LIGE DICKSON COMPANY

OSHRC Docket No. 3607

Occupational Safety and Health Review Commission

January 23, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

William B. Dickson, President, Lige Dickson Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case involves two citations alleging that Respondent violated the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).   The first citation alleged a serious violation of 29 C.F.R. 1926.652(b) in that Respondent failed to shore or adequately slope segments of two trenches dug in soft or unstable material.   The second citation alleged a nonserious violation of 29 C.F.R. 1926.652(h) in that Respondent failed to provide adequate means of exit from the two trenches. The administrative law judge affirmed the two citations, assessing a penalty of $100 for the serious violation and no penalty for the nonserious. His decision was based on the evidence of record.

Review was thereafter ordered on the following issue by Commissioner Moran.

Was there sufficient evidence of record to sustain the Judge's finding that the respondent violated the Act as alleged in the citation?

Neither party petitioned for review.

Thereafter, Complainant requested summary affirmance.   [*2]   He noted Respondent's failure to petition for review and that the only issue on review is factual.   Respondent did not brief the issue on review.

In the circumstances, and for the reason that the Judge's report is fully supported by the record, we affirm and adopt the report as our decision.   It is so ORDERED.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

Judge Mitchell correctly decided this case, and I join with my colleagues in affirming that decision.   In order that the full text of his decision may be known, I attach the same hereto as Appendix A.

Appendix A

DECISION AND ORDER

Mrs. Jane Ann McKenzie, for Complainant

William B. Dickson, President of Lige Dickson Company, for Respondent

STATEMENT OF THE CASE

Jerry W. Mitchell, Judge.

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq.) contesting Citations issued by the Secretary or Labor (Complainant) against Lige Dickson Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "Dewatering trench cuts" located adjacent to the Pan Pacific Log Storage Yard, Port of Tacoma, was inspected [*3]   on May 18, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of Complainant.   During the inspection alleged violations of 2 specific safety standards were noted.   As a result of the inspection, Citation for Serious Violation 1 (2 sub-Items) and Citation 1 (Nonsarious; 2 sub-Items) were issued on May 23rd.   The standards allegedly violated were duly promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1926.

The alleged Violations are described in the respective Citations as follows with the standard allegedly violated quoted thereafter:

Citation for Serious Violation - 29 CFR 1926.652(b) -

"Failure to shore or adequately slope the sides of the de-watering trenches in unstable or soft material in the following two instances:

1.   The 10 foot sides of the third cut south of the Hylebras Waterway is inadequately sloped and not shored on its extreme west end where it passes through the old earthen dike.

2.   The 9 foot sides of the fourth cut south of the Hylebras Waterway is inadequately sloped and not shored on extreme west end where it passes through the old earthen dike."

Citation [*4]   (Nonserious Violation) - 29 CFR 1926.652(h) -

"Failure to provide an adequate means of exit, such as a ladder or steps (and so located as to require no more than 25 feet of lateral travel) for the laborer required to post survey markers and clear a water passageway at the bottom of trenches in the following two instances:

1.   The third trench cut south of the Hylegras(sic) Waterway near the extreme west end in the area of the old earthen dike.

2.   The fourth trench cut south of the Hylebras Waterway."

ABATE (Each Citation) - "Immediately upon receipt of this citation."

Standard -

"Subpart P - Excavations, Trenching, and Shoring

* * *

1926.652 Specific trenching requirements.

* * *

(b) 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).

* * *

(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel."   [*5]  

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a Notification of Proposed Penalty dated May 23, 1973 of the proposal to assess a penalty of $650 in connection with Citation for Serious Violation 1 and $65 in connection with Citation 1 (Nonserious).   Following a meeting between Complainant and Respondent, an Amendment to Notification of Proposed Penalty was issued on June 13th reducing the penalties to $600 and $0, respectively.   In a timely manner Respondent filed a letter contesting the alleged violations and the penalties.   A complaint was duly filed and was generally denied by a letter from Respondent.   Complainant subsequently filed two separate Requests for Admissions with Request No. 1 containing 3 requests for admissions and Request No. 2 containing 37 requests.   These requests were duly responded to by Respondent.   Trial was initially noticed for March 28, 1974 and subsequently continued to April 30th at Complainant's request.   Trial was held at Seattle on April 30th.

PROCEEDINGS AND EVIDENCE

When the trial convened Complainant was represented by legal counsel and Respondent by its owner who is not an attorney.   [*6]   There was no appearance by or on behalf of Respondent's employees even though all notices had been posted and the employees' Union had been notified of the date, time and place of trial.

