BORING & TUNNELING COMPANY OF AMERICA

OSHRC Docket No. 5782

Occupational Safety and Health Review Commission

December 29, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Norman H. Winston, Associate Regional Solicitor, U.S. Department of Labor

F. J. Perkins, Manager, Boring & Tunneling Co. of America, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge John S. Patton in this case, dated September 13, 1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The decision affirmed two citations issued by the Secretary of Labor to the respondent employer, Boring & Tunneling Company of America. Citation one was issued for an other than "serious" violation of section 5(a)(2) of the Act for noncompliance with safety standard 29 CFR 1926.450(a)(7), (9) and (10), for use in a trench of a ladder that was not pitched in a one-to-four ratio, the sides of which did not extend 36 inches above the top of the trench, and which was not properly tied, blocked or otherwise secured. Citation two was issued for "serious" violation of section 5(a)(2) of the Act for non-compliance with the safety standard at 29 CFR 1926.652(b), (d), [*2] (e) and (g)(1), for failing to shore adequately a trench dug in soft soil. Immediate abatement was ordered for both violations.

Commissioner Moran directed review on whether the disposition of the ladder violation was appropriate in view of the fact that:

(a) the assessed penalty exceeded the proposed penalty, and

(b) an 'immediate' abatement order was affirmed.

With respect to issue (a), the actual amount of the assessed penalty was the same as that originally proposed by the Secretary. At the hearing it was noted that the original proposed penalty failed to properly consider respondent's size. Consideration of respondent's size caused the Secretary to move to propose a penalty of $30. This motion was accepted. Nevertheless, Judge John S. Patton assessed a $70 penalty. From his decision and the transcript in this case, it is clear that he based the higher assessed penalty on his belief that the ladder presented a more serious hazard than did the compliance officer who filled out the Secretary's proposed penalty worksheet. Clearly, in light of the higher gravity of the violation perceived by Judge Patton, he was correct in assessing this penalty. The amount assessed did [*3] not exceed that initially proposed. Hydroswift Corporation, BNA 1 OSHC 1065, CCH E.S.H.G. para. 15,275 (1972) (gravity). Moreover, the Secretary and respondent have failed to brief the issues directed for review. We consider their failure to brief the issues as an indication that the parties are satisfied with the Administrative Law Judge's decision. Accordingly, the Administrative Law Judge's decision is affirmed. n1

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n1 For my own part, I add that the power of this Commission to raise the amount of a proposed penalty has long been recognized by the Commission, and has been judicially approved. See California Stevedore & Ballast Co., v. O.S.H.R.C., 517 F.2d 986, 988 (9th Cir. 1975) (and the cases cited therein). Additionally, I note that the question raised in issue (b), was answered in both the Tenth Circuit's decision in Brennan v. O.S.H.R.C., and Kesler & Sons Constr. Co., 513 F.2d 553 (10th Cir. 1975) and the Eighth Circuit's decision in Dunlop v. Haybuster Mfg. Co. and O.S.H.R.C., No. 75-1086 (8th Cir., October 20, 1975). The Courts expressly approved the authority of the Secretary to issue "immediate" abatement orders in his citations.

[*4]

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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The refusal in the foregoing opinion to address the directed issue of the meaning of 29 U.S.C. 658(a) simply because the parties to this litigation failed to file briefs, leaves in limbo the Commission's position in regards thereto.

29 U.S.C. 658(a) provides that:

". . . the citation shall fix a reasonable time for the abatement of the violation." (Emphasis added.)

In Secretary v. Kesler and Sons Construction Company, 9 OSAHRC 1033, 1034 (1974), we construed the meaning of "reasonable time" in light of the fifteen working day period which the statute grants a cited employer following his receipt of a citation and notice of proposed penalties. During this relatively brief period of time a cited employer must consider the merits of the citation and penalty proposals and decide whether or not to exercise his statutory right to contest the same or any part thereof. n2 We concluded that:

"[i]n order to preserve the statutory right to the 15 working-day period, no abatement may be required . . . during this period." (Emphasis added.)

This position [*5] was reaffirmed in Secretary v. Matthews & Fritts, Inc., 10 OSAHRC 741, 742-743 (1974).

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n2 29 U.S.C. 659(a) provides: "If, after an inspection or investigation, the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, the citation and the assessment, as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency."

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Subsequently, however, as stated in footnote 1, supra, decisions in two of the circuits indicated disapproval of this construction of the Act. See, respectively, Brennan v. OSAHRC and Kesler & Sons Construction Company, 513 F.2d 553 (10th Cir., 1975); Dunlop v. Haybuster Manufacturing Company, No. 75-1086 (8th Cir., October 20, 1975).

