M.A. SWATEK & CO.
OSHRC Docket No. 33
Occupational Safety and Health Review Commission
April 25, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Commissioner Burch's order to direct review of a decision and order rendered by Judge Ralph L. Wampler. Following a hearing, Judge Wampler affirmed the Complainant's citation which alleged that Respondent was in serious violation of section 5(a)(1) of the Occupational Safety and Healty Act of 1970 (29 U.S.C.A. 651 et seq.; hereinafter "the Act"). Judge Wampler also concluded that the penalty proposed by the Complainant for the violation should be reduced from $650 to $550.
Review of the evidence of record at the time of the Judge's decision initially suggested to the Commission that Respondent's conduct was of such character as to warrant more than a finding of a serious violation. It was our opinion that the conduct was such as to be considered willful in the civil sense. n1 For that reason, an order was issued to show cause why Respondent should not be assessed a penalty under section 17(a) of the Act, which provides for willful or repeated violations of the Act.
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n1 Willfulness in the civil sense is intentional, knowing or voluntary conduct, as distinguished from accidental. It may be characterized as conduct marked by careless disregard. United States v. Illinois Central Railroad Co., 303 U.S. 239, 243, 58 S. Ct. 533, 535 (1938); Hodgson v. Hyatt, 318 F. Supp. 390, 392 (N.D. Fla. 1970).
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We have reviewed the record, the Judge's decision, and the responses to the Order to Show Cause filed by the Secretary of Labor (hereinafter "the Secretary") and Respondent. For the reasons given in Secretary of Labor v. Wetmore and Parman, OSAHRC Docket #221 (January 17, 1973), we conclude that the Commission is without authority to find an employer in willful violation of the Act's requirements when the Secretary has not charged the employer with such violation, and the issue is not tried by the parties.
Moreover, for the reasons given hereinafter we conclude that Respondent is in serious violation of the Act and that the maximum penalty of $1,000 should be assessed. Accordingly, we affirm the Judge's decision and order to the extent that it does not conflict with this decision and order.
The facts of the case are as follows:
On August 4, 1971, Respondent was engaged in excavating a trench in Del City, Oklahoma, when a portion of the side wall caved in, fatally injuring an employee working therein. During trial the dimensions of the trench were approximated to be 19 feet at the top cut decreasing to 3 feet at the bottom, with a depth of 17 feet. The soil content was described by the witnesses as sand, clay and fill dirt, with no rock formation. While Respondent did not provide shoring or bracing of the trench, some sloping of the sides was accomplished. No ladder was present for purposes of egress.
Based on the approximated dimensions, the actual angle of the sides of the trench in issue was estimated at trial by the Secretary's compliance officer, a registered professional engineer, to be a ratio of about 1/2-to-one. n2
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n2 One half foot of horizontal dimension for each foot of vertical depth.
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Section 5(a)(1) of the Act, under which Respondent was cited provides:
Each employer -- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious phyical harm to his employees.
To be considered "free from recognized hazards" within the meaning of that section, a trench of approximately 17 foot depth, unless excavated in sold rock or shale, would require some means of protecting employees against moving ground or cave-in. Laying the banks of a trench back to a stable slope or the provision of shoring or some other equivalent means of protection are generally recognized by the construction industry as being needed to guard against these hazards. Respondent does not contend otherwise. In that regard, Mr. W. K. Swatek testified inter alia:
. . . in the past we . . . tried to slope our ditches or sheet our shoring, and require our men to do everything that the State of Oklahoma has required us to do. (Transcript at page 90)
In the instant case some sloping of the bank was employed. Consequently, the question to be resolved is whether the banks had been laid back to a safe angle of repose. n3
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n3 "Angle of repose" is the greatest angle above the horizontal plane at which material will lie without sliding.
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The pertinent portion of 29 C.F.R., Part 1518 (now redesignated Part 1926), "Safety and Health Regulations for Construction," dealing with trenching requirements was introduced by the Secretary for the purpose of determining the "recognized" safe angle of repose in a given situation. These standards had been promulgated on April 27, 1971, as established Federal standards. However, they were not actually in effect on the date of the accident and therefore were not binding on Respondent at the time the citation was issued. On the other hand, the date and method of promulgation of those standards lead us to conclude that contained therein is information generally recognized in the construction industry as requirements essential to protecting workers in trenches from the hazards of moving earth or cave-in. n4
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n4 Official notice is taken that the preamble to 29 C.F.R., Part 1518 states that the "Notice of Proposed Rulemaking," published on February 1, 1971, (36 F.R. 1802) invited written views and arguments concerning the proposed regulations, and that six regional hearings were held to permit receiving oral and written comments before the final regulations were issued.
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Based on the trenching requirements of the Federal standards, the compliance officer testified that a trench dug in average soil would require a one-to-one ratio to produce a safe angle of repose. He further testified that application of that ratio to the approximated dimensions set forth earlier in this decision would result in a top cut of 37 feet.
In addition to the Federal standards, the Secretary also introduced into evidence a copy of a State of Oklahoma Department of Labor document wherein specific reference was made to the State's safety requirements for the trench in issue. It was indicated therein that the safe angle of repose for that trench would require the same one-to-one ratio and, based on a depth of 18.5 feet, a 40 foot dimension at the top of the cut.
The consistency of the Federal and State criteria establishes what may be considered a "recognized" industry consensus as to a safe angle of repose for a trench having the soil content of that in issue here, i.e. an angle with a one-to-one ratio. From this it is evident that the angle actually cut by Respondent, which was on a ratio of about 1/2-to-one, was too steep to be considered safe under the industry consensus.
Based on the foregoing, the Commission is convinced that Respondent did not, in the instance at issue, provide a workplace which was free from recognized hazards. In view of the severity of employee harm which could result from the existence of such hazards, we are satisfied that a violation of section 5(a)(1) of the Act has been shown.
