ENVIRONMENTAL UTILITIES CORPORATION

OSHRC Docket No. 5324

Occupational Safety and Health Review Commission

April 4, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Regional Solicitor, USDOL

Kenneth L. Oliver, for the employer

Heavy and Highway Construction Workers, Laborer's Local Union No. 158, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This case is before the Commission pursuant to orders for review issued by Commissioner Moran and myself. Commissioner Moran, on his own motion, ordered review and invited submissions on the following issues:

(1) Did the inspection conform to the requirements of 29 U.S.C. 657(e) and the regulations issued in implementation thereof?

(2) Did the Judge rule properly on the alternative pleading issue presented by this case?

I granted the petition for discretionary review filed by complainant, the Secretary of Labor, that raised the following issues:

(1) Whether the Administrative Law Judge erred in finding the noncompliance with 29 CFR 1926.652(c) not to be serious within the meaning of section 17(k) of the Act?

(2) Whether the Administrative Law Judge erred in finding no violation with respect to the Prospect Road trench?

We have reviewed the record, including [*2] the parties' submissions, and affirm the Judge's decision as modified below.

At the time of inspection respondent, Environmental Utilities Corporation, was engaged in the installation of a sewer line in Columbia, Pennsylvania. During the course of this operation respondent had excavated two separate trenches. One trench was located along the side of Marietta Pike. The other was at Prospect Road.

In the citation and complaint, complainant alleged violations only as to the trench located at Marietta Pike. In proposed findings of fact and conclusions of law submitted to the Judge, however, complainant sought a ruling that respondent willfully failed to comply with 29 CFR 1926.652(c) at the Prospect Road trench as well as at the Marietta Pike trench. Judge Brennan refused to rule on this. Complainant, in his petition for review, asks that this refusal to deem the pleadings amended be reversed. We decline to do so.

As noted by the Judge, complainant never sought an amendment although he moved at the close of the hearing to amend the pleadings to conform to the evidence regarding other issues. This failure convinces us that any evidence adduced as to work practices at the Prospect [*3] Road trench should only be considered as bearing upon the willful nature of the alleged violation at the Marietta Pike trench. Evidence of work practices in effect at the Prospect Road trench can be considered as bearing solely upon a generalized course of conduct by this employer. As such it would be relevant to the issue of whether the employer demonstrated indifference to the requirements of the trenching standards. Under these circumstances we find that an amendment at the close of the hearing or at this stage of the proceedings would prejudice respondent. See D. Fredrico Co., Inc., 3 BNA OSHC 1970, 1975-76 CCH OSHD para. 20,422 (No. 4395, 1976), petition for review docketed, No. 76-1084, 1st Cir., February 26, 1976. We, therefore, affirm the Judge's refusal to consider the existence of a violation, willful or otherwise, at the Prospect Road trench.

In its answer, respondent asserted that "alternative pleading of alleged willful violations is not permitted under the Act." This objection referred to the fact that both the citation and complaint alleged a willful violation of 29 CFR 1926.652(b) or (c) at the Marietta Pike trench. Judge Brennan rejected this [*4] contention as "not supported in law or on the facts of record."

Although respondent did not seek review of this portion of the Judge's disposition, the alternative pleading was raised by Commissioner Moran's direction for review. We have reviewed this issue in light of the submissions filed by the parties, and are convinced that the Judge ruled properly. His ruling is in accordance with the Commission's approval of pleading in the alternative. See Henkels & McCoy, Inc., 4 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976) and material cited therein. We affirm and adopt those portions of the Judge's decision holding that the alternative pleading was permissible.

Respondent also asserted that in the course of the inspection the compliance officer failed to present his credentials to any representative of respondent and failed to afford respondent and its employees an opportunity to accompany him during the inspection. n1 Respondent contends that these failures on the part of complainant's representative require dismissal of all citations issued as a result of the inspection. Judge Brennan rejected this argument. We affirm his disposition.

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n1 In its brief before the Commission respondent reasserts an argument rejected by the Judge concerning alleged improprieties regarding a closing conference. Respondent maintained that alleged irregularities and omissions in the closing conference warranted dismissal of the citation. We disagree.

Judge Brennan ruled that any irregularities or omissions in the closing conference did not prejudice respondent in light of the extensive prehearing discovery procedures and lengthy trial in this matter. We agree with the Judge's ruling and, therefore, adopt it.

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In the first place, this Commission and several courts of appeals have held that any failure to comply with sections 8(a) and (e) n2 of the Act does not automatically invalidate a subsequent citation. Western Waterproofing Co., Inc., 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976), petition for review docketed, No. 76-1703, 8th Cir., August 18, 1976; Chicago Bridge & Iron Co. v. O.S.H.R.C. & Dunlop, 531 F.2d 371 (7th Cir. 1976); Accu-Namics, Inc. [*6] v. O.S.H.R.C. & Dunlop, 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S. Ct. 1492 (1976). Rather, it has been held that if any sanction is to be imposed for failure to comply with either section 8(a) or (e) the proper remedy is to suppress evidence gained from the inspection. n3 Western Waterproofing Co., Inc., supra; Hoffman Construction Co., No. 75-1741 (9th Cir., Nov 1, 1976); Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071 (9th Cir. 1976). We will, therefore, consider respondent's motion to dismiss as a motion to suppress evidence gained as a result of the inspection.

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n2 29 U.S.C. 657(a) and (e). In pertinent part, these sections read as follows:

Sec. 8(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

* * *

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.

n3 My own view is that the use of a suppression rule to enforce the provisions of section 8 should not be allowed in any case where an employer does not suffer from want of fairness. In such cases a suppression rule would unnecessarily cut against the predominant statutory purpose of ensuring safe workplaces. See Western Waterproofing Co., Inc., supra (Cleary, Commissioner, concurring in part and dissenting in part).

[*7]

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In Western Waterproofing Co., Inc., supra, a divided Commission considered the question of what standard of review should be applied when examining an asserted failure to comply with the Act's requirements for the presentation of credentials (section 8(a)) and for the so-called "walkaround" (section 8(e)). It was held that any rights granted by section 8(a) should be read as coinciding with those of the Fourth Amendment. Consequently, this Commission would not provide a remedy for failure to comply with section 8(a) unless the noncompliance violates the Fourth Amendment. Also, no remedy for failing to comply with section 8(e) would be imposed unless the record reveals a failure by the Secretary substantially to comply with section 8(e) and that such noncompliance substantially prejudiced the cited employer. n4 We will, therefore, consider respondent's objections regarding the inspection in light of the above. n5

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n4 Chairman Barnako would provide a remedy solely upon a showing of a failure substantially to comply with section 8(e). Western Waterproofing Co., Inc., supra; C.F. & I. Steel Corp., 4 BNA OSHC 1649, 1976-77 CCH OSHD para. 21,027 (No. 5619, August 23, 1976), petition for review docketed, No. 76-1952, 10th Cir., October 10, 1976.