In a discussion preliminary to the presentation of evidence the parties agreed that both Citations and the accompanying penalties were contested.   Respondent admits jurisdiction in its responses to Complainant's Request for Admissions No. 1 and also admits jurisdiction on the record.   In a series of stipulations made on the record the parties agreed that on May 18, 1973 Respondent was dewatering an area at Tacoma, Washington where 4 dewatering trenches had been completed.   Two employees were identified as being at the worksite and it was stipulated that one of the employees traveled the full length of the trenches, manually smoothing out the bottom so that water could flow freely through the trenches. The parties also stipulated that the trenches were at least 100 yards, and not more than 250 yards long.   At the conclusion of this discussion Complainant moved to amend the Amended Notice of Penalty issued in connection with citation for Serious Violation 1 so as to reduce the proposed penalty from [*7]   $600 to $500.   The motion was granted.

The Compliance Safety and Health Officer (CSHO) was called as Complainant's only witness.   He describes his May 18, 1973 inspection of Respondent's worksite on the tidal flats at the Port of Tacoma facilities.   One of Respondent's foremen was working at the site along with three of Respondent's employees.   Four (4) dewatering trenches had been completed at the time of the inspection. Some of Respondent's employees were observed working in Trenches 3 and 4.   He describes the consistency of the soil composing the tidal flat in which the trenches were excavated and identifies the trenches as "live trenches" with the sides oozing. In the view of this witness the trenches were not properly sloped at any point along their length, even though much of that length was sloped at a ratio of 1 to 1.   Respondent was only cited for violations involving short portions of Trenches 3 and 4 where he could measure the width and depth and substantiate the violation with certainty.   The depth and width measurements were obtained with the assistance of Respondent's foreman, who also concurred in the resulting measurements. The sides of the cited portions were   [*8]   crumbling in spots and were oozing water. The foreman expressed the feeling that the soil had reached its natural angle of repose.   There were no ladders or steps in any of the trenches. One employee was observed exiting from Trench 3 by scrambling up the side in a manner considered unsafe by this witness.

Respondent, William Dickson, was sworn and testified in a narrative manner as well as in response to cross-examination and questions from the Court.   He describes his background with the goal of establishing his veracity.   That background is impressive.   He states that his firm received a rebate of $8,000 of insurance premiums from its insurance carrier for the year preceding the inspection because of its excellent safety record.   He learned of the inspection from his foreman but did not consider it as anything serious until later -- apparently when he received the Citations.   At that time the witness and his foreman went to the site and obtained some measurements of the trenches as well as some photographs of the areas cited as dangerous.   This visit was about a month after the inspection. He insists that the trenches had not been re-dug of changed in any way from the day of [*9]   the inspection. The measurements of the dangerous areas of the trenches at the time of this visit showed them to be 22 feet wide at the top where they passed through the berm area.   Other areas along their length were as much as 35 feet wide. He disagrees with the widths stated by the CSHO but admits that his foreman told him that he, the foreman, assisted the CSHO in obtaining the widths. The foreman did not state what the widths obtained were, however.   This witness states that they have daily safety meetings with all of their superintendents at which time they discuss the dangers involved on the various jobs.   He admits that there were no ladders at the worksite until after the CSHO suggested that they should have some.

Complainant recalled the CSHO as a rebuttal witness.   He states that Respondent's foreman told him that one of Respondent's employees had been in Trench 3 on the day of the inspection and that he observed an employee working in Trench 4 on the day before the actual day of the inspection. He reaffirms the measurements obtained and states that Respondent's foreman agreed that the trenches were too narrow and stated that they would move the backhoe to the area [*10]   and widen the trenches "right now".

Following this testimony Respondent's photographs were admitted to show that abatement had occurred.   Respondent's argument that the CSHO had not cited other worksites nearby which he, Respondent, considered to be in flagrant violation, was rejected.

DISCUSSION

Jurisdiction

Jurisdiction has been conceded in this instance by Respondent's response admitting Complainant's Request for Admissions No. 1.   Respondent also admitted jurisdiction in open hearing.

The Citation for Serious Violation

The serious Citation alleges that Respondent failed to shore or adequately slope the sides of portions of two dewatering trenches excavated in unstable or soft material.   The evidence establishes that the trenches were located in a tidal flat that had been filled with dredged material.   The soil was "mostly a sandy clay, very wet, refill material".   There was some loam mixed in with the sand.   The trenches are described as being "live trenches" with the lower portions of the sides oozing. Water was seeping from the sides and they were crumbling in spots.   The top and bottom widths and the depths were measured by the CSHO with the assistance of Respondent's [*11]   foreman. These measurements for each of the cited areas show that the trenches did not meet the requirements of 29 CFR 1926.652(b).   The sloping in the cited areas was at a ratio of 1/2 to at best.   The type of soil and the wet conditions existing require sloping at a ratio of 1 to 1 as a minimum.   The cited portions did not meet this requirement.   No shoring was present in the trenches and there is no claim by Respondent that any was in use.   Under these circumstances the only conclusion possible is that the portions of the two trenches cited did not meet the requirements of the cited safety standard. Respondent was in violation of the standard and Respondent's employees were exposed to the existing danger.

