D. FEDERICO COMPANY, INC.

OSHRC Docket No. 4395

Occupational Safety and Health Review Commission

February 10, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

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

Alvin Jack Sims, Alvin Jack Sims, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The case is before us on an order directing review of Administrative Law Judge Chalk's decision dated April 11, 1974. The order for review granted the Secretary of Labor's petition for such action excepting to the Administrative Law Judge's interpretations of 29 CFR 1926.653(f) and (n) n1 and his finding that the employee found in the ground opening involved was not exposed to hazardous conditions.

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n1 1926.653 Definitions applicable to this subpart.

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(f) "Excavation" - Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench.

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(n) "Trench" - 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.

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I.

On August 8, 1973, respondent's workplace in Boston, Massachusetts, was inspected by a compliance officer for the Secretary of Labor. Respondent's employee had been digging in an earth cavity 13 feet wide and 21 feet long. The cavity was of varying depths, but at the point where the workman was standing, it was six feet, six inches deep. The walls were not sloped, shored, sheeted, or braced. There was a large overhang about three feet from the employee that resulted in a concavity in the wall. The compliance officer testified that the wall closest to the employee was "concave up at the ground level, and dug in and [then it] came back down again." Spoils were piled from eight to ten inches of the backwall.

A citation for a willful violation of the Act was issued and timely contested by respondent. It alleged non-compliance with 29 CFR 1926.652(b) n2 in that respondent "willfully failed to shore, sheet, brace, properly slope or otherwise support" the sides of a trench in which respondent's employees were working. The Judge in his decision determined sua sponte that the "trench" was actually [*3] an "excavation," and vacated the citation on the ground that "the improper charge . . . vitiated the enforcement action . . . ." This was error. n3

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n2 1926.652 Specific trenching requirements.

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(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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n3 The Judge relied heavily on his decision in Tri-County Constructions, 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 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 9, 1974, we modified the penalty assessed by the Judge in Tri-County, but without discussion of the balance of the Judge's decision. The Judge's decision is not binding upon us as precedent. Leone Constr. Co., No. 4090 ( ).

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Neither party raised this contention at the pleading stage or at the hearing. In briefs filed after the hearing, both parties agreed that "[t]he only real dispute . . . relates to the character of the soil." Indeed, throughout the entire hearing, counsel for both parties, witnesses, and the Judge himself consistently referred to the cavity as a trench.

Moreover, paragraph III(c) of the Secretary's complaint alleged that the subject matter was a trench. The third paragraph of respondent's amended answer stated:

3. Respondent denies the allegations contained in paragraph III of the complaint and specifically denies that the trench was in unstable material (emphasis added).

Pleadings must "be so construed as to do substantial justice." Fed. R. Civ. P. 8(f). To this end, the language in an answer must be given a fair and reasonable construction in determining whether it admits particular facts alleged in the complaint. 71 C.J.S. Pleadings 160 at 329.

We have given respondent's answer the liberal construction due administrative pleadings, National Realty & Constr. Co., Inc. v. O.S.H.R.C., [*5] 489 F.2d 1257, 1264 (D.C. Cir. 1973), and, after weighing all the facts and circumstances noted above, we conclude that consideration of the character of the cavity was settled by the pleadings and not subsequently disputed by the parties. Cf. Weade v. Trailways of New England, Inc., 325 F.2d 1000 (D.C. Cir. 1963); Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (E.D. Pa. 1956).

Even if the point had not been foreclosed, the Judge's manner of disposition cannot stand. The parties had agreed on the theory of the case, the nature of the ground opening was never seriously at issue, and the point was neither briefed nor argued before the Judge. n4

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n4 In Quick v. Martin, 397 F.2d 644, 647 (D.C. Cir. 1968), the court said:

That an issue is not seriously contested has implications for the quantity of evidence that must be adduced to support a finding. Evidence that might seem too skimpy to count in support of a finding on a hotly contested issue looms larger when the factual dispute in question is but dimly alluded to at the hearing. . . . Had the dispute as to these issues been focused, '[I]t is likely that . . . abundant evidence would have been forthcoming' (Citation and footnote omitted).

