JACK CONIE & SONS CORPORATION

OSHRC Docket No. 6794

Occupational Safety and Health Review Commission

June 25, 1976

[*1]

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

COUNSEL:

William Kloepfer, Assoc. Regional Solicitor

Roger L. Sabo, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge James D. Burroughs, dated November 4, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision found respondent in violation of the Occupational Safety and Health Act of 1970 n1 for failure to properly slope a trench. We need not consider the merits of complainant's citation, however, for we hold that the citation was invalidly issued in that complainant failed to issue it "with reasonable promptness" as required by 29 U.S.C. 658(a). n2

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n1 84 Stat. 1590, 29 U.S.C. 651, et seq., hereinafter referred to as the Act.

n2 In pertinent part, 29 U.S.C. 658(a) provides as follows:

"If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer." (Emphasis added.)

[*2]

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The case was tried and decided under our ruling in Secretary v. Chicago Bridge and Iron Company, 6 OSAHRC 244 (1974). n3 However, subsequent to the Judge's decision in this case, the United States Court of Appeals for the Seventh Circuit rejected the Commission's ruling therein and implied that the Commission should adopt a new rule on the timely issuance of citations. Brennan v. Chicago Bridge and Iron Company, 514 F.2d 1082 (7th Cir. 1975). n4

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n3 The respondent having asserted in his answer to the complaint that the citation was not issued with reasonable promptness as required by section 658(a).

n4 In this case the Circuit Court was considering the Commission rule that a citation must be issued within 72 hours after the Secretary of Labor or his authorized representative (area director) concludes that a citation should be issued. Chairman Barnako is clearly wrong when he asserts in his concurring opinion that my approach hereafter is contrary to that decision. The Circuit Court did not consider a rule which would require issuance of a citation within 72 hours after a violation is detected by an inspector. The matter which the concurring opinion quotes from footnote 7 on page 1085 of the Circuit Court's decision must be considered within the context of the question that was addressed in that decision. The textual material which immediately precedes footnote 7 states:

"Finally, in order to avoid the necessity of testifying in every action as to the exact moment he made the decision to issue a citation, and to cloak himself in the presumption of administrative regularity, the Area Director might simply adopt a practice of noting on the citation a time less than 72 hours prior to the issuance time as the time of his final decision. To the extent that such a practice would prevail over a 'reasonable promptness" defense, the protection supposedly afforded the employees by the 72-hour rule would be illusory." (Footnotes omitted.)

Immediately thereafter, the Circuit Court stated:

"We hold, therefore, that the rule set forth in the Commission's decision that 658(a) requires the Secretary or his authorized representative to issue a citation within 72 hours of the time the decision to so issue is reached is unacceptable because it is not supported by the statute itself or by its legislative history and must be invalidated.

We do not hold, however, that the Commission is powerless to fashion a rule giving the 'reasonable promptness' language some effect. In other words, we find it unnecessary to decide, as the Secretary argues here, that the phrase is merely hortatory, precatory, or directive. We simply conclude that the test for determining 'reasonable promptness' used in this case was improper." (Emphasis added and footnote omitted.)

What the Circuit Court "simply conclude[d]" in itself is enough belie the Barnako assertion.

Furthermore, the cases relied on by the Chairman in footnote 2 of his concurrence are inapposite as they do not involve any issue concerning the timely issuance of a citation.

[*3]

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In our approach to this case we have reviewed the legislative history. We find that Congress made it quite clear what it meant by the phrase "reasonable promptness."

The inclusion of the requirement that citations be issued with reasonable promptness resulted from a compromise between different provisions covering the citation and abatement of hazardous working conditions contained in bills which had passed the House and the Senate. In the final stages of the legislative processes leading to its enactment, the bill adopted by the Senate contemplated that the Secretary of Labor's representative would himself decide whether there was a violation and would issue the citation at the conclusion of his inspection while still on the employer's premises. The bill which had passed the House of Representatives contemplated an inspector with lesser authority. He would simply conduct an inspection while some other official would later decide whether the conditions observed by the inspector warranted the issuance of a citation.

Under the Senate bill, therefore, there was to be no lapse of time between inspection [*4] and citation and under the House bill there obviously had to be some, but exactly how much was left unanswered.

There differing versions were resolved by the conference committee which drafted the language which is now contained in 29 U.S.C. 658(a). In so doing, that committee reported the following to Congress:

"The Senate bill provided that if . . . the Secretary . . . 'determines' that an employer has violated mandatory requirements under the Act, he shall 'forthwith' issue a citation. The House amendment provided that if . . . the Secretary 'believes' that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary 'believes' that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector." n5

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n5 Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971) (emphasis added).

[*5]

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In the case before us the inspection of respondent's worksite took place on October 11, 1973, and the citation was issued 125 days later on February 13, 1974. The citation, therefore, issued 122 days later than Congress intended, and complainant was not able to justify that delay by showing "exceptional circumstances."

The Judge's decision, which is attached as Appendix A, sets forth in detail the complainant's explanation for the delay in chronological order. In short, the delay was due to the fact that the responsible area director wanted to issue a citation for a willful violation but could not obtain permission from his superior to do so. Following the initial denial of his request, he requested reconsideration on two occasions. Both of these requests were rejected, and the citation was issued a few days after the area director was notified of the final rejection.

The "bureaucratic wrangling" (to borrow the Judge's phrase) involved in this case does not constitute the type of "exceptional circumstances" intended by Congress. An exceptional circumstance is something extraordinary or unusual [*6] and beyond the complainant's control, as, for example, where the issuance of a citation is dependent upon the completion of certain tests or chemical analyses which can only be conducted after the physical inspection is completed. Where all the facts of complainant's case are known at the completion of the physical inspection, consultations among various representatives of the complainant in order to arrive at determinations as to whether violations are serious or nonserious, or willful or not, are the ordinary type of matters which ought to be concluded within the 72-hour period. Although there may well be situations where some review by the Secretary of Labor's legal staff might be necessary and might therefore constitute exceptional circumstances warranting a limited delay, this is not one of them. Delay in the issuance of a citation caused by the persistent refusal of an administrator or accept a competent legal determination is not justifiable.