The Violation was Serious

Under Section 17(k) of the Act a violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition -- in this case the steep, unshored sides of the two trenches. It is not necessary that there be a substantial probability of an accident occurring because of the existing hazard -- only that there be a substantial probability that if an accident does occur the resulting injury will [*12]   be serious in nature.   See Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, 1325 (1973).

In this instance there can be little doubt of the consequences if one of Respondent's employees was working in the bottom of a trench, in the manner stipulated by the parties, when one of the sides caved in.   The possibility of such a cave-in is greatly increased by the circumstances existing here where the soil is extremely wet and the lower portions of the sides of the trenches are oozing and are seeping water. It is very likely than an employee in such a position would be trapped and buried.   The wet and muddy bottom of the trench would make it most difficult, if not impossible, for such an employee to move fast enough to escape.

The requirement that the employer knew or should have known of violation is satisfied in this instance through the presence of Respondent's foreman at the worksite. Respondent must be charged with knowledge of the condition since it was obvious and the wetness was exactly the condition to be expected from the purpose for which the trenches were excavated.   [*13]   The dangerous conditions should have alerted Respondent and his foreman to the violation.   Considering all of these conditions as they existed at the time of the inspection leads to the conclusion that the violation was serious.

Appropriate Penalty

Complainant originally proposed that a penalty of $650 be assessed in connection with this violation.   That proposal was twice reduced so that at the conclusion of the trial Complainant was proposing that a penalty of $500 be assessed.   Even though Respondent admitted in response to request 11 of Complainant's Request for Admissions No. 2 that a penalty of $600 was appropriate in this instance, the appropriateness of the penalty must be determined after due consideration of the criteria set forth in Section 17(j) of the Act.   It is obvious that $600 is inappropriate since Complainant subsequently moved to reduce that amount to $500.   Section 17(j) requires that consideration be given to the size of Respondent's business, Respondent's history of prior violations, Respondent's good faith and the gravity of the violation.

1.   Size of Respondent's business -- Respondent employs about 100 employees, but only 4 of them were involved in work [*14]   at the inspected worksite. Respondent's business is fairly large, doing a business of about $5 million in the year preceding the inspection.

2.   History -- There is no evidence of any prior inspection of Respondent's worksite.

3.   Good faith -- Respondent has a daily safety meeting with the job superintendents each morning at which they discuss safety at the various job sites. The evidence establishes that Respondent apparently performed additional excavation work in the trenches following the inspection and thereby brought them into compliance.   The CSHO testifies that Respondent's foreman stated that they would immediatly bring the backhoe to the site and widen both trenches. The photographs introduced by Respondent as having been taken a month after the inspection show that the trenches have been widened and sloped at a better angle.   This evidence overcomes Respondent's insistence that no change had been made in the trenches between the time of the inspection and a month later when he took the photographs introduced into evidence.

4.   Gravity -- The gravity here is rather low even though the violation is serious.   It appears that only one of the employees entered the trenches [*15]   and worked in the bottom. That employee only moved through the trench once to manually clear any obstructions so that the water would not back up.   Exposure is thus minimal.

Giving due consideration to the foregoing criteria in the light of the circumstances established here it is concluded that a penalty of $100 is appropriate and will effectuate the purposes of the Act.

The Nonserious Citation

This Citation alleges that Respondent failed to provide an adequate means of exit from Trenches 3 and 4.   Under the cited safety standard an adequate means of exit, such as steps or a ladder, must be furnished to employees who are required to work in trenches which are more than 4 feet deep. The evidence here establishes the depth of the trenches involved as 10 and 9 feet. Respondent admits that no ladders were present at the worksite until after the CSHO suggested at the inspection that they should be in use.   One employee was observed scrambling up the side of Trench 3 to exit from it.   The CSHO stated that this was a foolhardy way in which to exit from the trench. Under these circumstances it is clear that the cited standard has been violated.   Giving due consideration to the criteria [*16]   contained in Section 17(j) of the Act in the light of the facts of this nonserious violation it is considered that Complainant's proposal of a penalty of $0 is appropriate.

