F.F. GREEN CONSTRUCTION CO., INC.

OSHRC Docket No. 3728

Occupational Safety and Health Review Commission

April 25, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: An August 6, 1974, decision of Review Commission Judge Henry C. Winters, in a proceeding initiated under the Occupational Safety and Health Act of 1970, n1 is before the Commission for review pursuant to 29 U.S.C. 661(i). Having reviewed the record in its entirety, we find no prejudicial error therein.

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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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We note that in assessing a $900.00 penalty for respondent's serious violation of the Act, the Judge gave considerable weight to the fact that respondent has a history of previous violations n2 as established by Secretary v. F.F. Green Construction Co., Inc., 5 OSAHRC 329 (1973). At the time the Judge issued his decision in the instant case, the citation involved in that former case had become a final order of the Commission, n3 and his consideration of it was therefore appropriate.

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n2 29 U.S.C. 666(i) 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."

n3 December 26, 1973.

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However, at the time of the inspection giving rise to the instant case, the former citation was still under review by the Commission. Despite this fact, complainant relied on the former citation as a basis for its penalty proposal and testified in this regard at the hearing.

Until such time as a citation becomes a final order of the Commission, it is merely an accusation. Any use of it for the purposes of penalty assessment or for any other determination under the Act requiring evidence of an established violation of the Act is improper. See Secretary v. Kesler and Sons Construction Company,

We find that the Judge assessed the $900.00 [*3] penalty independently of the complainant's proposal. That penalty is therefore affirmed.

It is so ORDERED that the decision of the Judge be affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: While agreeing with the lead opinion's disposition of this case, I do not join in its discussion regarding the weight accorded by the Judge to respondent's history of previous violations. Such emphasis is misplaced. The gravity of the serious violation before us on review is of such degree as to outweigh completely any determinations reached with respect to the other section 17(j) penalty factors. See Nacirema Operating Co., No. 4 (February 7, 1972).

This Commission in National Realty & Constr. Co., Inc., No. 85 (September 6, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973) held:

In determining the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

In this case, F. F. Green, respondent, was engaged in the installation of a water [*4] main and, for this purpose, dug a trench. The trench was several hundred feet long and approximately 11 1/2 feet deep. The soil, in the area of the trench where at least two of respondent's employees were working, was composed of sandy and unstable material. The trench was neither shored nor sloped to the proper angle of repose. This already dangerous situation was made even more hazardous by the wet weather conditions existing at the time.

Judge Winters affirmed the Secretary's citation for serious violation of the Act for respondent's non-compliance with the standard at 29 CFR 1926.652(b) n4 and, based primarily on respondent's history of previous violations, found the $900 penalty proposed by complainant to be appropriate.

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n4 The standard provides in pertinent part as follows:

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.

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Applying the elements of gravity found in National Realty to the facts before us, I would find, unlike the Judge and the lead opinion, that such conditions exhibit a high degree of gravity and that such gravity, in and of itself, is sufficient to sustain a proposed penalty of $900.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE: This is an action under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq ) to affirm two citations and proposed penalties totalling $1,125.00.

The citations were issued June 19, 1973 by the Secretary's area director following an inspection made on May 16, 1973 of a workplace maintained by Respondent in Anchorage, Alaska where it was engaged in construction work in the installation of a water main.

By notice of contest in the form of a letter dated July 13, 1973 the Respondent contested the "citation issued June 19, 1973." The notice of contest was properly construed by the Secretary as contesting both citations and all proposed penalties.

The case was heard by this Judge at Anchorage, Alaska on October 18, 1973.

The following is a description of the [*6] serious violation as alleged in Citation for Serious Violation Number 1, the language of the standard allegedly violated, and the penalty proposed by the Secretary.

Description of Alleged Violation -- Standard Allegedly Violated -- Proposed Penalty

May 16, 1973 -- Failure to shore, sheet, brace, slope to angle of repose, or otherwise protect employees working in an open trench more than five feet deep and more than eight feet long in nonhomogenous soils. -- 29 CFR 1926.652 Specific trenching requirements (b) Sides of trenches in unstable or soft material, five 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). -- $900.00

The following is a description of the non-serious violations as alleged in Citation Number 1, the language of the standards allegedly violated, and the proposed penalties:

Item No. -- Description of Alleged Violation -- Standard Allegedly Violated -- Proposed Penalty

1 -- May 16, 1973 Failure to provide a ladder, or steps, in a trench more than four feet deep, when employees [*7] are working in trench and located so as to require no more than 25 feet of lateral travel. -- 29 CFR 1926.652 Specific trenching requirements. (h) When employees are required to be in trenches four 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. -- $225.00

2 -- May 16, 1973 Failure to provide approved metal safety can for the storage and handling of flammable liquids. -- 29 CFR 1926.152 Flammable and combustible liquids.