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A highly respected guide for Administrative Law Judges is M. Ruhlen, Manual for Administrative Law Judges (Administrative Conference of the United States, 1974). n4a There, it is stated that:

The Judge should not uncritically accept the parties' contentions as to which issues are decisive; through lack of skill or abundance of artfulness such premises may be erroneous. After analyzing the record and reading the briefs the Judge should make his own determination of the decisive issues and direct his decision to them regardless of the parties' emphasis. A decision should not, however, rest on a point which has not been raised at the hearing or in briefs or argument . . . . [B]ut if, only after the proceeding has been concluded, the Judge decides that some unexplored issue may be dispositive he should at least request supplementary briefs or memoranda. (Emphasis added.)

Id. at 68-69.

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n4a In the introduction, the following appears:

The discussion in this Manual assumes that the Administrative Law Judge is an employee of an agency charged with enforcement and policy making responsibilities for its substantive program. This is not true of the Occupational Safety and Health Review Commission, an independent agency with its own corps of Administrative Law Judges which hears cases brought by the Department of Labor to enforce policy of that Department. Accordingly, some of the discussion in the text dealing with the relationship of the Judge to his agency is not directly applicable to OSHRC. (Emphasis added.)

Manual at 2 n.7. The portion of the Manual quoted in the text of this opinion clearly does not fall within this narrow exclusion. It concerns neither the relationship of a Judge to his agency, nor matters of enforcement policy.

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Thus, the proper course would have been to notify the parties that, contrary to their belief, the character of this ground opening was an issue in the case. The Judge should then have requested submissions on the point, and if necessary, he could have re-opened the hearing to take further evidence. n5 See Brennan v. O.S.H.R.C. & John J. Gordon co., 492 F.2d 1027 (2d Cir. 1974).

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n5 Re-opening the hearing may well have been necessary because the simple dimensions of a cavity are not conclusive as to its character. See note 2. It is entirely possible that in a given case a cavity with a width greater than its depth may be found to be a trench. This will turn on the particular facts of each case. Had the point been put squarely in issue, "abundant evidence" on the point may well have been forthcoming at the re-opened hearing.

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II.

As noted above, the only serious dispute between the parties is the nature of the soil. The pertinent [*8] provision of 29 CFR 1926.652(b) is:

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 (emphasis added).

The provisions of 29 CFR 1926.651(c) are:

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.

On review, the Secretary asks that, pursuant to Fed. R. Civ. P. 15(b), the pleadings be amended to conform to the evidence if the Commission finds that the cavity was an excavation and if the Judge's sua sponte raising of the issue was proper. Assuming arguendo that both the above conditions exist, we conclude that granting the motion would have been proper. Copelan Plumbing Co., No. 867 (June 7, 1974).

Section 5(b)(3) of the Administrative Procedure Act [hereafter "APA"], 5 U.S.C. 551 et seq., requires that the parties be put on notice of the issues in controversy. The "key to pleading in the administrative process is nothing more than [*9] opportunity to prepare." Davis, Administrative Law Treatise, 8.04 (1958). If no prejudice ensues to the adverse party, the shifting of legal theories is permissible. N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954).

A rule 15(b) n6 motion may be granted at any time, even after judgment. Gerstner Electric, Inc., No. 997 (August 1, 1974). As with section 5(b)(3) of the APA, the key question is whether prejudice would ensue if the motion were granted. That the legal theory of the case is changed is immaterial. n7 see generally, 3 J. Moore, Federal Practice, para. 15.13[ ]2 (2d ed. 1974). Of course, a conforming amendment is not permissible when it would introduce unlitigated factual issues, for then it could not be said that the issues were tried by either the implied or expressed consent of the parties. "The test of consent should be whether the defendant would be prejudiced by the implied amendment. . . ." Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969). Thus, where factual issues material to one legal theory are also material to another legal theory, consent will be implied. [*10] See e.g., Ward v. Winstead, 314 F. Supp. 1225, 1235 (N.D. Miss. 1970), appeal dismissed as untimely filed, 400 U.S. 1014 (1971); Deakyne v. Commissioners of Lewes, 416 F.2d 290 (3d Cir. 1969). Here all the elements of non-compliance with 29 CFR 1926.651(c) were tried in one form or another. Cf. Jackson v. Atlantic Coastline R.R. Co., 317 F.2d 95 (4th Cir. 1963). As in Copelan Plumbing Co., No. 867 (June 17, 1974), the underlying factual issues were largely the same. Unlike in Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975), the Secretary here did not at first eschew the legal theory he later wished to adopt.