Likewise, there is substantial evidence to support the violation of a serious nature which was charged by the Secretary in the citation. n5 There was a substantial probability that death or serious physical harm could result from the violative condition. Moreover, the evidence of record establishes that Respondent is one of the four largest underground utility and paving contractors in the Oklahoma City area and has been in that business for over 40 years. In this capacity, established Federal or State criteria as to acceptable angles of repose, shoring, etc., in the trenching and excavation industry were available to it. Further, within only three months prior to the fatality it was necessary for the Department of Labor of the State of Oklahoma to remind Respondent on two separate occasions to provide adequate cave-in protection for all trenches over 4 feet in depth. n6 It follows that with the exercise of reasonable diligence, Respondent could have been aware of the hazardous nature of the trench wherein the fatality occurred. n7
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n5 It is stated in Section 17(k): ". . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
n6 Copies of the recommendations of the State authorities were introduced into evidence at trial. They were dated May 6 and June 7, 1971. Each contained identical language, to wit: "Provide adequate shoring and bracing for all ditches or excavations over four (4) feet deep, or back slope to the angle of repose, the only exception being when in hard shale or solid rock." The later recommendation also related to provision of a ladder in trenches.
n7 Evidence was presented at trial to the effect that on August 2 or 3, 1971, before the fatality, a State inspector had ordered Respondent to reduce the angle of the sides of the trench in issue and to provide one ladder for every 100 feet of the trench. After the trial, in response to the Order to Show Cause, Respondent submitted a letter signed by the Commissioner of Labor of the State of Oklahoma, which was dated after the trial, and in which it was stated that the inspection referred to above was made on August 5th, the day after the fatality.
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Turning now to the question of appropriate penalty for the serious violation charged, it is our opinion that the evidence of record reveals no basis for decreasing the proposed penalty as recommended by Judge Wampler in his decision. Moreover, while we generally agree with the several guidelines utilized by the Secretary in proposing a penalty, we are not constrained to give the factors equal weight. Secretary of Labor v. Nacirema Operating Company,
Here the record clearly established that, in view of the industry consensus for back sloping and the repeated prior warnings to do so by the State authorities, Respondent displayed a significant absence of good faith. This, combined with the high probability of occurrence and the potential severity of employee harm risked in the event of such occurrence, compels us to conclude that under the entire circumstances Respondent should be assessed the maximum penalty for the violation charged.
Accordingly, it is ORDERED that the Secretary's citation for serious violation of the Act's requirements be and the same is hereby affirmed and that Respondent be assessed a civil penalty in the sum of $1000 for such violation.
CONCURBY: BURCH
CONCUR:
BURCH, COMMISSIONER, concurring: This case has been pending before the Commission for an unconscionable length of time. In order to dispose of the case, I concur in the result reached by Commissioner Van Namee. I do so believing that this decision is preferable to no decision at all. The third member of the Commission has, at this writing, taken no position other than to dissent to my proposed decision of June 15, 1972.
I agree with the conclusion that the Commission has the authority to increase the penalty. I disagree with the rationale in Secretary of Labor v. Wetmore and Parman, Inc., (See my dissent in Wetmore and Parman, supra. )
Having directed review, I originally proposed a decision in this case on June 15, 1972. Because it sets forth my position, it is quoted, in pertinent part, below.
On November 3, 1971, Judge Ralph L. Wampler issued his recommended decision and order in the above case affirming the Secretary's citation for serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 561 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), and decreasing the proposed penalty from $650 to $550. Thereafter, I directed the case be reviewed by the Commission pursuant to section 12(j) of the Act. On February 1, 1972, after reviewing the record but before final decision and order, the Commission issued an order to show cause as to why, in view of the nature of the violation, respondent should not be assessed a penalty under section 17(a) of the Act providing for willful violations of section 5(a)(1).
The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein. The Commission has also reviewed the entire record, including the transcript, exhibits, briefs, arguments and exceptions of the parties, and responses to the order to show cause. Judge Wampler's recommended decision and order is adopted only to the extent consistent with the following.
On or about August 4, 1971, respondent had under its control a trench dug across Northeast 10th Street, near Sunny Lane Road in Del City, Oklahoma. The trench was approximately 19 feet wide at pavement level, 17 feet deep and 3 feet wide at the bottom. Although the soil in which the trench was dug consisted of a mixture of sand, clay, and fill dirt -- identified as unstable soil -- respondent did not provide shoring, bracing or any other structure to provide protection for workers against an earth slide. In addition, respondent failed to place a ladder in the trench for ingress and egress. On that date, employee Wesley Littlecharlie was working in the trench when a portion of the west wall caved in and killed him. On August 19, following an inspection by an agent of the Secretary of Labor, respondent was cited for a violation of section 5(a)(1) of the Act in that it failed to furnish to its employees a workplace free "from recognized hazards that are causing or are likely to cause death or serious physical harm" to his employees. n8
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n8 The specified violations were: "Sides of trench were cut in unstable or soft material (backfill) and greater than four feet in depth. No shoring was provided. Angle of repose provided was not sufficient to protect the employees. Angle of repose was greater than that generally accepted to preclude collapse. Additional precautions were necessary because this trench was in a backfilled roadbed. There were no ladders provided for employees to exit the trench."
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The Judge found that, according to recognized standards, a safe angle of repose n9 for unstable soil, is approximately 33 degrees and 41 minutes or, for a trench of the size of the one involved in the instant case, a distance of approximately 54 feet at the top, sloped to a width of 3 feet at the bottom. The Compliance Safety and Health Officer of the Occupational Safety and Health Administration testified that, had the composition of the soil been stable or average and the trench only 17 feet deep, the width at the top of the trench would have to be 37 feet in order to produce a safe angle of repose (i.e., 45 degrees). The actual angle of the sides of the trench was approximately 64 degrees and 48 minutes -- too steep for safe conditions even in stable soil.
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n9 Angle of repose is the greatest angle above the horizontal plane at which material will lie without sliding.
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Standards which would apply to the circumstances found in this case were published in the Federal Register on April 17, 1971, and were given an effective date of September 27, 1971. It has not been alleged that respondent violated those standards. However, the standards provide some guide as to what a normally prudent and experienced contractor would consider a safe trench. Respondent is one of the four largest underground utility and paving employers in the Oklahoma City area and has been in that business since at least 1927. Respondent is or should have been well aware of the correct angle of repose for a trench. In any event, respondent has been cited in May and June 1971 by the Department of Labor and the State of Oklahoma to provide either adequate shoring and bracing or sloping for all ditches over four feet in depth. It may be fairly inferred that he was on notice that the danger of a trench cave-in was a recognized hazard in the construction industry and carefully policed by the State authority. n10 In addition, respondent was on specific notice that the particular trench in the instant case was unsafe. On August 3, 1971, one day before the fatal accident, n11 a State inspector had ordered respondent to reduce the angle of the sides of the trench and provide one ladder for every 100 feet of length of the trench. The regulations of the State of Oklahoma, which were well known to respondent, required respondent to increase the width at the top of the trench to 40 feet, which is in agreement with the federal inspector's testimony as to the angle of repose for stable or average soil.
