W.N. COUCH CONSTRUCTION COMPANY

OSHRC Docket No. 5105

Occupational Safety and Health Review Commission

December 8, 1975

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

W. N. Couch, President, W.N. Couch Construction Co., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman: A decision of Review Commission Judge J. Paul Brenton, dated July 19, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision. Accordingly, the Judge's decision is hereby affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the affirmance of the Judge's decision which is attached hereto as Appendix A.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, Dissenting:

I disagree with my colleagues' decision to affirm the Judge's decision.

On September 12, 1973, a compliance officer of the Secretary of Labor, complainant, inspected the worksite of W. N. Couch Construction Co., the respondent employer, in Tulsa, Oklahoma. At the time of the inspection, respondent was engaged in laying a new pipe line, and had prepared a trench for that purpose. The trench at issue was between 50 and 75 feet long, and varied in depth [*2] from 10 feet at its shallow end, where respondent's employees had begun to position the pipe, to 12 feet at the deep end, where a backhoe was being used periodically to lengthen the trench.

At its deep end, the trench was about 3 feet wide at the bottom with sides that rose vertically to the 4 1/2 foot level. From this level each side was "benched out" horizontally approximately 4 1/2 feet and then, again, each side rose vertically for the remaining 7 1/2 feet. The trench was about 12 feet wide at the top.

Following the inspection a citation was issued to respondent alleging a failure to comply with the standard at 29 CFR 1926.652(b). n1 A penalty of $40 was proposed for the violation.

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n1 The 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.

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Respondent contested both the citation and proposed penalty. A hearing on the contested matter was held before Judge J. Paul Brenton on March 12, 1974. At the hearing, the compliance officer testified that, while the pipe laying procedure required respondent's employees to work only in the shallow end of the trench, he had observed some of the men in the deep end. He further testified that the soil in the trench was "soft and crumbly" and that, while the "benching" technique employed by respondent evinced its good faith, it "was not in compliance with our standards."

Although surprised to learn of the employees' presence in the deep end of the trench, Mr. Couch, respondent's president appearing pro se, made no attempt to rebut the officer's testimony. When asked by the Judge to describe the soil, however, he testified that it was "a tough clay, firm, firm-type soil." Mr. Couch, a man with 18 years' experience in the excavating business, based his conclusion on the appearance of the soil, its reaction to the digging equipment, and the degree of difficulty incurred during the excavating procedure.

In his decision, Judge Brenton vacated both the citation and the proposed [*4] penalty holding that the Secretary failed to prove by a preponderance of the evidence that the soil was soft or unstable. The Judge noted that "[t]he evidence in this case presents a stand-off" since "there are only two witnesses, one to a side of equal credibility and reliability with the experience in analyzing the nature of soil composition favoring respondent."

The case was directed for review before the full Commission on August 19, 1974, on the following issue:

Whether the existence of a violation of 29 CFR 1926.652(c) was tried by express or implied consent of the parties, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, and if so, whether evidence of record establishes such a violation.

A Rule 15(b) Amendment

Rule 15(b) of the Federal Rules of Civil Procedure n2 permits the adjudicator to amend the pleadings to conform to the evidence on its own motion. Not only does an adjudicative agency have the right to amend the pleadings on its own motion, it has an affirmative duty to consider issues raised by the evidence, even if not specifically pleaded. American Boiler Mfrs. Ass'n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966); Michigan [*5] Consol. Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).

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n2 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, 29 CFR 2200.2(b). 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.

Fed. R. Civ. P. 15(b)

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The Commission has employed the authority granted in Rule 15(b) on numerous occasions to conform the pleadings to the evidence, see, e.g., Park Constr. [*6] Co., No. 2044 (April 24, 1975); Gerstner Electric, Inc., No. 997 (August 1, 1974); Advance Air Conditioning, Inc., No. 1036 (April 4, 1974); and in Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting), the five factors to be considered before making such an amendment were set out. While all five criteria are important, the propriety for an amendment in this case hinges upon the resolution of the first three of those factors. They are as follows:

1. . . . whether the underlying facts upon which a violation is alleged are the same.

2. Whether the parties expressly or impliedly consented to the trial of the amended issue.

3. . . . whether respondent has had a chance to raise all relevant defenses to the amended pleading.

