McGUIRE AND HESTER
OSHRC Docket No. 3209
Occupational Safety and Health Review Commission
January 10, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: A decision of Judge James A. Cronin, dated January 17, 1974, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health act of 1970 (29 U.S.C. § 651 et seq. ).
Having examined the record in its entirety, the findings and conclusions of the Administrative Law Judge are hereby adopted, and his decision is affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the determination that a violation of the Act has been established as a result of the respondent's failure to comply with the requirements of 29 C.F.R. § 1926.651(i)(1) and with the penalty assessment of $60.00 therefor. I would, however, vacate the citation pertaining to the respondent's alleged failure to comply with the requirements of 29 C.F.R. § 1926.652(c) because the evidence is insufficient to establish that violation.
The latter charge was based on the respondent's alleged failure to shore or slope a trench section as required by 29 C.F.R. § 1926.652(c). That standard provides in pertinent part that:
Sides [*2] of trenches in hard or compact soil . . . 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 precludse collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal.
The charge relates to a small section of a long trench. The evidence tends to indicate that the length of the section exceeded 8 feet. A measurement that was made immediately adjacent to the section showed that the depth of the trench at that point was 6-1/2 feet. That measurement along with other evidence tends to show that the depth of the section in question varied from 5-1/2 to 6-1/2 feet.
The inspector who initiated the charge testified that there was no slope on either side of the trench section. To the contrary, the respondent's foreman, project manager, and safety engineer testified that the sides were sloped. The foreman and safety engineer were of the opinion that the sloping complied with the standard. The project manager expressed the opinion that whether the sloping was adequate was a close question.
The inspector did not [*3] make any measurements in regard to slope. Furthermore, he did not check the slope requirements of the standard before the inspection and did not know them at the time of the hearing.
Although the inspector's visual acuity was not directly questioned at the hearing, he must have some myopic difficulty because two photographs which he took at the time of the inspection clearly show that there was some slope on each side of the trench section. Furthermore, these photographs do not show that the sloping did not comply with the standard.
Since the standard required that only the upper 1-1/2 feet of the trench at most be sloped to a moderate angle, a small amount of sloping was all that was necessary to achieve compliance therewith. The photographs suggest that one side of the trench conforms to the requirements of the standard. Although they show some sloping on the other side, they were taken at an angle which makes it impossible to draw any conclusions regarding the adequacy of that slope. However, considering the photographs and the testimony of the witnesses, it is abundantly clear to me that the complainant has not established the violation by a preponderance of the evidence [*4] as required. See Secretary v. Armor Elevator Company, 5 OSAHRC 260 (1973).
[The Judge's decision referred to herein follows]
CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting two citations and Notification of Proposed Penalty issued by the Complainant against the Respondent on May 23, 1973. The citations were the result of an inspection of a Respondent workplace at Pierce and Eddy Streets, San Francisco, California on May 3, 1973 and allege that Respondent committed a "serious" violation of 29 CFR § 1926.652(c) and a "non-serious" violation of 29 CFR § 1926.651(i)(1). The proposed penalties for the alleged violations are $800 and $60 respectively.
The alleged violation of § 1926.652(c) was described in the Citation for Serious Violation as follows:
Employee working in a trench of hard or compact soil over 5 feet in depth and over 8 feet in length and not shored or otherwise supported to prevent collapse.
The alleged violation of § 1926.651(i)(1) was described in Citation Number 1 (non-serious) as follows:
Employee working in a trench with the [*5] excavation material stored at the edge of the excavation and not stored or retained at least 2 feet or more from the edge of the excavation.
The citations were amended by way of the Secretary's complaint by alleging:
On May 3, 1973, at the aforesaid place of employment in San Francisco, California, respondent violated the Safety and Health Standards duly promulgated by the Secretary of Labor, pursuant to authority vested in him by Section 6 of the Act, in the following respects:
(a) Failure to shore or otherwise support sides of trenches in hard or compact soil, including embankments, when trench is more than five feet in depth and eight feet or more in length, or, in lieu of shoring to slope to preclude collapse of the sides of the trench above the five foot level not steeper than one foot rise to each one-half foot horizontal, contrary to C.F.R. 1926.652(c). (Citation for Serious Violation, Citation No. 1).