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n10 Respondent previously had experience with dangers of an unsafe trench. Five or six years ago, one of its employees was killed in a cave-in of an unshored trench.
n11 After the hearing, in response to the order to show cause, respondent submitted a letter signed by the Commissioner of Labor of the State of Oklahoma, written on April 27, 1972, stating that the inspection referred to above was made on August 5, the day after the accident. The Commission concludes that the Commissioner of Labor is mistaken. Thus, W. K. Swatek, president of respondent, testified at the hearing on October 19, 1971, that the State Inspector was on the job site on the day before the accident. In addition, respondent introduced a copy of a letter to the State Department of Labor on September 22, 1971, by Swatek in which he thanks the inspector for his inspection "of August 3, 1971." Based upon the evidence adduced at hearing, the Commission concludes that the post hearing document raised no question concerning credibility.
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In response to the Order to Show Cause, the Secretary and respondent questioned the Commission's authority to assess penalties other than those proposed by the Secretary. This contention is patently inconsistent with the express terms of the Act.
Section 17(a) of the Act provides:
Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation. [Emphasis supplied].
Section 17(j) of the Act provides:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. [Emphasis supplied].
Section 10(a) of the Act provides:
If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 . . . [Emphasis supplied].
We conclude that the Commission has been charged by Congress with full powers of review -- just as other federal reviewing agencies -- including, but not restricted to, increasing or decreasing n12 the penalty. See, Secretary of Labor v. Hidden Valley Corp., American Federation of Television & Radio Artists v. N.L.R.B., 395 F.2d 622, 628 (D.C. Cir. 1968); Oil, Chemical and Atomic Wkrs. Int. U. Local 4-243 v. N.L.R.B., 362 F.2d 943, 945-946 (D.C. Cir. 1966); International Union of E.R. & M.W., AFL-CIO v. N.L.R.B., 426 F.2d 1243 (D.C. Cir. 1970).
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n12 The Secretary has suggested that the Commission's power to issue an order "affirming, modifying, or vacating the Secretary's citation or proposed penalty" is restricted to the granting of a remittitur of the penalty only. We adhere to the commonly accepted definition of the word modify contained in Black's Law Dictionary, rev'd 4th ed., "to alter, to change" to "enlarge, extend, limit, reduce." See, Jarman v. Collins-Hill Lumber & Coal Co., 226 Ia. 1247, 286 N.W. 526, 528 (1939); McGoldrick Lumber Co. v. Benewah County, 54 Idaho 704, 35 P.2d 659, 662 (1934); Johnson v. Three Rays Properties #2, Inc., 158 So.2d 924, 926 (D.Ct. App. Fla. 1964).
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The converse, espoused by the Secretary, is that this Commission, rather than having "authority to assess all penalties" (Section 17(j)), has the authority only to review those penalties proposed to be assessed under section 10(a). We find this proposition unsound.
Similarly, the Secretary's attempt to analogize his function under the Act and the functions of a prosecutor under criminal statutes fails to distinguish the marked difference between criminal and civil statutes. Clearly, the provisions of section 17 of the Act having to do with civil penalties were intended by Congress to be non-criminal and remedial. This is hardly open to question. Thus, Congress used the most precise language possible to indicate the nature of the penalty imposed. The Act authorizes the Commission to "assess a civil penalty . . . for each . . . violation" (emphasis supplied). On the other hand, sections 17(e) and (f) are clearly criminal in nature and state that "upon conviction . . . [respondent] shall be punished by a fine of not more than . . . or by imprisonment for not more than . . . or by both" (emphasis supplied). While courts have used the words "fine" and "penalty" interchangeably (e.g., Filmon Process Corporation v. Spell-Right Corporation, 404 F.2d 1351 (D.C. Cir. 1968); U.S. v. Atlantic Fruit Co., 206 F. 440 (1913)), in this statute Congress emphasized its intent by using these words in their common law context. Thus, "fines" are one of the criminal sanctions referred to in sections 17(e) and (f), while "penalties" are the prescribed civil sanctions referred to in sections 17(a), (b), (c), (d), and (i). U.S. v. Nash, 111 F. 525, 528 (1901); United States v. Norfolk, Baltimore and Carolina Line, Inc., 382 F.2d 208, 210 (4th Cir. 1967). Indeed, in Lance Roofing Company, Inc. v. Hodgson, et al., No. 16012, D.C.N.D. Ga., May 23, 1972, recently dismissed by the Court, the Secretary submitted a brief in which a large portion of the argument was devoted to establishing the proposition that "the provisions of the Act . . . are civil and not criminal in nature."
Accordingly, as the Court stated in Helvcring v. Mitchell, 303 U.S. 391, 402 (1938):
That Congress provided a distinctively civil procedure for the collection [of a penalty] indicates clearly that it intended a civil, not a criminal sanction. Civil procedure is incompatible with the accepted rules and guarantees governing criminal prosecutions.
See also, Oceanic Steam Navigation Company v. Stranahan, 214 U.S. 320, 324 (1909).
Equally inapposite is the Secretary's reference to the many cases in which the circuit courts of appeals have held that the National Labor Relations Board may not amend a complaint issued by the General Counsel, since the Labor Board's frequent exercise of its undoubted right to find "like or related" violations of the National Labor Relations Act which have not been alleged by the General Counsel in his complaint, but which were litigated before the Board's Trial Examiner, is so well known as to obviate the necessity for citation to authority. Moreover, the National Labor Relations Board's exclusive authority to frame remedies without regard to the General Counsel's prayer is equally well recognized. Accordingly, if the analogue has any substance, it stands for the proposition that this Commission, as the Board, has not only a right but an obligation to consider the record as a whole, to make findings based upon the evidence of record and to assess penalties in the exercise of its exclusive authority to do so under Section 17, with due regard for the remedial and exemplary purposes of such penalties.