Thus, the question which should be resolved here is whether the Commission will adhere to its prior positions, or whether it will adopt the view of these two circuit courts. Cf. Textron, Inc., 196 NLRB No. 127, 80 LRRM 1099, reversed on other grounds in National Labor Relations Board v. Bell Aerospace Company, Division of Textron Inc., 416 U.S. 267, 94 S. Ct. 1757 (1974).

Commissioner Cleary indicates that he would adopt the circuit courts' viewpoints. I believe our prior decisions best reconcile the statutory purposes of both sections for the reasons stated therein. This constitutes a one to one split.

The inaction here, however, leaves our trial courts in limbo as to just what position is taken by the Commission. Like Hamlet, they must bear the law's delay.

Furthermore, [*7] my colleagues state that they affirm the Judge's decision but they don't set forth the text thereof. I therefore attach it hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Boring and Tunneling Company of America, Inc., hereinafter referred to as respondent, alleging violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604; 29 U.S.C. 651, et seq.), hereinafter referred to as the Act and Occupational Safety and Health standards 29 CFR 1926.450 and 29 CFR 1926.652. Hearing was held on May 9, 1974, before Judge J. Marker Dern. Due to the retirement of Judge Dern, the case was by consent of all parties transferred to John S. Patton the undersigned Judge and the hearing was on July 10, 1974, concluded before the undersigned Judge. Both hearings were held in Jackson, Mississippi. At both hearings Mr. Ellis V. Cruse appeared as attorney for the complainant and Mr. F. J. Perkins, an official of the respondent represented the respondent company.

LAW AND ISSUES IN THE CASE [*8]

It was alleged that the respondent violated standard 29 CFR 1926.450 in that a ladder in a trench was not placed on a substantial base; that it was not positioned at such a pitch that the horizontal distance from top support to the foot was about one-quarter of the working length of the ladder in violation of subsection (a)(7) of said standard; that the side rails of the ladder were not extended 36 inches above the landing as required by subsection (a)(9) of said standard and that the ladder in use was not tied, locked or otherwise secured as required by subsection (a)(10) of said standard.

It was further alleged that the respondent failed to protect employees working in a trench more than five feet deep in violation of standard 29 CFR 1926.652 in that the trench was not sheeted in accordance with Table P-1 as required by subparagraph (b) of said standard; that materials used were not in good serviceable condition as required by subparagraph (d) of said standard; that precautions were not taken when trenches were subjected to vibrations of highway traffic as required by subparagraph (e) of said standard and that trench tempering was not in accordance with Table T-2 as required by [*9] subparagraph (g)(1) of said standard.

It was the contention of the respondent that the soil in which said trench was dug was of a stable nature and that the respondent did shore the trench with bracing of admittedly old and somewhat broken lumber. The respondent took the position that while said lumber might not have been adequate in unstable soil that it was adequate in the allegedly stable soil in which it was placed. The complainant alleged the soil was unstable and that the bracing was insufficient.

EVIDENCE IN THE CASE

Citations to page numbers of the transcript as to the testimony of Mr. John S. Winbigler are to the transcript of the hearing of July 19, 1974. Other page references are to the hearing of May 9, 1974.

It was stated at the beginning of the hearing that the respondent concurred in the allegation as to jurisdiction and coverage under the Act (TR 4, 5). Mr. Carl C. McCoy, Jr., Compliance Officer for the complainant, testified on behalf of complainant. Mr. McCoy testified that he holds a bachelor of science degree in chemical engineering from Louisiana State University. He stated he qualified under Louisiana law to hold a professional engineering license [*10] on the payment of a fee but that he had never paid the fee and secured the license (TR 6). He stated that he had done business administration work, safety engineering work and that he had been a student and instructor at the University of Utah between 1963 and 1967. He stated that in August of 1967 he accepted employment from City Service Oil Company as a process engineer. In said division he monitored the design, assembly and dismanteling of subsurface structures for foundation work for heavy petro chemical equipment such as reactors, pumps, etc. From May 1958 to May 1960 he was an officer in the United States Army, stationed at Ft. Bliss, Texas with a 90 missile system. He served as battalion safety officer, supervised and trained soldiers to build subsurface structures, tunnels and shafts for the placement of the Nike Hercules Radar and Launching system. Subsequent to his discharge he returned to work at City Service Oil Company working there in a similar capacity until January of 1963. He was employed by Hercules Company, formerly known as Hercules Powder Company, in the safety department for monitoring, processing design, facility design, construction of buildings and [*11] equipment to manufacture and test the several missile system propulsion components such as minutemen, third stage, polaris and poseidon second stage and several types of NASA type rocket engines. From December 1967 through May 1970 he was employed by transfer by Ratford Army Ammunition Plant operating under contract by Hercules, Inc. He served as project engineer which constituted a senior engineer in the setting up projects involving buildings, subsurface foundation work for the propellant manufacturer supporting the United States Army during the Vietnam conflict. From June 1970 to September 1971, he was a senior engineer with Commercial Solvent Corporation in Sterlington, Louisiana, and had several similar responsibilities in the improvement of equipment and systems to manufacture petro chemicals. He stated this included a considerable amount of subsurface foundation work and excavation work. Since October 1, 1971, he has served as compliance officer for the complainant. He performd some 300 inspections in said capacity. He testified that he is a member of a number of safety engineering societies (TR 6, 7, 8).