(a) General requirements. (1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids. -- $0.

DISCUSSION

The Serious Violation [*8]

With respect to the alleged serious violation, there is a conflict in evidence as to the compactness of the soil making up the sides of the trench in which two employees of Respondent were working. The compliance officer, who made the inspection, described the soil as unstable or soft. The Respondent's official in charge of the construction project described the soil as hard and compact. Although it is a close question, this Judge has resolved the conflict by finding that the soil in the particular part of the trench where the employees were working at the time of the inspection was unstable or soft. The Judge has taken into consideration the fact that it was raining at the time of the inspection which occurred in the afternoon, and it had been raining all morning. Thus, the provisions of subparagraph (b) of 29 CFR 1926.652 rather than of subparagraph (c) of such section are applicable. The sides of the trench are required to be shored, sloped or otherwise supported.

The involved trench was several hundred feet long. Its other dimensions varied at points along its length. At the point where the employees were observed working, it was approximately eleven and a half [*9] feet deep, was about four feet wide at the bottom and twelve feet wide at the top. From the bottom up, the sidewalls were practically vertical for some distance and then sloped gradually out to ground level. There is a sharp conflict in the testimony as to the height of the vertical wall. The compliance officer estimated it to be about eight feet. Respondent's official in charge estimated it to be about four feet. The compliance officer took no photographs of the exact place in the trench where employees were observed. Photographs of adjacent parts of the trench (Secretary's Exhibits 1, 2, 3 and 4) tend to indicate that the estimate of Respondent's official is more accurate. The contour of the sidewalls is an important element in determining the gravity of the violation. It is significant that one of the employees working in the trench was the son of Respondent's responsible official.

This Judge had no difficulty in concluding that in the event of a cave-in there is a substantial probability that the employees in the trench would be seriously injured or killed. The violation, therefore, is a "serious" violation as defined in Section 17(k) of the Act.

While not agreeing [*10] with the Secretary's area director's appraisal of the extremely high gravity of the offense nor with his method of computation of the proposed penalty, this Judge concludes that the proposed penalty of $900.00 for the violation of 29 CFR 1926.652(b) is appropriate, taking into consideration the relatively small size of Respondent, that the gravity of the offense is not low, that the Respondent has an adverse past history with respect to this particular type of violation, and that as to this particular violation it has not acted in complete good faith.

At the time of the instant inspection, there was pending before this Commission against Respondent another case (Docket No. 1015) arising out of a prior inspection on April 19, 1972, and involving among others an alleged violation of the trenching standard 29 CFR 1926.652(b), the same as is here involved. Judge Mitchell's decision in such Docket No. 1015, rendered March 14, 1973 and finding that, among other violations, Respondent had violated such trenching standard, was taken under review by this Commission and such violation had not been affirmed at the time of the instant inspection on May 16, 1973. Respondent's general [*11] manager at the time of the instant inspection, who was in charge of the construction of the trench, was not aware of the prior citation nor of Judge Mitchell's decision. It reflects adversely upon the good faith of Respondent that those officials who were aware of the prior citation and adverse decision did not call such matters to the attention of a new officer coming into the business.

The Non-Serious Violation

The evidence clearly establishes the violations alleged at item Nos. 1 and 2 of Citation Number 1.

As to item No. 1, Respondent failed to provide in the above-described trench an adequate means of exit so located as to require no more than 25 feet of lateral travel, in violation of 29 CFR 1926.652(h). Respondent had two ladders in the immediate area of the trench. One was in the trench; the other, adjacent to the trench at ground level. As the two employees in the trench would put in a new section of pipe and move along in the trench, they would move the ladder with them. At the time of the inspection, however, they had neglected to move the ladder to a point within the required distance of their work station and a violation resulted. Respondent's responsible [*12] official should have exercised closer supervision to ensure that the ladder was within the required proximity of the employees in the trench at all times.

