LEONE CONSTRUCTION COMPANY

OSHRC Docket No. 4090

Occupational Safety and Health Review Commission

February 10, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Reg. Sol., USDOL

William J. Cousin, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On April 4, 1974, Administrative Law Judge Joseph L. Chalk issued his decision, vacating an alleged serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] for failure to comply with the standard published at 29 CFR 1926.652(b). n1 The Judge held that respondent was improperly cited under the trenching standard because it had actually dug an excavation covered by the standard published at 29 CFR 1926.651(c). n2

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n1 That standard reads 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. See Tables P-1, P-2 (following paragraph (g) of this section).

n2 That standard provides as follows:

1926.651 Specific excavation requirements.

* * *

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

[*2]

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The Secretary has filed a petition for discretionary review taking exception to those parts of the Judge's decision in which he found:

(1) That respondent was cited under the wrong standard, inasmuch as its employees were working in an excavation rather than a trench, and that, therefore, respondent was not in violation of the Act for failure to comply with 1926.652(b).

(2) That a charge of violating 1926.651(c) is not embraced within a charge of violating 1926.652(b).

(3) That the citation must be vacated because employee exposure to the alleged hazard was (a) isolated and brief (b) unknown to the employer and (c) contrary to uniformly enforced instructions.

In addition, the Secretary argues that, if the respondent were cited under the wrong standard, the citation should be amended pursuant to Rule 15(b), Federal Rules of Civil Procedure and Commission Rule 2(b) to allege a violation of 29 CFR 1926.651(c), and that the citation as amended should be affirmed.

Pursuant to section 12(j) of the Act review was directed on the issues raised by the Secretary's exceptions. Having reviewed the [*3] record, we reverse the Judge and affirm the citation as issued.

Following an inspection of a worksite in Willimantic, Connecticut, where respondent was installing sewer pipe, a citation was issued on July 31, 1973, alleging a serious violation of the Act for failure to comply with the standard published at 1926.652(b). A $700 penalty was proposed.

The inspection was conducted by the Occupational Safety and Health Administration Area Director, who was passing by respondent's worksite when he noticed an employee in the trench. He located the person in charge (Mr. DiCrosta) n3 and requested that the man be removed. The request was complied with immediately. The Area Director continued to talk with the respondent's representative when he noticed that another employee had entered the ditch. Again he requested and obtained the immediate removal of the employee. It was the respondent's testimony that the employees entered the ditch contrary to instructions for the purpose of taking emergency measures to protect work in the trench. The work was endangered by the heavy rainfall that was occurring at the time of the inspection.

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n3 Mr. DiCrosta substituted for Mr. DeMatteo, who was normally the person in charge. During the inspection, Mr. DeMatteo was in a trailer and Mr. DiCrosta identified himself as the foreman.

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The trench involved was 7 feet 5 inches deep, approximately 50 feet long, about 10 feet wide at the top, and within a foot or so of 10 feet at the bottom. Both width and depth varied along the length of the trench. The soil was of a sandy clay mixture with some gravel, and there were signs of cracking and erosion. These were attributed by the Area Director in large part to the heavy rainfall pouring into the trench opening. Before the inspection respondent had removed a trench box so that it could be enlarged to fit the trench, which had recently been widened. At the time of the inspection, therefore, the trench walls were unsupported by bracing, shoring, or any other means.

Raising the classification issue sua sponte, the Judge determined that the cavity was more wide than deep, and was therefore an "excavation" and not a "trench." Accordingly, he vacated the citation [*5] on the ground that respondent had been cited under the wrong standard. The Judge relief heavily on his decision in Tri-County Constructors, Inc., Nos. 3427 & 3568 (January 25, 1974) (Administrative Law Judge). On February 19, 1974, though neither party had petitioned for discretionary review, review was directed of that part of the Judge's disposition in Tri-County dealing with penalty assessment. The Commission did not review that part of the Judge's decision in Tri-County relied upon here. In Tri-County the Judge's decision put forth alternative holdings, of which the Secretary did not complain, and which on their face seemed sufficient standing alone to support the Judge's disposition. On October 19, 1974, we modified the penalty assessed by Judge Chalk in Tri-County, but without discussion of the balance of the Judge's decision.