Mr. McCoy testified that he made an inspection of respondent's [*12] work project on December 3, 1973, in company with another compliance officer, Mr. James P. Burns (TR 9). Mr. Perkins, an official with the respondent, accompanied him. He stated that a trench had been dug. A ladder rested in the mud at the bottom of the trench with the end of the ladder lower than the top of the trench. He went down the ladder and felt the ladder settle. It also moved very slightly horizontally. There was no other means of access to or from the trench. The ladder was not over two feet in horizontal pitch to the ladder. The ladder was about 12 feet long, shifting and unstable. It was at a pitch of about one and six instead of one and four. The side rails at the top part of the ladder were resting on a 10 by 10 wide flange I beam, the I beam being in the H attitude or H configuration (TR 12, 13, 14). He stated the ladder was at a very deep pitch, the top part resting against smoothe or slick flange so it could slide from side to side. It was not blocked or tied (TR 14 - 16). He stated the ladder was tied or wired off before he left the site (TR 36). He stated the ladder could have been sloped 25 per cent in the four foot wide trench and a man would have [*13] been able to climb up and down (TR 36, 39, 40). If the ladder had been secured at the top the pitch of the ladder would have lost much of its significance. Mr. James Barnes, who was employed by the complainant and accompanied Mr. McCoy on the inspection stated that the violation as to the ladder was not serious and that if a person fell he would only skin himself (TR 63).

Mr. McCoy stated that the trench was located along a busy street which was open to traffic causing vibration (TR 16). There was a drainage ditch between the trench and the road which he stated would also weaken the trench (TR 16). The soil was described by Mr. McCoy as nonhomogenous with a silt or loam layer at the top and a clay substructure. He stated that the soil in spots was wet and that there was a great deal of water in the bottom of the trench. He stated that it was unstable because where one type of soil strata interferes with another, vibrations from machinery and cars or an air compressor in use on the side of the trench could cause a lack of stability. He stated this condition of the soil was aggrivated by digging of the trench (TR 18). He stated that there was some collapse and introduced a [*14] photograph as Exhibit 5 to substantiate this statement (TR 31, 32). He stated that the ditch gave indication that trench shoring was needed because the soil around and at the bottom of a previously cut ditch is always suspect of being unstable (TR 33). He stated that an air compressor was in use which causes considerable vibration of soil (TR 33, 40). He stated it was loam or silt topsoil with a clay subsoil heavily loaded with moisture (TR 48). He testified he knew it was soft material because of the moisture content, collapsing portion of trench wall or trench bases where sheeting was missing (TR 51). He stating that viewing the soil he knew tight sheeting was the only safe thing (TR 50). He stated that there was sheet piling but the bracings were consisting of timbers which in places had been split and were cracking. He testified timbers were also missing in spots (TR 16, 17). He stated it was basically not satisfactory because timbers were in poor condition. He kicked one piece and it came off (TR 19). In some places the timbers were spliced with nails and other short pieces of timber. He could see discontinuances and broken parts in the wood and the condition of the [*15] soil behind the wood down in the bottom of the trench (TR 19). He stated there was shoring in some manner but not in the standard manner or the manner that would meet the minimum acceptable requirements for employees protection. He stated that horizontal members runing at right angles to verticle ones are called stringers or whalers. He stated that it is imperative that the lowest whaler be not lower than four feet from the bottom of the trench (TR 21). He stated the first one was I beam more than six feet from the bottom (TR 21). The employee in the trench whom he identified as an employee of the respondent had the sledge hammer and a manually operated cross saw (TR 22). He was apparently aligning the tracks for a boring machine (TR 22). He stated that the employee was identified as an employee of the respondent by the prime contractor as well as the respondent (TR 22). He stated Mr. Perkins, of the respondent, told him the man was one of the respondent's employees (TR 23). He testified the verticle lumber was heavily cracked, split, broken in places and discontinued and this was true all through the trench (TR 23). A number of photographs were introduced into evidence [*16] Exhibits 1 through 6 showing the condition of the timbers and the trench. The pictures reveal very little slope in the trench. He stated that Exhibit 1 revealed that timbers were not secured by horizontal member, had cracked broken off nails, boards were deteriorated, oxidized or rotted and timbers were bowed out near the end (TR 27). Exhibit 2 was a similar view, Exhibit 3 showed cracked and damaged structural members. Exhibit 4 showed heavily damaged timbers, cracked and bowing. Exhibit 5 he stated reflected the mud wall and some collapsed, broken splintered structural timbers down in the middle part of the trench, bowing and cracking (TR 31, 32). He stated standing in the trench there was no horizontal member stringer below his head (TR 32).