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n6 The Federal Rules of Civil Procedure govern Commission proceedings. See section 12(g) of the Act and Rule 2(b) of the Commission's Rules of Procedure. Rule 15(b), in pertinent part, provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. . . .

n7 But the degree of nature of the change in legal theory may well be probative of possible prejudice. See Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting).

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Clearly, 29 CFR 1926.652(b) and 1926.651(c) address themselves to the same hazard, i.e., cave-ins. In trenches, this hazard is greater because employees have virtually no escape when a wall collapses. See U.S. Engineering Co., No. 4889 (April 7, 1975) (Administrative Law Judge) (slip op. 19 n.6). Here the record establishes that the overhang and the unstable soil created a hazard of moving ground, endangering the employee working in the cavity. This is sufficient to show actual exposure to danger from moving ground, and a violation of either the excavation or trenching standard.

We equate "unstable or soft material" with "moving ground." Functionally, these terms are equivalents; the methods of proof are identical and the inquiry of fact is identical. n8 The structure of subpart P lends force to this equivalence. Thus, 29 CFR 1926.653(n) defines a trench as [a] narrow excavation. . . ." We read the subpart as a coherent whole. Cf. Adams & Mulberry, No. 2548 (April 25, 1975). Most importantly, the definition of unstable soil in 29 CFR 1926.653(q) virtually equates the two [*12] terms.

'Unstable Soil' -- Earth material, other than running, that, because of its nature, or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.

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n8 We therefore reject the implication that ground actually move in excavations before precautions are taken. Obviously, if the soil is soft or unstable, it can move; this potential for movement is sufficient to show "danger from moving ground." See Copelan Plumbing Co., No. 867 (June 17, 1974).

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Other equivalents between the standards are evident. Thus, "sides of trenches" is a functional equivalent of "walls and faces of all excavations;" "shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength" is equivalent to "guard[ing] by a shoring system, sloping of the ground, or some other equivalent means." The five-foot requirement of 29 CFR 1926.652(b) is not essential in this respect. See 29 CFR 1926.652(a), last sentence. [*13]

These aspects of equivalence preclude any possibility of prejudice in this case. Indeed, the respondent has not alleged prejudice. Thus, even if the cavity were an excavation, and amendment of the pleadings would have been proper, and for the reasons set forth in Part III herein (dealing with soil stability) respondent would have been found not to have complied with 29 CFR 1926.651(c).

III.

Because of his disposition the Judge made no findings of fact on soil conditions. Nevertheless, the record is complete. Both parties fully presented their evidence; the transcript is copious; and the briefs fully cover the issues. To remand the case is therefore unnecessary and would only prolong unduly the disposition of this case.

Upon a thorough review of the record, we find that the Secretary carried his burden of proof ad showed that the soil was "unstable or soft." The experienced compliance officer testified that in his opinion, the soil was "loose and runny:"

Q. What was the nature of the material in which the trench was dug?

A. It was stone and rocks. It was basically filled material and, it was loose and rolling . . . . I showed [the foreman] where it was rolling down. [*14]

Q. Would you explain what you mean by rolling down?

A. Small balls, clumps were falling down and settling down . . . .

In addition, he testified that the trench has a large overhang three feet from where an employee was working. He testified that he had seen soil move during the inspection.

During the inspection, the compliance officer removed a soil sample from the face of the trench.

Q. What was the nature of the soil at that point, as compared with the material in the rest of that face?

A. Basically it was the same material all the way through. It was all loose and runny. The only thing different about the face was down [at] the bottom it was a recently dug area and it was darker than it was up higher; it was basically the same soil.

The Occupational Safety and Health Administration area director also observed the trench at close range. He concluded that the soil was sandy and "very unstable."

The Secretary's expert witness, compliance officer Dolan, a civil engineer with 37 years of experience in soils and trenching, examined the soil sample about an hour after removal from the trench. He considered the soil to be "a sandy type of material with a little small stones [*15] in it." From an examination of photographs taken at the scene, he concluded that the soil was "a sandy loose type of soil . . . with a little clay" and unstable. He reached this opinion of instability by assuming that the sloughing of the soil occurred spontaneously, and not as a result of digging. n9

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n9 But note that the inspector testified that the soil did move spontaneously.

