THE BEARDEN COMPANY

OSHRC Docket No. 2999

Occupational Safety and Health Review Commission

December 23, 1975

[*1]

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

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

John M. Freese, for the employer

B.H. Bearden, President, Bearden Company, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: An April 10, 1974, decision of Review Commission Judge J. Paul Brenton is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation against respondent alleging one serious violation of the Occupational Safety and Health Act of 1970 n1 for failing to comply with the requirements of three safety standards which are codified in 29 C.F.R. 1926.652(b), (e), and (h). We affirm his disposition of the 1926.652(e) and (h) charges, n2 but for the following reasons find the respondent in serious violation of 1926.652(b). n3

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n1 29 U.S.C. 651 et seqo., 84 Stat. 1590.

n2 Complainant does not challenge the Judge's disposition of those charges.

n3 29 C.F.R. 1926.652(b) provides as follows:

Sides 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 to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

[*2]

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Respondent, a plumbing contractor, was cited as the result of an investigation of the fatal cave-in of a trench it was excavating in order to install a sewer line. At the trial it was established that the trench was located in unstable soil and that its walls were vertical and totally unsupported. The trench was about 3 feet wide, 8 to 10 feet deep at its deepest point, and 30 to 40 feet long.

On the morning of the cave-in, respondent's foreman went to the scene and began to dig the trench with a backhoe. His purpose was to locate a portion of the city sewer main in order to connect a sewer line thereto. While the foreman was digging, two "helpers" arrived, including the decedent. Both of them were employees of respondent. When the sewer main was located (at a depth of about 8 to 10 feet), the foreman sent the decedent down into the trench inside the bucket of the backhoe to inspect and identify the sewer main. The decedent stepped out of the backhoe momentarily while at the trench bottom, made the inspection, and was then removed from the trench by this backhoe bucket.

Subsequently, after the [*3] trench had been expanded somewhat in depth and length, but while the walls were still vertical and unsupported, the foreman left the scene to telephone for pipe cutting materials and shoring equipment. Before departing he instructed the two helpers to dig at the shallow end of the trench. The surviving employee, who was the only witness to the cave-in, testified that the decedent entered the deep part of the trench after the foreman's departure for reasons unknown. Thereafter, the trench collapsed, burying the decedent.

Respondent contends that it cannot be held responsible for the decedent's death because it could not have reasonably known that the decedent would act contrary to the foreman's instructions to stay in the shallow part of the trench. Even if we were to agree with the respondent's contention, n4 a violation of 1926.652(b) is established by the decedent's first descent into the trench.

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n4 See Brennan v. OSAHRC and Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975).

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Not only [*4] was respondent's foreman aware of the decedent's exposure, the foreman himself lowered decedent into the trench. There was no showing that the inspection of the pipe could not have been delayed until the walls were sloped or supported. n5 Respondent's contention that the bucket provided adequate protection to the employee is not established by the evidence.

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n5 See Brennan v. OSAHRC and Underhill Construction Corporation, 513 F.2d 1032 (2nd Cir. 1975).

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Furthermore, the record clearly shows that lowering the decedent into the trench created a substantial probability of death or serious physical harm, an essential element of proof of a serious violation under 29 U.S.C. 666(j). The Judge's contrary holding that serious physical injury could have been avoided by quickly extricating the employee from the trench by means of the backhoe is unsupported by the record. When the trench did collapse, it caved in so quickly that the decedent's body remained in a standing position with a shovel still in hand.

Regarding [*5] the assessment of an appropriate penalty, the record shows that the gravity of the violation was high since the failure to slope the trench in unstable soil created a substantial risk of collapse. However, respondent exhibited moderate good faith in its belief that the backhoe offered some protection to the employee and in its general attitude toward safety. Respondent showed it had a continuing safety program, regularly conducted safety meetings, and required its employees to wear hard hats. Respondent is a small company and had not previously been cited for safety violations.

Considering the entire record in conjunction with the criteria specified in 29 U.S.C. 666(i), we conclude that a $300.00 penalty is appropriate.

Accordingly, we affirm a serious violation of the Act because of respondent's failure to comply with the requirements of 29 C.F.R. 1926.652(b) and assess a $300.00 penalty therefor.