I begin by noting that the standards at 29 CFR 1926.652(b) n3 and 652(c), n4 taken together, require that trenches be shored or sloped regardless of the nature of the soil unless, of course, the trench is dug in solid rock, shale or cemented sand and gravels. n5 Thus, we have a situation in which the conduct necessary to establish a fatlure to comply with one standard is, for all practical purposes, virtually [*7] identical to the conduct necessary to establish a non-compliance with the other standard except for one factor - the nature of the soil. Assuming a failure to shore or slope a trench, it is this one distinguishing factor that determines, in most cases, under which of the two trenching standards respondent may be cited. n6

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n3 See note 1, supra.

n4 The standard, in pertinent part, reads as follows:

1926.652 Specific Trenching Requirements

* * *

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported 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.

n5 See Table P-1, 29 CFR 1926.652.

n6 The exceptions to this generalization usually arise when cases turn on the different sloping requirements of the standards. See e.g., Horowitz Brothers, Inc., No. 3004 (April 30, 1975).

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In this case, the issue of the soil's nature was raised by the pleadings and litigated by the parties. Having reviewed the evidence, I agree with the Judge that complainant failed to establish by a preponderance of the evidence n7 that the soil was soft, running or unstable. This being the case, there is no "stand-off" in the evidence. Instead, we have a soil that, by definition, must be classified as hard and compact. n8

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n7 Armor Elevator Co., Inc., Nos. 425 & 426 (November 20, 1973).

n8 "Hard compact soil" is defined at 29 CFR 1926.653(h) as "All earth materials not classified as running or unstable."

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All other elements of a non-compliance with 29 CFR 1926.652(c) were necessarily tried while litigating a failure to comply with the standard at 29 CFR 1926.652(b). I would conclude, therefore, that the issue of whether respondent violated the Act for its failure to comply with the standard at 29 CFR 1926.652(c) was tried by the implied consent of the parties and the [*9] pleadings should be deemed conformed to the evidence. n9 The majority by not taking this action, is failing to follow our precedent for amending the pleadings to conform to the evidence.

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n9 Rule 72 of the Commission's Rules of Procedure provides in part that "(h)earings before the Commission and its Judges shall be in accordance with 554 of Title 5 U.S.C. . . ." (the Administrative Procedure Act) Under the APA, an agency may find that the respondent's conduct violates a different provision of law than that specified in the complaint as long as the underlying facts have been alleged in the complaint and the shift in legal theory does not prejudice respondent. N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861-2 (2d Cir. 1966); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953) cert. dented, 347 U.S. 953 (1954).

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29 CFR 1926.652(c) and Benching

In his decision, Judge Brenton found that respondent "made a trench substantially complying with 29 CFR 1926.652(c)." Evidently, the [*10] Judge found respondent's benching technique "substantially" equivalent to the sloping requirement of the standard. n10 I disagree. The compliance officer was correct when he observed that respondent's benching technique is simply "not in compliance with our standards."

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n10 The standard at 29 CFR 1926.652(c) requires sloping "[i]n lieu of shoring." The testimony at the hearing together with the photographic exhibits conclusively establish that the trench was not shored.

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The term "slope" is defined at 29 CFR 1926.653(1) as "the angle with the horizontal at which particular earth material will stand indefinitely without movement." Respondent's benching procedure in this case exposed his employees to vertical sides above the 5 foot level. In other words, respondent provided a 90 degree angle of repose which is, in effect no slope at all. A 90 degree angle of repose is permitted only when a trench is dug in solid rock, shale or cemented sand and gravels. n11 Respondent's trench was not dug in this material.

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n11 See note 5, supra.

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Accordingly, I would reverse Judge Brenton and find respondent in violation of the Act for its failure to comply with the standard at 29 CFR 1926.652(c).

APPENDIX A

DECISION AND ORDER

Allen L. Prince, for the Secretary of Labor

W. M. Couch, for the Respondent

STATEMENT OF THE CASE

J. Paul Brenton, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 129th and 51st Street, Tulsa, Oklahoma, and described as follows: "Trenching and Excavation", the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the [*12] Secretary of Labor pursuant to section 6 thereof.

The citation, which was issued on September 28, 1973, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 243), and codified in 29 CFR Part 1926.

The description of the alleged violation contained on said citation states:

Item 1 "29 CFR 1926.652(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, were not shored, sheeted, braced, adequately sloped, nor otherwise supported by means of sufficient strength to protect the employees working within them."

The standard as promulgated by the Secretary provides as follows:

Item 1 "29 CFR 1926.652 Specific trenching equirements.

(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. . . ."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated September 28, 1973, from J. T. Knorpp, Area Director of the Tulsa, [*13] Oklahoma, area Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty for the violation alleged in the amount of $40.00.