We therefore note that that part of the Judge's opinion in Tri-County lacking full Commission review does not constitute precedent binding upon us. Our review process is discretionary rather than mandatory. Review of only one part of an Administrative Law Judge's decision should not be read to indicate necessarily a lack [*6] of error in the unreviewed portions. Rather, there may be lack of prejudicial error, a lack of party interest in full review, or a lack of substantial and important questions of law, policy or discretion.

There seems to be some confusion on this point. Our colleague in dissent correctly suggests that by statute an unreviewed Judge's decision is a final order binding upon the parties. But it does not follow from this that every unreviewed Judge's decision necessarily expresses the views of the Commissioners, or is declarative of Commission policy. As already noted, a Judge's decision may not have been reviewed for reasons that do not bear upon the correctness of the decision. That the decision is binding upon the parties does not change this. The Fourth Circuit's opinion, cited by our dissenting colleague, in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1264-66 (4th Cir. 1974) noted, in support of an alternative holding, apparent conflicts between decisions by the Commission and unreviewed decisions of Administrative Law Judges. The Court, however, did not examine closely the Commission's review process, nor did it direct us to accord the unreviewed decisions of our [*7] Administrative Law Judges any particular precedential value.

At the opening of the hearing, the parties stipulated that respondent's employees were "engaged in trenching." Throughout the hearing both parties, the witnesses, and the Judge himself consistently referred to the cavity as a "trench." Under these circumstances, the Judge should not have disturbed the parties' agreement as to the facts of the case. Cf. D. Federico Co., Inc., No. 4395 (February 10, 1976).

Even if the character of the ground opening could properly be considered an issue, the Judge erred. The proper course would have been not notify the parties of this. The Judge should then have requested submissions on the point, and if necessary, he could have re-opened the hearing to take further evidence. See D. Federico, supra, and authorities cited therein. Also, the Judge should have considered the possibility of an amendment of the pleadings pursuant to Fed. R. Civ. P. 15(b), n4 on either his own motion or that of a party. Accordingly, insofar as the Judge relief on his prior decision in Tri-County Constructors, Inc., Nos. 3427 & 3568 (January 25, 1974) (Administrative Law Judge) as [*8] support for his instant holding that citing the wrong standard requires dismissal, that decision is overruled.

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n4 The Federal Rules of Civil Procedure are made applicable to our proceedings by section 12(g) of the Act and Commission Rule 2(b).

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In any event, we would hold that the earth cavity here was a trench. In 29 CFR 1926.653(n) a "trench" is defined as:

A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

Thus, a trench is an excavation, although generally a narrow one. The width-depth guideline is qualified by the phrase "in general." It is not a rigid rule. If the Secretary had intended to exclude from the definition any excavation with a width greater than its depth, he doubtlessly would have said so.

The ditch involved, which was about 10 feet wide, 7 feet 5 inches deep, and 50 feet long, n5 may reasonably be classified as a trench. Further, it has been our experience, of which we [*9] may take note (see E.F. Drew & Co. v. F.T.C., 235 F.2d 735, 741 (2d Cir. 1956), cert. denied 352 U.S. 969 (1957)), that piping is generally laid in a trench as distinguished from an excavation. See e.g., Colorado Pipe Lines, Inc., No. 2805 (March 1, 1974) (Administrative Law Judge), aff'd by the Commission, December 31, 1975. We note also that the respondent's owner testified that he was familiar with the trenching standards, instructed his employees in regard to them, and, that on the day before the inspection, hand supported his ditch with trench boxes. This method of shoring specifically is permitted by 29 CFR 1926.652(k). The respondent clearly regarded the ditch as a trench.

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n5 Certain parts of the ditch were only about six feet wide at the bottom, thus making the ditch deeper than its width at those points. In Sheesley & Winters Constr. Co., No. 6824 (June 24, 1975) we held that, for purposes of determining whether a ditch is a trench or excavation, the ditch is to be measured at the bottom of the ditch.

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At the time of the inspection, respondent was in violation of the cited standard. The trench, dug in unstable soil, was neither shored nor sloped, and rain water was pouring into the trench. The trench was showing signs of cracking and erosion. Respondent has failed to comply with the requirements of 1926.652(b).