(b) Failure to effectively store and retain excavated or other material at least two feet or more from the edge of the excavation in excavations which employees may be required to enter, contrary to 29 C.F.R. 1926.651(i)(1). (Citation No. 1, Item No. 1).
The description [*6] of the violations in this paragraph differs from the description of the violations in the two citations in that the language employed herein more precisely reflects the requirements of the standard. The standard cited, the relevant facts as found on investigation and the violation charged remain identical. The citation is hereby amended.
The standard, § 1926.652(c), as promulgated by the Secretary, provides as follows:
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.
The standard, § 1926.651(i)(1), as promulgated by the Secretary, provides as follows:
In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation. [*7]
Pursuant to due notice, this case was heard at San Francisco, California on October 31, 1973. Subsequently, both parties filed briefs in support of their respective positions.
JURISDICTION AND ISSUES
Respondent does not contest Commission jurisdiction of this matter and admits it is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
The Respondent in its answer denied generally all allegations of violation and therefore, the issues to be resolved and determined are:
1. Whether Respondent violated the standards as alleged?
2. If the Respondent violated the cited standards, what penalties are appropriate?
SUMMARY OF EVIDENCE
Sometime prior to May 3, 1973 the Respondent, a corporate employer engaged in construction work, installed a high pressure, fire service, water line in a trench located near the intersection of Pierce and Eddy Streets, San Francisco, California as specified and diagramed in the blueprint marked as Respondent's Exhibit No. 1 (Tr. 85-86). After the line was installed and just before testing procedures on the water line were to be performed, the City decided that the water line passed too closely [*8] underneath a high pressure gas main which crossed the trench horizontally. A contract charge order, requiring that the water line be installed 6 inches beneath the gas main rather than the original 3 or 4 inches, was issued to Respondent (Tr. 89).
As a first step, preparatory to re-positioning the pipe, the Respondent excavated the sand fill in the trench which covered an 18-foot section of water pipe line. This sand was used to fill the trench up to street level after completion of the original installation (Tr. 103). The adjoining portion of the trench which passed underneath the streets' intersection had been left open, shored, and covered with steel plates (Tr. 104, Secretary's Exhibits Nos. 1 and 2).
On the morning of May 3, 1973, before Mr. Roy Bissell, a compliance officer of the U.S. Department of Labor, arrived at the worksite, a 4-foot wide sheet of steel shoring and two horizontal braces or jacks had been installed adjacent to the existing shoring in order to protect the workmen assigned to unbolt that end of the 18-foot pipe section nearest the gas main (Tr. 72, 78, 104). Following installation of this set of shoring, the 18-foot section of pipe was unbolted and [*9] removed (Tr. 79).
Three additional sets of 4-foot wide shoring and braces were to be placed in the trench that same day to provide protection to workmen when installing the necessary fittings and insure that the trench remain open until testing was completed (Tr. 90, 105, 106).
Respondent's employee, Laborer Ramos, had been working in the trench for about one-half hour prior to Officer Bissell's arrival (Tr. 62-63). While obviously experiencing difficulty in both understanding and expressing himself in English, he testified to the effect that he was cleaning out the "ditch" and "working around" the gas main, "digging the trench out lower underneath" the gas main (Tr. 58, line 1; Tr. 59, lines 13-18; Tr. 60, lines 3-6; Tr. 60, lines 7-11; Tr. 60, lines 17-22).
Foreman Parento testified that "they" were in the process of installing additional shoring at the time of the inspection (Tr. 67, lines 19-25) and it was necessary to have a man in the trench to put in the jacks (Tr. 72, lines 19-25; Tr. 77, lines 7-10). On cross-examination Foreman Parento indicated that Laborer Ramos had been working that morning in that portion of the trench where the new shoring had been installed [*10] (Tr. 78, lines 10-16) and that at the time he was photographed he was cleaning out the ditch in preparation for another set of bracing to be installed (Tr. 79, lines 7-13).