The Secretary has no inherent authority to issue citation. His authorization to do so is derived solely from the provisions of 658(a) which contains several limitations on citation-issuance, i.e., each citation "shall be in writing," [*7] "shall describe with particularity the nature of the violation," "shall fix a reasonable time for the abatement of the violation," and "shall [be issued] with reasonable promptness." A citation which is issued without observing these statutory limitations is not authorized by the Act. The is the situation is this case. n6 Accordingly, the citation must be vacated. So ordered.

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n6 Commissioner Cleary's statement that a citation not issued with reasonable promptness should be enforced because "it is certainly preferable to no abatement at all" lacks merit. The same logic holds that a murder conviction based upon a forced confession is preferable to no conviction at all. I regret the necessity of having to point out that the constitutional requirement that no person shall be deprived of life, liberty or property without due process of law applies fully to employers cited for OSHA violations.

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CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur that the citation was not issued with reasonable promptness and that it should [*8] be vacated on the facts concerning the delay in its issuance. However, I do not agree and do not concur in Commissioner Moran's reasons and the test he would use to arrive at this disposition.

Commissioner Moran would adopt a test for reasonable promptness in which he would void all citations not issued within 72 hours of the Secretary's inspection unless the Secretary establishes that exceptional circumstances exist to justify the delay. Since the citation in this case was issued some 126 days after the inspection, and the Secretary did not justify the delay by showing exceptional circumstances, he would apply his test and find the citation void ab initio under section 9(a) of the Act. n1

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n1 Section 9(a) of the Act requires in pertinent part: "If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, or any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable rime for the abatement of the violation. . ."

[*9]

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Commission Moran's approach herein is contrary to the decision of the Court of Appeals in Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975). It is true that the Court did not foreclose our fashioning a rule giving some effect to the requirement in section 9(a) of the Act that citations be issued with reasonable promptness. However, it expressly disapproved the use of a 72-hour time period in calculating whether the citation was issued with reasonable promptness. In this regard, the court stated:

We find no support for the Commission's conclusion that the legislative history of the Act supports a 72-hour time period. . . The Congressional reference to 72 hours was in connection with the expected time between an inspection and the issuance of a citation. The realities of administering the Act - over 60 million employees are covered by the Act but the Secretary has only 500 inspectors; nevertheless over 50,000 citations are issued annually - have demonstrated the difficulty of reaching the desirable expectation. Brennan v. Chicago Bridge & Iron Co., supra, at 1085.

[*10] I agree with the Court of Appeals that the realities of administering the Act require rejection of a 72-hour rule. Such a rule is overly mechanical, it is not supported by the language of section 9(a) and it does not further the purposes of the Act. n2 The Commission has held that a citation which is not issued in accordance with the requirements of section 9(a) may be voidable in certain circumstances. Coughlan Construction Co., Inc., Nos. 5303 and 5304, BAN 3 OSHC 1636, CCH OSHD para. 20,106 (1975); Gannet Corp., No. 6352 (May 3, 1976). This approach contemplates a case-by-case analysis of the circumstance surrounding the issuance of a citation, in order to ascertain whether vacation of the citation is warranted. To find citations void only because the Act's procedural requirements have not been complied with is overly extreme and does not allow consideration of the varying circumstances, including the effect of the failure to comply with procedural requirements upon Respondents.

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n2 Commissioner Moran's further assertion that a citation is void ab initio if it is not issued in accordance with the several requirements of section 9(a) of the Act is also unsupportable. In this regard I note that two Courts of Appeal have specifically refused to interpret the Act's procedural requirements concerning the conduct of inspections so as to find citations void ab initio when the Secretary fails to comply with the requirements. Chicago Bridge & Iron Company v. O.S.H.R.C., No. 75-1163 (7th Cir., May 10, 1976); Accu-Namics Inc. v. O.S.H.R.C., 515 F. 2d 828 (5th Cir. 1975), cert. den., No. 75-878 (March 29, 1976).

[*11]

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With regard to the requirement that citations be issued with reasonable promptness, we have said that a citation may be voidable on that basis if a party shows that it has been prejudiced by the delay. Coughlan Construction Co., Inc., supra. Ordinarily, this will be the basis for vacating a citation for lack of reasonable promptness.

However, I would find further that a citation may be voidable on reasonable promptness grounds notwithstanding the absence of demonstrated prejudice, if the facts surrounding the issuance of the citation show patently unnecessary and unjustifiable delay. That is, a citation is voidable on this technical ground when the reason for the delay is so unreasonable as to be unconscionable.

Such is the case here. The delay was caused by the refusal of the regional solicitor to authorize the issuance of a willful citation and the refusal of the area director to accept that decision. After the regional solicitor initially declined to authorize the issuance of a willful citation, the area director twice requested reconsideration. Only after his second request was denied [*12] was a citation alleging a serious violation issued. The delay caused by this procedure, justifiably referred to as "bureaucratic wrangling" by the judge, was 126 days, or approximately four months.