We do not accept the Judge's dicta that, in the event that 1926.652(b) is the properly cited standard, as we have found, the citation should be vacated since the violation resulted from an unpreventable, isolated incident of disobedience of respondent's safety instructions. The Commission has held that the isolated event concept, if it exists, is an affirmative defense that must be raised during the formulation of the issues in a case. Mississippi Valley Erection Co., No. 524 (December 26, 1973). The respondent alluded to the short duration of the violation and to the issue of the employer's knowledge in the brief filed with the Judge and at hearing. The issue was raised specifically in its brief on review in support of the Judge's decision.

Thus, whether the issue was properly raised is questionable. [*11] But even if it were, the evidence fails to establish the defense. Employers are not liable under the Act for an individual, single act of an employee which an employer cannot prevent. Cf. Brennan v. O.S.H.R.C. & Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139, (9th Cir. 1975). Employers have, however, an affirmative duty to protect against preventable hazards and preventable hazardous conduct by employees. See, for example, Brennan v. O.S.H.R.C. & Hanovia Lamp, 502 F.2d 946 (3rd. Cir. 1974) and National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). The mere issuance of safety instructions does not satisfy that duty, for employers must also adequately enforce company work rules. Standard Glass Co., Inc., No. 259 (July 27, 1972); Murphy Pacific Marine Salvage Co., No. 2082 (January 13, 1975) (Moran, Chairman, concurring); Pacific Gas & Electric Co., No. 2821 (March 25, 1975). The record shows that Dicrosta, the employee in charge during the inspection, did nothing to remove the first employee from the trench until asked to do so by the Area Director. Further, while talking with the Area Director, [*12] a second employee entered the trench in full view of DiCrosta, who, again, only removed him when requested.

The Area Director testified that when he pointed out the second man, DiCrosta stated that:

I have instructed these people that they shouldn't do that . . . . But what are you going to do . . . . How can I control these people . . . . I am busy taking care of the dismantling of the trench box, and they have work to do.

Thus the evidence establishes not only that respondent failed in its duty to enforce its own safety instructions, but also that it knew of its employees' disobedience. n6 Had respondent effectively supervised and enforced its instructions the exposure of its employees to the hazardous trench could have been prevented. Under these circumstances the violation was not the result of an unpreventable, unknown, isolated act of disobedience. n7

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n6 As respondent's representative on the worksite, the foreman's knowledge and violative acts are imputed to respondent. Floyd Pike, Inc., No. 3069 (January 30, 1975).

n7 Our decision that respondent was properly cited under 29 CFR 1926.652(b) makes it unnecessary for us to rule on the Secretary's exceptions to the Judge's comments regarding the excavation standard at 29 CFR 1926.651(c) or to consider whether the citation should have been amended pursuant to rule 15(b) of the Federal Rules of Civil Procedure.

[*13]

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We hold that the violation was "serious." If the trench had collapsed there was a substantial probability that death or serious injury would have resulted. See Natkin & Co., No. 401 (April 27, 1973). We also find that the violative condition was of a moderately high gravity. Although only two employees were exposed for a brief period, and respondent was in the process of shutting down operations because of the rain, the trench walls were cracked and eroded, their condition being exacerbated by the storm. Thus, there was a substantial probability that the trench could have collapsed while one of the two employees were exposed to the hazard. We also find that respondent is a small business which at the time of the inspection employed only eight persons, and that it has no history of previous violations.

We disagree with the Secretary, however, that respondent should not be afforded credit for good faith. The Area Director believed that at the time of the inspection respondent had removed the trench boxes and discontinued their use, although work remained to be performed in the trench. The [*14] evidence establishes, however, that respondent had removed the trench boxes for the purpose of enlarging them to better fit the trench. Further, respondent's owner testified that he was fomiliar with the OSHA standards, followed them, and tried to impress safety consciousness upon his employees. Under the circumstances, a penalty of $350 is appropriate.

Accordingly, it is ORDERED that the citation is affirmed and a penalty of $350 is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Chalk's decision was correct and should be affirmed. Since there are so many references to it in the foregoing opinion, I shall attach it hereto as Appendix A.