On the other hand Mr. John S. Winbigler testified for the respondent that the trench was safe. Mr. Winbigler testified that he is a graduate in architectual engineering from the University of Illinois and came to Mississippi in 1937 to work for an architectual engineering firm, following this work until World War II. He stated that he was a registered engineer in Mississippi and Alabama and had an architects license in Mississippi (TR [*17] 5). He stated that he had considerable experience on building foundation excavations; that he had made the excavation for the First Federal Building in Jackson which was a steel sheet piling, grade of a distance of about 20 feet. He made the excavation for the Deposit Guarantee Building which was steel sheeting excavation down about 30 feet and that he had done a number of smaller jobs (TR 25). He testified that his college work included the nature, strength, etc., of soil and the general subject of excavation. He stated, however, they did not stress the subject as much then as they have subsequently but that he had kept up with it since graduating (TR 26).

Mr. Winbigler testified that he inspected the site on December 7, 1973, and wrote an opinion on December 11, 1973. He felt that shoring was adequate to sustain the type of soil that existed (TR 6). He stated there was no evidence the ground was likely to crack. There was no evidence it was filled ground and he stated his understanding the hole was cut with the ground standing straight up and down so he concluded it wasn't soft. He stated that mud had washed down to surface water but that was what had washed in from the [*18] surface. He stated the cut was firm (TR 17). He stated that the drainage ditch was very close and that the drainage ditch had run over with water and water had gotten into the excavation. He stated it did not rain December 7 but it rained after the 1st and before the 7th of December. He stated the sheeting was satisfactory for this installation but if the ground had been soft it would have been different (TR 16, 17). He stated hard ground surface does not require as much support as ground that is soft, filled with sand. He stated that if a four by six is adequate for soft sandy or filled ground it is much more adequate for hard ground (TR 12). He stated it was spaced about five feet clear between the pilings and under this condition would stand a pressure of 190 pounds per square foot which was considerably more than 167 the stringers would have stood if they had used wood stringers. He stated that steel beams were used in place of wood stringers (TR 7). He stated that sheeting would hold more load on a five foot spacing than the stringers would on a four foot spacing using the same fiber stresses (TR 14, 15). He stated if there was any massive cave in of the bank, some [*19] of the sheeting might have broken and come in but there didn't seem to be any evidence of pressure against the back side of it (TR 17, 18). He stated there was a spacing between the sheeting and the dirt but the close sheeting does not mean tight sheeting. He stated it should be close rather than tight so that the water that accumulates can get out rather than build up hydrontatic pressure behind the sheet. He stated the earth was back away from the back side of the sheeting and obviously exerted no pressure on the sheeting (TR 22). He stated the sheeting was bowing because it had been used before, that some was not in very good shape but that the bowing was very slight (TR 22, 23). He stated the sheeting did have nails and breaks, it had been used before. He stated that the sheeting had gotten beyond the desirable point from a deterioration standpoint because of breaks and splits. He did not feel it was any knottier than anyone would normally expect (TR 25).

EVALUATION OF THE EVIDENCE

This is a rather close case in which the opinion of experts differ. Both the experts testifying for the complainant and the respondent would seem by education and experience to be qualified. [*20] Mr. McCoy concludes that the soil was soft subject to cave-in, while Mr. Winbigler concludes that the soil was not soft and not subject to cave-in. Both witnesses, however, stated that the timbers were in poor condition being old, deteriorating, rotting, cracked and subject to give way if submitted to substantial pressure. Admittedly there was no substantial sloping of the trench. Although Mr. Winbigler did state that in his opinion the sheeting was not unsafe, it will be noted that he testified as follows:

"Q Yes sir. But would you say this would be beyond its desirable point for sheeting?

