SHAFFER CONSTRUCTION & ENGINEERING CO.
OSHRC Docket No. 675
Occupational Safety and Health Review Commission
December 24, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Chairman Moran's order directing review of a decision by Judge Garl Watkins, Judge Watkins concluded that Respondent had committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by violating the standards published at 29 C.F.R. 1926.652(b) and (e). He assessed a penalty of $900. Additionally, Judge Watkins found that Respondent was in violation of the standard published at 29 C.F.R. 1926.652(h). He assessed a penalty of $100.
We have reviewed the entire record and find no prejudicial error.
Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the affirmance of the Judge's decision and order in all respects. I specifically agree with the Judge's rejection, sub silentio, of the stipulation between the parties. The Commission and its Judges are not bound to accept stipulations that are in conflict with the purposes and policies of [*2] the Act.
In Thorleif Larsen & Son, Inc., No. 370 (October 11, 1974), the majority opinion stated:
[W]e hold that in cases where all parties have agreed to the appropriateness of a specific penalty the Commission will refrain from exercising its right to make a de novo penalty assessment if: (1) There is no objection to the agreed upon penalty from any party, authorized employee representative, or affected employee, and (2) The amount of the agreed upon penalty is not clearly repugnant to the purposes and policies of the Act.
(Slip op. at 5) (footnote omitted).
In order to determine whether a stipulated penalty is "clearly repugnant," the Commission must compare the amount of the agreed upon penalty with the amount that the Commission would have assessed under section 17(j). In my view, the Commission should reject a penalty stipulation when there is overwhelming evidence that indicates a significant difference between the stipulated penalty and a reasonable assessment consistent with the purposes and policies of the Act and the express language of section 17(j).
In the present case, the record indicates that the Secretary proposed a penalty of $500 for an [*3] alleged serious violation of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.652(b) and (e). The penalty was calculated in the following manner: An unadjusted penalty of $1000 was reduced by 20% for good faith, 10% for size, and 20% for compliance history, thereby reaching the proposed penalty of $500.
In one of the Commission's earliest decisions, Nacirema Operating Co., No. 4 (February 7, 1972), we held that the Commission is not bound by the Secretary's method of penalty assessment and that the four factors listed in section 17(j), gravity, good faith, size, and history need not be accorded equal weight. In Baltz Bros. Packing Co., No. 91 (February 8, 1973) (concurring opinion) it was also noted that the most important factor and the starting point in penalty assessment is gravity.
The gravity in the present case was very high. The record indicates that eight employees of respondent were digging a trench that was four feet wide, eight feet deep, and 11 feet eight inches long. The trench was composed of soft, wet, unstable soil. There was no shoring or bracing, and in such event, the standard requires that the trench walls be sloped back at least [*4] one foot for every foot of depth, in order to achieve a 45 degree angle. In this case, the trench walls were sloped back only one foot six inches instead of the eight feet that was required. In addition, there was water in the trench and constant vibrations from passing trucks and trains made the trench even more hazardous. It is small wonder, then, that the trench caved in and killed an employee of respondent who was suffocated after being trapped under the slide. On the basis of these facts I agree with the Judge that "the gravity of the violation outweights all other factors" and that a $900 penalty is appropriate.
Although in Thorleif, we adopted a policy of restraint in holding that we would not ordinarily make a de novo penalty assessment when the parties have stipulated to the reasonableness of a penalty, this restraint presupposes that the penalty is reasonable as determined by an independent review by the Commission. Where, as here, the agreed upon penalty is unreasonable, the Commission must exercise its statutory power and fulfill its statutory obligation to assess a penalty that is in accord with the purposes and policies of the act.
The direction [*5] for review also raised the issue of whether the Commission has the power to assess a penalty in excess of the one proposed by the Secretary. The Commission has recently reiterated its longstanding position that it does have such authority. See Chicago Bridge & Iron Co., No. 609 (November 20, 1974) and cases cited therein. Moreover, this policy has received express judicial approval. See REA express, Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974). In light of these decisions, it is clear that the Commission has the power to assess penalties in excess of those proposed by the Secretary.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I would dispose of this case by vacating the citations on the ground that they were not timely issued as required by 29 U.S.C. § 658(a). Congress clearly indicated that, in the absence of exceptional circumstances, citations must be issued within 72 hours after detection of a violation by an inspector. That time period was exceeded in this case, and no exceptional circumstances are shown in the record. Therefore, the citations are invalid for the reasons I expressed in Secretary v. Plastering, Incorporated, OSAHRC [*6] 150 (1974), and Secretary v. Advanced Air Conditioning, Inc., 7 OSAHRC 736 (1974).
Furthermore, the Commission errs in affirming two penalties in excess of those proposed by the complainant.
One violation involved the respondent's failure to comply with the trenching requirements of occupational safety standards condified at 29 C.F.R. § 1926.652(b) and (e). The complainant proposed a penalty of $500.00 for this violation. The Judge, however, assessed a $900.00 penalty.
Another violation pertained to the respondent's noncompliance with 29 C.F.R. § 1926.652(h) by failing to have in the trench a ladder whose length extended from the trench floor to at least three feet above the top of the trench. Although the complainant proposed no penalty for this violation, the Judge assessed a $100.00 penalty.