Inasmuch as Respondent showed that the facts surrounding the issuance of the citation on their face indicated unwarranted and unjustifiable delay, the burden was on the Secretary to show that the delay was justified or necessary. However, the Secretary did not adduce evidence showing that the delay was in any way warranted. Particularly persuasive in this regard is the fact that a citation alleging a willful-serious violation could have been issued, leaving the degree of the violation to be determined by the evidence adduced at the hearing. Accordingly, I vacate the citation since the Respondent established that the delay in the issuance of the citation was unwarranted and unjustifiable.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent from the majority disposition of this case which vacates the citation on the grounds that it was not issued with "reasonable promptness." I dissent from Commissioner Moran's rationale for vacating the citation, i.e. because there were no exceptional [*13] circumstances excusing its issuance more than 72 hours after the inspection. Inasmuch as Chairman Barnako has also rejected the rationale of the lead opinion, stating, "I do not agree and do not concur in Commissioner Moran's reasons," the "72 hour rule" represents nothing more than the personal minority view of Commissioner Moran.

In addition, I dissent from that part of the Chairman's decision which, without explanation, departs from Commission precedent that a citation may be vacated on reasonable promptness grounds only upon a showing of prejudice to a respondent and states that a citation is also voidable on reasonable promptness grounds when the "reason for the delay is so unreasonable as to be unconscionable." Commissioner Moran has not addressed the Chairman's theory. Accordingly, it too represents the view of one Commissioner and the instant case holds only that the citation be vacated on grounds of "reasonable promptness," but for differing reasons. The reasons for my dissent follow.

The concurring opinion in this case is correct in stating that the 72-hour rule proposed by Commissioner Moran is contrary to Brennan v. Chicago Bridge & Iron Co., supra. It does [*14] not fall within the ambit of "giving the reasonable promptness language some effect," which the court suggests the Commission is empowered to do. Rather, the 72-hour rule, under both Commissioner Moran's theory and that explicitly overturned by the Seventh Circuit Court of Appeals, is unsupported by the legislative history of the Act and is, therefore, an impermissible result. For this reason and for other reasons set forth in my opinion in Chicago Bridge & Iron Co., 1 BNA OSHC 1485; 1973-74 CCH OSHD para. 17,187 (No. 744, 1974) (dissenting opinion), I concur with the Chairman in rejecting a 72-hour rule.

The Chairman, however, continues his concurring opinion by retreating from recent Commission precedent which holds that a citation can properly be vacated on the basis of reasonable promptness only if an employer if prejudiced by the delay. In Coughlan Constr. Co., supra, the Chairman's opinion states as follows:

If anybody is adversely affected by a delay in issuance of a citation, it is the employees who are exposed to the hazard Complainant seeks to eliminate.

He also states,

In the usual case, a delay in the issuance of the citation is not prejudicial to the [*15] employer.

. . . If the employer is prejudiced because evidence becomes unavailable or if the employer is prejudiced from some other cause, the citation can properly be vacated.

In the instant case, however, the Chairman informs us that, "Ordinarily, this will be the basis for vacating a citation for lack of reasonable promptness (emphasis added)." He then sets forth the Following additional test.

However, I would find further that a citation may be voidable on reasonable promptness grounds notwithstanding the absence of demonstrated prejudice, if the facts surrounding the issuance of the citation show patently unnecessary and unjustifiable delay. That is, a citation is voidable on this technical ground when the reason for the delay is so unreasonable as to be unconscionable (emphasis added).

The Chairman supplies no authority for his new theory, and gives no reason for departing from recent Commission precedent applying the principle that prejudice must be shown before a citation can be vacated under section 9(a) when a procedural requirement is breached.

The purpose of promptly issuing a citation is to insure that abatement of hazardous conditions is achieved in an [*16] expeditious fashion. The abatement of hazards under a citation order is perhaps the primary means by which the Act undertakes to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. n3 It is thus apparent that the text of section 9(a), providing that following an inspection if the Secretary believes that an employer had violated the Act he shall with "reasonable promptness" issue a citation, is intended to benefit employees. In this regard I wish to emphasize that tardiness by the Secretary in issuing a citation is a grave matter which may be detrimental to the persons the Act is designed to protect. But the vacating of a citation which has not been issued with dispatch has a substantially greater adverse impact upon those workers who continue indefinitely to be expose to conditions believed by the Secretary to be violative of the Act. In other words, unreasonable delay in requiring abatement of a hazard is not to be condoned, but it is certainly preferable to no abatement at all.

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n3 Section 2(b) of the Act; 29 U.S.C. 651(b).

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In affording due process to a cited employer, however, it must be recognized that, aside from adversely affecting employees, a tardily issued citation may possibly render it difficult to defend against a citation. Where an employer demonstrates prejudice a citation may be vacated. Without a showing of prejudice, however, the purpose of the Act in my opinion precludes what amounts to penalizing employees for the Secretary's delay. See Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828, 833 (5th Cir. 1975) (assuming illegal inspections were conducted by the Secretary, the court refused to exclude evidence without a showing of prejudice; the court regarded the purpose of the Act as precluding a contrary result); Chicago Bridge & Iron Company v. O.S.H.R.C., No. 75-1163 (7th Cir., May 10, 1976) (where there has been substantial compliance with section 8(e) of the Act and the employer is unable to demonstrate that prejudice resulted from its not participating in the inspection, citations are valid; the Act's purpose makes inadvisable a policy that would automatically void citations for procedural or technical [*18] violations by the Secretary); cf. Brennan v. O.S.H.R.C. & Bill Echols Trucking, 487 F.2d 230, 235, 238 (5th Cir. 1973) (in view of the underlying philosophy of the Act the extrme sanction of vacating a citation for procedural error cannot be imposed without prejudice; the court refers to the fact that Commission decisions have required a finding of prejudice to the employer before a penalty may be dismissed on procedural grounds); Atlantic Marine, Inc. v. O.S.H.R.C., 524 F.2d 476, 478 (5th Cir. 1975); Chicago Bridge & Iron Co., 1 BNA OSHC 1485; 1973-74 CCH OSHD para. 17,187 (No. 744, 1974) (dissenting opinion).

I continue to adhere to the Commission position set forth in Coughlan, supra. The Chairman's fears of "patently unnecessary and unjustifiable delay" do not warrant a departure from the well-reasoned "prejudice rule" that achieves a fair balance between protecting employees and affording a fair hearing to respondents.