"A From a deterioration standpoint from breaks and splits, yes."

In reviewing all of the evidence and more particularly the evidence of experts, this Judge is of the opinion that due to the defective condition of the sheeting there was some danger to employees working in the ditch. The soil was not sufficiently hard to completely remove the possibility of cave-in and it would appear from the testimony of Mr. McCoy that the standard has not been completely met. There was a necessity for sheeting. It should have been of adequate quality to hold against any possible cave-in. To shore the [*21] sides of a trench with rotting and split wood is not in the opinion of this Judge the type of shorting that was contemplated by the standard.

This Judge is of the opinion, however, that under the facts of this case, the penalty prayed is excessive. The respondent apparently did make an effort to provide bracing and apparently the opinion of experts can differ as to whether the bracing was adequate. Under these circumstances, it would appear that the respondent has not acted in bad faith but was of the opinion that the employee's safety was adequately being provided for and the standard would be met. Under the testimony of this case it would further appear that the bracing that was provided did give some measure of protection, somewhat minimizing the possibility of accident. The testimony of Mr. Winbigler convinces this Judge that while the soil was of soft enough nature to require a different type of bracing from that provided, it was of sufficiently hard nature to make the likelihood of cave-in and resulting injury less likely than would have been true in certain types of soil. A penalty in the amount of $200 would be proper.

There is no substantial conflict as to the condition [*22] of the ladder. Apparently it was not of sufficient height nor properly tied to meet the requirements of the standard. The charge as to said ladder therefore has been sustained. The testimony is to the effect that a person would probably not receive injury if he fell from the ladder. A fall from the ladder in the event of a cave-in, could have more serious results. Under all the circumstances it would appear that a penalty in the amount of $70 is proper.

FINDINGS OF FACT

1. Respondent is a corporation engaged in sewer construction work in the State of Mississippi and at all times relevant to this cause has been engaged in a business affecting commerce within the meaning of the Act.

2. On or about December 3, 1973, the respondent was engaged in sewer construction at or near Ridgewood Road, Jackson, Mississippi, and as a part of said construction dug a trench 14 feet deep, 4 feet wide and 20 feet long.

3. The respondent had a ladder in said trench which was not over two feet in horizontal pitch to the length of the ladder and which was only 12 feet long being two feet below the top of the trench. The ladder was not properly tied and was resting on an unsolid surface. [*23]

4. The soil was nonhomogeneous with a silt or loam layer on top and a clay substructure and was not sufficiently hard to prevent the possibility of cave-in.

5. The sides of the trench were almost perpendicular.

6. The trench was shored with a sheeting consisting primarily of timber which was rotting, split and too defective to resist a substantial cave-in.

7. There was some possibility of cave-in causing injury to employees working in the trench but the sheeting did provide a measure of protection although not a sufficient one.

8. Respondent's employees were on said date working in said trench.

CONCLUSIONS OF LAW

1. Respondent was at all times relevant to this cause engaged in a business which affected interstate commerce and is within the jurisdiction of the Act.

2. On or about December 3, 1973, the respondent violated section 5(a)(2) of the Act and standard 29 CFR 1926.450 by using a ladder in said trench which was not placed on a substantial base, was not positioned at such a pitch that the horizontal distance from top support to the foot was about one quarter of the working length of the ladder, side rails were not extended 36 inches above the landing and the [*24] ladder was not tied, locked or otherwise secured.

3. On or about December 3, 1973, respondent violated section 5(a)(2) of the Act and standard 29 CFR 1926.652 by maintaining a trench more than five feet deep in which employees work, which was not sheeted in accordance with Table P-1, subparagraph (b) of said standards. The materials used were not in good serviceable condition and precautions were not taken when the trench was subjected to vibrations of highway traffic and trench timbering was not in accordance with Table P-2, subparagraph (g)(1) of said standard.

ORDER

It is therefore Ordered that:

Respondent on or about December 3, 1973, was in violation of section 5(a)(2) of the Act as follows:

Respondent was in violation of standard 29 CFR 1926.450. A penalty in the amount of $70 is assessed for said violation. The requirement that said violation be immediately abated is approved.

Respondent was on or about December 3, 1973, in violation of standard 29 CFR 1926.652, subparagraphs (b)(d)(e) and (g)(1). A penalty in the amount of $200 is assessed for said violation. The requirement that said violation be immediately abated is approved.

Dated this 13 day of SEP, 1974. [*25]

JOHN S. PATTON, Judge, OSHRC