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Respondent's expert witness, Mr. Capocefalo, respondent's project manager, examined the same soil sample and photographs. He testified that they did not provide him with sufficient information to form an opinion of soil stability. Mr. Capocefalo wanted assurances that the soil sample was representative, and also would have required certain soil tests before he would venture such an opinion.

The respondent called no other witnesses. It chose not to question its project manager about the extent of his knowledge of the actual conditions of the soil at the worksite or in the Boston area, even though he was familiar with the site's soil conditions. [*16] n10

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n10 For my own part, I would draw an inference adverse to respondent because of these circumstances. See International Union (UAW) v. N.L.R.B., 459 F.2d 1329, 1336 (D.C. Cir. 1972), and 2 J. Wigmore, Evidence 285 (3d ed. 1940).

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We conclude that the evidence of instability preponderates. The soil was seen moving spontaneously. It contained sand, clay, pebbles, and silt. Two witnesses characterized the soil as unstable. One expert witness concurred in this judgment, but another could not. In our view, the evidence that the sample was representative preponderated. We therefore conclude that the Secretary established his case, which was not sufficiently rebutted by respondent. This is not meant to say that we ascribe no weight to respondent's witness' testimony. We are simply not persuaded that its evidence was sufficient to rebut that of the Secretary. Therefore, non-compliance is hereby found.

We reject the Judge's conclusion that, with reference to 29 CFR 1926.651(i)(1), vacation is proper [*17] because

. . . the fact that the spoils from the excavation were not recessed at least two feet back from the edge of the excavation presented no additional hazard to the only employee found working therein during the inspection.

Section 1926.651(i)(1) does not require that employees be subjected to a "hazard" by virtue of violative conditions; it requires only that "employees may be required to enter" an excavation. n11 The Judge's first finding of fact states that "Respondent was responsible for and had an employee working in an excavation . . . ." This finding satisfies the element of proof required; respondent virtually admitted all the other facts constituting non-compliance with this standard. Our review of the record convinces us of respondent's non-compliance and a violation of the Act is therefore found. n12

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n11 The full text of the standard reads as follows:

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

n12 The Judge's disposition of a citation for non-compliance with 29 CFR 1926.652(h) was neither directed for review nor raised by the parties, and we do not pass upon it.

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IV.

The Secretary alleges that the respondent willfully violated the Act in its failure to guard against the possibility of cave-ins. n13 Respondent has not seriously contested this allegation, and has defended chiefly on the ground of inadequate proof of soil conditions. Nevertheless, a review of the evidence is appropriate.

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n13 We note that the Secretary has not cited this as a serious violation.

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Before the instant inspection, respondent's operations were the subject of three OSHA inspections. Four citations issued. Three of them, issued October 13, 1972, and June 20, 1973, alleged violations of trenching or excavations standards. The citation issued October 13, 1972, alleged non-compliance with 29 CFR 1926.652(b) and (h). It is a final order of this Commission.

As noted above, the compliance officer saw moving soil and an employee working near an overhang. Spoils and a cobblestone contributed to the load on the crumbling [*19] soil. Respondent's superintendent and foreman were both at the jobsite. When the compliance officer pointed out the violative conditions to Mr. Domenic Federico, the superintendent for D. Federico Co., Inc., Mr. Federico simply protested the repeated inspections, and because he had "a lot of work to do," he left the compliance officer with the foreman.

The danger from the overhang and the unstable soil was plain and grave. The response of Mr. Federico, respondent's superintendent, to the compliance officer and the condition of the trench can be characterized as displaying indifference to those dangers brought to the attention of respondent by previous citations. Respondent knew the safety requirements for the trench, and chose to dig this cavity without taking any of the required precautions. We consider this a reckless disregard of a known hazard - such indifference to the requirements of the Act so as to make respondent's failure to comply with the standard a willful violation of the Act even under the strict test of "willfulness" approved in Frank Irey, Jr., Inc. v. O.S.H.R.C. & Brennan, 519 F.2d 1200 (3d Cir. 1975) (obstinate refusal to comply). See also, [*20] Intercounty Constr. Co. v. O.S.H.R.C., 522 F.2d 777 (4th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 328 (U.S. October 17, 1975). Cf. Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1971), cert. denied 409 U.S. 948 (1972); Amulco Asphalt Co., No. 3258 (July 29, 1975) (Cleary, Commissioner, separate opinion).