When a delay in issuing a citation is lengthy it is presumably easier for a respondent to demonstrate prejudice. n4 The Chairman refers to the unconscionability of the "reason for the delay." Prejudice may result from a long delay, but [*19] I fail to see what effect the reason for the delay has upon an employer. Depending upon the circumstances, especially the nature of the violation, a respondent could conceivably establish prejudice from a relatively short delay. But the Chairman's action concerning the reason for delay is obviously aimed at punishing the Secretary for tardiness without regard to the effect of such delay upon either employers or employees.

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n4 Employers are, of course, protected by the Act's section 9(c) limitation which precludes citation more than six months following the occurrence of any violation.

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Respondent has not established that it was prejudiced by the delay in issuance of the citation. I would decide the merits of this trenching case.

APPENDIX A

DECISION AND ORDER

Theodore J. Pethia, for complainant

Roger L. Sabo, respondent

STATEMENT OF CASE

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as [*20] the Act). Respondent seeks review of a serious citation issued to it, pursuant to section 9(a) of the Act, on February 13, 1974, by the complainant. Review is also sought of a notification of proposed penalty issued on February 13, 1974.

The serious citation was issued as the result of an inspection conducted on October 11, 1973, of a place of employment located south on Ohio Route 674, Canal Winchester, Ohio. Respondent was engaged in the installation of a sewer line at that location.

The citation alleges that respondent committed a serious violation of section 5(a)(2) of the Act by failing to comply with the standard published at 29 CFR 1926.652(b). The citation described the alleged violation as follows:

"Failure to shore, sheet, brace, slope, or otherwise support the sides of trenches five (5) feet or more in depth to protect the employees working in the trench for the sewer line approximately three hundred (300) feet east of 246 washington Street, south on Ohio Route 674 in Canal Winchester, Ohio."

The notification of proposed penalty proposed a penalty of $950 for the alleged violation.

The respondent, by letter dated February 27, 1974, and received on February 28, [*21] 1974, timely advised complainant that it desired to contest the citation and proposed penalty.

The complaint was received on March 20, 1974. The answer was received on April 4, 1974. Paragraph 9 of the answer raised the issue of whether the citation was issued with reasonable promptness as required by section 9(a) of the Act. The issue was timely and properly raised by the answer. See Secretary v. Chicago Bridge & Iron Co., 6 OSAHRC 244 (1974); Secretary v. Fort Worth Enterprises, Inc., Docket No. 769 (July 25, 1974).

A hearing was held in this matter on July 2, 1974, in Columbus, Ohio. No additional parties desired to intervene in the proceedings.

JURISDICTION AND ISSUES

Respondent admits in paragraph III of its answer that it was, at all times material to this proceeding, regularly engaged in the purchase, receipt and use of substantial amounts of supplies, materials, equipment and other goods manufactured, produced, processed, or obtained outside the State of Ohio in construction or reconstruction of streets, roads and highways carrying vehicular traffic moving in commerce. Paragraph II of the answer admits that it employs approximately 55 persons. Respondent [*22] further admits in paragraph I of its answer that the Commission has jurisdiction of this proceeding by virtue of the provisions of section 10(c) of the Act.

Respondent has left for determination by the Commission the question of whether the admitted facts constitute it an employer within the meaning of section 3(5) of the Act. This section defines an employer as a person engaged in a business affecting commerce who has employees. The activities admitted by respondent constitute it an employer within the meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter herein. See Secretary v. Brand Electric Company, and Pattillo Construction Company, Inc., 2 OSAHRC 38 (1972).

The following issues are deemed pertinent to a disposition of this case:

1. Was the citation issued with "reasonable promptness" as required by section 9(a) of the Act?

2. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standard set forth at 29 CFR 1926.652(b)?

3. Was the violation, of one occurred, a serious violation within the meaning of section 17(k) of the Act?

4. What penalty, if any, should be assessed in the event [*23] a violation is determined?

FINDING OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving ths issues in this case:

1. Respondent, Jack Conie & Sons Corp., is an Ohio corporation with its principal office and place of business located at 1340 Windsor Avenue, Columbus, Ohio. It is engaged in the construction of sewer and water lines and in street, road, and highway construction. It employs approximately 55 persons in the conduct and operation of its business activities. (Par. II, Complaint and Answer; Tr. 258).

2. The complainant, through two duly authorized compliance officers, Ken Maglicic and John Phillips, conducted an investigation on October 11, 1973, of a workplace of respondent south of Canal Winchester, Ohio on Ohio Route 676. (Tr. 14-15, 88, 105-106). The investigation was initiated as the result of a complaint having been filed. (Tr. 16, 36, 71).

3. Respondent was engaged in the excavation of soil and the installation of a water and sewer line for a housing complex to be constructed in the area. (Tr. 16, 258). Eight employees, including the foreman, were working on the [*24] project. (Tr. 259).

4. The excavation was 14 feet in depth. The width was 9 feet at the bottom and at the five-foot level. The opening across the top where measured was 24 feet. The excavation was approximately 100 feet in length. (Ex. C; Tr. 17-19, 46, 93, 94, 101, 187, 196, 205, 209, 211, 215, 217-218, 224-225, 226, 229, 233, 264).

5. The compliance officers made no determination of the stability of the soil of the excavation by any accepted engineering principles as to hardness or softness. (Tr. 72-74). The stability, softness or hardness of the soil was determined by visual observation and by the compliance officers picking up and sifting some of the soil through their hands. (Tr. 72, 74, 112).

6. Compliance officer Maglicic entered the excavation from the north end to make measurements. The heels of his shoes sunk deeply into the soil and sand got inside his shoes. The bottom of the excavation was damp and the soil on the sides of the excaation flaked easily as it was touched. Small amounts of soil was continually falling from the sides. The color of the soil was uneven. (Tr. 19-21, 87).