In Project Engineer Bredehoft's opinion the photograph (Secretary's Exhibit No. 1) was taken when Laborer Ramos was excavating out from underneath the gas main (Tr. 87, lines 20-25; Tr. 88, lines 1-10, 22-25) and he expressed surprise at Foreman Parento's testimony as to what Laborer Ramos was doing at that point in time (Tr. 89, lines 14-21).
In the shored portion of the trench, between the two bracings where Foreman Parento took the only measurement, the depth of the trench was six and one-half feet. Beyond the point where Laborer Ramos was positioned and extending to the pipe fitting covered with burlap (all as depicted in Secretary's Exhibits Nos. 1 and 2) the depth of the trench was five and one-half feet (Tr. 66, 67, 69, 90). The top 14 inches of the trench sides consisted of 8 inches of concrete and 6 inches of asphalt; the remainder was hard and compact soil.
Officer Bissell testified that the trench in question was not sloped in any manner above the five foot level (Tr. 16) while Foreman Parento and [*11] Project Engineer Bredehoft were of the opinion that both trench sides at the top were sloped (Tr. 83, 94, 95, 96, 98, 99). No measurements, outside of visual sighting, were taken to determine whether the trench was sloped above the 5-foot level or the angle of any existing slope. Officer Bissell did not measure the length of the unshored portion of the trench but estimated it to be eight or ten feet (Tr. 16).
At the time Officer Bissell arrived at the site a loader, or tractor with a scoop, was being operated by Respondent's foreman immediately adjacent to the trench and the street was open to traffic (Tr. 17). In his opinion Laborer Ramos was exposed to the risk of a trench cave-in and believes the probability of a cave-in or "cracking" was increased in this instance because the trench sides were dry and had cracks in them (Tr. 17, 19-20). Officer Bissell testified that in the event of a cave-in Respondent's employee would have been "buried alive" (Tr. 17).
He observed Laborer Ramos removing dirt from the bottom of the trench, moving into the unshored portion of the trench "a couple of feet" and dropping it (Tr. 13). Upon exiting the trench, the employee in question [*12] climbed up out of the trench at the section of pipe marked with an X on Secretary's Exhibit No. 2 (Tr. 14-15).
A pile of excavated dirt, three or four feet high and eight or ten feet long, was located right along the edge of the trench in which Laborer Ramos was working (Tr. 34-35).
Starting with an unadjusted penalty of $1000 for the alleged trenching violation, the Secretary awarded a ten per cent credit reduction for Respondent's size (less than 19 employees at site) and ten percent for Respondent's prior history of three violations. No credit was given for good faith because Respondent had been previously cited for a similar trenching violation (Tr. 25-29). In Officer Bissell's opinion the probability of an accident occurring because of the unshored trench was "very good" . . . "50-50" (Tr. 29-30).
The adjusted penalty for the non-serious violation was $60. To an unadjusted penalty of $150, 10 per cent reductions each for size and history, and a 50% credit in anticipation of abatement of the violations, were applied (Tr. 33).
DISCUSSION
On this record Respondent's motion for a directed verdict must be denied and Respondent held in violation of 29 CFR § 1926.652(c) [*13] on May 3, 1973. This standard requires that a trench in hard or compact soil measuring more than 5 feet in depth and 8 feet in length must be effectively shored or otherwise supported. In lieu of this requirement the sides of the trench above the five-foot level may be sloped but not steeper than a one-foot rise to each 1/2-foot horizontal. This standard has been interpreted to require that the entire length of every trench, 8 feet or more in length and more than 5 feet in depth, must be effectively shored, supported or sloped. Secretary of Labor v. Van Diest Brothers, Inc., To hold, as Respondent contends, that a violation exists only when the unshored portion of an unsloped trench is 8 feet or more in length, would render meaningless the minimum requirements for trench shoring set out in Table P-1 of § 1926.452(g)(1) and be contrary to the express wording of § 1926.652(c).
The Secretary's presentation, made up of Officer Bissell's estimate that the trench's unshored portion was "eight or ten feet" and Secretary's Exhibit No. 1, a photograph depicting the shored adjoining portion, is primafacie evidence that the trench in question was [*14] 8 feet or more in length on May 3, 1973. Respondent's evidence, of course, tends to confirm rather than refute this fact by establishing that the trench consisted of a shored portion, extending under the steel plates in the intersection, as well as the shored section shown in Secretary's Exhibit No. 1 and the section which had been excavated in order to remove the 18-foot section of water pipe.