The area director proposed a penalty of $225.00 for item No. 1. Taking into consideration the four criteria of Section 17(j) of the Act, and considering particularly the low gravity of the offense described in item No. 1, this Judge concludes that no monetary penalty is appropriate.

As to item No. 2, Respondent failed to provide an approved metal safety can for the temporary outdoor storage of a few gallons of mixture of gasoline and oil, in violation of 29 CFR 1926.152(a)(1). This Judge agrees with the proposal of the area director that under the pertinent criteria no penalty should be assessed for this violation. At the time of the instant inspection, there were no safety cans available to Respondent in Anchorage. Respondent should be required to correct this violation immediately if it has not already done so.

FINDINGS

In consideration of all of the evidence of record, and of the briefs submitted by the parties, the Judge makes and enters the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. At [*13] all times herein pertinent, Respondent, a corporation maintaining offices in Anchorage, Alaska, was and is engaged in a business affecting commerce within the meaning of Section 3 of the Act;

2. On May 16, 1973 at a worksite in Anchorage, Alaska, the Respondent failed to comply with standards promulgated by the Secretary, in the following respects:

a) Respondent failed to shore, sheet, brace, slope to angle of repose or otherwise protect employees working in an open trench more than five feet deep and more than eight feet long in nonhomogenous soils, contrary to the provisions of 29 CFR 1926.652(b);

b) Respondent failed to provide adequate exit in a trench more than four feet deep, when employees are working in trench and located so as to require no more than 25 feet of lateral travel, contrary to 29 CFR 1926.652(h); and

c) Respondent failed to provide approved metal safety can for the storage and handling of flammable liquids, contrary to 29 CFR 1926.152(a)(1).

3. With respect to the instance of noncompliance described in paragraph 2(a) above, there is a substantial probability that death or serious injury could result from the described conditions.

4. The instances [*14] of noncompliance described in paragraphs 2(b) and (c) above had a direct and immediate relationship to safety and health but were not of a serious nature.

5. The instance of noncompliance described in paragraph 2(a) above is neither of an extremely high level of gravity nor of an extremely low level of gravity.

6. The instances of noncompliance described in paragraphs 2(a) and (b) above are of a relatively low level of gravity.

7. At all times herein pertinent, Respondent acted in good faith except to the extent that its responsible officials failed to notify a newly hired general manager of a citation issued by the Secretary against Respondent as a result of an inspection on April 24, 1972 and of the related pending proceedings in Docket No. 1015.

8. The Respondent has an adverse past history of violation as described in the decision of Judge Mitchell, issued March 14, 1973 in Docket No. 1015, as modified by the decision of this Commission issued in such docket on November 26, 1973.

9. The size of Respondent's business is relatively small.

10. The instance of noncompliance described in paragraph 2(c) above should be corrected by Respondent immediately; the other violation [*15] having already been corrected.

11. Considering the criteria of Section 17(j) of the Act, the following civil penalties are appropiate:

For the instance of noncompliance with 29 CFR 1926.652(b), the sum of $900.00;

For the instances of noncompliance with 29 CFR 1926.652(h) and 29 CFR 1926.152(a)(1), none.

CONCLUSIONS OF LAW

1. This Commission has jurisdiction of the parties and of the subject matter of this case.

2. The instance of noncompliance referred to in paragraph 2(a) of Findings of Fact constitutes a serious violation of a standard promulgated pursuant to section 6 of the Act and subjects the Respondent to assessment of a mandatory civil penalty, as provided in section 17(b) of the Act.

3. The instances of noncompliance referred to in paragraphs 2(b) and (c) of Findings of Fact constitute non-serious violations of standards promulgated pursuant to section 6 of the Act and subject Respondent to assessment of discretionary civil penalties, as provided in section 17(c) of the Act.

4. The civil penalties found in paragraph 11 of Findings of Fact to be appropriate are lawful and should be imposed.

ORDER

In view of the foregoing Findings of Fact and Conclusions [*16] of Law, it is ORDERED:

(1) Citation for Serious Violation Number 1, issued June 19, 1973, and Citation Number 1, issued June 19, 1973, be and they are hereby affirmed; and

(2) The Respondent be and it is hereby assessed a civil penalty of $900.00 for the violation as described in Citation for Serious Violation Number 1.