I would not. As indicated in my dissenting opinions in the above two cases, no remedy should be imposed unless there is a showing of substantial prejudice.

n5 Judge Brennan disposed of respondent's objections by applying the Fifth Circuit's decision in Accu-Namics, Inc., supra. We will, however, re-examine the objections in light of consensus principles announced in Western Waterproofing Co., Inc., supra.

[*8]

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Regarding respondent's objections concerning the compliance officer's failure to present credentials before commencing the inspection, we hold that any observation of working conditions before the presentation of credentials comported with the Fourth Amendment. Consequently, we need not consider imposition of any remedy for technical noncompliance with section 8(a).

Judge Brennan found that respondent's work area at Marietta Pike was "accessible to the public and completely open to public view." Respondent cannot claim a reasonable expectation of privacy as to its Marietta Pike trench inasmuch as the trench abutted a public thoroughfare. The very nature of the jobsite excludes any expectation of privacy as to visual observations. Respondent knowingly exposed its jobsite to public scrutiny and, therefore, cannot claim protection under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351 (1967). Any observations made by the compliance officer prior to his presentation of credentials would not infringe upon respondent's Fourth Amendment right of privacy.

Respondent also maintains that [*9] the compliance officer failed to give an authorized representative of respondent the opportunity to accompany him during the inspection. In view of the fact that the compliance officer observed allegedly noncomplying conditions before contacting any representative, respondent was obviously not given an opportunity to participate in some portions of the inspection. Thus, there was a failure to comply in all particulars with the section 8(e) "walkaround" provision. Nevertheless, as noted above, insubstantial noncompliance alone with section 8(e) is not sufficient to require a remedy.

We hold that under the facts of this case the compliance officer substantially complied with section 8(e). Upon his arrival at the Marietta Pike worksite the compliance officer was advised by inspector Le Fever of the Pennsylvania Department of Highways and inspector Roberts of the Huth Engineering Company that respondent's assistant superintendent Bannerman was temporarily absent from the jobsite. While he was talking to these two individuals the compliance officer observed apparent violations of trenching standards by respondent's employees in the trench. The compliance officer returned to his [*10] car to get a camera. Upon his return he photographed be alleged violative conditions. He testified that photographs were required at that time because there was an immediate possibility that working conditions in the trench would change. n6

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n6 The nature of the work practices in effect at the trench supports the compliance officer's belief that immediate action was necessary to preserve evidence. The alleged violation concerned improper installation of trench jacks. Judge Brennan made the following observations regarding respondent's work practices:

Respondent's normal trenching practices, in installing 12-1/2 foot lengths of sewer pipe involved herein, is to dig the trench to the designed depth and insert three hydraulic trench jacks, two jacks about 12 feet apart, and one in between. Crushed stone is then dumped into the trench as a foundation for the pipe, and leveled to grade. The sewer pipe is then put into the trench and connected to the length of pipe already installed. Then two of the jacks are removed from the trench to be moved ahead in the trench to accommodate the next length of pipe.

[*11]

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Based on the above we concluded that the compliance officer acted reasonably under the circumstances. Following an attempt to contact a representative of respondent, the compliance officer acted to preserve evidence of a transitory violation to which respondent's employees were exposed. We hold that the compliance officer substantially complied with section 8(e).

We also hold that respondent failed to demonstrate that it was substantially prejudiced by this technical failure to comply with the walkaround provision. In its brief, respondent maintains that it was "greatly prejudiced . . . in its defense of this matter." n7 Respondent notes that Judge Brennan states in his opinion that the compliance officer's failure to follow the procedures set forth in section 8(e) "contributed significantly to some of the confusion evidenced in this case as well as the length of the trial herein." Respondent insists that this and other similar observations of the Judge "must reasonably be interpreted as a finding of prejudice. . . ." n8 We disagree.

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n7 Brief for respondent at 24.

n8 Reply brief for respondent at 4.

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There is little doubt that prehearing procedures and the hearing itself might have proceeded more smoothly if a representative of respondent had been present at the time the compliance officer observed certain working conditions at respondent's Marietta Pike jobsite. Confusion before and during the hearing cannot, however, be equated with substantial prejudice in the preparation of a defense. The record must reveal that the failure to afford a walkaround substantially impeded the employer's ability to defend on the merits. In our opinion, respondent has not made such a showing.

Approximately three weeks before the hearing, complainant submitted a list of witnesses intended to be calle for the purpose of establishing the trenching violations. It was asserted that, in addition to the compliance officer, five named persons observed the alleged violative working conditions. Respondent did not, however, seek to depose any of these prospective witnesses under the terms of Rule 53 of the Commission Rules of Procedure, [*13] 29 CFR 2200.53. In addition, respondent moved successfully under Fed. R. Civ. P. 34 n9 for production of certain documents relevant to the inspection. Documents tendered by complainant in response to the Judge's order included the entire investigative file complied by the compliance officer. Finally, at the hearing respondent had the opportunity to question several eyewitnesses to the alleged violation. Under these circumstances, we conclude that respondent was not substantially prejudiced by the fact that one of its representatives was not present when the compliance officer observed the cited conditions at the Marietta Pike jobsite.

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n9 In absence of an applicable provision in the Commission Rules of Procedure, the Federal Rules of Civil Procedure apply to proceedings pursuant to Rule 2(b) of the Commission Rules of Procedure, 29 CFR 2200.2(b).

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With the exception of the willful violation for failing to comply with 29 CFR 1926.652(b) or (c), the parties do not take issue with the Judge's disposition of any [*14] of the alleged violations at the Marietta Pike trench. Judge Brennan held that the evidence failed to establish a willful violation of the standard at 1926.652(c). Nevertheless, he held that at the time of inspection working conditions existed that did not comply with the requirements of 1926.652(c). In his petition for discretionary review complainant maintains that the Judge erred in failing to find that respondent's noncompliance with the standard constituted a "serious" violation of the Act. n10 We agree.

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n10 29 U.S.C. 666(j). This section reads as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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In Toler Excavating Co., 3 BNA OSHC 1420, 1975-76 CCH OSHD para. 19,875 (No. 2637, 1975), this Commission held that under certain circumstances a "serious" violation may be found when a willful violation was originally alleged. We stated that:

. . . [W]hen a respondent is charged only with a willful violation and the evidence establishes a violation which is not willful, a nonserious violation may be affirmed but, ordinarily, a serious violation may not be. An exception to this rule exists when the issue of whether the violation is serious is tried by the express or implied consent of the parties. National Realty and Construction Co., Inc. v. OSAHRC, 489 F.2d 1257, 1264 [1 OSHC 1422] (D.C. Cir. 1973); Fed. R. Civ. P. 15(b).

Toler Excavating Co., supra (footnote omitted). Inasmuch as the Judge found a nonserious violation of the standard at 1926.652(c), we need only consider whether the record shows that the parties tried the elements of a serious violation and, if so, whether the evidence establishes seriousness.