The Commission's exercise of its statutory duty in the instant case is not an unique or even unusual decision. As of June 2, 1972, the Commission had reviewed 88 contested cases and reduced the proposed penalty in 43 percent of the cases and increased the proposed penalty in 15 percent of the cases. In addition, the Commission has also exercised its authority to alter the nature of the Secretary's citation. Specifically, we note that in Secretary of Labor v. Norfolk Shipbuilding & Drydock Corp., There the Judge found that despite the Secretary's citation and complaint charging non-serious violation of the Act,
The determination by the Area Director of the Occupational Safety and Health Administration that the said violation should not be considered a serious violation pursuant to section 17(k) of the OSHA is not supported by the evidence and the penalty . . . which is proposed to be assessed . . . [is] inappropriate.
The Judge, in his decision and order, affirmed by the Commission without objection or petition from any party, altered a proposed penalty of $175 for a nonserious violation to an assessed penalty of $1000 for a serious violation.
Respondent Swatek, joined by the Secretary, urges that the Commission has deprived the parties of due process by issuing an order to show cause why the penalty should not be assessed under section 17(a) of the Act. The argument makes up in novelty what it lacks in logic.
An order to show cause is issued for the express purpose of affording parties due process. See, Davis Administrative Law Treatise, Section 7.07 (1958). n13 Had the submissions of the parties in response to the Commission's order to show cause raised any questions of fact or questions concerning credibility which would render inappropriate a final disposition on the record, the Commission would have ordered remand for the adducement of additional evidence in adversary or fact finding proceedings. No such questions were raised by the parties. The show cause order afforded the parties both the right of argument and an opportunity to adduce additional evidence. Since the parties' response raised no genuine or material issue of fact, no additional hearing was ordered. It is clear that due process requires no more. Persian Gulf Outward Freight Conference v. Federal Maritime Commission, 375 F.2d 335, 340-341 (D.C. Cir. 1967); Producers Livestock Marketing Ass'n. v. U.S., 241 F.2d 192, 196 (10th Cir. 1957), aff'd., 356 U.S. 282 (1958); Outward Continental N.P.F. Conf. v. Federal Maritime Commission, 385 F.2d 981, 983, 984 (D.C. Cir. 1967).
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n13 The Secretary's representations, on page 4 of his brief, that Professor Davis subscribes to the "rule" of prosecutor's discretion and his citation to Section 4.7 of Treatise on Administrative Law would appear inapposite. The cited section "Standing of Private Parties to Compel Prosecution" has little, if anything, to do with the Commission's authority to examine the record before it in order to assess an appropriate penalty under the criteria set forth in Section 17 of the Act. Professor Davis' comments on the use of an order to show cause at Section 7.01 of his treatise would appear to be a more appropriate use of the authority. There, Davis refers to "the basic position of the treatise" that "full-scale evidentiary hearings would be costly for both parties, time-consuming, and not so surely productive of a fairer, or more accurate, . . . determination . . . as to warrant imposition of such a burden," and concludes "that one special need of the law about the requirement of opportunity to be heard is a more imaginative exploration of principles of fairness when trials are not needed." Davis Administrative Law Treatise, Section 7.01 (1970 Supp., 315-316).
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Indeed, respondent's citation and quotation of the D.C. Circuit's 1968 opinion in Rodale Press, Inc. v. F.T.C., 407 F.2d 1252, 1257, (1968), in support of his proposition that the use of an order to show cause deprives parties of due process supports the contrary proposition. Thus, respondent quotes the following portion of the decision:
Hence it is well settled that an agency may not change theories in midstream without giving respondents reasonable notice of the change . . . The evil at which the statute strikes is not remedied by observing that the outcome would perhaps or even likely have been the same. It is the opportunity to present argument under the new theory of violation which must be supplied.
407 F.2d at 1256-1257, emphasis in original.
Plainly, had the Trade Commission afforded respondents "the opportunity to present argument," all rights would have been preserved and, presumably, the Commission's order would have been enforced. The case was remanded for just that purpose. It is precisely that opportunity to present argument that has been afforded the parties by this Commission in this case.
Respondent had been placed on notice on August 3, 1971, that a hazard existed. Nevertheless, on August 4, respondent again exposed its employees to the same hazard, an unsafe trench. Indeed, respondent had been warned on two separate occasions within the previous four months of similar violations. The fact that the death of an employee was the consequence of respondent's failure to take corrective action is not determinative of willfulness. However, the incident supports the finding that the angle of the sides of the trench was, in fact, hazardous. The hazard created by an improperly sloped, unshored trench is common knowledge in the construction industry. Indeed, the danger of a trench cave-in is so common that even with the naked eye, a reasonably prudent contractor would recognize the danger to his employees created by a 65 degree angle of slope in a trench 17 feet deep.
The record in this case demonstrates that respondent was on notice that the angle of the sides of his unshored, unbraced trench was unsafe. In addition, respondent was on notice that it was his duty to provide a ladder in the trench. Respondent's failure to correct the above mentioned conditions demonstrates a reckless disregard for the safety of his employees and an unexplained willingness n14 to expose them to life-endangering hazards. The evidence of record with respect to respondent's assertedly good faith efforts to correct hazardous conditions on its job sites and an on-going safety program is sufficient to mitigate only in part the gravity of the violation found.
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n14 See, American Surety Co. of New York v. Sullivan, 7 F.2d 605, 606 (2nd Cir., 1925); Darby v. U.S., 132 F.2d 928, 930 (5th Cir., 1943); Hertz Drivurself Stations v. U.S., 150 F.2d 923, 924 (8th Cir., 1945).
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The Commission concludes that respondent has willfully violated section 5(a)(1) of the Act and assesses a penalty in the amount of five-thousand dollars pursuant to section 17(a).
Considering the long delay in the disposition of this case, I am persuaded that justice will best be served by concurring in the result reached by Commissioner Van Namee, thus forming the necessary quorum for Commission action.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: For clarity of organization and ease of reference this opinion will be separated into two parts.
PART 1 -- THE VIOLATION
The record in this case is insufficient to support the Commission's finding that respondent committed a violation of section 5(a)(1) as alleged in complainant's citation.