A finding in regard to the depth of this entire trench, solely on the basis of the Secretary's evidence, is somewhat more difficult to make. However, Foreman Parento's measurement did establish that the depth of the trench between the two braces as depicted in Secretary's Exhibit No. 1, was six and one-half feet, thereby raising the presumption, unless refuted, that the trench as depicted in Secretary's Exhibits No. 1 and 2 was more than five feet deep throughout its entire length. Subsequent evidence brought out during the Secretary's presentation established that this sole measurement was taken in the shored area at the point where the grade had been lowered to permit the high pressure line to pass beneath the gas main. But that fact standing alone does not refute the presumption [*15] that the remainder of trench was more than 5 feet deep.
Respondent's undisputed evidence on the other hand tends to establish that most of the unshored portion was five and one-half feet deep with the top 14 inches consisting of 6 inches of asphalt and 8 inches of concrete. On these facts, therefore, we find that the depth of the trench where the 18 foot pipe section had been removed was not less than five and one-half feet throughout its length.
Based on the fact that Laborer Ramos had been in the trench for one-half an hour, n1 and after scrutinizing Secretary's Exhibit No. 1, we believe it reasonable to conclude that the depth of the unshored portion of the trench, where Laborer Ramos was observed by Officer Bissell working, was more than five feet deep, not counting the 14-inch top layer. In view of this finding, we find it unnecessary to decide whether Respondent is correct in contending that the 8 inches of concrete and 6 inches of asphalt can not be counted when determining the depth of the trench in question.
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n1 The time factor permits the reasonable inference that, in addition to preparing the ground for shoring, Laborer Ramos was excavating the area underneath and adjoining the gas main. The inference was further strengthened by Project Engineer Bredehoft's description of work in progress.
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We also are convinced from our examination of Secretary's Exhibit No. 1 that in the unshored section of the trench where Laborer Ramos is shown standing, any sloping existing above the 5-foot level was steeper than the permissible 1-foot rise to each 1/2-foot horizontal. The length of this section obviously is considerably less than 8 feet. With respect to the remainder of the unshored portion, however, we are unable to reasonably conclude on this record either that there was no sloping or that the sloping above the five foot level was steeper than permitted by the standard. In making this finding we have carefully weighed the opinion testimony of the compliance officer against that of Respondent's witnesses, Bredehoft, Parento and Wells, and our own viewing of Secretary's Exhibits Nos. 1 and 2.
On the basis of the foregoing findings, we conclude that by failing to shore or support the trench sides, adjacent to the shoring, in the area where Laborer Ramos was observed working, or slope above the 5 foot level, Respondent was in violation of § 1926.652(c).
Did the Secretary, however, sustain [*17] his burden that this violation was a "serious violation" as those terms are defined by Section 17(k) of the Act? On this record the answer must be in the affirmative.
Officer Bissell's testimony that there was a "50-50" chance of a cave-in occurring in the unshored section could be given little weight, primarily because it was based on his assumption that the entire length of the unshored portion (8 or 10 feet) was in violation of the standard. However, the possibility of a cave-in occurrence clearly existed under the particular working conditions observed (vehicular traffic passing and nearby operation of heavy construction equipment) and in view of the soil's dried out condition.
Although the evidence establishes that the likelihood of a cave-in was relatively low and not substantially probable, this does not preclude a finding of a "serious violation." A number of past Commission decisions have held that the Secretary must establish only a likelihood of an accident and prove a substantial probability that the consequences of an accident resulting from a violative condition could be death or serious physical harm. Secretary of Labor v. Crescent Wharf and Warehouse Company, [*18] Secretary of Labor v. Standard Glass and Supply Company,
Officer Bissell's opinion that Laborer Ramos "would be buried alive" in the event of a cave-in went uncontroverted (Tr. 17). Therefore, we find that there existed a substantial probability that death could have resulted because of the unshored and unsloped trench.