In addition to proving that there was a substantial probability that death or serious physical harm could result [*16] from a noncomplying condition, a divided Commission has held that in order to prove a serious violation complainant must also show that the employer knew or, with the exercise of reasonable diligence, could have known of the presence of the violation. D.R. Johnson Lumber Co., 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, 1975). Our review of the record in this case indicates that the parties tried both elements of a serious violation. It is therefore appropriate under the terms of Fed. R. Civ. P. 15(b) to amend the pleadings to allege a serious violation. See Kaiser Aluminum & Chemical Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976) and authorities cited therein.

Without objection from respondent's counsel, n11 complainant's Assistant Area Director Allendorf testified that if an accident had occurred in the inadequately protected Marietta Pike trench there was a substantial probability of resultant death or serious physical harm to respondent's two employees observed in the trench. In addition, there is extensive evidence of record bearing on the issue of whether respondent through its supervisory personnel had either actual or [*17] constructive knowledge of unsafe work practices in the Marietta Pike trench. Under these circumstances, we conclude that the parties tried the issue of whether respondent's noncompliance with 1926.652(c) constituted a serious violation.

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n11 Counsel for respondent objected to portions of Mr. Allendorf's response dealing with respondent's alleged history of trenching violations. He did not, however, object to those portions of the response dealing with the probable consequences of an accident in the cited trench.

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Moreover, we told that complainant satisfied his burden of establishing the elements of a serious violation. Although Judge Brennan found that two employees were exposed to the inadequately protected trench for a period of 10 to 15 minutes, he held that this fact coupled with immediate abatement by respordent's foreman and an absence of actual employee injury established only a nonserious violation. We disagree.

The factors relied upon by the Judge should not be considered in determining the nature of [*18] a violation. Duration of employee exposure and absence of injury are relevant only in determining the gravity of a violation for penalty assessment purposes. They are not determinative of whether a "serious" violation exists. This Commission has held that complainant need only show that there is a substantial probability that death or serious physical harm could have resulted if the type of accident contemplated by the standard occurred. California Stevedore & Ballast Co., 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff'd 517 F.2d 986 (9th Cir. 1975). We consider the unrebutted testimony of Mr. Allendorf as establishing that there was a substantial probability of death or serious physical harm in the event of a cave-in in the Marietta Pike trench.

We also conclude that respondent, with the exercise of reasonable diligence, could have known of the existence of working conditions that did not comply with 1926.652(c). Although it was shown that supervisory personnel were not present when two employees remained in the Marietta Pike trench after two of three trench jacks required by the standard were removed, this record does not show that the employees' [*19] actions contravened well-established and effectively communicated work rules regarding trenching practices. To the contrary, while the evidence showed that it was respondent's normal practice to employ trench jacks in a manner that complied with 1926.652(c) during the performance of most of its trench work at Marietta Pike, it also showed that it was customary for employees to remain in a trench during the time that trench jacks were removed and relocated further along in the trench. n12 Thus, it cannot be said that, by remaining in the trench after two jacks were removed, respondent's employees were violating their employer's established and uniformly enforced safety policy. Indeed, one of the employees working in the Marietta Pike trench on the date of inspection testified that he "felt secure" n13 remaining in the trench after the trench jacks were removed. Under these circumstances, we hold that respondent with the exercise of reasonable diligence should have known that its employees might remain in the Marietta Pike trench after trench jacks were removed. Accordingly, we hold that the failure to comply with 1926.652(c) in the Marietta Pike trench constituted a serious [*20] violation of the Act.

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n12 Testimony of one of respondent's employees charged with the duty of installing trench jacks at the Marietta Pike trench indicates that employees did not always leave the trench during removal and reinstallation of trench jacks.

n13 Testimony of Andrew Bernard Kopchinski at Tr. 361-362.

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Judge Brennan assessed a $50 penalty for respondent's failure to comply with 1926.652(c). While we have reversed Judge Brennan insofar as he failed to find that such noncompliance constituted a serious violation, we have noted that the factors he relied upon in determining the nature of the violation were relevant in determining an appropriate penalty. Inasmuch as the Judge weighed evidence relating to the gravity of the violation and respondent's good faith in assessing the $50 penalty as well as in categorizing the violation, we adopt his analysis insofar as it relates to an appropriate penalty. We, therefore, affirm the assessment of a $50 penalty.

It is ORDERED that the violation of 1926.652(c) [*21] be affirmed as serious and a $50 penalty be assessed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur in finding a serious violation or 29 C.F.R. 1926.652(c), in the assessment of a $50 penalty, and in denying Complainant's motion to amend to charge a violation with respect to the Prospect Street trench. I also agree that the judge properly held that our rules permit alternative pleading. My views on alternative pleading are stated in Henkels & McCoy, Inc., No. 8842, BNA OSHC 1502, CCH OSHD para. 20,944 (1976) (concurring opinion).

I do not join in my colleague's discussion of the section 8(e) issue. In my opinion, if there had been a failure of the compliance officer to substantially comply with section 8(e), then Respondent would be entitled to relief regardless of whether it was actually prejudiced in presenting its defense. Western Waterproofing Co., 76 OSAHRC 64/A2 BNA 4 OSHC 1301, CCH OSHD para. 20,805 (1976), pet. for review filed, No. 76-1703 (8th Cir., Aug. 18, 1976). I conclude, however, that the compliance officer did substantially comply with section 8(e) for the following reasons.

Respondent's Marietta Pike worksite was immediately adjacent to a public [*22] road. At the time the compliance officer arrived at the worksite, two of Respondent's employees were working in the trench. The compliance officer learned from representatives of other employers on the site that Respondent's assistant superintendent, Bannerman, had been at the site shortly before, but was temporarily absent. The compliance officer decided to wait until Bannerman returned. In the meantime, he observed the conditions in the trench, took photographs, and spoke to the employees. Bannerman returned to the site approximately 45 minutes after the compliance officer had arrived, and the compliance officer conferred with him immediately upon his return.

By remaining at the site until Bannerman returned, the compliance officer acted in the manner best calculated to assure that Respondent was afforded its rights under section 8(e). Compare Western Waterproofing Co., supra. Furthermore, the worksite was visible to the public and the compliance officer was therefore justified in observing the conditions existing there while waiting for Bannerman. Accu-Namics, Inc. v. OSHRC, 515 F. 2d 825 (5th Cir. 1975), cert. denied, 96 S. Ct. 1492 (1976). Under the circumstances, [*23] the inspection procedures were proper and in conformance will section 8(e).

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The lead opinion indicates that our holding in Secretary v. Western Waterproofing Co., OSAHRC Docket No. 1087, June 21, 1976, stands for the proposition that:

"[N]o remedy for failing to comply with section 8(e) [29 U.S.C. 657(e)] would be imposed unless the record reveals a failure by the Secretary substantially to comply with section 8(e) and that such noncompliance substantially prejudiced the cited employer."

Nothing could be further from the truth. Chairman Barnako wrote the lead opinion in Western Waterproofing, and I filed a separate concurring opinion. He and I agreed that the citations should be vacated because the Secretary of Labor had not substantially complied with 29 U.S.C. 657(e). Neither opinion considered the question of whether respondent had been prejudiced by the Secretary's failure to so comply. Only Commissioner Cleary in his separate opinion addressed the question of resulting prejudice. Thus, Western Waterproofing clearly stands for the proposition that an employer is entitled to relief when the Secretary has not substantially [*24] complied with section 657(e), irrespective of whether the employer was prejudiced thereby - the exact opposite of what Commissioner Cleary states in the above-quoted sentence.