The reason this decision is insufficient to support the Commission's conclusion that the Act has been violated is that it does not contain a proper finding of fact that the conditions causing the trench to cave-in constituted a hazard which was recognized as such in the construction industry.
Even though it is my personal view (and, I assume, the personal view of each member of this Commission) that it is hazardous to work in a trench identical to that in which respondent's employees were working at the time it caved-in, the Commission is not authorized to base a finding thereon since we are not permitted to render decisions founded upon our personal views or past experience. The Act rather specifically requires, in section 10(c), that decisions of this Commission shall be "based on findings of fact" [emphasis supplied].
The decision of the Judge contains no finding of fact that the condition of this trench was a hazard likely to cause death or serious physical harm and that such condition was recognized as such either generally or by the construction industry. This requirement as a condition precedent to the establishment of a violation of section 5(a)(1) was set forth by the Commission in Secretary v. Vy Lactos Laboratories, Inc.,
This decision of the Commission seeks to remedy this rather significant deficiency by concluding that a would-be occupational safety and health standard specifying certain trenching requirements was evidence of the "'recognized' safe angle of repose." To hold respondent in violation because it didn't comply with standards not yet in effect approaches the constitutional prohibition against ex post facto laws.
If the requirements of the would-be standards then constituted the "industry consensus as to a safe angle of repose" as stated in this decision, why did the Secretary of Labor promulgate them in the Federal Register three months prior to the date on which they were to become effective? He answered that himself in the same document. See 36 Federal Register 10466, May 29, 1971.
The purpose of the delay is to insure that affected employers and employees would be informed of the existence of the standards and of their terms and to give such employers and employees an opportunity to familiarize themselves with the requirements of the standards before their application.
Is it fair or just to tell employers that they have three months to familiarize themselves with rather technical safety requirements with which they must comply under the provisions of section 5(a)(2) of the Act and then to hold them in violation of a different section of the Act (section 5(a)(1)) for not abiding by those very requirements during the three month familiarization period? The Commission has answered this question in the affirmative. I disagree.
I believe the record in this case requires a finding of no violation and thus no penalty. However, because of the extensive discussion thereof in the concurring opinion, I want to take up the penalty assessment issue in this opinion.
PART 2 -- THE PENALTY
It is my view that the Commission is without authority to increase the amount of a penalty over that proposed by the Secretary of Labor as it has done in this case by adding $350.00 to the penalty proposal of $650.00.
In this regard I agree with the position advanced by complainant in his brief.
This Commission was established to provide a tribunal where employers (and employees in certain limited respects) could seek relief from enforcement actions initiated by the Secretary of Labor with which they disagreed.
The Act grants the Secretary of Labor, and the Secretary alone, the power to issue citations for violations of the Act, to set abatement dates, and to propose penalties for such violations within limits established by section 17. The amount of his penalty proposal will automatically become the assessed penalty unless it is contested within fifteen working days of its receipt.
Department of Labor statistics show that the penalty assessed against 95% of all employers who have received citations during the first two years of the Act's effectiveness has been the result of penalty proposals automatically becoming assessments because they were not contested. The Commission is not involved in this process in any way.
When the Secretary's penalty proposal is contested by the employer within the time provided it can safely be assumed that the employer takes such action because he thinks the amount thereof to be too high. No case has yet been recorded where an employer has contested a penalty proposal because the amount was not high enough. Indeed if there has been such an employer he doesn't need to seek a hearing on the issue. He need only pay the amount of the proposed penalty to the Secretary plus whatever additional amount he feels is warranted.
The Commission's authority when a proposed penalty is contested is limited by two provisions of law both of which are stated in section 10(c) of the Act.
That section states that when a penalty proposal is timely contested the Secretary of Labor shall immediately notify the Commission thereof and
". . . the Commission shall afford an opportunity for a hearing . . . in accordance with section 554 of title 5, United States Code . . . ."
This language incorporates by reference, and binds the Commission to the provisions of the Administrative Procedure Act.
That Act provides that when matters are submitted to a Federal adjudicatory body for resolution the agency is authorized to adjudicate only those issues in dispute between the litigants.
The litigants here are the Secretary of Labor and the respondent. The Secretary proposes that respondent be assessed a penalty of $650.00. The respondent claims that amount is too high and it should be assessed no penalty or something lese than $650.00.
The only issue in dispute therefore is whether $650.00 is too high. The question of whether that amount is high enough is not in dispute. Neither litigant has submitted that issue to the Commission for resolution. Thus the Commission has no jurisdiction under the terms of the Administrative Procedure Act to assess a penalty in excess of $650.00.
The other limitation to the Commission's penalty assessment jurisdiction stated in section 10(c) provides that after the Secretary of Labor has notified the Commission that an employer has contested the amount of the penalty proposed against him under the Act and the hearing thereon has been held in accordance with the Administrative Procedure Act
"The Commission shall thereafter issue an order based on findings of fact, affirming, modifying, or vacating the . . . proposed penalty, or directing other appropriate relief . . ." [emphasis supplied].
Surely it cannot be convincingly contended that "relief" can be a penalty assessment higher than either the Secretary or the objecting employer thinks is appropriate.
In addition, it is no accident that the limits of the Commission's jurisdiction set forth in the passage quoted above are arranged in descending order from highest to lowest: "affirming, modifying, or vacating." If the word "modify" was meant to grant the Commission the power to assess any penalty amount it thought appropriate within the limits specified by section 17, as the concurring opinion in this case argues, the word "affirming" would be redundant.
Furthermore, it is a well recognized rule of legislative construction that a word used in a statute shall be construed similarly throughout the statute unless plainly indicated otherwise (statutes shall be construed in pari materia ). In this connection the word "modify" appears in the Judicial Review section of this Act (section 11) at least six times. Its use in the first sentence of section 11(a) gives a clear indication that Congress intended it to mean "reduce" or "lower" (or words having similar meaning):
"Any person . . . aggrieved by an order of the Commission . . . may obtain a review of such order in any United States court of appeals . . . by filing . . . a written petition praying that the order be modified or set aside." [emphasis supplied]
Clearly this sentence would be absurd if "modified" were given the meaning suggested in the concurring opinion in this case.
