WATER WORKS INSTALLATION CORP.

OSHRC Docket No. 4136

Occupational Safety and Health Review Commission

June 10, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Richard C. Driscoll, for the employer

Mr. L. T. Summer, Jr., President, Water Works Installations Corp., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A report of Administrative Law Judge David J. Knight, dated March 1, 1974, is before the Commission for review pursuant to 29 U.S.C. 661(i). Judge Knight would affirm a citation alleging a serious violation of 29 C.F.R. 1926.652(c) and would affirm a second citation alleging two nonserious violations of 29 C.F.R. 1926.650(e) and 29 C.F.R. 1926.650(h). The judge would modify the penalties proposed by the Secretary from $500, $45, and $35 to assess $700, $65, and $50, respectively.

On his own motion, Commissioner Moran directed review of the judge's report, stating the following two issues:

(1) Whether the judge erred in assessing penalties for violations of the Act for failure to comply with 29 C.F.R. 1926.652(c), 29 C.F.R. 1926.650(e), and 29 C.F.R. 1926.650(h) in amounts greater than were proposed by the Secretary of Labor.

(2) Whether Respondent can be found in violation of the Act [*2] for failure to comply with 29 C.F.R. 1926.650(h) when the person exposed to the alleged hazard herein was not an employee as defined by 29 U.S.C. 652(6).

Neither party has petitioned for review by the full Commission. In response to the direction for review, the Secretary filed a brief in support of Judge Knight's findings and recommendations. Respondent, on the other hand, has not indicated any interest, either by letter, brief, or other means, in having the full Commission review the judge's report. In these circumstances, the issues being essentially factual, and in the absence of any compelling public interest, we affirm the judge's report without passing on the directed issues or any other aspect of the report. Abbott-Sommer, Inc., Docket No. 9507 (February 17, 1976), CCH OSHD para. 20,428, BNA 3 OSHC 2032. The judge's report has the same precedential value as an unreviewed judge's decision; it is not binding on OSHRC judges.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The refusal by Messrs. Barnako and Cleary to address any of the issues specified in the direction for review is improper and contrary to law. As I have stated time and time again, the statutory authority [*3] conferred on Commission members by 29 U.S.C. 661(i) to direct review of a Judge's decision is not qualified by any requirement that the interested parties petition for such review. n1 Nor is this authority conditioned by any requirement that the issues specified therein be briefed by the parties, n2 or that the issue be one involving a "compelling public interest." n3 No such requirements are stated in the Act or anywhere else. There is positively no authority - anywhere - for the Barnako-Cleary position taken in this case. If there is - let them cite it.

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n2 Three circuit courts have refused to adopt the theory that a respondent's failure to file a brief constitutes a waiver of appellate review. Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 844 n.6 (9th Cir. 1976); Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).

n3 As I've pointed out several times, there is nothing in the legislative history or in the Act itself that even remotely suggests the need for the directed issue to involve a "compelling public interest." This "requirement" has been manufactured from whole cloth by Messrs. Barnako and Cleary so they can avoid taking a position on issues which arise in particular cases.

[*4]

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Furthermore, aside from the illegality of this Barnako-Cleary review "rule," it is interesting to note that they have seen fit to apply this rule, with one exception, n4 only when review is directed by the author of this opinion. n5 It is once again patently clear to me that this illegal "rule" has been imposed by Messrs. Barnako and Cleary to prelude one member of this Commission from exercising His statutory rights to cause a decision of an Administrative Law Judge to be reviewed by the 3-member tribunal. n6

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n4 Apparently to save face, they finally applied their rule in a case directed for review by Commissioner Cleary. Of course, I did not join in their manner of disposition therein.

n5 For a few of many examples, see note 1, supra.