Furthermore, footnote 11 to Chairman Barnako's opinion in Western Waterproofing specifically indicates that the Cleary interpretation of that case is erroneous. That footnote states that in Chicago Bridge & Iron Co. v. OSAHRC, 535 F.2d 371 (7th Cir. 1976), the Commission decision was affirmed because:

". . . the Secretary had substantially complied with [29 U.S.C. 657(e)] requirements in the circumstances of the case and Respondent was unable to demonstrate prejudice."

In other words, prejudice is pertinent only when there has been substantial compliance with section 657(e). If there has not been substantial compliance, prejudice is not relevant.

Although there is no valid reason for misinterpreting the majority's holding in Western Waterproofing, to dispel any possible doubt and to insure that Commissioner Cleary's opinion in the instant case is not mistaken as the Commission position on this matter, I hereby join in Chairman Barnako's opinion that the Secretary's failure to substantially [*25] comply with section 657(e) entitles an affected respondent "to relief regardless of whether it was actually prejudiced in presenting its defense."

Although Chairman Barnako has correctly pronounced the law on this matter, he unfortunately joins Commissioner Cleary in applying it in an erroneous manner by concluding that complainant's inspector substantially complied with section 657(e) in the instant case.

Substantial compliance with the walkaround provision of section 657(e) requires, at the outset, that complainant's safety inspectors make a diligent effort to seek out a representative of respondent. Such an effort was not made in this case. Although my colleagues correctly note that respondent's assistant superintendent was not at the worksite when the safety inspector arrived, they neglect to note that respondent's foreman for the Marietta Pike trench was approximately 100 feet away from the trench at the time and returned to the vicinity of the trench shortly thereafter. Despite that fact, the safety inspector made no attempt to discover the identity of the foreman, did not afford the opportunity to accompany him on his inspection, and in fact never spoke to the foreman [*26] or any other employee of respondent until the assistant superintendent arrived.

The safety inspector's failure to contact the foreman may have resulted from his belief that respondent left no one in charge at the worksite in the absence of the assistant superintendent. Nevertheless, since the inspector never spoke to any of respondent's employees, his efforts to ascertain who was in charge at the time of the inspection can hardly be characterized as diligent. A prefunctory, unsuccessful attempt to contact a representative of the employer does not constitute substantial compliance with walkaround requirements. Secretary v. Western Waterproofing Co., supra. This provision confers substantial rights on employers and adherence to it cannot be dispensed with casually.

Since this decision does not address all of the matters covered in Judge Brennan's decision, his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Louis Weiner, Regional Solicitor and Matthew J. Rieder, for the employer

Kenneth L. Oliver, for the Respondent

Heavy and Highway Construction Workers, Laborer's Local Union No. 158, for the Employees Representative

Brennan, W.E.; A.L.J.

This [*27] is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), (hereinafter the Act), to review a Citation for Willful Violation and a Citation for Nonserious Violations (2 Items); and penalties proposed thereon issued pursuant to Sections 9(a) and 10(a) of the Act (29 U.S.C. 658(a) and 659(c)), on October 298 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Philadelphia, Pennsylvania (hereinafter Complainant), to Environmental Utilities, Inc., of Amsterdam, New York (hereinafter Respondent).

The Citation for Willful Violation alleges that Respondent on October 18, 1973, at a place of employment located at Marietta Pike and Prospect Road in Columbia, Pennsylvania, (hereinafter worksite) willfully violated Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) due to its failure to comply with the Occupational Safety and Health Standards for trenching set forth at either 29 C.F.R. 1926.652(b) or 1926.652(c). This Citation set forth the following:

Description of Alleged Violation

The sides of a trench in a clay type soil, five feet or more in depth and [*28] eight feet or more in length located on Marietta Pike at Prospect Road in Columbia, Pennsylvania, was not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within.

Abatement was to be accomplished "Immediately upon receipt of Citation." A penalty of $9,000 was proposed.

The second Citation issued to Respondent alleged two nonserious violations of Section 5(a)(2) of the Act on the same date at this worksite because of its failure to comply with two additional trenching standards as follows:

Item 1 - 29 C.F.R. 1926.652(h)

Two employees were required to be in a trench, four feet or more in depth (located on Marietta Pike at Prospect Road in Columbia, Pennsylvania), and ladders were not so located as to provide means of exit without more than 25 feet of lateral travel.

Item 2 - 29 C.F.R. 1926.650(e)

Two employees, working in the previously mentioned trench, were not provided with personal protective equipment for the protection of the respiratory organs. Slag being dumped into the trench created a dust hazard.

Abatement of these two conditions were ordered "Immediately upon receipt of Citation." A $50 penalty [*29] was proposed for Item 1, no penalty for Item 2.

By a letter dated November 6, 1973, from its Vice-President, Respondent gave notice of its intention to contest both Citations and the Penalties proposed thereon, pursuant to Section 10(c) of the Act (29 U.S.C. 659(c)).

On November 30, 1973, Complainant filed with the Commission his Complaint, which, in paragraphs V, VI and VII repeated the allegations of violation of either the Standard set forth at 29 C.F.R. 1926.652(b) or 1926.652(c) - so called alternative pleading. Paragraph VIII of this Complaint contained the allegation that the violation alleged in paragraphs V and VI was "willful."

It is noted that the Citation for Willful Violation, in its "Description of Alleged Violation," refers to, "a trench . . . located on Marietta Pike at Prospect Road. . . ." It is further noted, that paragraphs V, VI, VII and VIII of the Complaint, consistently refer to "a trench," the precise street location of which not being set forth.

On December 18, 1973, Respondent, through its counsel, filed its Answer, which denied the essential allegations of the Complaint and interposed six affirmative defenses, which will be dealt with infra.

After [*30] assignment of this case to the undersigned on February 14, 1974, a Prehearing Order was issued to the parties on February 26, 1974, which in paragraph 5 thereof, directed each party to exchange between themselves, and submit to the undersigned, ". . . its formulation of the issues to be tried at the hearing, . . . ."

Thereafter both parties did submit the information called for in the Prehearing Order.

Further, by way of prehearing discovery, Respondent's Motion for the production of written reports compiled by any Compliance Safety and Health Officer in Complainant's employ, or other forms involving the inspection of Respondent's worksite on October 18, 1973 and subsequent Citations, was granted by Order dated March 25, 1974.

The Complainant, over protest, complied with this Order on March 29, 1974.

This case came on for hearing on April 4, 1974 at Philadelphia, Pennsylvania, both parties being represented by counsel. No other person desired party status. The Complainant completed the presentation of its direct case on that day, and the Respondent began its case. However, due to the intended length of Respondent's case, the hearing was adjourned at 6:15 p.m. and reconvened [*31] on April 17, 1974 at Lancaster, Pennsylvania upon Respondent's request without objection by Complainant. The presentation of all evidence was completed on April 17, 1974.