I have set forth the reasons why penalty increases are improper in a number of other decisions. n1 Neither REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974), cited in the concurring opinion, nor any other appellate court decision, has yet addressed the question of whether there is a statutory or constitutional basis for the Commission's raising of penalties. n2 The prevailing [*7] circumstances in his case, however, present additional reasons as to why the penalties should not be increased.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 See, e.g., Secretary v. Lipsky & Rosenthal, Inc., 8 OSAHRC 375 (1974); Secretary v. Painting Unlimited, Inc., 7 OSAHRC 257 (1974); Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973); Secretary v. Tacoma Boatbuilding Co., 4 OSAHRC 607 (1973); Secretary v. M.A. Swatek and Co., 2 OSAHRC 1276 (1973).
n2 As I indicated in Secretary v. Lipsky & Rosenthal, Inc., supra, the precedential value of the REA Express decision is questionable. Furthermore, the United States Court of Appeals for the Third Circuit has recently criticized the Commission's policy of raising penalties. Frank Irey, Jr., Inc. v. OSAHRC, F.2d , n. 3 (3d Cir. 1974).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
At the hearing, the parties agreed by stipulation that the penalty proposals were reasonable and appropriate. The stipulation also provided that the issues to be determined by the Judge were limited to whether the [*8] respondent had violated the standards cited in five of the allegations and, if there was a violation in one instance, whether it had been properly categorized as a serious violation under 29 U.S.C. § 666(j). The Judge neither accepted nor rejected the stipulation during the hearing. Although the parties proceeded on the basis that the question of the appropriateness of the penalties was not in issue at the hearing, it was not until thereafter, when the penalties were raised in the Judge's decision, that they learned that the stipulation had not been accepted.
The respondent may well have presented additional evidence relevant to the appropriateness of the penalties if it had known that the Judge intended to consider the question. The Judge's action effectively foreclosed this opportunity. If the opportunity had been made available to the respondent, the conclusion in the concurring opinion that the stipulated penalty is repugnant to the purpose of the Act might be different.
The Act provides for the Secretary of Labor to be the enforcer of its provisions and strictly limits the role of the Commission to adjudicatory functions. Secretary v. Wetmore & Parman, Inc., 2 OSAHRC [*9] 288 (1973). As a natural incident to his enforcement authority, the Secretary has plenary power to settle cases, and that power extends to the compromise of penalties even after the Commission has affirmed a citation. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974). In the instant case, the stipulation constitutes a settlement of the penalties between the parties, and the Commission has no authority to disturb that settlement.
Moreover, the complainant asserts on review that the Judge erred in assessing peanlties in excess of those proposed. This assertion is first made in the complainant's petition for discretionary review. Thereafter, it is repeated in his brief submitted upon the Commission's direction for review, where it is correctly contended that:
It is inconsistent with the language of the Act and with the Commission's own statement of policy for the Commission to discuss, alter, or dismiss issues specifically excluded by stipulation. To cause parties to litigate issues not in controversy increases the time and cost of litigation. Furthermore, where testimony is not introduced on a point because of a stipulation, and subsequently [*10] the Commission decides to review the point, the parties are prejudiced because the issues have not been litigated.
In view of this position, it seems clear that the complainant will limit the respondent's liability to that agreed on in the stipulation even though the Commission affirms the penalties assessed by the Judge. Therefore, affirmance of the Judge's penalty assessments serves no useful purpose.
Finally, it should be noted that the quotation from Secretary v. Thorleif Larsen & Son, Inc., 12 OSAHRC 313 (1974), in the concurring opinion is not a majority opinion of the Commission. Although I concurred in the result in the Larsen case, I expressly disagreed with the rationale contained in the lead opinion. The remaining Commission member dissented in that case.
[The Judge's decision referred to herein follows]
WATKINS, JUDGE: The principal question in this case is whether on March 1, 1972 Respondent, Shaffer Construction & Engineering Co., was in one serious violation for the breach of two trenching requirements of the construction standards adopted under the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. There was no shoring or other support [*11] for the walls, alleged to be of soft and unstable soil, of an eight foot deep excavation in which forms had been erected and concrete poured to make a ten foot by three foot by ten foot deep sunken base for a cantilevered traffic sign to direct cars coming off Washington State Ferries at the Edmonds, Washington Dock. 29 CFR 1926.652(b) and (e).
Also at issue are Items 4, 5 and 6 of another Citation alleging less serious violations at the same time and place. The first two have to do with recordkeeping. Item 4 alleges a failure to compile and Item 5 a failure to post the required annual summary of occupational injuries and illnesses under 29 CFR 1904.5(a) and (d) respectively. (The Citation alleged violation under subparagraph (b) instead of (d). The Complaint alleged the correct section.)
Item 6 alleges a violation of 19 CFR 1926.652(h) for failure to provide an adequate ladder as a means of exit from the trench. As it read at that time, the standard required the length of the ladder to be such as to extend three feet above the top of the excavation.
Disposition of Items 1, 2 and 3 must be made by this Order even though the Respondent "admitted" the violation of [*12] Item 1 in the Stipulation (Appendix A) and the Secretary "decided not to pursue" Items 2 and 3.
The language of the Citation, the Proposed Penalties, the Allegations of the Complaint having to do with each citation, on item as the case may be, and the standard or regulation alleged to have been violated -- along with other parts of the regulations which may be applicable -- are included in Appendix B to this decision.
The Citations allege the violations occurred March 2, 1972. The Complaint alleges March 1/2, 1972. A fatal accident occurred March 1. Most of the evidence relates to that date. The compliance officer's investigation was the following day, when there is no evidence that there were men working in the excavation.
There is no possibility that any change of the physical facts at the scene from March 1 to March 2 could prejudice Respondent. Any possible change -- such as the caving in, erosion, or falling of the banks of the excavation -- would mitigate in favor of Respondent. We therefore take the date of violations to be March 1, 1972 and deem the Citation and Complaint as amended to conform to the proof.