Consequently, based upon the evidence adduced and after full consideration of the briefs, submissions and arguments of the parties, we make the following

FINDINGS OF FACT

1.   On May 18, 1973 and at all times material hereto Respondent, Lige Dickson Company, was an employer maintaining a place of employment at a construction site adjacent to the Pan Pacific Log Storage Yard at Tacoma, Washington.   Four of Respondent's employees were excavating "dewatering trenches" at that site. Respondent is, and at all times mentioned herein was, engaged in a business affecting commerce within the meaning of Section 3 of the Act.   (Transcript pages 9 and 42 and Exhibit J-1.)

2.   On May 18, 1973 a Compliance Safety and Health Officer (CSHO) inspected Respondent's workplace at Tacoma, Washington.   As a result of that inspection Citation for Serious Violation 1 (2 sub-Items) and Citation 1 (Nonserious, 2 sub-Items) were issued on May 23rd.   A Notification of Proposed Penalty was also issued to Respondent on the same date.   [*17]   Penalties of $650 and $65 were proposed for the respective violations.   Following a meeting between Respondent and Complainant's representatives, an amendment to the Notification reduced the proposed penalties to $600 and $0.   Respondent contested the alleged violations and proposed penalties by letter of contest dated July 2nd.   The Amended proposed penalties were further reduced to $500 by motion of Complainant made during the trial.   (File and Transcript pages 14-17.)

3.   On May 18th, 4 dewatering trenches had been completed at the worksite. The trenches were parallel and about 100 feet apart.   Each trench was at least 100 yards long.   The trenches were excavated in an area that had once been a tidal flat.   Dredge material had been brought in and dumped to fill the particular area.   The soil was mostly a sandy clay, very wet, refill material with some loam mixed in.   The trenches were "live trenches" with the sides oozing and seeping water. The trenches were excavated by a backhoe with each trench requiring 2 to 3 days to complete.   After the backhoe completed its work one of Respondent's employees manually cleared the bottom of the trench so the water could flow through it.   [*18]   In clearing the bottom of the trenches Respondent's employee traversed the entire length of each trench. (Transcript pages 10-14, 17, 30-31, 37, 58-59, 81-83, 90, 102-106, and Exhibits 1, 3, 4, 5 and 6.)

4.   The portions of Trenches 3 and 4 which were cited are located at the end of the trenches where they pass through the berm (embankment) along the side of the canal into which they empty.   In each case the cited area included the area where the trench passed through the berm.   The cited area of Trench 3 was about 30 feet long, 10 feet deep, 9 to 10 feet wide at the bottom and 19 feet 10 inches wide at the top.   In the cited area the sides were sloped back 5 feet on each side at a ratio of 1/2 to 1.   The sides of the rest of the length of Trench 3 were sloped at a ratio of 1 to 1.   The cited area of Trench 4 was about 20 feet long, 9 feet deep, 9 feet wide at the bottom and 15 feet wide at the top.   In the cited area of Trench 4 the sides were sloped back 3 feet on each side.   The sides of the rest of the length of Trench 4 were sloped at a ratio of 1 to 1.   (Transcript pages 24-27, 34-36, 42-43, 47-49, 62-66, 68-81, 90, 111-113 and Exhibits 2, 3, 4, 5, and 6.)

5.   At least one [*19]   of Respondent's employees worked in the bottom of Trenches 3 and 4 and was exposed to the dangers inherent in the steep unstable sides of the trenches. (Transcript pages 11-12, 44 and 111.)

6.   No ladders or steps were in use in Trenches 3 and 4 on May May 18, 1973.   There were no ladders present at the construction site until after the inspection. (Transcript pages 41-46, 60-61, 105 and Exhibits 2, 3, 4, 5 and 6.)

7.   Respondent employed about 100 employees in its total business and did a business of approximately $5 million in the year preceding the inspection. (Transcript page 96.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1.   At all times material hereto Respondent, Lige Dickson Company, was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970.   On July 2, 1973 Respondent filed a letter contesting the Citations and proposed penalties herein.   Respondent thereby brought itself within the jurisdiction of the Occupational Safety and Health Review Commission.

2.   The absence of any shoring and the failure to adequately slope the sides of   [*20]   Trenches 3 and 4 as found in Finding 4 is a serious violation of the safety standard found at 29 CFR 1926.652(b).

3.   The absence of a ladder or steps in Trenches 3 and 4 as found in Finding 6 is a nonserious violation of the safety standard found at 29 CFR 1926.652(h).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is hereby ORDERED that:

1.   Citation for Serious Violation 1 be, and the same hereby is, AFFIRMED;

2.   The penalty of $500 proposed in connection with Citation for Serious Violation 1 herein be modified to $100 and as so modified be, and the same hereby is, ASSESSED; and that

3.   Citation 1 (Nonserious) and the penalty of $0 proposed in connection therewith be, and the same hereby are, AFFIRMED.

Dated this 8th day of October 1974.

JERRY W. MITCHELL, Judge, OSAHRC