After granting a request for an extension of time within which to file Proposed Findings of Fact, Conclusions of Law, Briefs and Reply Briefs. All of these documents were ultimately filed by July 1, 1974.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions, briefs and arguments of the parties, it is concluded that the substantial evidence considered as a whole supports the following findings of fact and conclusions of law.

Respondent raises a number of defenses to this action in its Answer. The first here considered (denominated "Third Defense" in the Answer) is ". . . that the alternative pleading of alleged willful violations is not permitted under the Act." (Answer p. 4)

The Complainant argues that such pleading is permitted under Section 12(g) of the Act, (29 U.S.C. 661(g)) which provides that unless the Commission has a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure, [*32] and since the Commission has no rule covering this matter, Rule 8(e)(2) of the Federal Rules of Civil Procedure governs.

Federal Rule 8(e)(2) by its express terms specifically allows "alternative pleading." It provides:

(2) A party may set forth two or more statements of a claim or defense alternately or hypochetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.

It is now established law that a pleading may present alternative statements of the facts, or alternative legal theories. (See 2A Moore's Federal Practice, paragraph 8.32 and cases cited therein; see also the concurring opinions in Commission decisions, Secretary of Labor v. Sun Shipbuilding and Drydock Co., Docket No. 161, 10/3/73 and Secretary [*33] of Labor v. Bi-Co Pavers, Inc., 5 OSAHRC 472, 12/6/73).

In this case, the Complainant charges, in both the Citation and Complaint, that Respondent willfully violated the trenching Standard set forth at either 29 C.F.R. 1926.652(b) or 1926.652(c).

The essential difference between these two cited Standards is that 1926.652(b) applies to the sides of trenches in unstable or soft material, 5 feet or more in depth whereas the Standard at 1926.652(c) applies to the sides of trenches in hard or compact soil, including embankments when the trench is more than 5 feet in depth and 8 feet or more in length. Both Standards require that the sides of trenches be shored or otherwise supported according to the terms set forth therein. Thus, a determination of which Standard is applicable may depend upon the proof introduced as to the condition of the soil in which a trench is dug and the dimensions of said trench.

In this case, the questions of the type of soil in which the trench at issue was dug, as well as the dimensions thereof, were litigated by the parties. No surprise was claimed by Respondent and under the factual situation and the two specific Standards pleaded alternatively [*34] herein, Respondent was in no way prejudiced by this form of pleading.

It is therefore concluded that this defense of Respondent to this action must be rejected as not supported in law or on the facts of record.

The next defense raised in the Answer (denominated "Fourth Defense" therein) is that "The description of the alleged violations contained in the complaint do not conform to the descriptions of the alleged violations contained in . . ." the Citation, thus the Complaint does not comply with Commission Rule 33(a)(3) (29 C.F.R. 2200.33(a)(3)) in that it fails to set forth the reason for the amendments.

There is no merit to this contention.

The Citation for Willful Violation herein sets forth the classification of the alleged violation as willful, the date, and place of the inspection and a description of the worksite, the allegation that the trenching Standard set forth at either "1926.652(b) or (c) . . ." was allegedly violated, a description of the alleged violation and an abatement date.

The Complaint sets forth all of the above information plus additional information, i.e., two employees were permitted . . ." to work in a trench in soft, clay-like soil which was approximately [*35] 50 feet long, three feet wide, and seven feet or more in depth, was not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within.", (Para. V). Paragraph VI contains the identical language except that the trench was allegedly dug in " . . . clay-like soil." (Para. VI)

Omitted from these two paragraphs of the Complaint are the following words of the Citation, " . . . a trench     located on Marietta Pike at Prospect Road in Columbia, Pennsylvania."

However, paragraph IV of the Complaint identifies the worksite involved, " . . . Respondent's pipe-laying project, located at Marietta Pike and Prospect Road, Columbia, Pennsylvania, . . ."

The charging language of paragraphs V and VI of the Complaint, referring to "a trench" in the singular, with identical dimensions, obviously refers to the trench . . . "located on Marietta Pike at Prospect Road in Columbia, Pennsylvania," as identified in the Citation. n1

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n1 The evidence establishes that Respondent was digging two trenches at the worksite here involved on the day of the inspection, one on Marietta Pike, the other on Prospect Road. Only the trench on Marietta Pike was charged as allegedly in violation of the Act.

[*36]

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Paragraph VII of the Complaint spells out the reason for paragraph V and VI in the Complaint, " . . . in that the description of the alleged violation is set forth with greater particularity . . .," and the authority relied upon for pleading the alleged violation in the alternative is set forth.

Thus the Complaint made no change whatever in what was charged in the Citation for Willful Violation, n2 and if indeed such an alteration of the wording of a charge can be construed as an amendment, n3 it is permissible. n4 This defense of Respondent's must be rejected.

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n2 A point conceded by Complainant at page 15 of its Brief.

n3 Secretary of Labor v. Ringland Johnson, Inc., Docket No. 3028, 2/27/74.

n4 National Realty and Construction Company, Inc. v. OSAHRC; 489 F2d 1257 (D.C. Cir. 1973).

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The next defense raised by Respondent in its Answer, (denominated "Second Defense" therein) is that the Citations " . . . do not comply [*37] with the rules . . ." of the Complainant in that the Compliance Officer failed to hold a closing conference with Respondent following the inspection herein.

There is no merit to this defense as the substantial evidence of record conclusively establishes that a closing conference was held with Assistant Superintendent Bannerman by Compliance Officer Green before the latter completed his inspection (Tr. 22, 35-42. 396-388, 396-399). However, the evidence is conflicting as to whether any suspended trench shoring violations were discussed by Mr. Green and Mr. Bannerman. Mr. Green testified rather vaguely that his recollection was that he did mention inadequate shoring, where Mr. Bannerman's recollection of the conference was that no such item of suspected violation was mentioned by Green.

In any event, even if Officer Green did not mention any suspected trench shoring violation in the closing conference, such an omission did not preclude the Area Director from issuing a Citation alleging such a violation. Prior to the hearing, the Complainant in response to the Prehearing Order of February 26, 1974, submitted to Respondent its list of witnesses, copies of photographs of the worksite [*38] and a statement of the issues. Additionally, Respondent's Motion to Compel the Production of Documents was granted by Order dated March 25, 1974, pursuant to which all of Complance Officer Green's reports, Memoranda and forms involving the alleged violations were supplied to Respondent. This issue of the alleged trench shoring violation was fully litigated by the parties over two days of hearing, the Respondent presenting its case twelve days after the close of the Complainant's case in chief. Thus any irregularity or omissions in the closing conference were cured by the prehearing procedures and the trial of this issue and I am unable to conclude on this record that Respondent was prejudiced by the rather limited closing conference which was held.