Because Respondent apparently concedes, and the undisputed evidence establishes, that Respondent was in violation of § 1926.651(i)(1), no discussion of this violation is necessary.
All evidence relating to the four factors prescribed by Section 17(j) of the Act, the size of Respondent, its good faith and history of prior violations, and the gravity of the violations, has been duly considered in determining the penalties to be assessed.
The Respondent employs an average of 125 to 150 employees and on any given day will have in progress two or three trenches, more than 8 feet in length and 5 feet deep. Respondent's prior history under the Act consists of three prior violations which had become final orders of the Commission, one of which was "similar in character" to the alleged shoring violation in this [*19] case. Based solely on the existence of this prior violation which occurred a year and one-half prior to May 3, 1973, the Secretary's compliance officer concluded that Respondent lacked good faith. We do not agree with this determination. Because of the relatively large size of the Respondent, the nature of its business, and the number of trenches continually in progress, a history of one prior violation "similar in character" is not considered significantly adverse.
With respect to the gravity of the violations, only one employee was exposed to the possibility of a cave-in or to the risk of falling spoils and the duration of his exposure was rather brief (one-half hour or less). The probability of accidents occurring also is considered relatively low.
Another factor leading to the conclusion that the gravity of the shoring violation was slight is the standard itself. By exempting from its coverage trenches less than 8 feet in length we are entitled to presume that the Secretary himself has concluded that those is little likelihood that an unshored or unsloped trench in hard soil, less than 8 feet in length, will cave in or collapse, with resultant serious physical [*20] harm. In effect, this situation is presented here; the only protion of the trench found in violation is considerably less than 8 feet in length.
Weighing all the above factors, we conclude that the Secretary's proposed penalty of $800 is too high and find that $100 for the "serious" violation of § 1926.652(c) is a reasonable and appropriate penalty.
Because the consequences of any accident resulting from a violation of § 1926.651(i)(1) are decidedly less severe than the shoring violation, a penalty of $60 is considered appropriate.
FINDINGS OF FACT
1. McGuire and Hester, a corporation employing 125 to 150 persons, is engaged in construction work.
2. On May 3, 1973, Respondent's employee, by direction of Respondent's foreman, was working in an unshored, unsupported, and unsloped section of a trench. The entire trench, located in hard and compact soil, was more than 8 feet in length and 5 feet or more in depth.
3. The area of the trench in which Respondent's employee was working was more than 5 feet in depth, not counting the top layer consisting of 8 inches of concrete and 6 inches of asphalt.
4. The unshored and unsloped portion of the trench in which Respondent's employee [*21] was working was less than 8 feet in length.
5. The trench was located in a street open to vehicular traffic and where heavy construction equipment was operated.
6. There is insufficient evidence to permit a finding that the sides of the remainder of the unshored portion of the trench were not sloped or sloped above the 5 foot level steeper than a one-foot rise to each 1/2 foot-horizontal.
7. There was a substantial probability that serious physical harm or death could result from the failure to shore, support, or slope, that portion of the trench in which Respondent's employee was working.
8. A pile of excavated dirt, 3 or 4 feet high and 8 or 10 feet long, was located right along the edge of the trench in which Respondent's employee was working.
9. Respondent has committed three past violations of the Act, one of which was "similar in character" to Respondent's failure to shore in this case.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1926, Title 29, Code of Federal Regulations.
2. On May 3, 1973 [*22] Respondent was in violation of 29 CFR § 1926.652(c) and this violation was "serious" within the meaning of Section 17(k) of the Act.
3. On May 3, 1973, the Respondent was in violation of 29 CFR § 1926.651(i)(1).
4. A penalty of $100 for Respondent's violation of § 1926.652(c) is appropriate.
5. A penalty of $60 for Respondent's violation of § 1926.651(i)(1) is appropriate.
ORDER
Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:
1. Violations of 29 CFR § 1926.652(c) and 29 CFR § 1926.651(i)(1) are hereby AFFIRMED.
2. A penalty of $100 for violation of 29 CFR § 1926.652(c) is hereby ASSESSED.
3. A penalty of $60 for violation of 29 CFR § 1926.651(i)(1) is hereby ASSESSED.