Any careful reading of the text of this Act will reveal that the exclusive authority and responsibility for effecting compliance with its many requirements is reposed in the Secretary of Labor. In furtherance of this responsibility, he sets the upper limits of the penalty which he thinks is most appropriate to the employer's alleged failure to observe the Act's requirements. When that proposed amount is not contested within the time prescribed, it becomes the assessed penalty. When it is contested the Commission may, after hearing, affirm that amount, assess a lower amount as the penalty, or authorize no penalty at all.
In short, this Commission has no compliance responsibility whatsoever. Its functions are strictly adjudicatory -- and that adjudicatory power is limited to granting relief from those matters specified in the citation issued by the Secretary of Labor and from the amount of his proposed penalties, when, and to the extent that, such relief is timely sought.
February 1, 1972
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
ORDER TO SHOW CAUSE
BURCH, COMMISSIONER: Pursuant to a notice of contest filed by the respondent employer, a hearing was held on October 19, 1971, for the purpose of determining whether there has been a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. 651, et seq. ), and if so, the assessment of a penalty.
The citation charged a violation of the general duty clause of the Act (section 5(a)(1)) alleging, specifically, that a trench in excess of four feet in depth was not shored or sloped to the proper angle of repose so as to preclude collapse nor was an escape or exit ladder provided in the trench.
Following the hearing, the Hearing Examiner submitted his report in which he affirmed the citation for serious violation but reduced the amount of the penalty proposed by the Secretary from $650 to $550 finding insufficient evidence to establish lack of good faith. I thereafter issued my direction for review.
The Hearing Examiner noted that the banks of the ditch in question were too steep and constituted a hazardous condition when gauged by either the State or Federal standards (the latter were applicable at the time of the hearing but not on the date of the violation), and that the failure to provide a ladder in the ditch constituted a violation of the Act. The Hearing Examiner noted that on August 3, 1971, the day before the cave-in, an Oklahoma Department of Labor inspector issued an order to respondent directing that a ladder be provided and issued specific instructions as to proper sloping. The record reveals that two other similar orders had been issued to the respondent in May and June 1971 for another site and that 5 or 6 years ago, respondent experienced a cave-in fatality in an unshored sloped trench. Mr. Swatek testified that the company had received numerous citations or orders in the past from the Oklahoma Department of Labor. The record discloses that respondent has been in business since at least 1927 and is acknowledged to be one of the largest four employers engaged in the utility and paving business in the Oklahoma City area with an approximate annual dollar volume of business of $3 million.
In view of the foregoing, the parties are ORDERED TO SHOW CAUSE, if any there be, why respondent should not be found to have violation Section 5(a)(1) of the Act and that such violation is willful within the meaning of section 17(a) thereof and the penalty assessed accordingly. The parties shall have 30 days from the date of receipt of this Order to respond.
[The Judge's decision referred to herein follows]
WAMPLER, JUDGE, OSAHRC: This case was assigned to this Hearing Examiner pursuant to Notice of Contest dated August 30, 1971, by W. K. Swatek, who contests the issuance of a Citation and the proposed penalty by the Department of Labor. A hearing was held in Oklahoma City, Oklahoma on October 19, 1971. The Department of Labor was represented by its attorney, Mr. James E. White. Mr. W. K. Swatek, President of M.A. Swatek & Company appeared pro se for the employer. Mr. Olan Smith, Secretary-Treasurer of M.A. Swatek & Company, assisted Mr. W. K. Swatek.
PROCEDURAL HISTORY
On August 18, 1971, the U.S. Department of Labor issued a Citation for a serious violation against M.A. Swatek & Company, alleging a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970. Simultaneously with the issuance of the Citation, the Department of Labor issued a Notice of Proposed Penalty of $650. Thereafter, Mr. W. K. Swatek, President of M.A. Swatek & Company, filed his intent to contest the Citation and the proposed penalty.
STATEMENT OF ISSUES AND LAW
The issue for determination is whether or not there has been a violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970, and if so, the proper amount of the penalty.
Section 5(a)(1) of the Act provides that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
Section 17(b) of the Act provides for the imposition of a maximum penalty of $1,000 for a serious violation.
SUMMARY OF THE EVIDENCE
In order to expedite the hearing, the parties entered into a stipulation which was recited by Mr. James E. White. The pertinent part of the stipulation is as follows:
". . ., the legal name of the Respondent is M.A. Swatek & Company, M.A. Swatek & Company is a corporation, organized and doing business according to the laws of the State of Oklahoma. Its principal office is located at 1137 Northwest Second Street, In Oklahoma City, Oklahoma. M.A. Swatek & Company is engaged in the business of installing utility lines and incidental paving construction, an industry affecting interstate commerce, and M.A. Swatek & Company is an employer within the meaning of the Occupational Safety and Health Act of 1970."
The first witness, Mr. David L. Bartlett, testified that he was employed by M.A. Swatek & Company on August 4, 1971, working at a job site near the intersection of Northeast 10th Street and Sunny Lane Road in Del City, Oklahoma. He stated that a ditch or trench had been cut across Northeast 10th Street for the purpose of laying pipe. According to Mr. Bartlett, the trench or ditch was 17 feet wide at the top of the street and was 3 feet wide at the bottom. He estimated the depth to be 15 to 16 feet. He stated that there was no shoring and no ladder was in the trench. Egress and ingress was accomplished at the sloped end of the trench where the trench had been filled in. He testified further that one side of the trench caved in covering a fellow employee. The hole where the dirt came from was estimated to be an area 2 to 2 1/2 feet deep, 9 feet long.
Mr. Harold Davis, stated that he was an employee of M.A. Swatek & Company and was employed as a foreman on August 4, 1971 over the crew at the Northeast 10th Street and Sunny Lane Road job site. He stated that there was a north-south ditch cut across Northeast 10th Street measuring 21 to 22 feet at the top, about 18 feet deep and 30 to 32 inches wide at the bottom. He stated there was about a 3 foot bench on each side and then about 15 feet of slope on each side. The soil was a mixture of clay and sand, part of which was thought to be backfill for the roadbed. He stated there was no ladder in the ditch and no shoring. Further, that as the ditch was dug, the soil was placed about 20 feet away from the ditch on the west side. He stated that he was not at the site until just after the cave-in occurred. He stated the cave-in came from the west side, about three feet from under the asphalt or pavement. Upon cross examination by Mr. Swatek, Mr. Davis stated that he was familiar with the State Safety requirements for digging ditches but was not familiar with any Federal Safety requirements at the time the ditch in question was dug. As far as he knew, he complied with the State requirements. Mr. Davis stated further that he had benched down 3 or 4 feet to the normal ground level before digging deeper. The slope was down to the top of the pipe (24 inch pipe) and the ditch was cut 2 feet deeper for the pipe.
