DEVENPORT BROTHERS, INC.

OSHRC Docket No. 3705

Occupational Safety and Health Review Commission

February 10, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Ben D. Worecester dated February 14, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

The respondent was cited under the Occupational Safety and Health Act of 1970 n1 for noncompliance with two safety standards promulgated under the Act which are codified in 29 C.F.R. 1926.652(b) and 1926.100(a). The Judge affirmed both charges and assessed a total penalty of $745.00. For the reasons which follow, we affirm the Judge's disposition of the citation but assess a lower penalty.

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

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The Judge found that the respondent caused two of its employees to be exposed to the hazard of serious injury or death while working in a trench more than 5 feet deep which was not shored, braced or sloped; and that these two employees were also in danger of injury from falling objects because they were [*2] not wearing protective head covering. The Judge then concluded that ". . . the Respondent's attitude was revealed by his refusal to take any action to abate the hazards after they were called to his attention [which] fully justifies the assessment of the full amount of the penalty proposed."

Section 666(i) establishes four criteria to be considered by the Commission when assessing a penalty: (1) the size of the employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations. These four criteria cannot always be given equal weight nor can a precise formula rationally be applied for considering each one. Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972).

The record indicates that the Judge did not make his own consideration of these four elements in assessing the penalty. He simply imposed "the full amount of the penalty proposed." This was error. We are compelled, therefore, to examine the record, consider these elements and assess a penalty.

The record reveals that the respondent had no previous violations of the Act. There were two employees in the unshored trench. Neither was [*3] wearing protective headgear. The gravity of the latter offense is slight and, of the former, severe. A trench cave-in could cause death.

Good faith should be determined by a review of the employer's own occupational safety and health program, its commitment to the objective of assuring safe and healthful working conditions, and its cooperation with other persons and organizations seeking to achieve that objective. Secretary v. Nacirema Operating Co., Inc., supra.

The mere fact that this employer did not immediately order the two employees to cease work when complainant's representative informed the job superntendent of the alleged violations does not establish a lack of good faith. Respondent did not believe that this trench was deep enough to require shoring. n2 Until the matter is adjudicated (as has now happened in this proceeding) the inspector's judgment and that of the employer are entitled to equal weight in determining their good faith. This record does not disclose any other ground which would justify a conclusion that this employer was lacking in good faith.

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n2 If the trench was not five feet deep, the cited safety standard would not apply. Both the employer and one of the two employees working in the trench thought that the depth was less than 5 feet. The employee said he could see over the top while standing in the trench and that he was 5 feet 6 inches in height. The Judge found that the depth "must have been close to 6 feet deep." We have no reason to disturb the Judge's conclusion but we note that the inspector and the employer differed over a matter of a few inches in depth. Surely reasonable men can have a difference of this nature without questioning the good faith of either.

[*4]

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Respondent is a rather small excavating contractor in the City of Bangor, Maine. Its financial statement was admitted into evidence and demonstrates that it is a small business. Congress did not intend a small business to receive a penalty equal to that of a large corporation for the same offense.

Considering the matters discussed above, we conclude that an appropriate penalty for both offenses is $200.00.

So ordered.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent. The record as a whole indicates that the $745 penalty assessed by Judge Worcester is appropriate.

In Nacirema Operating Co., Inc., No. 4 (February 7, 1972) the Commission said:

We believe that the four criteria [in section 17(j)] to be considered in assessing penalties cannot always be given equal weight. Obviously, for example, a particular violation may be so grave as to warrant the assessment of the maximum penalty, even though the employer may rate perfect marks on the other three criteria.

I find the quoted example particularly applicable to the facts of this case.

The uncontradicted testimony and [*5] photographic exhibits show that the gravity of the trenching violation was extremely high. The walls of the trench were vertical and were neither shored, sheeted, nor braced. Their stability was reduced by the fact that they were composed of previously excavated fill, subject to vibrations from nearby vehicular traffic. n3 The evidence clearly establishes that the walls of the trench were wet, as it had been filled with water and had to be pumped out before it could be entered by respondent's employees. Indeed, photographs in evidence show that several large cracks had already appeared in the wall when two of respondent's employees were working in the trench. I would find the above facts establish a violation so grave as to warrant the assessment of a heavy penalty, even though the employer were to rate perfect marks on the other three criteria. Nacirema Operating Co., Inc., supra. n4 But, I also find imperfection on the matter of "good faith."

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n3 See CFR 1926.652(e).

n4 Although I believe that the gravity of the trenching violation is high, giving due consideration to respondent's history of previous violations and size, I would affirm the Judge's assessment.