Hearing was at Seattle, Washington on July 10, 1972. There [*13] was full compliance with procedural rules about notice to additional parties, and none appeared.
There is no material conflict in any evidence in the case. Differences in testimony have principally to do with the measurements -- estimated or actual -- of the excavation which Respondent dug and in which was poured the concrete traffic signal base. No such differences could be material to the Decision because on the evidence most favorable to the Respondent, there was still a violation of the Excavation, Trenching and Shoring Standard as alleged.
Before the hearing the parties entered into a nine page stipulation of undisputed facts. For this unsolicited effort, Mrs. Mildred Lau Wheeler, Attorney for the Secretary, and Mr. Ray Munson, Safety Manager and representative of the Respondent, are to be commended.
On March 1, 1972, the State of Washington at its Edmonds Ferry Dock was in the process of enlarging the holding area for automobiles waiting to board cross Puget Sound ferries enroute to Kingston, Washington. Included in Respondent's contract on the project was the building of a sunken concrete base for a cantilevered sign to direct cars coming off the ferries. [*14] This sign is just off the south edge (51 feet from the middle) of a main travelled street immediately adjacent to the ferry dock area and leading west to it. The base is 110 feet east of the Burlington Northern railroad tracks crossing between it and the dock.
On Friday, February 25, 1972 the excavation was made for the forms and concrete to be poured in them to make the signal base. The long side (ten feet) of the structure was north and south. One of the short sides (three feet) was therefore towards and parallel to the adjacent street to its north. Since the structure was ten feet high in a hole approximately eight feet deep, it was expected the concrete would be about two feet above ground on completion.
Pouring of concrete followed as soon as the forms were erected. On the following Wednesday, March 1, 1972, workmen were making preparations to remove the forms. It had rained on the week-end and following. Among other times it rained hard all day Monday, February 28 and at least half the day, Tuesday, February 29. Water in the hole was excavated a short way farther back and a sump hole made in the bottom of the excavation for the installation of a sump pump. [*15] This pump had been running at least a day or two before March 1. Witnesses saw water running into the excavation from under a storm sewer pipe which was exposed but in the north wall. It was horizontal and three or four feet up from the bottom of the excavation.
It would seem that a fair interpretation of the regulations indicates this hole in the ground was an "excavation" converted to a "trench" by erection of the structure consisting of concrete forms. (More precisely, four "trenches" were created; one on each side of the forms.) "Trench" is defined in part as an excavation where "the depth is greater than the width, but the width of a trench is not greater than 15 feet." 29 CFR 1926.653(n). From east to west the excavation before erection of the forms was 11 feet, 8 inches. Its depth was about 8 feet. When the forms were in place, the hole east of them was 4 feet wide at the bottom, on the west 4 feet, 6 inches, and on the north 4 feet.
This would therefore seem to be the situation contemplasted by 29 CFR 1926.653(f) which provides in part:
If installed forms or similar structures reduce the depth to width relationship, an excavation may become a trench.
About 9:00 [*16] A.M. on March 1, Bernie E. Carlton, a carpenter, was working alone releasing snap ties and pulling form pins preparatory to the removal of the forms. He was on the east side of the structure near its south end and also near the bottom of the trench. A cave-in of part of the east wall almost completely buried him.
The length of time before he was found is not definite -- it was probably ten to twenty minutes. Aid was called, including a fire department unit which administered oxygen to the man as soon as his head was freed. It was about another thirty to forty minutes before he was removed from the muck and dirt in the hole and taken to the hospital, where he was pronounced dead at 10:12 A.M. Autopsy indicated the cause of death as asphyxiation.
Ten witnesses testified in varying detail about the fatal accident; and, in relation to that day as well as before and afterward, to facts concerning the excavation or trench, its size and configuration, the soil and the water in it, the ladder, its location and size, and about vibration of the ground at the site -- or absence of it -- from passing trains or vehicles.
These witnesses were the inspector of construction projects [*17] for the Washington State Highway Department; the man under his supervision whose duties included inspecting the Edmonds project; a compliance officer of the Occupational Safety and Health Administration; a Washington State safety inspector who was in charge of construction inspections for a portion of the state; his senior safety inspector; Ralph Carlton, father of the deceased whose job was described by him as concrete foreman and by the Respondent as carpenter foreman; Ray Munson, project manager of the Respondent, also safety manager and representative of the Respondent at the hearing; and a carpenter, operating engineer and laborer who were all employed by Respondent on the Edmonds project on the date of the alleged violation as well as at the time of the hearing.
There would seem to be no need to discuss in any detail variations or conflicts in the evidence when all of it shows Respondent in violation of the applicable standards. The discussion therefore will be limited to a few areas necessary to show the reasons for the most important findings in the case.
The soil was soft and unstable. It was also wet. Witnesses thought it to be filled ground. There is testimony that [*18] it was sandy silt, soft, moist, of several types, contained pea gravel, sand, gravel, "soil," particles of limbs and roots, small pieces of wood and clay. There is no evidence that the clay or any other part of the soil was compacted. 29 CFR 1926.652(b), when referring to "unstable or soft material" would appear to be referring to the same substance as the definition of "unstable soil" under 29 CFR 1926.653(q).
The hole was excavated in such a manner as to be as small as possible and still allow erection of forms for concrete. Roger Johnson, chief inspector for the State, probably expressed this thought as well as any other witness when he said:
Well, as far as showing you, I don't know how to do that. In my opinion, as far as I was concerned, the hole was dug as vertical as possible to withstand the natural slope. I don't know if I am making myself clear on this.