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The Judge's decision in this case concluded that respondent violated the occupational safety standard codified at 29 C.F.R. 1926.650(h). It is my opinion that this conclusion is erroneous because there is no evidence to show that respondent had employees exposed to the alleged hazard. Until Messrs. Barnako and Cleary issued their decision in Secretary v. Beatty Equipment Leasing, Inc., n7 the Commission had consistently embraced the principle that an employer could not be liable under the Act unless one of its employees was exposed to the cited condition. n8

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n8 See, e.g., Secretary v. Humphreys & Harding, Inc., 8 OSAHRC 304 (1974); Secretary v. James E. Roberts Co., 7 OSAHRC 1005 (1974); Secretary v. J.E. Roupp & Co., 7 OSAHRC 919 (1974); Secretary v. Home Supply Co., 7 OSAHRC 527 (1974); Secretary v. Dore Wrecking Co., 6 OSAHRC 277 (1974).

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The reason for this principle was predicated on a careful reading of the statute which [*6] caused the Commission to conclude that the intent of the Act was to place responsibility for maintaining safe working conditions only upon those employers who had endangered employees. n9 Congress never intended for liability to be imposed outside the employment relationship. n10 Nothing in the Act has been changed since the issuance of those decisions which detracts from the wisdom of the principles set forth therein. What has been changed is the makeup of the Commission. It is now composed of a majority of members whose prosecutorial zeal is imcompatible with the very nature of the impartial adjudicatory body which the Act established in section 12 (29 U.S.C. 661).

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n9 Secretary v. Hawkins Construction Co., 8 OSAHRC 569 (1974).

n10 Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), reversed and remanded on other grounds, 504 F.2d 1255 (4th Cir. 1974).

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I also take strong exception to the affirmance by Messrs. Barnako and Cleary of the Judge's decision raising the penalties sua sponte [*7] from those proposed by complainant. As I have stated numerous times, n11 this practice not only exceeds the authority bestowed on the Commission by Congress, but it is violative of the equal protection and due process provisions of the Constitution and is a poor policy because it exerts a chilling effect upon employers who wish to exercise their right to contest alleged violations. Furthermore, this policy (as do many Barnako-Cleary policies) seriously compromises the supposed impartiality of the Commission by placing it in the dual role of judge and prosecutor. n12

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n11 See, for example, my separate opinions in Secretary v. W.L. Cobb Construction Company, supra, note 1; Secretary v. Worcester Pressed Steel Co., 20 OSAHRC 737 (1975); Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 356 (1974); Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973).

n12 In Frank Irey Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1203 n.3 (3d Cir. 1974), the United States Court of Appeals for the Third Circuit stated with respect to this Commission policy:

"We suggest that by claiming such power the Commission invites criticism of its impartiality or at least its appearances."

[*8]

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Finally, I vigorously dissent from the lead opinion's unsupported assertion that Judge's decisions have no precedential value. Congress provided in 29 U.S.C. 661(i) that:

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

This section makes it clear that Judges' decisions are decisions of this Commission unless modified by the Commission following a direction for review under this section. As such, they have as much precedential value as those issued directly by the three Commission members.

The decisions of the United States Circuit Courts of Appeals indicate complete agreement with this opinion. n13 No court decision has treated any unreviewed decision of a Review Commission Judge as anything but a final order of the Commission with precedential value. If the United States Circuit Courts of Appealstreat unreviewed Judge's decisions as deserving precedential weight, why do you suppose [*9] that my colleagues would hold to the contrary? I submit that we will never know the true answer to this question for - like so many other things they do - they give no explanation and cite no authority.

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n13 For example, see Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975) where the United States Court of Appeals for the Seventh Circuit relied upon - and cited as authority - nine separate decisions of Review Commission Judges. See also Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974) where the United States Court of Appeals for the Fourth Circuit expressed concern that the Commission decision was contrary to the holdings of two unreviewed decisions rendered by Commission Judges.