7. The basic component of the soil was sand. The soil was in very small [*25] particles and loose. No large chunks of soil were observed. The texture of the soil throughout the excavation was uniform. (Tr. 21, 112, 113, 188).

8. There was water at various spots in the bottom of the excavation. (Exs. 8, 9; Tr. 74, 75, 76, 120, 188, 260). The water was seeping through the sand. A diaphragm pump was being used to remove the water from the excavation. (Tr. 189, 199-200).

9. One of respondent's pipe layers, James Trent, was at the bottom of the excavation at the time the compliance officiers arrived at the site. (Ex. 3; Tr. 17, 22, 87, 116, 117, 185, 204).

10. The excavation was not shored, sheeted, braced nor otherwise supported at the time of the inspection. (Exs. 2, 3, 6, 8, 9; Tr. 189).

11. Respendent's foreman at the worksite was responsible for examining the soil to determine its composition as the excavation progressed. (Tr. 273-274).

12. A trench box was located approximately 30 to 40 feet east of the southeast corner of the trench at the job site. (Ex. 7; Tr. 26, 27, 98, 121, 259).

13. Respondent had been using the trench box on the project when it was determined that the soil appeared unstable or a considerable amount of water was [*26] observed in the excavation. (Tr. 189-190, 198, 228, 259).

14. Following the completion of the inspection on October 11, 1973, compliance officer Maglicic performed research work with regard to the construction standards and recommended that a citation for a willful violation be issued. The proposed citation for willful violation was referred by the OSHA Area Director, after discussion with the OSHA Regional Administrator, to the Solicitor's Office, U.S. Department of Labor, for legal consideration. This was in accordance with applicable procedures. (Ex. B; Tr. 30, 88-90, 160, 163, 177).

15. The question of whether there was a willful violation was referred to the Office of the Solicitor in Washington, D.C. by the Associate Regional Solicitor, U.S. Department of Labor, Cleveland office on November 7, 1973 for review. (Ex. B; Tr. 164-166).

16. On November 21, 1973, the matter was returned to the Associate Regional Solicitor. On November 27, 1973, he forwarded a copy of the memorandum from the Solicitor's Washington office refusing to authorize the issuance of a citation for a willful violation to the Area Director. This memorandum was discussed by the Area Director with [*27] the Regional Administrator in Chicago on December 4, 1973. The Regional Administrator requested that the Area Director respond to the legal opinion set out in the memorandum. (Ex. B; Tr. 166-170).

17. On December 13, 1973, the Area Director referred the legal opinion back to the Associate Regional Solicitor for clarification and for review of the matter. By memorandum dated January 10, 1974, the Associate Regional Solicitor advised the Area Director that the matter was discussed with the Solicitor's office in Washington, as requested, and that the recommendation for issuing a citation remained the same as previously advised. (Ex. B; Tr. 170-172).

18. On January 21, 1974, the Area Director, after discussing the matter with the Regional Administrator, requested a further reconsideration of that recommendation. On January 31, 1974, the Associate Regional Solicitor advised the Area Director that the matter again had been reviewed and considered. The Area Director referred this answer to the Regional Administrator in Chicago by memorandum on February 4, 1974. (Ex. B; Tr. 172-174).

19. On February 11, 1974, the case was discussed by the Area Director over the phone with the [*28] Regional Administrator, after which the Area Director decided to issue a serious citation. (Ex. B; Tr. 175).

20. On February 11, 1974, the Area Director gave instructions to compliance officer Swackhmanner to issue a serious citation to respondent. (Exs. A, B; Tr. 99-100, 134, 142-143, 176).

21. The citation for serious violation emamating from the inspection of October 11, 1973, was issued on February 13, 1974. (Citation; Tr. 160).

22. A previous serious citation for violation of the standard published at 29 CFR 1926.652(b) was issued to respondent on August 6, 1973. (Ex. 11; Tr. 145-147, 149). The citation was issued as the result of a fatality investigation. (Tr. 148). The citation was not contested by the respondent. (Tr. 150).

23. The citation for serious violation issued on August 16, 1973, specified an abatement date of August 23, 1973. (Ex. 11; Tr. 158). On August 23, 1974, the respondent's treasurer wrote the Area Director was follows in regard to abatement: (Ex. 1; Tr. 154).

"In regard to the above referenced OSHA Citation please be advised that the following corrective action was taken on August 22, 1973:

An Efficiency Trench Box, which was manufactured [*29] in compliance to OSHA Standards, was delivered to the project on August 22, 1973 and was assembled and ready for use the following day.

The Trench Box will be used to support the sides of trenches 14 feet or more in depth. From that point we will have a trench 25 feet wide at the top, slope down to approximately 1 to 2 feet below the top of the box."

24. In determining a proposed penalty, complainant commenced with an unadjucted penalty of $1,000. A five percent reduction was allowed for size. No reduction was allowed for good faith or previous history. (Ex. 10; Tr. 135-137).

LAW AND OPINION

The answer filed by respondent raised the issue of "reasonable promptness" in issuing the citation on which this proceeding is based. This defense must be considered separate and apart from the merits of the case.

I. Reasonable Promptness

Section 9(a) of the Act provides, in pertinent part, as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed [*30] pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. (underlining added)

Reapondent submits that "reasonable promptness" requires that the citation be issued within 72 hours after the inspection.

This issue is controlled by the Commission's decision in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1974), which sets forth guidelines and limits as to the applicability of the "reasonable promptness" requirement. In the absence of exceptional circumstances, the Commission adopts the 72 hours requirement for reasonable promptness which appears in the legislative history. n1 The 72-hour period is deemed to commence when the decisional process ends, i.e., after it is determined that a violation exists, and applies to the ministerial tasks remaining to be performed, e.g., the tasks of typing, signing, and mailing the citation. The decisional process ended in this case on February 11, 1974, and the citation was issued on February 18 1974.