The gravity of the violation was high. Respondent's good faith was negligible at best. It also has a poor history of compliance. The size or respondent's firm is lower than the average of such firms in its geographical area; respondent has fifty employees during summer months and twenty during the winter months. It has no history of losttime trenching accidents. The Secretary proposed penalties of $4,500 for the willful trenching violation and $80 for the spoils violation. We find these to be appropriate penalties.

Accordingly, it is ORDERED that the citation for willful violation of the Act is affimed for a failure to comply with 29 CFR 1926.652(b) and a penalty in the amount of $4,500 is assessed therefor; the citation for non-serious violation of the Act for failure to comply with 29 CFR 1926.651(i)(1) is [*21] affirmed and a penalty therefor in the amount of $80 is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The decision below by Judge Chalk and the foregoing Commission decision by Messrs. Barnako and Cleary show a remarkable difference in their approach to their statutory responsibilities. Judge Chalk applied the law to the facts and found against the complainant because he brought this action under a regulation which did not apply to the facts. Messrs. Barnako and Cleary, on the other hand, approaching this case like an English teacher correcting a student's composition, find that since the respondent - at some points in the record - used the word "trench" when it should have used the word "excavation," it therefore " agreed" that an "excavation" was a "trench." However, by the application of some convoluted logic they also conclude that the respondent impliedly consented to trying the case on the basis that the cavity was an "excavation." Having thus "corrected" the word usage of their students they depart from the role of English teacher (for a teacher would send the composition back to help the student learn to avoid such mistakes in the future) and - like the mild-mannered [*22] Clark Kent's transformation into Superman - they suddenly become judges of the rewritten facts. It comes as no surprise that the "corrected" facts are sufficient to find respondent guilty.

The record of this case as developed by the parties themselves, however, compels a different conclusion.

Respondent was charged because of alleged noncompliance with a standard which specified certain precautions to be taken to support a trench from cave-ins. The term "trench" is specifically defined in the regulations by reference to its dimensions in both depth and width (see note 17, infra). The evidence before the Judge showed that the dimensions of the alleged trench were different from those used in the regulation to define the term "trench." Consequently, he held, the requirements for trenches did not apply to the ground cavity at issue. There was no stipulation that the same was a "trench" even though the term has been used loosely throughout these proceedings. Even if they has stipulated that it was a trench, it wouldn't have made it so. See Sanford's Estate v. Commissioner of Internal Revenue, 308 U.S. 39 (1939).

The logic of the majority is such that if someone refers [*23] to a dog's tail as a leg, that particular dog would thereafter have five legs. Come to think of it, a five-legged dog makes more sense than the Barnako-Cleary logic used throughout the foregoing opinion.

The same "logic" appears in the majority's reliance upon a citation to Ruhlen's Manual for Administrative Law Judges. They concede the inclusion in the introduction to this manual of the following exculpatory language:

"The discussion in the Manual assumes that the Administrative Law Judge is an employee of an agency charged with enforcement and policy making responsibilities for its substantive program." (Emphasis supplied.)

They also note Ruhlen's next statement that

"This is not true of the Occupational Safety and Health Review Commission . . . ."

Nevertheless, since Ruhlen goes onto say that

". . . some of the discussion in the text dealing with the relationship of the Judge to his agency is not directly applicable to OSHRC",

they conclude that all of the rest of the text must apply.

This is another instance where express wording usage is shaded to bring into focus the meaning Messrs. Barnako and Cleary desire - a meaning not necessarily intended by the author [*24] of those words. The opening statement quoted above ("The discussion in this Manual assumes . . ." etc.) is a general statement applying to the entire work (the Manual). It is followed by another generally applicable statement ("This is not true of . . ." etc.). My colleagues would have us ignore these statements which apply to the "Manual" as a whole, and instead concentrate on what the author said about a specific portion of the manual - that portion "dealing with the relationship of the Judge to his agency." Because he says that some of that portion does not apply to this particular agency, they jump to the conclusion that what does apply is all of the rest of the entire manual (rather than the more logical deduction - that all of the rest of that portion of the manual dealing with the relationship of the Judge to his agency). I submit that resort to this contorted logic tarnishes the language-teaching credentials of Messrs. Barnako and Cleary.