The south side of the hole was sloped more than the others because further excavating was necessary to provide for a pump to remove water in the hole. The operator of the equipment digging it pointed to the presence of the storm sewer pipe running horizontally and embedded in the north wall of [*19] the hole approximately four feet above the bottom, and to two piling about an equal distance on the west and southwest sides of the hole; as reasons why the earth was not sloped back farther so that it would be in a safer condition. The fact is however, the east wall of the hole where no such obstructions were present was almost as close to perpendicular as the north and west walls.
The presence of these obstructions should have pointed up the necessity for shoring or for some other support of the banks. No bank was shored, sheeted or braced in any way. The sewer pipe and the two piling mentioned might have provided some minimal support for parts of the west and north walls.
The measurements of Lawrence Eck, the compliance officer, appear to be more reliable than the measurements or estimates of any of the other witnesses. They were made March 2, after part of the east bank had fallen on the workman, and after possibly 10 to 15 men had tried to dig him out, tried to revive him, and finally removed him (or his body) from the excavation. Thus, these measurements show the walls to be farther from perpendicular, with more sloping, and the condition of the excavation or trench to [*20] be less dangerous than it was the day before. Findings will be made as of March 1, when the condition had to be worse than the findings show.
The Secretary's Exhibits 17 and 18 are drawings made by Lawrence Eck, showing his measurements on March 2. They are accepted and constitute our findings of dimensions of the trenches. Discussion of all would complicate this opinion needlessly.
Keeping in mind that Respondent's violation of the standards was more flagrant and aggravated in the trenches north and west of the concrete forms, we shall concern ourselves here only with the precise condition of the trench east of the structure. Its west side was the vertical structure. Its east side was an eight foot dirt bank -- dirt that was soft, unstable and wet -- rising almost perpendicularly from the floor of the trench.
There was no support for the bank. The standard therefore requires sloping of 45 degrees -- one foot back for one foot rise. After enough dirt had fallen off the bank to suffocate a man; and after further caving in may have been caused in getting him out of the trench; the top of the bank was one foot, six inches back for an eight foot rise.
In a dirt bank [*21] there are necessarily some variations. These are shown in Exhibit 17. No irregularities or variations in measurements can obscure the fact that the entire hole -- including the trenches west, north and east of the concrete forms -- was a lethal trap.
Whether the ground was subjected to vibrations from railroad or highway traffic really has little to do with Respondent's flagrant violation of both the law and rules of common sense; but the evidence should be mentioned. About half the witnesses testified about whether or not they felt the ground vibrate when trains or trucks passed. Some said they felt the vibration. Others said they did not. A fair preponderance of the evidence is that passing trains -- but not motor vehicles -- caused some vibration in the ground.
The ladder appears to be a folded step-ladder leaned against the wall of the trench. Most witnesses though it was seven feet long, one or two that it was six to seven feet. The bank at its lowest point was eight feet high. In addition, at the southeast corner of the trench there was a pile of earth taken either from this excavation or another, making the bank considerably higher. This ladder was the [*22] only one in the hole and it was completely inadequate for the purpose required.
There is finally the question of failure to compile and post annual summaries. Mr. Munson testified in such a manner that a clear inference can be drawn that no such notices were compiled or posted.
The reason, however, according to his testimony was that the employees of the Respondent had no occupational illnesses or injuries during the preceding year. No statute or regulation has been brought to our attention requiring an employer to "compile an annual summary of occupational injuries and illnesses for each establishment" and to post it when in fact there have been no occupational injuries or illnesses in the period covered. There is no evidence to the contrary.
This is not a finding that the employees of Shaffer Construction & Engineering Co. had no occupational injuries and illnesses during the period in question. It is rather a finding that the Secretary failed to meet his burden of proof.
There can be no question that this is a serious violation. The hazard needs no discussion. Evidence is undisputed that there was actual knowledge of all facts within the company's management structure [*23] two levels higher than the workmen on the job; although Mr. Munson, the project manager, did not acutally see the excavation until after the fatal accident. Certainly there was notice to him and his superiors.
Paragraph 26 of the Stipulation between the parties provides:
26. Shaffer Construction & Engineering Co. agrees that the amounts of proposed penalties referred to in paragraph A-10 above for the citations which were issued were and are reasonable giving due consideration to the size of the business of respondent, the gravity of the alleged violation, the good faith of the employer, and the history of previous violations, if the violations did in fact occur and without respondent in any way admitting said violations.
We are not unmindful of the case of Thorlief Larsen and Son, Docket No. 370. Irrespective of the Stipulation, it would appear that this record contains sufficient evidence to form a judgment regarding the penalties, taking into consideration all factors prescribed by Section 17(j) of the Act.
Here the gravity of the violation outweighs all other factors. It is difficult to imagine a more flagrant violation short of one that is willful. The acts [*24] of Respondent violated the Occupational Safety and Health Administration regulations, all standards of accepted practice in the construction industry -- and all concepts of common sense.
Giving Respondent full credit for the size of his business, his good faith, and history of no previous violations of the Occupational Safety and Health standards under the Act (and completely disregarding all evidence of any prior conduct on the part of Respondent or its employees in any way inconsistent with safe practice in its business); $900 is a reasonable penalty for the serious violation in this case.
The ladder was completely inadequate as a means of exit from the trench. A taller ladder meeting the standard had been in the trench previously. As one employee expressed it, after the forms were completed and the concrete poured, they no longer "needed it."
The Secretary was not warranted in proposing no monetary penalty for this violation. Again taking all factors into consideration, a penalty of $100 is reasonable.
