included offense [*13] of the other. United States v. James, 494 F.2d 1007, 1025-26 (D.C. Cir. 1974). United States v. Anderson, 490 F.2d 785, 789 (D.C. Cir. 1974). See generally, American Tobacco Co. v. United States, 328 U.S. 781, 787-88 (1946).

The majority's position cannot be that once issued a citation may not be amended by the complaint, for Commission Rule 33(a)(3) expressly permits this. Indeed, the majority's disposition is flatly inconsistent with recent Commission precedent, (Konkolville Lumber Co., Inc., No. 2437 (December 15, 1975) (slip op. at 10)) and with the liberal amendment principles set forth by the Court in National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) and quoted in Konkolville. Indeed, because the issue was plainly tried with the express consent of the parties, the pleadings must be deemed amended under Fed. R. Civ. P. 15(b), which the majority correctly recognizes to be mandatory in nature. American Boiler Mfrs. Ass'n v. N.L.R.B., 365 F.2d 815, 821 (8th Cir. 1966). See Underwriters Salvage Co. v. Davis & Shaw Furniture Co., 198 F.2d 450, 453 (10th Cir. 1952); S.E.C. v. Rapp, 304 F.2d [*14] 786, 790 (2d Cir. 1972) (rule is mandatory, not permissive).

If my colleagues are however concerned that separate penalties should not be visited upon respondent, I would share their views. Here, the hazard of the spoil pile aggravated the hazards of the inadequate slope, and the concurring gravity of the two violations, makes a unified penalty appropriate. Nevertheless, I would adopt the Judge's finding that respondent failed to comply with 29 CFR 1926.651(i)(1) and that together with its breach of section 1926.652(c), a serious violation had occurred.

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