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Judge Worcester, the presiding officer, observed the demeanor of the witnesses. He expressly rejected respondent's employee's opinion of the trench depth and implicitly concluded that respondent did not in good faith believe that the trench was not in excess of five feet in depth.

Also, respondent did not measure the depth of the trench, nor is there evidence that the inspector's measurements were questioned at the time of inspection. Respondent's insistence on completing the job without taking some precautions against injury or death to its employees had a direct bearing upon a respondent's "commitment to the objective of assuring safe and healthful working conditions . . ." Nacirema Operating Co., Inc., supra. Certainly these actions have substantial bearing on the question of respondent's good faith, or lack of it.

Even if I were to agree with my colleagues that a lack of good faith was not established, I do not consider that any existing good faith on the part of respondent is sufficient to offset the gravity of the violation.

[The Judge's decision referred to herein follows] [*7]

WORCESTER JUDGE: This proceeding arises pursuant to a notice of contest filed by the Respondent, Davenport Brothers, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter called the Act. On June 25, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act. On October 4, 1973, the matter was duly assigned for hearing. It came on to be heard in Portland, Maine, on November 8, 1973.

The Complaint alleged that theere was a serious violation of 29 CFR 1926.652(b) in that the:

Employer failed to shore, sheet, brace, slope, or otherwise support the sides of a trench in unstable or soft material five feet or more in depth.

There was also an allegation of a violation of a non-serious nature of 29 CFR 1926.100(a) in that the:

Employer failed to provide protective helmets to employees in the trench where there was a danger of head injury from falling objects.

A backhoe operator who had been hired by the owner of a gasoline service station to repair a sewer had severed a water line while digging a trench to get to the sewer pipe. The hole [*8] filled with water. The service station owner then called Davenport Brothers, a plumbing contractor, to repair the broken water line. One of the Davenport Brothers arrived a short time later with two plumbers. The water was pumped out of the excavation and Davenport sent two men into it so that the broken pipe could be repaired.

Photographs received in evidence show that the sides of the trench were neither shored nor braced. One of the Respondent's employees named Fowler testified that the excavation was only 4 1/2 to 5 feet wide at the bottom and 10 to 15 feet wide at the top. He said that he could see over the side of the ditch while standing in it and that he was only 5 feet 6 inches tall. If his testimony is to be believed the excavation was not more than 5 feet deep. Even if it were not, if the opening was 10 to 15 feet wide at the top, the sides were sloped enough to make shoring and bracing unnecessary. However, his testimony must be weighed in light of the fact that he has been employed by the Respondent for 20 years and that all of the dimensions he referred to were based upon visual observation. He took no measurements.

When weighed against the testimony of the [*9] Secretary's compliance officer, it is clear that Fowler's description of the trench is inaccurate. The Complainant's investigator took actual measurements. He found that the trench was 8 feet 10 inches deep. It was 4 feet wide on one end and 5 feet wide at the point where he saw the two men working (not 10 to 15 feet wide). The trench was 10 feet long. The witness said that the sides of the trench were vertical, not sloped. He also said that because of the cold winters in the State of Maine the frost line was 5 feet below the surface so that all water pipes were laid below that level. In order to join the break in the water line by means of a union it was necessary to dig even further below the pipe. For that reason the bottom of the trench where the men were working must have been close to 6 feet deep.

The credible, reliable and probative evidence of record shows conclusively that the Respondent caused two of its employees to expose themselves to the hazard of serious injury or death in a trench more than 5 feet deep which was not shored, broaced or sloped; and that these two employees were also in danger of injury from falling objects because they are not wearing [*10] protective head covering and it is so found. The Respondent's contention that an emergency justified the exposure is rejected. The law is clear. Section 5(a) of the Act requires each employer to furnish each of his employees healthful working conditions. There are no exceptions. Moreover, providing protection here would have taken no more than an hour longer. The cost when compared to the value of a human life would have been infinitesimal.

Upon consideration of the foregoing findings of fact it is concluded, as a matter of law, that the Respondent violated Sections 652(b) and 100(a) of Part 1926, Title 29, Code of Federal Regulations as alleged in the Complaint.

Coming now to the proposed penalty, the arbitrary method utilized by the Secretary to determine the amount of an appropriate penalty will be disregarded. However, the Respondent's attitude as revealed by his refusal to take any action to abate the hazards after they were called to his attention fully justifies the assessment of the full amount of penalty proposed.

ORDER

Upon consideration of the foregoing findings and conclusions it is ordered that the citation be affirmed and that the Respondent be assessed a [*11] penalty of $745.00.