One additonal defense requires determination before a consideration of this case on its merits. It was raised by Respondent in the form of a stated issue in its Prehearing submission, to wit, must the citation be dismissed since the Compliance Officer did not identify himself to Respondent prior to making his inspection nor offer Respondent an opportunity to accompany him on this inspection.

The worksite involved in this case was [*39] a trench located on the side of a state road, Marietta Pike where Respondent was engaged in the installation of a sewer line. The work area was accessible to the public and completely open to public view.

Compliance Officer Green upon his arrival at this worksite, identified himself to a Pennsylvania Department of Transportation Inspector, Mr. Lafever and a consulting engineer employee, Mr. Roberts, and ascertained the identity of the Respondent company and was advised by these gentlemen that Respondent's Assistant Superintendent had been present at the worksite earlier in the day, but had left to go to another location, Mountville. Mr. Green then conducted his inspection consisting mainly of photographing the scene and making visual observations. Before leaving the worksite the Assistant Superintendent, Mr. Bannerman returned, Mr. Green identified himself and held the closing conference referred to earlier (Tr. 20-23).

The Commission's decision in Secretary of Labor v. Accu-Namics, Inc., Docket No. 477, (5/3/74) is determinative of this issue. It held in that case:

"We construe section 8(a) (of the Act) concerning the presentation of credentials to be mandatory only [*40] when the Fourth Amendment would bar a warrantless search and thus when notice of authority is required. Inasmuch as the workplace was open to the public view, there was no mandatory requirement that credentials be presented, and there was no abuse in discretion in failing to do so. (Parenthesis supplied)

The Commission has further held that the "walk-around" provisions of Section 8(e) of the Act, (29 U.S.C. 657(e) are directory rather than mandatory. Secretary of Labor v. Chicago Bridge & Iron Co., Docket No. 224 (1/19/73); Secretary of Labor v. Wright-Schuchart Habor Contractors, Docket No. 559 (2/15/73); see also Secretary of Labor v. Accu-Namics, Inc., supra.

Upon the record of this case, the Compliance Officers failure to adequately identify himself at the outset of his inspection to the " . . . owner, operator, or agent in charge . . ." (29 U.S.C. 657(a)) and his failure to afford representatives of either Respondent or its employees an opportunity to accompany him during his inspection (29 U.S.C. 657(e)), was not such an abuse of discretion to warrant the dismissal of the Citations herein. However, as will be discussed later, Mr. Green's failure [*41] to follow such procedures contributed significantly to some of the confusion evidenced in this case as well as to the length of the trial herein. Thus, the Commission's advise, as stated in Secretary of Labor v. Wright-Schuchart Harbor Contractors, supra, that although the "walk-around" provisions of Section 8(e) of the Act are directory rather than mandatory, -

"Quite obviously, Congress expects the Secretary to make every effort to afford accompaniment opportunities to authorized representatives of both employees and employers."

might well be more closely followed in the future to the benefit of all.

We now, finally arrive at the substantive allegations presented by this case.

At the outset of the hearing the parties entered into the record their Joint Exhibit 1, seven numbered stipulations. These reveal that Respondent is a Delaware corporation with its principal office in Greenwich, Connecticut. In October, 1973 it maintained an office in Amsterdam, New York. It further maintained a place of business in Silver Springs, Pennsylvania, from which it was conducting its principal business of installing sewer services under contract with the Lancaster Area Sewer Authority. [*42] On October 18, 1973, Respondent was engaged in the installation of sewer services in the vicinity of Marietta Pike and Prospect Road in Pennfield Township, Lancaster County. During the current year, Respondent has employed an average of 60 to 70 persons. No injuries were involved in this case.

At the time the Citations herein were issued, Respondent had not been found in violation of any provisions of the Act.

It was established by oral stipulation that Respondent's total sales for 1972 were not less than $250,000. Further, the jurisdiction of the Commission in this matter was conceded.

The substantial evidence of record establishes that on October 18, 1973, acting upon information supplied by an employee of the Pennsylvania Department of Labor and Industry, Compliance Officer Green drove to the worksite involved. He arrived at approximately 9:30 or 10:00 a.m., parked his car on Prospect Road, walked north along this road to the intersection of Marietta Pike, then walked westward along Marietta Pike until he came to the trench on that road. (See Joint Exh. 3).

After talking with Huth Inspector Roberts and State Highway Inspector Lefever, ascertaining the identity of the [*43] Respondent company and being advised that Assistant Superintendent Bannerman was elsewhere, he returned to his car, obtained a camera, and photographed the trench on Prospect Road, (Exhs. C-1, C-2, R-8) as well as the trench on Marietta Pike (Exhs. C-3 through C-8).

As he was about to leave this worksite to locate Mr. Bannerman, the Assistant Superintendent arrived at the scene and a closing conference was held. Mr. Green, after this Inspection, which lasted approximately 45 minutes, left the scene. The Citations herein resulted from this inspection.

At this worksite, Respondent was engaged in digging two separate and distinct trenches and laying sewer pipe therein. The first trench was dug along the side of Marietta Pike, a state road running in an East-West direction. The second trench was dug along the side of Prospect Road, a state road running generally in a North-South direction. (See Joint Exhibit 3). This work was being performed by Respondent under a contract with the Lancaster Area Sewer Authority. Under the terms of this and other agreements, Huth Engineers, Inc. of Lancaster, Pennsylvania were the consulting engineers to the Lancaster Sewer Authority and were responsible [*44] to the Authority to see that the sewer installations were made in conformity with the plans and specifications therefor. On October 18th, Huth Inspector Roberts was present at this worksite discharging his responsibilities. Also present was a Mr. Lafever of the Pennsylvania Department of Transportation whose duties involved alerting the Respondent of any damage done to the State roads involved and seeing to the correction thereof by Respondent.

This worksite was under the general supervision of Respondent's Assistant Superintendent, Mr. Bannerman. The Marietta trench was under the immediate supervision of Respondent's crew foreman, Mr. Ditzel, the Prostect trench being supervised by crew foreman Mr. Bice.

At the beginning of work on the morning of October 18th at the Marietta trench, the first task was to uncover the end of the sewer pipe laid the previous day, as the state road requirement was that no trenches be left open at night. This work was accomplished and a backhoe then began to continue digging the Marietta trench, beginning at a point about 15 feet East of manhole No. 218 on Marietta Pike. At this point in time, one hydraulic trench jack was in plane at the end of [*45] the sewer pipe laid the preceding day.

Respondent's normal trenching practices, in installing 12-1/2 foot lengths of sewer pipe involved herein, is to dig the trench to the designed depth and insert three hydraulic trench jacks, two jacks about 12 feet apart, and one in between. Crushed stone is then dumped into the trench as a foundation for the pipe, and leveled to grade. The sewer pipe is then put into the trench and connected to the length of pipe already installed. Then two of the jacks are removed from the trench to be moved ahead in the trench to accommodate the next length of pipe. The open trench is then backfilled with specified material, in this case, a crushed stone of specified size.