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n1 See H. Rep. No. 91-1765, 91st Cong. 2d Sess. 38(1970).

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The investigation was conducted by the compliance officers on October 11, 1973. Following the investigation, compliance officer Kenneth M. Maglicic recommended that a citation for willful violation of 29 CFR 1926.652(b) be issued to the respondent. This recommendation, which was concurred in by the Area Director, sparked a series of discussions and memoranda between the Office of the Solicitor, Department of Labor, the Area Director and the Regional Administrator. The substance of these discussions was that the Area Director and Regional Administrator desired to issue a citation for willful violation, but the Solicitor's office would not authorize such a citation.

The Area Director was first notified by memorandum dated November 27, 1973, from the Associate Regional Solicitor that citation for willful violation was not authorized. On December 4, 1973, the Area Director and the Regional Administrator discussed the matter and the Area Director was authorized to respond to the opinion of the Solicitor's office. The Area Director, by memorandum dated December 13, 1973, requested that the Solicitor's office reconsider the matter. The Associate Regional [*32] Solicitor advised by memorandum dated January 10, 1974, that the matter had been discussed and that the Solicitor's recommendation was the same as rendered in the memorandum of November 27, 1974. The Area Director, by memorandum dated January 21, 1974, referred the matter back to the Associate Regional Solicitor for further consideration. The Associate Regional Solicitor advised by memorandum of January 31, 1974, that the matter had been reviewed and considered. The Solicitor's office refused to concur in the issuance of a willful violation.

The third refusal of the Solicitor's office to concur in the issuance of a willful violation seems to have finally persuaded the Area Director that it was time to take some action with respect to issuing a citation. On February 4, 1974, he advised the Regional Administrator by memorandum that he was anxious to issue a citation. On February 11, 1974, he discussed the matter by telephone with the Regional Administrator. After his conversation with the Regional Administrator on February 11, 1974, he authorized the issuance of a serious citation, which was issued on February 13, 1974.

Respondent submits that the 72-hour period commences to [*33] run from the time the belief is formed that a violation has occurred. It is clear that the Area Director had formed a belief that a violation had occurred shortly after the investigation of October 11, 1973. The fact that he concurred in the compliance officers' recommendation to issue a citation for willful violation insured that some type of a citation would be issued. Under established internal procedures, the decision to issue a willful violation had to be coordinated with the Regional Administrator and, as appropriate, with the Regional Solicitor and the National Office. n2 This internal procedure in essence prohibits the Area Director from issuing a citation for willful violation on his own authority without consultation.

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n2 Complainant's Compliance Operations Manual contains the following note near the end of Chapter VIII:

"The question whether to issue a citation for a willful or repeated violation will frequently raise difficult issues of law and policy, including the evaluation of complex factual situations. Accordingly, no citation for a willful or repeated violation shall be issued without consultation with the Regional Administrator, who shall, as appropriate, discuss the matter with the Regional Solicitor and the National Office."

[*34]

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The Commission stated in Chicago Bridge & Iron Company, supra, that, absent exceptional circumstances, the "[C]omplainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred." The Area Director was obviously of the opinion that a violation had occurred months before the actual issuance of the citation, but he had to coordinate the recommended citation for willful violation prior to its issuance. He did not have the authority to issue it without consultation and concurrence of the Regional Administrator. The belief a violation occurred without the authority to issue it raises exceptional circumstances that abrogates the 72-hour requirement.

Respondent argues that the "bureaucratic wrangling" and "internal struggling" in this case does not constitute exceptional circumstances within the meaning of Chicago Bridge & Iron Company, supra. It submits that such circumstances frustrates the Commission's decision in Chicago Bridge. This is a valid point. The 72-hour [*35] requirement can also be abrogated by the complainant by a compliance officer holding his recommendation for as long as he likes from the Area Director who makes the decision to issue a citation. Under Chicago Bridge & Iron Company, the 72-hour period commences only when the Area Director makes the decision to issue the citation. The citation could lay on an Area Director's desk for long periods of time prior to the decision being made without the 72-hour period commencing to run. This procedure is of little benefit or protection to an employer. Circumstances could arise where an employer could be truly prejudiced by the delay and still have to defend a citation under the rationale of Chicago Bridge & Iron Company, supra. The language of the decision appears more severe on the actions of the complainant than its application.

What constitutes "exceptional circumstances" has not been fully defined by the Commission. The term must of necessity include provisions for coordination and review by higher administrative channels within the Occupational Safety and Health Administration. As this Judge stated in Secretary v. Illinois Central Gulf Railroad Company, OSHRC Docket [*36] No. 3945 (April 9, 1974) (Review Ordered May 9, 1974):

"Neither the Commission nor the House and Senate conferees have defined what is intended by the use of the phrase 'in the absence of exceptional circumstances.' There is no indication in Chicago Bridge & Iron Company that the delay was caused by a coordinated review of the citation. Thus the Commission did not specifically consider the affect of a review by the national office of a citation prior to its issuance. It is concluded that the review by a regionao office or the national office constitutes exceptional circumstances up to the point of time that the Area Director or any other person who might be authorized to issue the citation is officially notified to issue the citation.

There are genuine and valid instances in some cases where coordination or review is desirable prior to the citation being issued. The complainant has a duty to uniformly enforce the law. In many instances coordination or review is essential to achieving this objective. The complainant should not be impeded in carrying out his duties under the Act. The imposition of the 72-hour time period at a level higher than the Area Director would be [*37] detrimental to the objectives of the Act. Coordination or review should be allowed to proceed within normal administrative channels. Once a decision to issue a citation is made at a hiher level than the Area Director, the decision must be disseminated through the proper channels. The right hand, so to speak, must know what the left hand is doing."