After respondent contested this enforcement action, and a complaint had been filed and respondent's contest considered as an answer thereto, the case came on for hearing at Tulsa, Oklahoma, on March 12, 1974.

FINDINGS OF FACT

1. Respondent for 18 years last past at the time and place of inspection engaged in a business known as an excavation contractor in the city of Tulsa, Oklahoma.

2. Respondent's notice of contest is a plea of not guilty of the violation as charged in the citation and a formal hearing thereon was requested.

3. Respondent did not file an answer to the complaint.

4. At the time of the inspection respondent's workplace consisted of an open area where pipe was being installed underground by means of making a cavity in the earth's surface by removal of the soil.

5. This cavity was 3' wide at the bottom and 12' wide at the top, the sides rose almost verticle 4 1/2', after which each side was benched horizontally 4 1/2' and then the sides rose again almost vertical 7 1/2. The total depth [*14] varied from 10' at its shallow end where workmen placed sand under and over the pipe as it was installed to 12' where the backhoe was in operation digging the cavity.

6. The excavated soil was described by complainant as being clay type, soft and crumbly except for the top 18" which was compacted fill dirt.

7. Respondent conceded the top 18" to be compacted fill dirt but that the remainder was tough clay, firm type soil.

8. There was no evidence of any flaking, sloughing, slides, cracking or slippage of the sides of this cavity.

9. The removed earth was stored much more than 2 feet from the edges of the cavity and it was conceded that there was no load on the edges of the cavity of any kind.

10. Complainant placed the soil in the category of somewhere in the neighborhood of average soil.

11. A ladder was in the cavity adjacent to the workmen for ingress and egress.

12. The excavated soil below 18" was in clods and chunks.

ISSUE

Were the sides of the cavity or trench composed of unstable or soft material.

DISCUSSION

Complainant came up with an alleged non-serious violation in this case because as he pictured the scene in question there was little or no likelihood [*15] of death or serious bodily injury if a cave-in should occur. He was of the opinion that a workman would not be covered and that the chance of a cave-in existed from that part of the side of the trench that extended from the bottom of the bench to the top.

Complainant contended that respondent failed to slope the sides of the trench at a 45 degrees angle of repose, that is, no more than a 1 foot rise for each 1 foot horizontal. He admitted that is was almost in this category. In any event, his testimony reflects that it was this existing condition in the alleged unstable soil which became his basis for the citation.

Complainant's burden here was to show that either because of the nature of the soil or because of related conditions it could not be depended upon to remain in place without at least an angle of repose of 1' to 1'. He relied on his judgment as to the nature of the soil inasmuch as there were no evident existing related conditions such as a load at or near the edges of the sides of the trench. To ascertain its nature he squashed some removed soil in his hands and between his fingers, as was his practice in trenching inspections for about 2 years, and because this [*16] handful crumbled into some fragments he concluded it was soft or unstable. Whereas respondent, who had been digging cavities in the earth in the Tulsa area for 18 years, relied on his judgment from the looks of the material being excavated, the inaction of the sides of the trench as it was being made and the hard job the three quarter backhoe was having in digging the earth to be removed; and from these considerations felt he was in hard or compact soil. From this judgment he made a slope that approached but did not equal the alleged minimum requirement of 1' to 1'.

The evidence in this case presents a stand-off. Here there are only two witnesses, one to a side of equal credibility and reliability with the experience in analyzing the nature of soil composition favoring respondent. There is no corroborating evidence, direct or circumstantial, tending to support complainant's case for violation of the standard alleged.

Moreover, respondent, in the exercise of his sense of feel for the nature of the soil, felt that it was hard and thereupon made a trench substantially complying with 29 CFR 1926.652(c).

Now, therefore, complainant, having failed to tip the scales by all the substantial, [*17] reliable and probative evidence so as to preponderate in favor of the truth of the fact alleged, his case fails on the merits and the citation and proposed penalty to be assessed should be vacated.

CONCLUSIONS OF LAW

1. Respondent's failure to deny, by answer to the complaint, that it was engaged in a business affecting commerce admits the truth of that fact alleged by virtue of Commission Rule 33(b)(2) and thereby jurisdiction to hear and decide this case is with the Review Commission.

2. Where upon consideration of all the evidence the truth of the charge alleged is left in equipoise the complainant has failed to make his case for a violation of the citation.

ORDER

Wherefore it is ORDERED that:

The citation and the proposed penalty to be assessed be and each is hereby vacated.

It is so ORDERED at Dallas, Texas.

J. Paul Brenton, Judge

Date: JUL 19 1974