Mr. Cleo Bittle stated that he was the superintendent of the Sewer Department for Del City, Oklahoma and was inspecting the job in question on August 4, 1971. He stated that he was standing on the east side of the ditch looking west and down into the ditch when the cave-in occurred. It was his opinion that the ditch was 17 to 18 feet at the top and had a depth of 18 1/2 feet to the flow line (the bottom of the ditch was 2 inches deeper). He stated that the cave-in started on the south end and started peeling to the north and the cave-in got bigger as it peeled northward. He stated that the employee in the ditch started running north when he was alerted to the cave-in and ran into the biggest part of the cave-in. He stated also that there was no shoring and no ladder in the ditch but that there was a ladder on the north side of Northeast 10th Street. He stated that the soil before the cave-in looked like natural sand but that after the cave-in, it looked like a mixture of clay and sand.
Mr. Robert A. Griffin stated that he was employed as a Compliance Safety and Health Officer by the Occupational Safety and Health Administration of the Department of Labor. His education and experience revealed that he is a graduate engineer with a degree in ceramic engineering which was received from the University of Texas in 1961. His work experience in both civilian and military endeavors has been primarily that of a safety engineer. He was licensed as a Registered Professional Engineer by the State of Texas in October 1969. He was employed in his present capacity on May 22, 1971. Mr. Griffin stated that he was familiar with the technique for determining the angle of repose. "Angle of repose" was defined as the greatest angle above the horizontal plane which material will lie without sliding. He stated that he had heard the testimony of the previous witnesses regarding the dimensions of the ditch in question and had made certain computations in determining the proper angle of repose. His computations were based on a ditch 19 feet across at the top of the ditch with a depth of 17 feet and a width of 3 feet at the bottom. He stated that such a ditch would have an angle of repose of 64 degrees and 48 minutes. He stated that with average soil, a ditch 17 feet deep would need a width of 37 feet at the top of the cut, to produce a safe angle of repose. He stated that in his opinion, the soil at the ditch in question would be similar to compacted sharp sand and to produce a safe angle of repose in such soil, a cut at the top of 54 feet would be needed. He stated that his computations were based upon the Federal Standards. (The Standards are presently in effect but were not on August 4, 1971). Upon cross examination by Mr. Smith, Mr. Griffin stated that he did not consider the fact that the ditch had been benched down about 4 feet at the top before the slope began, nor did he consider the fact that the slope went only to the top of the pipe and that the bottom of the ditch would be an additional 2 feet. He stated that he computed the angle of repose by the Federal Standards, which require computation from the top of the surface to the bottom of the ditch.
Mr. James Knorpp stated that he was employed as the Area Director of the Occupational Safety and Health Administration of the Department of Labor. He is charged with enforcement responsibilities under the Occupational Safety and Health Act in Oklahoma and Arkansas. He stated that he was familiar with the facts in the instant case and had reviewed the matter and issued the Citation and proposed penalty of $650. He determined that the instant alleged violation was determined by him to be a serious violation because there was a substantial probability of death or serious physical harm to employees. He stated that the Federal Standards were not in effect but had been printed and were in an interim period awaiting the effective date. He stated further that the alleged violation was not a violation of a specific standard but rather, a violation of the "general duty" clause of the Act. He said that consideration was given to the fact that employees were in the ditch and that the soil condition was such that there was a substantial probability of a cave-in. Also that egress facilities were inadequate. He stated that flattening out the sides of the ditch, shoring, using a trench shield and placement of a ladder, would have made the area a safer place to work. The absence of these precautionary measures, in his opinion, made the area unsafe and thus a violation of section 5(a)(1) of the Act. Mr. Knorpp stated further that the Act provides for a penalty of $1,000 for a serious violation but that certain adjustments were made to arrive at the proposed penalty. Out of a possible 20 per cent reduction for good faith, the Respondent was given 10 per cent. This was based on the amount of the company's safety program, the extent in which they have an on-going safety program, safety precautions and the attitude of the employer. Out of a possible 10 per cent adjustment for size, the company was given a credit of 5 per cent. This was decided by the theory, the bigger the company, the bigger the penalty, or the smaller the reduction. The compliance manual directed that 5 percent credit should be given companies with from 20 to 100 employees. The last factor was the history of the company with respect to safety violations. Mr. Knorpp stated that since this was the first proceeding against this company, a maximum credit of 20 per cent was given.
Mr. W. K. Swatek testified that he was the President of M.A. Swatek & Company and that his company had always tried to comply to the State safety laws. He stated that he had heard there was a new Federal Law on safety requirements but had not received any information on the new law until the accident on August 4, 1971. Upon cross examination, Mr. Swatek stated that he had received several "Orders" from the State Department of Labor directing that certain measures be taken for the safety of his employees, and that he had complied with the State's Orders. He stated that the Orders were not citations but rather were orders for corrective action to be taken. He stated that an Order was issued by the State Department of Labor on August 3, 1971 (Exhibit H-13) on the job site in question in which it was requested that a ladder be provided for employees in the ditch and that the cut at the top of the ditch be 40 feet wide.
Mr. Olan Smith, Secretary-Treasurer of M.A. Swatek & Company, stated that his company had been very conscious of safety practices for many years. He stated that the company's insurance carrier had written them several times reciting matters about the company's good safety program and further had been given a plaque for an outstanding achievement in the prevention of accidents from December 1967 through December 1970. He stated that regarding the instant case, it appeared at the time that the ditch in question was dug in stable soil and that the slope was proper; but after an accident occurs, it's easy to then say that the soil was unstable and the slope was not proper.