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Since the majority does not address any of the matters covered in Judge Knight's decision, it is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Albert H. Ross, Regional Solicitor, U.S. Department of Labor, Robert J. Murphy and Kevin F. Murphy, for the Complainant

Richard C. Driscoll, [*10] Jr., for the Respondent

No appearance for employees

On July 31, 1973, the Occupational Safety and Health Administration of the U.S. Department of Labor (Complainant) issued a citation to Water Works Installations Corp. of Canton, Massachusetts, (Respondent) alleging a serious n1 violation of a safety standard promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (the Act) based on the contention that Respondent failed to assure that the sides of a trench more than five feet deep were not shored or otherwise supported as required by the safety standard set forth at 29 C.F.R. 1926.652(c). The citation required immediate abatement of this condition and a civil penalty of $500 was proposed.

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n1 A serious violation is one where there is a substantial probability that death or serious physical harm could result and the Respondent knew of this condition, 29 U.S.C. 666(k).

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Additionally, Respondent was also cited for two non-serious violations based on alleged failures to [*11] protect its employees with hard hats as required by 29 C.F.R. 1926.650(e) and that it failed to prohibit n2 an employee from standing under the load handled by a hoist which is proscribed by 29 C.F.R. 1926.650(h). Penalties of $45 and $35, respectively, were proposed and immediate abatement required.

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n2 This language was hanged by an allowed amendment at the hearing to read as the safety standard is drafted that Respondent "permitted" the creation of the condition (Transcript hereafter Tr. 66-69). Respondent objected to this amendment (Tr. 70).

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Respondent, by letter dated August 7, 1973, contested the citations and penalties in their entirety. As required by the Act, 29 U.S.C. 659(c), the matter was forwarded to this Commission for hearing and resolution. Complaint and answer were filed, the latter at the commencement of the hearing, and the parties agree that the jurisdiction is proper (see also Tr. 6). Hearing was held at Boston, Massachusetts, on December 11, 1973, with both parties represented by counsel. [*12] After one extension of time, the Complainant filed a brief on February 4, 1974, but nothing was received from Respondent. n3

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n3 On February 15, 1974, Respondent's counsel orally requested an extension to file a brief. Since the time after the extension had expired on February 4, 1974, and since counsel stated that he had nothing to add to the position of record, the request was denied.

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THE EVIDENCE:

I) Concerning the serious violation under 29 C.F.R. 1926.652(c) which reads:

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supporte when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion;

the parties stipulated that the trench [*13] in question was located at Mishawum Park, Main Street, Charlestown, Massachusetts, and was 15 feet long, 12 feet wide and 9 feet deep (Tr. 5-6). They also agreed that the sides of the trench were not shored or sloped or protected in any way and had been dug in hard or compact soil (Tr. 5-6). Running across its middle width was a concrete encasement box with a 16-inch water main pipe under it (Tr. 22, 52 and exhibit C-1) and a gas main alongside of it (Tr. 24).

Complainant's Compliance Officer, Wesley P. Holbrock, inspected the site on the morning of July 20, 1973. He identified himself and was accompanied on his inspection by a man who made himself known as Respondent's Vice-President, Richard Gray (Tr. 19 and 23). Respondent stipulated that "our people were working there" (Tr.20).

The Officer saw two employees, the Vice-President and a pipefitter (Tr. 23), in the trench installing a tapping sleeve and valve in the 16-inch water main (Tr. 22). He testified that the sides of the trench were almost vertical and, on the east side of the trench or the street side, the wall was undercut by at least two feet (Tr. 27). On top of the walls were cobblestones that supported the macadam [*14] pavement (Tr. 27-28).

The area immediately around the trench was heavily traveled by truck and auto traffic some two or three feet from the trench and an elevated subway operated nearby (Tr. 27-28). Also, the hoist truck was only four to five feet from the side of the trench (Tr. 29). All of this activity caused vibrations and, together with the undercut on one side of the trench, could result in the sides falling in (Tr. 29-30). At one point, the officer saw an employee lying on his back with his head on the ground (Tr. 28).