Based upon the entire record in this case, the undersigned hereby makes the following:
FINDINCS OF FACT
I.
Shaffer Construction & Engineering Co. is a corporation with [*25] its principal place of business in Everett, Washington. It is engaged in the general construction business. It employs from 6 to 35 construction workers at any one time, depending on the season and the number of jobs undertaken. It has an average annual dollar volume of business of approximately $500,000.00. It has no history of previous violations of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq.
II.
In the latter part of February and early March, 1972 Shaffer maintained a place of employment and worksite at Edmonds, Washington in the vicinity of Main and Railroad Avenues and adjacent to the ferry dock of the Washington State Ferry System. Approximately eight employees were at this work site on March 1, 1972. Under its contract Respondent undertook to construct a sunken concrete base adjacent to a street leading to the ferry dock, for the purpose of holding a traffic sign. This base was to be of concrete poured at the site and was to be located 125 feet east of the Burlington Northern railroad tracks and 51 feet south of the center of the street adjacent to, and north of its location. It was to be 3 feet by 10 feet by 10 feet deep poured [*26] on forms to be constructed in an excavation 8 feet deep, so that when completed the top of the base would be about 2 feet above ground.
III.
On February 25, 1972, an excavation was made at the site large enough to erect the concrete forms. They were placed resting on the bottom of the 8 foot deep hole. The "long way" of the concrete structure was to be north and south. The excavation was made just large enough so that the forms could be put in place. The walls of the excavation were as perpendicular as possible to allow construction of the forms without the banks or walls sliding down at that time. Sides were not shored, sheeted, braced, sloped or otherwise supported. They remained as described until Monday, February 28, when the south side of the hole was knocked off somewhat by a piece of equipment brought it to dig a hole at the south end of the excavation for the installation of a sump pump to remove water from the hole. Before the structure consisting of the concrete forms were placed in the excavation, the width of the hole was greater than the depth. After this installation, the area on all sides of the forms was such athat the depth of the hole was greater [*27] than the distance from the forms to the banks.
IV.
The soil at the site was unstable, soft, and wet.
V.
No further changes were made in the hole before March 1, 1972 when a workman died of asphyxiation after being trapped beneath a slide from the east bank of the excavation. The dimensions of the trench are those measured March 2, 1972 and shown in the Secretary's Exhibits 17 and 18, after there had been further slides and erosion of the earth walls at the perpendicular than is indicated by the following figures.
From east to west at ground level, the excavation was approximately 13 feet, 8 inches. Including the structure formed by the concrete forms and the concrete poured in it, the bottom of the excavation was 11 feet, 8 inches from east to west. On the east side of the structure, the trench was 4 feet wide at the bottom. At ground level on the east side of the structure, it was 5 feet, 6 inches to the top of the bank from the forms; showing a sloping of 1 foot, 6 inches in a rise of 8 feet. The danger to anyone in the trench from earth slides was great and it was apparent.
VI.
At the site the earth vibrated in such a manner it could be felt by one standing [*28] on the ground when a train passed on the adjacent railroad track. Approximately seven trains went by on regular schedule every day.
VII.
In the trench was a ladder approximately seven feet in length. It was usually leaning against a bank which was 8 feet to 8 feet, 6 inches high. This was the only ladder in the excavation on March 1, 1972.
VIII.
There is no evidence that in 1971 Respondent had any employees who suffered occupational injuries or illnesses as contemplated by Form OSHA No. 102.
Based on the foregoing Findings of Fact and upon all facts stipulated, admitted or proved by credible, uncontroverted evidence, the undersigned now makes the following:
CONCLUSIONS OF LAW
I.
On March 1, 1972 Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, Supra. The Commission has jurisdiction of the parties and the subject matter of this action.
II.
With respect of the Citation for Serious Violation issued to Respondent on March 10, 1972 and referring to a work place at the Edmonds Ferry Terminal, Respondent on March 1, 1972 was in violation of 29 CFR 1926.652(b) [*29] and (e) as alleged in paragraph 4 of the Amended Complaint of the Secretary. This was a serious violation within the meaning of Section 17(k) of the Act. Nine hundred dollars ($900.00) is a reasonable penalty for this violation.
III.
With respect to the Citation No. 1 issued on March 10, 1972 to Respondent and reciting therein a work place at the Edmonds Ferry Terminal, disposition should be made as follows:
Item 1: Notice of Contest should be withdrawn and the Citation and Proposed Penalty affirmed.
Items 2 and 3: The Items and the Proposed Penalties should be vacated.
Items 4 and 5: There being a failure of proof on the part of the Secretary, the Items and Proposed Penalties should be vacated.
Item 6: On March 1, 1972 Respondent was in violation of 29 CFR 1925.652(h). A reasonable penalty for this violation is $100.00.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law and upon the entire record, it is hereby ORDERED
I.
The Citation for Serious Violation as amended to allege the violation on March 1, 1972 is hereby affirmed. The penalty for this violation is fixed at $900.00.
II.
Disposition of Citation No. 1 dated March 10, 1972 and [*30] the Items thereunder:
Item No. 1: Notice of Contest is withdrawn. The Citation and Proposed Penalty of $0 are affirmed.
Items No. 2 & 3: The Citation and the Proposed Penalties, each in the amount of $0 are vacated.
Items No. 4 & 5: The Citation and the Proposed Penalty are vacated.
Item No. 6: The Citation as amended to allege March 1, 1972 is affirmed and the Proposed Penalty is fixed at $100.00.