I take vigorous exception to the majority's criticism of Judge Chalk's handling of this case. They seem to have forgotten that the complainant has the burden of establishing that the respondent violated the Act by failing to comply with the cited standard and that neither the Judge nor the Commission is part of the Government's prosecutorial arm. Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973); 29 C.F.R. 2200.73(a). They say that the Judge should have advised the complainant of the deficiency in his proof and permitted [*15] him to correct it. n8 This is so clearly wrong that the source of this concept surely is foreign to our constitutional system of jurisprudence. n9

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n8 The Judge correctly determined that the cavity in question was an excavation, not a trench. My colleagues state that he should not have disturbed the parties' stipulation as to matters of fact. This determination is not, however, factual but legal. Stipulations as to matters of law are not binding on the courts. See Sanford's Estate v. Comm'r of Internal Revenue, 308 U.S. 39 (1939). Although the majority relies heavily on various references to a "trench" that were made during the proceedings, they afford no significance to the fact that the complainant's inspector "continually referred to . . . a ditch." Nevertheless it is not material what word was used to describe this opening in the ground. The critical matter is what it was.

"What's in a name? That which we call a rose by any other name would smell as sweet."

Shakespeare, Romeo and Juliet, Act II, Scene 2.

n9 I suggest that it too could have come from Shakespeare: "I will make a star-chamber matter of it." The Merry Wives of Windsor, Act I, Scene 1.

[*16]

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Additionally, I take exception to the lead opinion's implication, unsupported by any authority, that an unreviewed Judge's decision which has not been overruled by the Commission has no precedential value. If this is intended to imply that no trial judge's decision is entitled to precedential weight, this should be news to the appellate courts which frequently cite such decisions for authority. n10 Furthermore, decisions of Review Commission Judges are entitled to more deference than those of most trail judges because by statute their decisions, until overruled by the Commission, are equivalent in precedential value to decisions rendered by the full Commission. See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1264-1266 (4th Cir. 1974). n11 In this respect, 29 U.S.C. 661(i) provides:

"The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission." (Emphasis added.)

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n10 For example, see Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975) which relied upon - and cited as authority - nine separate decisions of the Commission. Each of the same became a final order of the Commission because the decision of the Administrative Law Judge was never directed for review by any member of the Commission.

n11 The lead opinion takes exception to my citation of this case. Quaere: If an unreviewed Judge's decision has no precedential value, why was the Circuit Court concerned that the Commission decision in Gilles & Cotting was contrary to the holdings in two unreviewed decisions rendered by Commission Judges.

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My colleagues are well aware of the above-cited statute and of the fact that they cannot point to any authority for criticizing the Judge for his reliance on the unreviewed portion of his prior decision. A Commission member has no more insight, wisdom or knowledge than a Judge and neither the statute nor any Court decision accords any more weight to a final order of the Commission [*18] that has become so because of lack of review of the Judge's decision and a final order of the Commission resulting from a unanimous vote of all members of the Commission. To suggest otherwise is, in my opinion, both vainglorious and arrogant.

In this connection, I quote the following from the majority opinion:

". . . Our colleague in dissent correctly suggests that by statute an unreviewed Judge's decision is a final order binding upon the parties. But it does not follow from this that every unreviewed Judge's decision necessarily expresses the views of the Commissioners, or is declarative of Commission policy." (Emphasis supplied.)

Well, so what? The "views" of the individual Commissioners (more correctly: Commission members, see 5 U.S.C. 5315(94)) are judicially meaningless. Only a "decision" n12 of "the Commission" or a "final order" n13 thereof is entitled to judicial deference. A decision or final order can be reached in either of two ways: (1) a decision of an Administrative Law Judge which is not directed for review within 30 days of its issuance, 29 U.S.C. 661(i), and (2) a decision reached by "the affirmative vote of at least two members" of the Commission, [*19] 29 U.S.C. 661(e).