My foregoing diversion into pedagogy, however, has not caused me to overlook the twenty-two words from Ruhlen's Manual that the majority has underscored to prove their point that Judge Chalk was wrong in applying the law [*25] to the facts introduced into evidence. For this particular case, they say, it shall be a black-letter rule that "a decision should not rest on a point which has not been raised at the hearing or in briefs or argument." (However, that doesn't mean that when review has not been directed on a general duty clause violation it will bar Messrs. Barnako and Cleary from finding such a violation because it was only last week when they did just that.

The pleadings in this case clearly show that respondent denied a charge that it violated a trenching regulation. Surely that brings before the court the question as to whether or not there was a "trench" at the worksite. n14

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n14 For the proposition that Judge Chalk should not have vacated the citation because the parties didn't argue that an excavation was not a trench, the majority cites the Second Circuit's decision in Brennan v. OSAHRC, 492 F.2d 1027. In that case the Commission reversed a Judge because he took it upon himself to take additional evidence after the hearing had been closed. The Court reversed, holding that the Judge "had acted properly." In so doing Judge Friendly noted that Commissioner Burch, in dissent, thought the Commission was subscribing to a "game theory" of adjudication. I can think of no better description of what Messrs. Barnako and Cleary have done in their reversal of Judge Chalk in this case.

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When Felix the Cat was in court, the judge asked "How do you plead to this charge that you violated a regulation requiring that every dog should wear an appropriate identifying collar?" Felix replied "I deny it." Even though his principal defense was grounded on the fact that the collar he was wearing supplied the appropriate identifying information and even though the judge found otherwise, it was still permissible for the judge to enter a finding of "not guilty" on the ground that the facts showed that Felix was not a dog - therefore the regulation did not apply.

Reliance upon In Re Felix the Cat (an unpublished decision - just as are post October 1975 decisions of this tribunal) makes the same sense as reliance upon the out-of-context quotation from a manual which the author himself specifically excludes from applicability to this agency's proceedings. My colleagues describe the Ruhlen Manual as a "highly respected guide" but from the foregoing discussion it can be concluded that they will accpt or reject any part of it depending upon whether or not it coincides with their own preconceived beliefs. [*27]

In my opinion this type of maral double-bookkeeping should play no part in our judicial processes. If Ruhlen's treatise is to be cited as an authority, then those who choose to cite it must accept his entire treatment - not simply the four sentences quoted out of context in the foregoing opinion.

Another example of this same type of thinking is the different weight my colleagues assign to final orders of the Commission. In order to establish that this employer was in willful violation they rely upon a

"citation issued October 13, 1972, [which] alleged non-compliance with 29 C.F.R. 1926.652(b) and (h). It is a final order of this Commission."

That deserves to be regarded as a "good" final order apparently because it found against the employer. But when confronted by a final order which found against the Secretary of Labor it somehow isn't that good.

"Review of only one part of an Administrative Law Judge's decision should not be read to indicate necessarily [*28] a lack of error in the unreviewed portions. Rather, there may be a 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." n15

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n15 Gertrude Stein once wrote that a "Rose is a rose is a rose is a rose" and by the same token: a final order of the Commission is a final order of the Commission. I pointed out the erroneous nature of this Barnako-Cleary ipse dixit in some detail in my dissent in Leone and do not believe it necessary to repeat here what I said in that case.

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Why one final order is entitled to be relied upon - and the other is not - remains unexplained. I submit that the only difference is in the disposition: one favored the Secretary of Lavor - the other favored the employer.

Another loose reed to which the majority clings is their discovery that

". . . 29 C.F.R. 1926.652(b) and 1926.651(c) address themselves to the same hazard, i.e. cave-ins."

Surely the same "logic" could be applied to all occupational [*29] safety and health standards: i.e. they address themselves to the same hazard - substandard working conditions. I submit that this new logic has no basis in fact and cannot legally be used to overcome the statutory requirement that there must be a particular reference in each citation to the

"standard . . . alleged to have been violated." n16

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n16 29 U.S.C. 658(a).

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There was, of course, no reference at all in the citation this employer contested to the "standard" the majority would convict the employer of violating in the alternative. n17 No amount of improvised logic can hide the fact that a plainly-stated requirement of the statute has been abrogated by the majority in its efforts to justify a conviction in this case.