APPENDIX A
COMPLAINANTS STIPULATION
IT IS HEREBY STIPULATED by and between the Secretary of Labor, through his undersigned counsel, and Shaffer Construction & Engineering Co., through its undersigned representative as follows:
A. The parties stipulate to the following undisputed facts:
1. Shaffer Construction & Engineering Co. is a corporation with principal offices in Everett, Washington.
2. Shaffer Construction & Engineering Co., at all times relevant hereto, was engaged at a place of employment and work site at Edmonds, Washington in the vicinity of Main and Railroad Avenues in the business of constructing roads and making highway improvements and had employees engaged in such function.
3. Shaffer Construction & Engineering Co. is and was engaged in the use of construction [*31] materials, equipment and other goods which were produced outside the State of Washington.
4. For the purpose of this proceeding, Shaffer construction & Engineering Co. is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act, hereinafter called the Act.
5. The Secretary of Labor, pursuant to the authority vested in him by section 107 of the Contract Work Hours and Safety Standards Act (86 Stat. 96; 40 U.S.C. 327 et seq.), duly issued and promulgated the Safety and Health Regulations for Construction, 29 CFR Part 1926 (formerly Part 1518), hereinafter referred to as the Construction Work Regulations which, pursuant to section 6 of the Act, have been adopted as standards under the Act at 29 CFR 1910.12. Said Construction Work Regulations were in effect at all times relevant hereto, and were applicable to respondent's business.
6. The Secretary of Labor, pursuant to the authority vested in him by section 8(c) of the Act, duly issued and promulgated the Recording and Reporting Regulations (29 CFR 1904) and the Posting Regulations (29 CFR 1903.2). Said regulations were in effect at all times relevant [*32] hereto and were applicable to respondent's business.
7. An inspection was made of respondent's aforesaid work site at Edmonds, Washington on March 2, 1972, by an authorized representative of the Secretary of Labor.
8. As a result of the aforesaid inspection on March 2, 1972, Citation Number 1 was issued to respondent on March 10, 1972, alleging the following violations of 29 CFR:
1. 29 CFR 1903.2(a) -- Failure to post Official Poster to inform employees of protections and obligations.
2. 29 CFR 1904.2 -- Failure to maintain a log of occupational injuries and illnesses of form OSHA No. 100.
3. 29 CFR 1904.4 -- Failure to maintain a supplementary record of occupational injuries and illnesses on Form OSHA 101 or acceptable alternative record.
4. 1904.5(a) 29 CFR -- Failure to compile an Annual Summary of Occupational Injuries and Illnesses on form OSHA No. 102.
5. 1904.5(b) 29 CFR -- Failure to post Annual Summary of Occupational Injuries & Illnesses, (Form OSHA No. 102) so that employees may see it.
6. 1926.652(h) -- Failure to provide ladder of adequate length as a means of exit from the trench or excavation.
9. Also as a result of the aforesaid inspection [*33] on March 2, 1972, Citation for Serious Violation, Citation Number 1, was issued to respondent on March 10, 1972, alleging the following violation of 29 CFR Part 1926 (formerly 29 CFR Part 1518):
1926.652(b) and 1926.652(e) -- Exposure of employees in trench deeper than 7-feet with sides unshored and steeper (above 4-foot level) than 1 foot rise to each 1-foot horizontal for nonhomogeneous soil condition with ground water. Also, failure to take additional precautions by way of shoring and bracing when excavations are adjacent to or in former back-fill areas or where subject to vibrations from railroad and vehicle traffic.
The alleged violations of the above two standards are considered to result in one serious violation of exposure of personnel in an unshored or inadequately sloped trench because of the combination of hazards from heavy ground water conditions plus the potential vibrations from nearby railroad and vehicle traffic.
10. A notification of proposed penalty was sent to respondent on March 10, 1972, proposing the following penalties for the alleged violations referred to in paragraphs A-8 and A-9 above:
|
Citation for Serious Violation, Citation Number 1 -- |
$500 |
|
Citation Number 1, Item No. 1 |
0 |
|
Citation Number 1, Item No. 2 |
0 |
|
Citation Number 1, Item No. 3 |
0 |
|
Citation Number 1, Item No. 4 |
0 |
|
Citation Number 1, Item No. 5 |
0 |
|
Citation Number 1, Item No. 6 |
0 |
|
|
|
|
Total for all alleged violations |
$500 |
[*34]
11. A Notice of Contest by respondent was sent on March 17, 1972 and received by the Secretary of Labor on March 20, 1972.
12. Approximately eight employees of respondent employed as construction workers were affected by the violations alleged in the citations issued to respondent.
13. The affected construction workers are represented by the following labor organizations which are labor organizations certified by the National Labor Relations Board as bargaining representatives:
Local 562 Carpenters
Local 302 Operating Engineers
Local 292 Building & Construction Laborers
14. Bernie E. Carlton was an employee of Shaffer Construction & Engineering Co. on March 1, 1972 employed at the job site at Main and Railroad Avenues, Edmonds, Washington.
15. Ralph Carlton was the carpenter foreman in charge of the concrete and form work for Shaffer Construction & Engineering Co. during the excavation and work at the job site at Main and Railroad Avenues in Edmonds, Washington on March 1 and 2, 1972.
16. Ron Sheets was the job superintendent in charge of the entire project at the job site at Main and Railroad Avenues in Edmonds, Washington on March 1 and 2, 1972.
17. Bernie [*35] E. Carlton was fatally injured in an accident at the Main and Railroad Avenue job site in Edmonds, Washington on March 1, 1972 when dirt and mud caved in, trapping him in an excavation at said work site and causing his death.