This interpretation of exceptional circumstances is not intended to grant complainant carte blanche authority to do as he pleases. Where there are long delays, such as in this case, between an inspection and the issuance of the citation, an employer will be afforded an opportunity to present evidence that the delay has prejudiced his case. If the evidence supports the position that the delay has prejudiced his case, then the citation will be vacated. This extension of the Chicago Bridge & Iron Company rationale is essential if an employer is to receive a fair hearing before the Commission. There is nothing in the language of the Chicago Bridge decision which mandates that a citation be affirmed where the employer's case is prejudiced by a long delay even though the citation was issued within 72 hours after a decision was made [*38] to issue it. The power to commence the 72-hour period is absolutely in the hands of the complainant. Under the Chicago Bridge rationale he has only to issue the citation within 72 hours after the Area Director decides to issue it.

The Area Director made the decision to issue the serious citation in this case on February 11, 1974. The citation was issued on February 13, 1974, which was within 72 hours of the decision to issue it. There was a four month delay between the investigation on October 11, 1973, and the decision to issue a serious citation on February 11, 1974. The Area Director had to be informed on three separate occasions by the Solicitor that a willful violation was not authorized before he relented and issued a serious citation. The respondent aptly describes this delay as "bureaucratic wrangling."

The Area Director was first notified by memorandum of November 27, 1973, from the Associate Regional Solicitor that a citation for willful violation was not authorized. He delayed the issuance of the citation another two and one-half months by refusing to accept the advice which he sought in the first place. There is nothing in the record which justifies the additional [*39] two and one-half month delay. The protection of the employees was certainly not served by the delay.

Respondent submits that the delay resulted in its being unable to properly prepare its defense. It points out that the delay dimmed the memory of witnesses, prevented it from separately measuring the trench and prevented its soil expert from being able to testify from first hand observation as to the stability of the soil. The trench had been completed months prior to the issuance of the citation.

The criteria relied upon by respondent are insufficient to establish that the delay was prejudicial to the preparation and presentation of its defense. Employees working at the time of the investigation were available to testify and some of them did testify during the course of the hearing. Its own employees engaged in and assisted the compliance officers in the measurements of the excavation. The cut sheet maintained by respondent and introduced by it (Ex. C) conclusively established that the excavation was more than five feet in depth. The passage of time could not alter the facts as they existed at the time of the inspection.

Respondent had been issued a previous serious citation [*40] for violation of the same standard and was aware of the inspection and issuing of citation procedure. Respondent should have expected it would receive a citation from the inspection. The compliance officer detailed his observations to the forman and it should have been clear to the foreman that the worksite was not in conformity with the standard since an abatement date was discussed. (Tr. 23, 278-279).

The burden of proof to establish that the citation was not issued with reasonable promptness is upon respondent. It has failed to carry its burden on the issue.

II. Alleged Violation of 29 CFR 1926.652(b)

Respondent is alleged to have violated 29 CFR 1926.652(b) which deals with requirements for trenches. A trench is defined by 29 CFR 1926.653(n) as follows:

"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."

The width of the excavation at the top was 24 feet at the point where it was measured. The width was 9 feet at the bottom and at the 5-foot level of the excavation. The depth of the excavation was 14 feet. There was a 15 foot slope at some point from [*41] the 5-foot level to the top of the excavation.

The definition of a trench does not indicate whether a trench can exceed 15 feet at any given point of its width. Since the slope of a trench must commence at the bottom or the 5-foot level, n3 it seems clear that the bottom measurements must prevail in determining whether an excavation is to be classified as a trench. If this was not the determining factor, an improperly sloped trench could be changed to an excavation and result in the application of the excavation standard set forth at 29 CFR 1926.651. This could result in confusion where a trench is improperly sloped but is more than 15 feet at the surface level. Accordingly, it is concluded that the excavation was a trench and that the trenching standard is applicable.

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n3 29 CFR 1926.652(b) requires sloping from the bottom of a trench for soft or unstable soil in trenches 5 feet or more in depth. 29 CFR 1926.652(c) requires sloping from the 5 foot level for hard or compact soil.

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Section 1926.652(b) of 29 CFR [*42] provides as follows:

"Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section)."

Table P-1 shows proper sloping procedures for different types of soil. Sloping in unstable or soft material commences at the bottom of the trench. Trenches in solid rock, shale or cemented sand and gravels do not require sloping. Table P-2 sets forth the minimum requirements for trench shoring. The trench investigated in this case was not shored, sheeted, braced or properly sloped. No attempt had been made to comply with the provisions of Tables P-1 and P-2.

The compliance officers determined the composition of the soil and its stability by visual observation and the close scrutiny of soil picked up by them and sifted through their hands. The soil was mainly composed of sand and was in very small particles and loose. No large chunks of soil were observed. When compliance officer Maglicic entered the trench to make measurements, the heels of his shoes sunk deeply into the soil [*43] and sand got inside his shoes. The soil on the sides of the excavation flaked easily as it was touched and small amounts of soil were continuously falling from the sides. Water was seeping through the sand, and a diaphragm pump was being operated to remove the water.

The facts support the conclusion that the soil was soft. The standard applies to "unstable" or "soft" material. If either one of these determining factors is applicable, an employer must comply with the standard. The provisions of 29 CFR 1926.652(b) were applicable to the trench since soft material n4 was being excavated. The violation has been established. The evidence does not indicate that the sides of the trench could not be depended upon to remain in place without extra support. The fact that the soil was soft does not per se mean it was unstable. There is no evidence to indicate that any cave-ins or other failure had been experienced in that type of material as the trench for the installation project was being dug.