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n12 29 U.S.C. 659 requires that proceedings of the Commission be conducted in accordance with the Administrative Procedure Act. The pertinent provision thereof provides as follows:

"When the agency did not preside at the reception of the evidence, the presiding employee . . . shall initially decide the case . . . . When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is appeal to, or review on motion of, the agency within the time provided by rule." 5 U.S.C. 557(a) (Emphasis supplied.)

n13 The term "final order" or "order" is used in 29 U.S.C. 659, 660, and 661(i). Neither in the statute nor in any court case is there any hint that the methodology by which a final order of the Commission is reached varies the meaning or effect thereof in any way whatsoever.

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"Commission policy," by the same token, is neither a decision or an order or a matter that has any part of the adjudication of cases. [*20] The attempts of Commission members to get into the policy-making business was dealt a deathblow in Madden v. Hodgson, 502 F.2d 278 (9th Cir., 1974), the first appeal ever taken from a decision of this Commission. The Court noted rather acerbicly as follows:

"The Commission says that, like the National Labor Relations Board and the Federal Trade Commission, it develops public policies in its decisions which it may defend in court. The Commission's identification with those agencies is misplaced. Unlike the NLRB and the FTC, it has neither prosecution or enforcement powers. Those have been delegated exclusively to the Secretary [of Labor].

Policy making is arguably a by-product of the Commission's adjudication. But the Act imposes policy-making responsibility upon the Secretary, not the Commission. Whatever 'policies' the Commission establishes are indirect. Only those established by the Secretary are entitled to enforcement in court."

Finally, I would affirm the Judge's decision on the basis that the complainant failed to establish that the respondent possessed the requisite knowledge of the violation. To establish any violation of the Act the complainant must prove [*21] that the respondent knew or, with the exercise of reasonable diligence, should have known of the existence of the condition or practice upon which the alleged violation is based. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973).

Contrary to the evidence, my colleagues find that the respondent knew of its employees' disobedience. A close and careful evaluation of the record, however, does not support such a finding.

The alleged violation occurred as the result of employee disobedience of the standing orders of the respondent's president that trench boxes were to be used at all times. The spontaneous entry of the two employees into the cavity to take emergency action was not foreseeable by the respondent. Moreover, respondent's president had supervised 30 to 40 percent of the work at the worksite and was unaware of prior disobedience of his orders.

The Act requires that "[e]ach employee shall comply with . . . orders issued pursuant" to the Act. 29 U.S.C. 654(b). Obviously, Congress did not contemplate that an employer be held responsible where [*22] a violation results from an employee's willful misconduct in disobeying his employer's direct orders not to do a certain act. n14 This is particularly true in a case such as this where the only endangered employees are those who violated the respondent's express orders. The Commission's contrary holding makes an insurer of the employer, something that was not intended by Congress. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, supra; Secretary v. Standard Glass Company, 1 OSAHRC 594 (1972).

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n14 See the comment of Senator Williams at 116 Congressional Record (Senate) 18250 (November 16, 1970):

". . . I might point out, too, that in order to make clear that achieving the goals of a safe workplace is not a one-sided matter, was added in committed a provision placing upon employees, as well as employers, the obligation to comply with all applicable requirements under the Act."

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There are two other comments in the majority opinion that should not escape notice. Messrs. Barnako and Cleary [*23] state that "it has been our experience" that piping is generally laid in a trench as distinguished from an excavation. The law, however, requires that the decision in each case be "based on finding of fact" - not on the "experiences" of Commission members. 29 U.S.C. 659(c) [emphasis supplied]. In this connection, the following passage is noted from the National Realty case, cited supra:

". . . the Secretary has considerable scope before and during a hearing to alter his pleadings and legal theories. But the Commission cannot make these alterations itself in the face of an empty record. To merit judicial deference, the Commission's expertise must operate upon, not seek to replace, record evidence."

In a footnote to this passage the Court made it clear that

"It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing."

Nevertheless, my colleagues have not only done this in the case presently under consideration but they have gone one step further and criticized the Judge because he didn't take it upon himself to advise the Secretary to make alterations in his legal theory.

The other point in the [*24] majority opinion which requires comment states as follows:

". . . insofar as the Judge relied on his prior decision . . . as support for his instant holding that citing the wrong standard requires dismissal, that decision is overruled" [emphasis in original].