Exhibit H-13 is a copy of a document issued by the Oklahoma Department of Labor following an inspection of the work area in question on August 3, 1971. The corrective action to be taken, as stated by the inspector, reads as follows:
"Provide that all sloping of walls must not be steeper than 1/2' horizontal to 1' vertical for compact soils. Unstable soils must not be steeper than 3/4' horizontal to 1' vertical. Running soils may require sloping to 1' horizontal to 1 vertical (18 1/2+18 1/2+3=40' at top). Provide one ladder for every 100' in length or fraction thereof. Extending from the bottom of trench to 3' above ground."
EVALUATION OF THE EVIDENCE
There is no substantial dispute of the facts in this case. The employees of the Respondent had dug a trench across Northeast 10th Street near Sunny Lane Road, Del City, Oklahoma, for the purpose of laying a sewer line. The testimony of the dimensions of the trench across Northeast 10th Street showed no substantial discrepancies. The testimony of the width of the ditch at the top varied from 17 feet to 22 feet. The testimony of the depth of the ditch varied from 15 feet to 18 1/2 feet. The width of the ditch at the bottom was about 3 feet. The differences of the stated dimensions are of no critical consequence. There was a ladder near the job site but none was in the trench. There was no shoring or other protective devices for the prevention of sliding of the banks. The testimony about the soil condition was in substantial agreement. It was a mixture of sand, clay and fill dirt.
The Respondent has been charged with a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970. This section provides that the employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. This section of the Act is referred to as the "general duty" clause. In order to determine whether there has been a violation of this section, there must be some standard against which the facts can be measured. Certainly a company should not be found in violation of a law if there are no safety guidelines or standards by which it could or should conduct its business or activities. The initial question then is what standard or criteria will be used in determining whether there were recognized hazards at the job site in question.
There were no Federal Standards on August 4, 1971, the date the violation is alleged to have occurred. The Federal Standards had been published in the Federal Register but the effective date was after August 4, 1971. The Federal Standards perhaps would be useful as a guide, but a variation from those standards would not, per se, be determinative of the question of whether or not the Respondent violated the "general duty" clause of the Act. The testimony did not reveal the existence of any other uniform standards which are accepted or recognized nationally. The State of Oklahoma has established certain standards for industrial safety but of course this proceeding is not a proceeding for the violation of a specific State standard. However, absent any Federal Standard or other nationally accepted standard, it is doubtful that a different or more stringent standard than that which has been established by the state in which a company operates, should be used.
The witnesses for the U.S. Department of Labor determined that there had been a violation of the general duty clause based upon the Federal Standards which now exist but which were not effective on August 4, 1971. The witnesses were not familiar enough with the Oklahoma Safety Standards to determine whether there was a violation under those standards. The witnesses for the Respondent stated they thought the ditch in question did conform to the State requirements. However, on August 3, 1971, the day before the cave-in, an inspector for Oklahoma Department of Labor issued an "Order" with respect to the work at Northeast 10th Street and Sunny Lane Road, directing that a ladder be provided and directed further that the sloping of the banks be no steeper than one-half foot horizontal to one foot of vertical distance for compact soil. For unstable soil, the inspector provided a horizontal distance of three-fourths foot for one foot vertical and for running soils, one foot horizontal to one foot vertical. The computation of the inspector's "Order" indicates that the cut should be 40 feet wide at the top of the ditch. This width is approximately the same width the U.S. Department of Labor contends would give a safe angle of repose for average soils. It appears then that these banks of the ditch in question were too steep and constituted a hazardous condition when gauged by either the State or Federal Standards. The record is clear that a violation occurred by the absence of a ladder in the ditch and no further discussion is needed in this respect.
Since a hazardous condition existed by reason of steep banks of the ditch and no ladder being provided, the Respondent clearly has violated section 5(a)(1) of the Act. This conclusion is reached without considering the fact that a cave-in did occur on August 4, 1971, causing an accident to an employee. Section 5(a)(1) of the Act requires the employer to provide a place of employment free from recognized hazards which are causing or likely to cause death or serious physical harm to the employees. This instant place of employment was not free from such recognized hazards.
The remaining question is the amount of the penalty which sould be imposed. The U.S. Department of Labor has proposed a penalty of $650 of a maximum penalty of $1,000. The reduction from the maximum penalty was arrived by making adjustments for good faith, size of company and history of safety violations. These adjustment factors have been established by internal guidelines and probably are necessary for the uniform application of penalties. The Respondent was given a 10 percent adjustment for good faith out of a possible 20 percent. The record does not reflect lack of good faith on the part of the Respondent. The Respondent apparently emphasizes safety practices in its operations and the management personnel appear to have a vital interest in safety practices and training for the employees. The Respondent has been issued various "Orders" by the State Department of Labor but according to the testimony, these orders are for corrective action to be taken on specific job sites. There is insufficient evidence to establish lack of good faith and it appears that the full credit of 20 percent should be given for this factor. The adjustment for size of company and history of safety violations appear to be appropriate. It thus appears the maximum penalty of $1,000 should be reduced to $550 after considering the additional 10 percent adjustment for good faith.
FINDINGS AND CONCLUSIONS
The Hearing Examiner has carefully considered the entire record in this case, and based upon the credible evidence, makes the following findings and conclusions:
1. That M.A. Swatek & Company is a corporation, organized and doing business in the State of Oklahoma.
2. The M.A. Swatek & Company is engaged in the business of installing utility lines and incidental paving construction, an industry affecting interstate commerce.
3. That M.A. Swatek & Company is an employer as defined by the Occupational Safety and Health Act of 1970.
4. That on August 4, 1971, M.A. Swatek & Company caused to be dug an open trench or ditch across Northeast 10th Street near Sunny Lane Road, Del City, Oklahoma; that the approximate dimensions of said trench or ditch were 19 feet wide at the top, 17 feet deep and 3 feet wide at the bottom; that the soil through which the trench was dug was a mixture of sand, clay and fill dirt; that no protective equipment was used to keep the banks from sliding and no ladder was in the ditch.
5. That employees were working in said ditch and said place of employment was not free from recognized hazards likely to cause death or serious physical harm to employees.
6. That the existence of such conditions on August 4, 1971 constituted a serious violation of the provisions of section 5(a)(1) of the Occupational Safety and Health Act of 1970.
DECISION
It is the decision of the Hearing Examiner that on August 4, 1971, M.A. Swatek & Company violated Section 5(a)(1) of the Occupational Safety and Health Act of 1970, and that a penalty of $550 should be and the same is hereby assessed.