In his opinion, and his expertise was stipulated (Tr. 18), a cave-in was possible resulting in the death of an employee by being buried and the Respondent knew or should have known, based on its experience in trenches and installing pipes, of this hazard (Tr. 34-35).

Because of the gravity of the trench condition, an unadjusted penalty of $1000 was assessed. This was reduced to $500 after an allowance of 20 percent for the Respondent's good faith based on its safety program, cooperation and interest (Tr. 38). This was applied very liberally since nothing was done and the employees were in the trench until the Compliance Officer left the site (Tr. 39 - [*15] 41). Another 10 percent was allowed because of the few employees at the trench and 20 percent because of Respondent's history of no other inspections in the Boston area (Tr. 38).

Complainant's Area Director, John V. Fiatarone, who assigned the investigation to Compliance Officer Holbrook and whose expertise was not questioned (Tr. 56), adopted the recommendations of the Compliance Officer and issued the citations (Tr. 56-57). He saw the trench on his way to work on the day of inspection, identified himself to an employee in the trench, had a discussion with him and assigned the trench for a formal inspection when he arrived at his office. In his opinion, there was a definite danger of a cave-in at the unshored trench particularly because of the close proximity of vehicular traffic (Tr. 57-59). He approved the 20 percent reduction in penalty for Respondent's good faith because there were no facts that it did not have an effective safety program (Tr. 60-61).

The parties stipulated, based on the testimony of the project engineer at this location, that the site preparation contract required all trenches of a depth of five feet or more to be shored (Tr. 15-16) and Complainant's Area [*16] Director testified that a citation for failure to shore was also issued against West Construction Company which actually dug the trench (Tr. 61). He is particularly concerned with this type of violation because of the 110 fatalities in the country where employees were permitted to work in unshored trenches (Tr. 59).

Respondent's Vice-President, Richard Gray, who is responsible for all of its field operations (Tr. 70-71), testified that this particular trench was a "beautiful hole" and "it was safe" (Tr. 74). He has been doing this type of work since 1955 seeing about 200 trenches a year and he knows what is or isn't safe (Tr. 70). The material at the top of this trench had to be jack-hammered and the rest dug with a spade; it was so solid, "you couldn't stick the shovel in" (Tr. 74).

On cross-examination, he said that there was no vibrating caused by the subway system (Tr. 75); that the concave, undercut wall of the trench was of a safe condition in that particular spot; and that the traffic was six feet from the trench, not the two to three feet distance testified to by the Compliance Officer and the Area Director (Tr. 75-76).

The Respondent owns no shoring equipment and, had [*17] it been installed, he would have had to move it since it would have been in his way (Tr. 78-79). He is aware of the safety shoring requirements and was at the time of the inspection (Tr. 79); but only five trenches have been shored in his experience (Tr. 79). When a trench is dug vertically in the Boston area, it is sheeted or the sides planked (Tr. 80).

Mr. Gray stated that he would not send his men into an unsafe hole and he has worked in many trenches whose sides were sloped (Tr. 80).

II) Concerning the first of the non-serious violations under the trenching standards set forth in 29 C.F.R. 1926.650(e) which reads:

(e) All employees shall be protected with personal protective equipment for the protection of the head, eyes, respiratory organs, hands, feet, and other parts of the body as set forth in Subpart E n4 of this part;

the parties stipulated that an employee of Respondent was not wearing a hard hat while working the trench (Tr. 6). The Compliance Officer was told by Mr. Gray that no hard hats were available (Tr. 42). The employees could be struck by falling cobblestones loosened by vibrations or the tools on the encasement box could fall into the trench (Tr. 28 [*18] and exhibits C-1 and C-2). An employee could hit his head against the water main since the Officer saw an employee who was under that pipe (Tr. 54).

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n4 Subpart E describes the type of hat when there is a danger of head injury from impact or falling objects, see 29 C.F.R. 1926.100(a) and (b).