I submit that this holding has far-reaching implications. Actions brought by the Secretary of Labor ought not be dismissed by the Judge, we are told, even if they are brought under the wrong standard. Apparently, we will have to wait and see how my colleagues develop this concept but, on first blush, it appears that if there is any standard under which the employer can be convicted, the Commission will find that standard and convict the employer for violating it. Perhaps another way to state this concept is that if the employer is wrong - convict him. But if the Secretary is wrong (because of "citing the wrong standard") - give him another chance. My horror at the application of such a concept is mollified somewhat when I recall these words spoken by Thomas Jefferson in his first Inaugural Address:

"Equal and exact justice to all men, of whatever state or persuasion . . . and trial by juries impartially selected [*25] - these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages and the brood of our heroes have been devoted to their attainment. They should be the creed of our political faith - the text of civil instruction - the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."

I submit that the Barnako-Cleary road to safety strays radically from the Jeffersonian route. As for me, I'll stick with the latter course.

APPENDIX A

DECISION AND ORDER

Jerrold Solomon, For Complainant

William J. Cousins, For Respondent

Chalk, Judge

Following an inspection of Respondent's worksite in Willimantic, Connecticut on July 26, 1973, where Respondent was installing sewer pipe in a ground opening, the Department of Labor issued a Citation for Serious Violation of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq,) and a Notification of Proposed Penalty on July 31, 1973. Respondent duly filed a Notice of [*26] Contest on August 8, 1973 to the entire enforcement action.

Respondent was charged with not complying with the trenching standard found at 29 CFR 1926.652(b) in the following terms:

Respondent "allowed employees to work in a trench which was more than five (5) feet deep and which was in unstable or soft material without adequately shoring, sheeting, bracing, sloping, or otherwise supporting the sides thereof."

A penalty of $700.00 was proposed by Complainant.

The standard in question imposes the following requirements:

"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)."

The threshold question in this case is whether Complainant correctly charged Respondent with not complying with 29 CFR 1926.652(b). If not, a secondary question is posed, to wit: whether the enforcement action can be sustained.

I

It was stipulated at the hearing that Respondent was a Connecticut corporation that regularly received and handled shipments that had moved across state [*27] lines, that it had eight employees working at the worksite on the day of the inspection, and that it was an employer within the meaning of the Act.

The worksite in this case was inspected by the area director who observed the ground opening, which he continually referred to as a ditch, and an employee therein, as he was driving by in his automobile. After parking his car, he proceeded directly to the area and attempted to locate the individual in charge. After a Mr. DiCrosta appeared and stated that he was in charge, the inspector asked him to remove the man from the ground opening. His request was complied with.

According to the inspector, the ground opening was seven feet, five inches deep by actual measurement, and ten feet wide at the top. The bottom width was within "a foot or so of the same measurement" (Tr. 9). The walls of the opening were verticle, were unsupported by any bracing, shoring, or other means; and, because of the heavy rain at the time, water was pouring into the opening. The soil of the opening was a sandy clay mixture with some gravel and there was evidence of cracking and erosion. Photographs that he took of the opening depict the conditions as he found [*28] them at the time of the inspection (Exs. C-1 through C-6).

After talking to Mr. DiCrosta, the inspector discovered that another employee had entered the opening to his immediate rear. Upon his request, Mr. DiCrosta also removed this individual from the opening. Mr. DiCrosta indicated that the employees had been instructed never to enter the trench as they had on these two occasions.

Because he was aware of trenching fatalities and believed that the possibility of an accident was "great," and that an accident "would be fatal," the inspector considered the violation to be a serious one (Tr. 42). In proposing the penalty, he allowed Respondent a twenty percent reduction for its prior history of no violations and a ten percent reduction for size. He gave Respondent no credit for good faith, because he believed that it had no safety program and had ascertained that it had dismantled a trench box before the work was completed.

Mr. Frank Leone, the president of the corporation and one of its principal owners, testified that he usually was at the worksite daily and had been there the prior workday. A Mr. DeMatteo was the man in charge of the worksite and Mr. DiCrosta usually took [*29] over in his absence. Mr. DeMatteo was in the company's trailer some two blocks away at the time of the inspection. There were two expandable steel trench boxes in use at the site, his standing orders were that the trench boxes were to be used at all times, and he was unaware of any prior employee-violations of his orders. He had personally instructed his employees about trenching standards and told them, albeit incorrectly, that they would be fined by the Department of Labor if they violated these standards. The trench boxes had been in use the prior workday and had been removed from the opening the morning of the inspection to expand them for further use.