18. The soil at the excavation in which Bernie E. Carlton was killed was not soild rock, shale or cemented sand and gravels nor was the soil compacted angular gravels.
19. There is, and at all times relevant hereto was, a railroad operating in the vicinity of the excavation in which Bernie E. Carlton was killed and on an average 24 hour day, approximately six or seven trains go by.
20. There is and at all times relevent hereto was a two lane road in the vicinity of the excavation in which Bernie E. Carlton was killed. This two lane road is known as Main Street in Edmonds, Washington and is also known as State Route 103 and is the access and departure road to and from the Edmonds -- Kingston ferry line. On an average 24 hour day approximately 650 cars (including trucks and miscellaneous ferry traffic) use this road.
21. Four employees of Shaffer Construction & Engineering Co. employed as carpenters worked in the excavation in which Bernie E. [*36] Carlton was killed, placing forms for concrete in the excavation on Monday and Tuesday, February 28 and 29, 1972. These four employees were Walter Kaaret, Bernie Carlton, Ralph Carlton and Frank Rubatino.
22. Shaffer Construction & Engineering Co. employs from six to thirty-five employees at any one time depending on the season and number of jobs undertaken. Approximately eight employees were employed at the Main and Railroad Avenue job site in Edmonds, Washington on March 1, 1972.
23. Shaffer Construction & Engineering Co. has an annual dollar volume of approximately $500,000.
24. Shaffer Construction & Engineering Co. had not been issued any prior citations, other than the ones mentioned herein, for violations of the Act and has no history of previous violations of the Act.
25. Shaffer Construction & Engineering Co. admits that it did not post an official Occupational Safety and Health Act poster to inform employees of protections and obligations under the Act at the job work site at Main and Railroad Avenues, Edmonds, Washington and therefore admits violating 29 CFR 1903.2(a) (Citation Number 1, Item Number 1).
26. Shaffer Construction & Engineering Co. agrees that [*37] the amounts of proposed penalties referred to in paragraph A-10 above for the citations which were issued were and are reasonable giving due consideration to the size of the business of respondents, the gravity of the alleged violation, the good faith of the employer, and the history of previous violations, if the violations did in fact occur and without respondent in any way admitting said violations.
27. Immediately after the accident referred to in paragraph A-17 above, respondent ceased operation and baricaded the excavation. Sheeting, cribbing and shoring were provided before proceeding with the job.
28. The eight page document entitled "Fatal Investigation Report," naming Bernie E. Carlton as the deceased, is an authentic copy of the report of investigation conducted by the State of Washington, Department of Labor and Industries, Division of Safety in connection with the death of Bernie E. Carlton, and was prepared by General Safety Inspector Vern Kooy on March 6, 1972 in ten normal course of his duties as a General Safety Inspector.
29. The twelve photographs marked as Plaintiff's Exhibits 3(a) through 3(1) are photos which accurately depict the scene and immediate [*38] area of the accident which occurred at respondent's job site at Main and Railroad Avenues on March 1, 1972 and were taken on March 2, 1972 by U.S. Department of Labor Compliance Safety Officer Lawrence Eck.
B. The parties agree that the following disputed issues remain in this case for determination by the the Judge:
1. Whether or not respondent violated the safety standard at 29 CFR 1926.652(b) and (e) in that employees were exposed in a trench or excavation deeper than four feet with sides unshored and steeper than 1 foot rise to each 1-foot horizontal for nonhomogeneous soil condition with ground water. Also the failure of respondent to take additional precautions by way of shoring and bracing when excavations are adjacent to or in former back-fill areas or where subject to vibrations from railroad and vehicle traffic.
2. If respondent violated the standards referred to in paragraph B(1) above, whether or not said violations constitute a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the condition which existed, or from one or more practices, means, methods, [*39] operations, or processes which have been adopted or were in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, have known of the presence of the violation.
3. Whether or not respondent violated the safety standard at 29 CFR 1926.652(h) in that at its work site at Main and Railroad Avenues in Edmonds, Washington, it failed to provide a ladder of adequate length as a means of exit from a trench or excavation three feet deep or more (Citation No. 1, Item No. 6).
4. Whether or not respondent violated the recordkeeping and reporting regulations referred to in Citation No. 1, Items Nos. 4 and 5 (also referred to in paragraph A-8 herein).
APPENDIX B
CITATIONS -- PROPOSED PENALTIES -- ALLEGATIONS OF COMPLAINT -- REGULATIONS, STANDARDS
On March 10, 1972, two Citations were issued to Respondent. One is for an alleged serious violation that is the principal issue of the case. The second contains six items for violations not alleged to be serious. The first was for failure to post an official poster to inform employees of their protections and obligations. It was "admitted" by Respondent at the hearing. [*40] This is considered an application to withdraw notice of contest and will be covered in the Order as such -- and will be granted.
The second and third were for failure to maintain OSHA Forms 100 and 101. These were abandoned by the Secretary at the hearing but should be covered in the Order -- and will be dismissed. The remaining three are at issue and will be set out below.
MATTERS AT ISSUE
Citation for Serious Violation
March 10, 1972
. . . . An inspection of a workplace under your ownership, operation, or control located at Edmonds Ferry Terminal to Dayton Street-State Contract 9173 and described as follows Construction has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 USC 651, in the following respects:
Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.
29 CFR Part 1926 (Formerly 29 CFR Part 1518 as adopted by 29 CFR section 1910.12) 1926.652(b) & 1926.652(e) -- March 2, 1972. Exposure of employees in trench deeper than 7-feet with sides unshored and steeper (above 4-foot level) than 1 foot [*41] rise to each 1-foot horizonal for non-homogeneous soil condition with ground water. Also, failure to take additional precautions by way of shoring and bracing when excavations are adjacent to or in former back-fill areas or where subject to vibrations from railroad and vehicle traffic. -- Immediately.