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n17 Respondent was allegedly in noncompliance with trenching requirements and defended on the ground that it wasn't working in a "trench" on the basis of the definition of that term contained in the Secretary's regulations. That standard defined trench as an excavation in which "the depth is greater than the width." At issue in this case was an excavation with a depth of only 6 1/2 feet and a width twice as great (13 feet). Until the decision in this case, such an excavation was not a trench.

[*30]

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The same "logic" appears in their attempt to equate "'unstable or soft material' with 'moving ground.'" By this stroke of the pen, Messrs. Barnako and Cleary are rewriting the safety standards promulgated by the Secretary of Labor. I submit that if there were no difference between those terms the Secretary would not have phrased the standards as he did. This attempt to make words mean something they don't say has been used by the majority before to make the word "roof" mean "floor" - and for other purposes. In this connection, see Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor,    F.2d    (7th Cir., No. 74-1645 decided November 24, 1975) in which the court stated:

"Unlike Humpty Dumpty, the Secretary may not give a word whatever meaning he chooses . . . ." (footnote omitted.)

I submit that the Barnako-Cleary attempt to play the role of Humpty Dumpty is just as fallacious as that of the Secretary of Labor and is destined for the same fate as that suffered by their hero and the Secretary's attempt to emulate him.

The majority's discussion of the 1926.651(i)(1) charge also demonstrates [*31] a lack of understanding of what this respondent has been charged with - and is defending against in this proceeding. They say the Judge should not have vacated this charge simply because there was no hazard to any employee resulting from noncompliance with this regulation. The regulation "does not require that employees be subjected to a 'hazard' by virtue of violative conditions," they proclaim. It is their conclusion that "it requires only that 'employees may be required to enter' an excavation."

They conveniently overlook the fact that this respondent has been charged with a violation of the Occupational Safety and Health Act of 1970 - a law whose purpose is to protect employees from job hazards. If a condition exists which does not comply with a construction regulation promulgated under the Act but that noncomplying condition cannot be harmful to any employee because no employee goes near it, the Act has not been violated. There is no provision of law which permits any employer to be penalized for not complying with job safety regulations - only violations of the Act are subject to penalty. This employer was charged with a violation of the Act - section 5(a)(2) [*32] thereof. In order to establish the charge both of the following must be demonstrated:

(1) Noncompliance with the regulation upon which the charge was based, and

(2) one or more employees of the cited respondent was exposed to hazard as a result of such noncompliance.

Judge Chalk correctly concluded that the charge has not been sustained because no employee exposure to a hazard was shown. The majority, however, ignore the Act's very purpose and finds this regulation to be unique because, by its very terms, it can be violated even when there is no hazard to employees. If such a regulation were permissible under this law - and it certainly is not - what would prevent the Secretary of Labor from banning employee use of cotton clothing, their drinking of coffee, milk or tea, or from engaging in a million and one other nonhazardous activities.

It goes without saying (except, perhaps, for disciples of Humpty Dumpty) that regulations promulgated under a law enacted for the purpose of protecting employees from hazard must implement that law. They cannot go beyond the law and willy-nilly restrict employees from other activities - or be framed in such a manner that noncompliance [*33] therewith will constitute a violation of the Act even though no employee is exposed to hazard thereby.

Nevertheless, having convinced themselves that they can make words mean different things and that a regulation-writer can broaden the scope of the Act the regulation is supposed to implement, Messrs. Barnako and Cleary go on to take a look at the evidence in this case. They state:

"Upon a thorough review of the record, we find that the Secretary carried his burden of proof and showed that the soil was 'unstable or soft.'"

As support for that conclusion, they quote from the testimony of the Secretary's inspecting officer, Dino Gigante. Mr. Gigante testified at the trial on the depth of his knowledge of soil composition:

"Q. Did you have any formal education following high school graduation?