The evidence of this record establishes that this procedure was followed during the opening hours of work on October 18th at the Marietta trench. Prior to Mr. Green's arrival, the trench jacks in use in this trench, had been installed and removed, i.e. moved, from 15 to 25 times following Respondent's normal procedure (Tr. 305). At some unspecified time that morning, prior to Mr. Green's arrival, Foreman Ditzel left the immediate trench area on Marietta Pike, and in the company of [*46] Huth Inspector Roberts, went down this road to the Brubaker property, approximately 125 feet east of the trench involved, to see about some temporary access paving which would be required at this location. At this point in time, the backhoe had dug the Marietta trench approximately 7 feet deep, 30 inches wide and from 40 to 50 feet easterly from manhole 218 on Marietta Pike. (See Joint Exh. 3).

When Officer Green arrived on this scene, two trench jacks had been removed from this trench and placed on the surface alongside of the trench. A section of sewer pipe had been installed and the jacks were removed to allow the backfilling to proceed and in preparation for reinstalling the jacks further along this trench for the next section of pipe. Two of Respondent's employees, pipe layers, were in this trench in the immediate vicinity of this trench jack. Officer Green photographed this tableau. (Exh. C-3, 4). It is this condition that Complainant charges constitutes a willful violation of the trenching standard set forth at either 29 C.F.R. 1926.652(b) or 1926.652(c).

Mr. Green testified that the Marietta trench was dug in "soft clay material" (Tr. 25). However, he took no samples [*47] for any type of examination or analysis and his conclusion was based only upon his visual observation of this trench. n5 This testimony was contradicted by the backhoe operator working at this trench, Mr. Brubaker, who classified the soil involved as "good hard soil" (Tr. 293), n6 by Foreman Ditzel, with over a years experience with Respondent, who classified the soil as "dry solid material" (Tr. 325); and by one of the pipe layers in the trench, Mr. Kopchinski, who classified the soil as "hard, solid banks, dry" (Tr. 350).

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n5 Mr. Green had inspected about 6 trench sites prior to October 18, 1973.

n6 This individual had about 1 years prior trenching experience with Respondent.

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On this state of evidence, I conclude that the Marietta trench was dug in "hard or compact soil" and that the Standard set forth at 29 C.F.R. 1926.652(c) is applicable herein. Therefore, the Standard "alternatively pleaded," to wit, 1926.652(b) is not applicable and this portion of the Citation and Complaint is stricken.

29 C.F.R. 1926.652(c) [*48] provides:

(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 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.

Table P-2 entitled "Trench Shoring - Minimum Requirements" provides in footnote 1, that "Trench jacks may be used in lieu of, or in combination with, cross braces." The maximum horizontal spacing for trench jacks in a seven feet deep trench, dug in hard compact soil, where the trench is from 3 to 12 feet wide, is six feet.

Officer Green testified, rather vaguely, that he observed the two pipe layers in the Marietta trench " . . . working away from the shoring . . ." up to 7 or 8 feet (Tr. 16, 17). Thus, in his view the willful violation was committed. Huth Inspector Roberts also testified that he observed the two employees from 6 to 8 feet away from the one trench jack spreading [*49] the foundation rock for the next length of pipe (Tr. 101). However, one of the pipe layers involved testified that he was within 2 to 4 feet of this trench jack (Tr. 354).

Shortly after Mr. Green returned from obtaining his camera, Foreman Ditzel returned to the immediate Marietta trench area and, as far as this record reveals, not knowing the ideltity of Mr. Green, began to reinstall the two trench jacks in preparation for the installation of the next section of sewer pipe (Exhs. C-3, C-4, C-5). Thus, this trench had only one trench jack in it for a very brief period, not more than 10 to 15 minutes.

Viewing the evidence most favorable to Complainant, that Respondent's two pipe layers in this trench did move up to 8 feet away from the one trench jack located in this trench, the sides of which were vertical, for a very brief period while the crew foreman was not present, does not in my view constitute a "willful" violation of the Act as charged. I believe the evidence establishes, that because of Foreman Ditzel's absence from this immediate trench site, on other business for Respondent, the three remaining employees were perhaps slow in reinstalling the two trench jacks which [*50] were immediately available for that purpose. Because this condition persisted for only a very few minutes, and was immediately corrected by the foreman upon his return to the trench, and because no injuries were associated with this incident and employee exposure to the possibility of a cave in of this trench was minimal, it is concluded that the evidence establishes only a nonserious violation of the cited Standard, for which a $50 penalty is appropriate.

As to the trench on Prospect Road, the evidence reveals that when Mr. Green first arrived at this worksite and while walking from his car to the Marietta Pike trench, he did observe three workmen in this trench, which was approximately 25 feet long, 7 feet deep and 30 inches wide, with no shoring or sloping. A drain pipe had been damaged in digging this trench before Mr. Green arrived. Work on this trench had been shut down or stopped upon orders of the state highway inspector because of the lack of adequate detour directional signs. Foreman Bice and part of his crew went to locate these signs and not being successful, Bice and two crew men returned to the trench. Believing that work thereon would continue to be halted for [*51] the remainder of the day, necessitating the backfilling thereof pursuant to the state highway directives, Foreman Bice obtained permission from Huth Inspector Ruth, supervising the work at the Prospect Road trench, to lay one section of sewer pipe under the damaged drain pipe, to avoid re-excavation of the trench at that location in an attempt to avoid any further damage of the drain pipe. This work took no more than 10 to 15 minutes and all employees then left this trench. When Mr. Green returned to his car to get his camera, all employees had left this trench and he photographed this scene (Exhs. C-1, C-2). Before Officer Green finally left the scene, three trench jacks were installed in the Prospect Road trench and work therein was again commenced. He photographed this scene, which photograph was introduced into evidence by Respondent as Exhibit R-8.

However, although Respondent may have been in some type of violation of the Act at the Prospect Road trench, no violation has been alleged at this trench by Complainant in either the Citation or Complaint herein, and no motion to charge a "willful" or any other type of violation of the trenching standards at the Prospect Road trench [*52] is before me for determination. n7

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n7 The Complainant's oral Motion made at the close of trial (Tr. 468-470) went to the addition of two more additional Standards (1926.652(e) and 1926.652(1)) as having been violated at the worksite involved. This Motion did not seek to add the Prospect Road trench to the Citation and Complaint as issued.

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As pointed out earlier, the Citation for Willful Violation herein, charged that "the sides of a trench in a clay type soil, five feet or more in depth and eight feet or more in length, located on Marietta Pike at Prospect Road" . . . etc. was in violation. (underlining supplied)

Paragraphs V and VI of the Complaint herein charge Respondent with a willful violation of Section 5(a)(2) of the Act and 29 C.F.R. 1926.652(b) (Para. VI), " . . . in that Respondent permitted two employees to work in a trench in soft, clay-like soil which was approximately 50 feet long, three feet wide, and seven feet or more in depth that was not shored . . . etc." These paragraphs obviously [*53] refer to one trench, the dimensions of which coincide with the dimensions of the trench "on Marietta Pike," referred to in the Citation.