Mr. Leone also testified that because of the heavy rain, the worksite was being closed down the morning of the inspection. After being informed of the alleged violation, he determined that the employee in the trench at the time the inspector arrived had entered it briefly, on his own initiative and contrary to the company order, to block the open end of a pipe to prevent debris from washing into it. He was unable to ascertain why the other man disobeyed the order and entered the trench while the inspector was talking to Mr. [*30] DiCrosta.

II

Only recently, in Secretary of Labor v. Warner Brothers, Incorporated, Docket Number 4029, March 26, 1974, I had occasion to observe the vast differences between the requirements of the trenching standard charged in this case, and the requirements of the standard relating to excavations (29 CFR 1926.651). While the provisions of the former impose specific requirements upon employers, the provisions of the latter are relatively nonspecific, thereby stimulating and increasing "the exercise of individual and varying judgments in assessing facts and determining whether violations of that standard have occurred" (id).

Basically, the difference between an excavation and a trench is that an excavation, unlike a trench, is wider than it is deep (see 29 CFR 1926.653(f) and (n)). As the Secretary's evidence clearly proves that this case concerns an excavation, that official charged Respondent with a violation of the wrong standard. The final question, then, is whether the Secretary's pleading delict is fatal to the enforcement action.

In Secretary of Labor v. Tri-County Constructors, Docket Numbers 3427/3568 (consolidated), March 26, 1974, wherein the [*31] identical issue was raised, I held:

"Upon the evidence presented by this record, and for the reasons that follow, I cannot affirm item number 1 of the Citation for non-serious violations (Docket No. 3568); and that item and the penalty proposed therefor will be vacated. First, the allegation should have been charged as a violation of 29 CFR 1926.651(c), instead of a violation of 29 CFR 1926.652(b), because the opening for the most part, was an excavation instead of a trench (see definitions in 29 CFR 1926.653. . . This factor, alone, requires reversal, for such a charge is not embraced within that charged in the Citation (Secretary of Labor v. R.L. Rider & Co., Docket No. 3223, November 15, 1973; Secretary of Labor v. Keibler Industries, Inc., Docket No. 1689, June 28, 1973)."

Although Tri-County has been called for review by the Commission on an unrelated issue, it is still dispositive of the issue in this case unless and until the Commission decides otherwise. Accordingly, the improper charge in this case vitiates the enforcement action and the Citation and Notification of Proposed Penalty must be vacated.

Though not the basis of my decision, I would not, for the reasons [*32] that follow, affirm this enforcement action even if the proper standard had been charged. The unrefuted evidence shows that Respondent consistently used trench boxes in its operation and repeatedly warned its employees to stay out of the excavations unless within the protection of such a box. Additionally, Respondent even warned its employees that they would be fined by the Department of Labor if they violated Respondent's order. Under similar circumstances, the Commission has held that:

"An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards at all times. An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer's instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of Section 5(a)(2) of the Act by the employer." (Secretary of Labor v. Standard Glass Co., Inc., Docket No. 259, July 27, 1972) *

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* Also see Secretary of Labor v. Arnold Hansen, d/b/a Hansen Brother's Logging, Docket No. 1418 October 13, 1972, wherein, under similar circumstances, the Commission held that an employer could not be required to provide a "one-on-one" supervision of his employees to prevent unexpected and isolated violations of his own orders, which in turn constituted violations of standards.

[*33]

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III

FINDING OF FACT

That at the time and place in question, Respondent had employees working in an excavation, rather than a trench.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That at the time and place in question, Respondent did not violate Section 5(a)(2) of the Act by not complying with 29 CFR 1926.652(b).

3. A charge of violating 29 CFR 1926.651(c) is not embraced within a charge of violating 29 CFR 1926.652(b).

The Citation for Serious Violation, as amended, and the Notification of Proposed Penalty are vacated.

It is so ORDERED.

JOSEPH L. CHALK, Judge, OSHRC