A. Two years at Northeastern University.

Q. What subjects did you study?

A. I was studying towards my Electrical Engineer's degree.

* * *

Q. Had you received any special soil training at Northeastern?

A. No.

Q. And, subsequent to going to work at the shipyard, did you receive any training on soils inspection analysis?

A. No.

Q. Have you received any such training since [*34] your employment at OSHA?

A. Soils analysis?

Q. Yes.

A. No."

Messrs. Barnako and Cleary not only rely upon this witnesses' testimony on soil analysis but they go on to identify him as "[t]he experienced compliance officer." It doesn't faze them at all to give this testimony more credit than the testimony of respondent's witness John Capocefalo - a man who had studied civil engineering at college, was employed as a soils engineer and whose work for a year and a half consisted of performing soil analyses and making recommendations based thereon for footing designs and foundations. He testified that observation is not enough in determining the nature of soil. To form an accurate opinion of the soil at issue in this case, he said,

"I'd want to perform certain tests such as a sieve test and to get the gradation and I would want a longer sample and I would want to be assured that was representative of all the soil."

My colleagues pay no heed to what a person experienced in soil analysis might need before rendering an opinion. They grandly "conclude that the evidence of instability preponderates" on the basis of the aforementioned Mr. Gigante's observations coupled with those of [*35] complainant's other witness, James Dolan, Jr., a witness who had never seen the excavation at issue and whose opinion that the soil was unstable was based solely on a tiny sample taken from one spot on the face of the excavation's opening by Mr. Gigante and preserved in a jar, several black and white photographs of questionable quality, and an "assumption" that the soil sample in the jar was representative of the entire area at issue.

It is my opinion that the only correct disposition of this case is to sustain the decision rendered by Judge Chalk which I attach hereto as Appendix A. He properly found that the employer had been charged with noncompliance with a regulation specifically applicable to trenches but that the evidence before him showed that the cavity in issue was not a trench. He went on to find that if the evidence was sufficient a violation could have been sustained had the respondent been charged with nonobservance of 29 C.F.R. 1926.651(c) a regulation pertaining to excavations. However, since the citation specified noncompliance with 29 C.F.R. 1926.652(b), the trench regulation - and there was no trench at the worksite - Judge Chalk properly vacated the citation. [*36]

An element of proof to establish a violation of the former standard is that there was employee exposure "to danger from moving ground." After seeing and hearing the witnesses, Judge Chalk found that the employee in the cavity "was not subjected to any hazard." This is equivalent to finding that he was not exposed "to danger from moving ground," and I join in this finding. Accordingly, a violation should not be affirmed under either standard.

I also take exception to my colleagues' conclusion that it would be appropriate to affirm a violation of either standard. Despite the fact that 1926.653(n) defines a trench as a cavity whose depth is greater than its width, Messrs. Barnako and Cleary indicate in footnote 5 that they will henceforth constitute themselves as a government of men - not of law - and decide "on the particular facts of each case" whether a cavity with a width greater than its depth is a trench or an excavation. n18 That leaves employers in a position where they must guess as to what Messrs. Barnako and Cleary will decide in each case. Since the complainant's regulations are different for trenches and excavations, n19 an employer who is not clairvoyant proceeds [*37] at his own peril when he elects to comply with either of the regulations. I submit that guessing games of such kind have no place in our judicial process and cannot help achieve the purposes of this Act - as evidenced by the reference set forth in note 18, supra.

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n18 They thereby place themselves on the opposite side of the fence from the recently-appointed Assistant Secretary of Labor for Occupational Safety and Health who, on November 11, 1975, told the Senate Labor and Public Welfare Committee that "the goals of the Act can be achieved only if a standard is clearly expressed in a manner which is comprehensible to employers and employees, encourages voluntary compliance, and is legally enforceable."

n19 As Judge Chalk correctly observed, the provisions of 1926.652(b) "impose specific requirements upon employers" whereas the provisions of 1926.651(c) "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.'"

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Additionally, 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 city standard and that neither the Judge nor the Commission is part of the Government's prosecutorial arm. Secretary v. Watmore & 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 him to correct it. This is so clearly wrong that the source of this concept surely is foreign to our constitutional system of jurisprudence.

[*39] November 21, 1975. Such decisions improperly infringe on the judicial independence and impartiality of Commission Judges and tend to relegate them to a position where they are no more than another arm of the prosecution. This is contrary to the intent of Congress in establishing this Commission. Secretary v. Wetmore & Parman, Inc., supra.

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n20 Interestingly (perhaps this is just coincidence), the only cases where Messrs. Barnako and Cleary have done this have been those where the Judge has found in favor of the employer. In each such case, my colleagues criticized the Judge for not taking a position which would have favored the Secretary of Labor.

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