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He classified the chance of an accident as moderate and assessed an unadjusted penalty of $180 (Tr. 48, 53). After allowing the same percentage discounts as above and then applying a 50 percent reduction for abatement even though he never saw an employee with a hard hat (Tr. 50), the final penalty was set at $45 (Tr. 49 and 50).

Mr. Gray testified that the hard hats were in the truck but are worn only when the soil in a trench is loose and rocks may fall. Here, the soil was hard and compact (Tr. 77).

III) Concerning the last of the alleged violations under 29 C.F.R. 1926.650(h) which reads

(h) No person shall be permitted under loads handled by power shovels, derricks, or hoists. To avoid any spillage employees shall [*19] be required to stand away from any vehicle being loaded;

the Compliance Officer witnessed the hoisting of the tapping machine from the trench by a winch on a truck (Tr. 22). The tapping machine appears to be a heavy prece of equipment (Exhibit C-1). Mr. Gray was in the truck operating the winch and as he hoisted it, it passed over the head of a person in the trench (Tr. 43 and 45). Mr. Gray was in a position to observe the person under the load (Tr. 45). The condition lasted only a few minutes (Tr. 44).

The unadjusted penalty for this was $140 and after all allowances and abatement credits, it was finally reduced to $35 (Tr. 49). Respondent offered no testimony on this alleged violation.

CONTENTIONS OF THE PARTIES:

Respondent's position explained at the outset of the hearing (Tr. 7-9) is that:

(1) It is not responsible for the condition of this trench for it did not dig it;

(2) There was no hazard in the trench requiring the wearing of hard hats; and

(3) Its employee did not "permit" any person under the load of the hoist because the standard applies only to those who affirmatively allow one to be under a load.

The testimony of its Vice-President also brings into [*20] issue whether any hazard was created by a failure to shore or otherwise protect the sides of the trench.

Complainant contends that an employer who exposes his employees to a hazard is responsible under section 654(a)(2) of the Act requiring that each employer "shall comply with occupational safety and health standards promulgated under this Act." Therefore, this Respondent should have protected the sides of this trench.

It also argues that the evidence clearly proves a violation of the standard requiring protective equipment and the hazard associated with the failure to comply and that Respondent permitted a person to stand under the load of a hoist.

Finally, Complainant points out that although the width of this cavity was greater than its depth and, therefore, apparently within the definition of an excavation rather than a trench [cf. 29 C.F.R. 1926.653(f) and (n)] since a trench is generally deeper than it is wide, it is properly a trench within the meaning of the standard cited. This is because of two elements: (1) the encasement box divided the depression into so that it was deeper than at least one of its dimensions; and (2) pipe or sewer work is routinely denominated [*21] as trench work whereas excavations are used to construct foundations (Fiatarone, Tr. 63).

FINDINGS OF FACT:

Based on this record and the demeanor of those presenting the evidence, I find:

(1) that the trench in which two of Respondent's employees were working on July 20, 1973, at Mishawum Park, Main Street, Charlestown, Massachusetts had been dug in hard or compact soil to a depth of nine feet and a length of 15 feet;

(2) that the sides of this trench were not shored or in any way protected against a collapse or fall and that one wall was undercut some two feet in from the surface edge of the trench;

(3) that the trench was close to a roadway, not more than six feet distance, and subject to the vibrations of heavy vehicular traffic as well as those vibrations caused by the operation of an elevated subway system nearby; and a truck with a winch attached was operated within five feet of the trench;

(4) that these conditions presented a hazard to the employees in the trench of being buried by a collapse of the walls or cave-in;

(5) that Respondent's employee in charge was aware of the trenching safety requirements and, therefore, knew of the violative condition of the trench [*22] despite his conclusion that it was safe;

(6) that the employees in the trench were not wearing protective hard hats and were, therefore, subject to injury from falling cobblestones or tools resting at or near the edges of the trench or other head injuries;

(7) that the Respondent's employee in charge at the trench, in operating the hoist to remove the tapping machine from the trench, permitted that machine to pass over and, for some minutes, remain above another person in the trench; and

(8) Respondent's failure to take any corrective measures concerning the trench and protective equipment following the inspection and discussion with the Compliance Officer indicates an ineffective safety program and a blase attitude toward the safety purpose and requirements of the Act.