PROPOSED PENALTY: $500.00
ALLEGATIONS OF COMPLAINT, AS AMENDED:
IV
On March 1 and 2, 1972, at the construction work site located at Main and Railroad Avenues, Edmonds, Washington, the respondent violated the construction work regulations in the following respects:
Sides of trenches in unstable or soft material, four feet or more in depth, were not shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working within them.
Also additional precautions by way of shoring and bracing were not taken by respondent to prevent slides or cave-ins when excavations or trenches were made in locations adjacent to back-filled excavations, or where excavations were subjected to vibrations from railroad or highway traffic, the operation of machinery or any other source, all contrary to 29 CFR 1926.652(b) and (e).
REGULATIONS -- STANDARDS: [*42]
20 CFR 1926.652
(b) Slides of trenches in unstable or soft material, 4 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.
(e) Additional precautions by way of shorting and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations of machinery, or any other source.
29 CFR 1926.653 Definitions applicable to this subpart.
(f) 'Excavation' -- Any manmade cavity or depression in the earth's surface, including its sides, walls or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench.
(n) 'Trench' -- A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.
CITATION
March 10, 1972
. . . . An inspection of a workplace under your ownership, operation, or control located [*43] at Edmonds Ferry Terminal to Dayton Street State Contract 9173 and described as follows Construction has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.
29 CFR Part 1910 -- March 2, 1972
4 -- 1904.5(a) 29 CFR -- Failure to compile on Annual Summary of Occupational Injuries and Illnesses on form OSHA No. 102. -- Immediately
5 -- 1904.5(b) 29 CFR -- Failure to post Annual Summary of Occupational Injuries & Illnesses, (Form OSHA No. 102) so that employees may see it. -- Immediately.
PROPOSED PENALTY: $0
ALLEGATIONS OF COMPLAINT:
X
On March 1/2, 1972, at the aforesaid place of business and employment, the respondent violated the Recording and Reporting Regulations and the Posting Regulations in the following respects:
4. Failure to compile an Annual Summary of Occupational Injuries and Illnesses on Form OSHA No. 102, contrary to 29 CFR 1904.5(a); and
5. Failure to post Annual Summary of Occupational Injuries [*44] and Illnesses, (Form OSHA No. 102) so that employees may see it, contrary to 29 CFR 1904.5(d).
REGULATIONS -- STANDARDS:
29 CFR 1904.5 Annual summary.
(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on the information contained in the log of occupational injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose, and shall be completed in the form and detail as provided in the instructions contained therein.
(b) The summary shall be completed no later than 1 month after the close of each calendar year beginning with calendar year 1971.
(c) Each employer, or the officer or employee of the employer who supervises the preparation of the annual summary of occupational injuries and illnesses, shall certify that the annual summary of occupational injuries and illnesses is true and complete. The certification shall be accomplished by affixing the signature of the employer, or the officer or employee of the employer who supervises the preparation of the annual summary of occupational injuries and illnesses, to the lower right [*45] hand corner of the annual summary or by appending a separate statement to the annual summary certifying that the annual summary is true and complete.
(d)(1) Each employer shall post a copy of the establishment's summary in each establishment in the same manner that notices are required to be posted under § 1903.2(a) of this chapter. The summary covering the previous calendar year shall be posted no later than February 1, and shall remain in place until March 1. For employees who do not primarily report or work at a single establishment on a regular basis, employers shall satisfy this posting requirement by presenting or mailing a copy of the summary during the month of February of the following year to each such employee who receives pay during that month. For multiestablishment employers where operations have closed down in some establishments during the calendar year, it will not be necessary to post summaries for those establishments. [37 FR 20822, effective November 3, 1972]
(2) A failure to post a copy of the establishment's annual summary may result in the issuance of citations and assessment of penalties pursuant to sections 9 and 17 of the Act.
(Effective February 17, [*46] 1972)
29 CFR 1903.2 Posting of notice; availability of Act, regulations and applicable standards.
(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.
(b) "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theatre, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location [*47] (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this section shall be posted at the location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such as longshoremen, traveling salesmen, technicians, engineers, etc. such notice or notices shall be posted at the location from which the employees operate to carry out their activities. In all cases, such notice or notices shall be posted in accordance with the requirements of paragraph (a) of this section.
(c) Copies of the Act, all regulations published in this chapter and all applicable standards will be available at all Area Offices of the [*48] Occupational Safety and Health Administration, U.S. Department of Labor. If an employer has obtained copies of these materials, he shall make them available upon request to any employee or his authorized representative for review in the establishment where the employee is employed on the same day the request is made or at the earliest time mutually convenient to the employee or his authorized representative and the employer.
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.
6 -- 1926.652(h) -- Failure to provide ladder of adequate length as a means of exit from the trench or excavation. -- Immediately.
PROPOSED PENALTY: $0
ALLEGATIONS OF COMPLAINT:
V.
On March 1/2, 1972, at the aforesaid worksite and place of employment, the respondent further violated the construction work regulations in the following respect: Failure to provide ladder of adequate length as a means of exit from a trench or excavation 3 feet deep or more, contrary to 29 CFR 1926.652(h).
REGULATIONS -- STANDARDS:
29 CFR 1926.652(h)
Where employees are required to be in trenches 3 feet deep or more, [*49] ladders, extending from the floor of the trench excavation to at least 3 feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.