Although Complainant in his Brief (pp. 24-26) and Reply Brief (pp. 5-6) argues that a willful violation of 29 C.F.R. 1926.652(b) or (c) was committed by Respondent at the Prospect Road trench, no such violation was ever charged. Arguments in brief can not be substituted for adequate pleadings or appropriate, specific Motions. n8 Therefore, no violation at the Prospect Road trench has been charged and no determination as to this trench is proper or is made.

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n8 It is in relation to this matter that a "walk-around" inspection might well have resulted in more adequate and precise pleadings and thereby afforded the parties and the undersigned a clearer picture of exactly what Complainant was intending to establish in this case. A significant saving of time to all, both before and during the trial herein might well have been effected.

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As to the Citation for Nonserious Violation [*54] issued to Respondent, the Standards allegedly violated provide as follows:

Item No. 1 - 29 C.F.R. 1926.652(h)

(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall ge provided and located so as to require no more than 25 feet of lateral travel.

Item No. 2 - 29 C.F.R. 1926.650(e)

(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 of this part.

As to Item No. 1, the evidence reveals that upon Mr. Green's arrival, the ladder, which had been in use in the Marietta trench earlier in the morning, pursuant to Respondent's normal procedure, n9 had been removed, together with two of the trench jacks, in preparation for moving the jacks and the ladder, forward in this trench. Before Officer Green left the worksite, the ladder had been replaced. (See Exh. C-7).

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n9 Exhibit C-1 shows a ladder in the Prospect Road trench, confirming Respondent's normal procedure.

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As with the "willful" violation relating to the trench jacks, what occurred here was that the employees working in the Marietta trench, in the absence of Foreman Ditzel, were slow in reinserting the ladder into this trench. Thus, for a very brief period there was no "adequate means of exit" from this trench available to the two employees working therein. n10 Upon these facts it is concluded that a nonserious violation was established.

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n10 The backfilled portion of the trench, in my view, did not constitute an "adequate means of exit" within the meaning of the cited Standard.

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The record is clear that Respondent is aware of its responsibilities under the Act. It has established safety practices and rules which include the sanction of dismissal for employees failing to follow this company's policies. Monthly safety meetings for foremen and equipment operators are held which have included discussion of and instruction in the trenching safety requirements [*56] under the Act. In the past three years, Respondent has spent approximately $20,000 in supplying trench boxes to the crews. At the time of the inspection herein, trench jacks and ladders were available to its crews.

In light of these facts, and the expremely brief duration of the ladder violation, the fact that no injuries were involved in this case and only two employees were exposed to the minimal hazard present, it is concluded that a penalty in the amount of $25.00 is appropriate.

As to Item No. 2, under the Standard cited, 29 C.F.R. 1926.650(e), respiratory equipment is required as "set forth in Subpart E of this part."

Subpart E, in pertinent part (29 C.F.R. 1926.103(a)(1)) provides:

(1) In emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposure to employees, appropriate respiratory protective devises shall be provided by the employer and shall be used.

Subpart D, in pertinent part (29 C.F.R. 1926.55(a)) provides:

(a) Exposure of employees to inhalation, ingestion, skin absorption, or contact with any material or substance at a concentration above those specified in the "Threshold Limit Values of Airborne [*57] Contaminants for 1970" of the American Conference of Governmental Industrial Hygienists, shall be avoided.

The only evidence of record concerning this alleged violation was the testimony of Officer Green that "very heavy" dust was caused in the Marietta trench by the dumping of the backfill crushed stone (Tr. 18). Exhibit C-6 purportedly shows this condition.

No air samples of any description were taken by Officer Green. Thus, no evidence is present as to the amount of "dust," i.e., "nuisance particulates" which may have been caused by the crushed stone and consequently no comparison with any "Threshold Limit Value" is possible.

There is a total failure of proof under the Standards relied upon and this Item must be vacated.

One last motion requires ruling upon in this case.

At the close of the hearing, after both the Complainant and Respondent had rested their case, the Complainant orally moved ". . . to amend the complaint to conform to the evidence produced herein and to include in the evidence produced herein and to include in the willful citation the allegation that the respondent violated 29 C.F.R. 1926.652 (e) in that it failed to take additional precautions by was of [*58] shoring, bracing, or sloping to prevent against cave-ins in a situation where heavy equipment was used producing vibrations at or near the excavation at Prospect Pike and Marietta Pike, and also a violation of i9 C.F.R. 1926.652(1) in that respondent removed the trench supports, trench jacks, in a manner -- well, all at once and not one at a time as the backfilling progressed in violation of the aforesaid standard." (Tr. 468-469).

Respondent strenuously objected to this motion, reserving its right to present additional evidence in defense of these two allegations. (Tr. 470-473). The motion was taken under advisement.

It is denied upon the following grounds. The motion is vague and untimely. Fair notice of the charges and an opportunity to be heard in response thereto is a fundamental right of any party in any due process proceeding. Armstrong v. Manzo, 380 U.S. 545 (1965).

The two trenching standards attempted to be added to the "willful" Citation by this motion raise issues which were not tried either expressly or impliedly during the hearing. Certain evidence was offered and objected to during this hearing, which, when admitted, was admitted on the issue of willfulness, [*59] not on any issue raised under these two additional trenching Standards. Thus, this amendment falls outside of the provisions of Rule 15 of the Federal Rules of Civil Procedure.

To allow this amendment would be to allow the interjection of new and different charges to the willful Citation which would constitute a material change in the original charge. Such a type of amendment is contrary to principals of proper notice and due process. n11

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n11 For cases where such type of amendments have been disallowed, see; Secretary of Labor v. Mesa Fiberglass Products, Inc., Docket No. 1645, 7/5/73; Secretary of Labor v. N.C. English, Inc., Docket No. 2888, 11/19/73; Secretary of Labor v. Masonry, Inc., Docket No. 2693, 12/6/73.

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At all times relevant hereto, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof (29 U.S.C. 653(a)) and the Commission has jurisdiction of the parties and [*60] the subject matter herein pursuant to the provisions of Section 10 of the Act (29 U.S.C. 659).

Based upon the foregoing findings and conclusions and pursuant to the provisions of Section 10(c) and 12(j) of the Act (29 U.S.C. 659(c) and 661(j)), it is hereby,

ORDERED; that,

1. The Citation for Willful Violation of Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) is modified to charge a nonserious violation of said Section of the Act and the Standard set forth at 29 C.F.R. 1926.652(c). As so modified this Citation is Affirmed.

2. Item number 1 of the Citation for nonserious violation of Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) and the Standard set forth at 29 C.F.R. 1926.652(h) is Affirmed.

3. Item number 3 of said nonserious Citation for violation of Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) and the Standard set forth at 29 C.F.R. 1926.650(e) is Vacated.

4. A penalty in the amount of $50.00 is assessed based upon the nonserious violation found to have existed as set forth in paragraph number 1 supra, and a penalty of $25.00 is assessed for the nonserious violation found to have existed as set forth in paragraph number 2 supra, totalling $75.00. [*61]

WILLIAM E. BRENNAN, Judge, OSHRC

Dated: November 25, 1974

Hyattsville, Maryland