CONCLUSIONS AND ORDER:

The facts found ineluctably force the conclusion that the Respondent has violated those standards cited against it. It cannot escape the trenching violation on the basis that it did not do the digging because that fact is not the foundation of its responsibility. The trench was the work place provided by it to its employees. It, therefore, had the positive duty to assure, so far [*23] as possible, safe working conditions there. See the declaration of Congressional purpose, 29 U.S.C. 651(b). This assurance is, at least, perfected by compliance with the safety standards and each employer is so ordered to comply, 29 U.S.C. 654(a)(2).

Respondent's defense appears to be that this trenching standard applies only to the person who digs or prepares the trench, but the purpose of the Act is to minimize or prevent an employee's exposure to a hazard. Therefore, responsibility and applicability of the standards fall on the employer who permits such exposure. And he must limit that condition as far as possible. He cannot contract away that duty because no other employer or person, under the Act's mandate, has as direct a responsibility to a Respondent's employees. The employer is primarily required to assure a safe work site.

No defense is raised by the Respondent to the effect that it was not possible for it to comply. That it owns no shoring equipment is its own choice and it also chose to send its men into the trench without requiring installation of some protection [*24] of the walls by any other party who may have been contractually required to do that. These elections bring down upon it the violation. Its Vice-President's belief that the trench was a "beautiful hole" is buried by the avalanche of evidence to the contrary. Respondent took no protective steps whatsoever, given its awareness of the safety requirements and the conditions in and around the trench.

I cannot conclude that this hole was an excavation rather than a trench for the latter need not always be deeper than it is wide. While generally this is so [see the definition of a trench, 29 C.F.R. 1926.653(n)], in this particular case considering the type of work being done and the large encasement box and pipes running across and dividing the cavity making the depth greater than at least one other dimension, I conclude that applying the trenching standard here is reasonable and proper.

The fact that no employee was wearing a hard hat and there was a danger of falling stones or tools support the conclusion that the standard requiring the use of this equipment [29 C.F.R. 1926.650(c)] was violated. I also conclude that Respondent's Vice President, in removing the tapping machine [*25] from the trench without requiring the person seen standing under that load to move, amounts to a condition permitted to exist by Respondent and within its control contrary to the safety standard [29 C.F.R. 1926.650(h)].

Finally, I can find no basis in this record for a reduction in penalty based on Respondent's good faith. That factor is one element in assessing penalties, 29 U.S.C. 666(j), which assessment is the function of this Commission, Brennan v. OSHRC and Interstate Glass Company, 487 F2d 438. In the absence of any showing of a good faith attempt to comply, I am restoring this 20 percent reduction to all penalties and assessing a rounded-off amount. In all other respects regarding the gravity of the violations, the size and the history of Respondent's company, the penalties proposed are proper.

It being admitted that the Commission's jurisdiction is vested to dispose of this proceeding in that Respondent is an employer having employees engaged in an activity affecting commerce as required by the Act, 29 U.S.C. 652(3) and (5), it is ORDERED that the citation issued to Waterworks Installation Corporation alleging:

(1) A serious violation of 29 C.F.R. [*26] 1926.652(c) but with the penalty assessed therefor at $700;

(2) A non-serious violation of 29 C.F.R. 1926.650(e) but with the penalty assessed therefor at $65; and

(3) A non-serious violation of 29 C.F.R. 1926.650(h) but with the penalty assessed therefor at $50 are affirmed with the penalties so modified.

DAVID J. KNIGHT, Judge, OSHRC

Dated: March 1, 1974

Washington, D.C.