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n4 Section 1926.653(q) defines unstable soil as follows:

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

[*44]

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Respondent requests that the testimony of compliance officer Maglicic be stricken for failure to turn over interview statements taken at the time of the investigation. At the commencement of cross-examination, respondent's counsel requested that any notes made by compliance officer Maglicic be made available to him. (Tr. 31, 33). He had no notes independent of the interview statements. Measurements of the trench were incorporated in interview statements of employees n5 prepared by compliance officer Maglicic and executed by the employee.

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n5 Compliance officer Maglicic testified that he interviewed witnesses and got them to sign statements which were prepared by him. These statements incorporated the facts existing at the time of the investigation. No independent notes of the investigation were made. (Tr. 34, 35).

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Compliance officer Maglicic testified that he could be certain of the trench measurements because he recorded them [*45] on the interview statements and that he reviewed those statements the night prior to the hearing. (Tr. 46). He indicated that he could not have testified as to the measurements without relying on the interview statements. (Tr. 52). The respondent requested that the interview statements be made available. n6 (Tr. 46-47). Complainant refused to make any of the witnesses' statements available at that juncture of the proceeding. Complainant took the position that any employees giving a statement at the time of the investigation were in essence informers and entitled to be protected. (Tr. 47-50).

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n6 It is to be noted that under ordinary circumstances the interview statements would not be subject to disclosure unless the person or persons giving the statements were called to testify. However, in this case the interview statements in essence were the thoughts of the compliance officer which he wrote out and had employees to read and sign if they agreed with the statement.

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Complainant argues that the Commission's decision [*46] A distinction must be drawn between a witness being interviewed during an investigation or inspection and the person who gave the information that led to the inspection or investigation. The only true informer in this case was the person who filed the complaint that led to the investigation.

The practice of a compliance officer incorporating his notes in statements written by him for employees to execute and then refusing to provide those interview statements on cross-examination when his testimony is based on those statements [*47] The compliance officer by his own admission relied on the employee interview statements, which in essence incorporated his notes, to refresh his memory prior to testifying. There was no way for respondent to challenge the accuracy of his memory without having an opportunity to read the statements. n7

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n7 The investigation was conducted in October 1973, and the hearing held in July 1974. It is only natural that respondent would wonder how the compliance officer could be so positive as to the measurements.

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It should be noted that respondent never asked or requested the identity of any informer. He asked only to review the notes made by the compliance officer so he could formulate a better opinion as to the accuracy of the trench measurements. Complainant in essence denied him the right to see the notes by refusing to make available the witness interview statements at the time compliance [*48] officer Maglicic was being cross-examined. Such practice cannot be condoned. It is a subterfuge that abrogates the import of Frazee Construction Co., supra. As the Commission stated in Frazee Construction Co.:

". . . the obligation to broduce raw data from which a witness has testified is essential to test the accuracy of a witness' perception as well as his ability to observe; to probe his truthfulness; to question his memory and narration . . . to reveal exculpatory information which may aid the cross examiner in the presentation of his case."

The facts did not justify complainant's refusal to make the interview statements available. Complainant never stated or alleged that the interview statements contained the name of the person who made the complaint that led to the investigation. If such were the case, the name could have been stricken to protect his identity. The name of the informer had no relevance to the case and was not essential to a fair determination of the issues.

Even if the testimony of compliance officer Maglicic were excluded, the evidence supports the violation as determined. n8 The testimony of two employees, James A. Trent, Jr., and Raymond Keith [*49] Harper, who assisted in taking the measurements, establishes the measurements of the trench. (Tr. 186-187, 211, 224, 225, 229, 230, 233). The depth is also supported by testimony of Jack Conie, Jr., who testified for respondent. (Tr. 263-264). The photographs introduced as evidence further establish the violation.

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n8 Complainant was informed by the Judge that complaince officer Maglicic's testimony would be considered unreliable unless the interview statements were made available. (Tr. 54, 61-62). They were not made available during cross-examination, but complainant had two employees who gave interview statements, James A. Trent, Jr., and Raymond Keith Harper, to testify and their interview statements were made available for cross-examination of them.

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NATURE OF VIOLATION

Complainant contends that the violation of 29 CFR 1926.652(b) was a serious violation within the meaning of section 17(k) of the Act. This section requires two findings prior to determining that a violation constitutes a serious violation: [*50] These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.

The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious. An accident must simply be possible. Serious and non-serious violations "are distinguished on the basis of the seriousness of injuries which experience has shown reasonably likely to occur." Secretary v. Natkin and Company, 2 OSAHRC 1472 (1973). The probability of an accident occurring is relevant only to the gravity of the violation. See Secretay v. Emory H. Mixon, 5 OSAHRC 579 (1973).

Respondent knew of the violation, or with the exercise of reasonable diligence, could have known of the violation. It had received a previous serious citation for violation of the same standard and should have been aware of its requirements. A trench box had been purchased for use in its trenches and was available at the site.

The trench was 14 feet deep. Death or serious physical harm were the [*51] likely consequences if a cave-in had occurred while the employee was in the bottom of the trench. The violation was serious within the meaning of section 17(k) of the Act.

PENALTY DETERMINATION

Section 17(j) of the Act requires the Commission to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The principal factor to be considered is the gravity of the offense. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury. Secretary of Labor v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D.C. Cir. 1973).

One employee was exposed for a brief time internal to the possibility of a [*52] cave-in. The probability of a cave-in occurring was lessened by the slope of the trench. There was a slope of 15 feet at the surface level. The bottom of the trench was 9 feet wide and the surface level was 24 feet wide. There was no evidence that any cave-ins had occurred during the installation operations for the sewer and water line. These factors must be weighed against the fact that respondent had received a previous serious citation for violation of the same standard involved in this case. Accordingly, a penalty of $500 is assessed.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. The citation for serious violation was issued with "reasonable promptness" in accordance with section 9(a) of the Act. Coordination required by internal administrative interpretation constitutes "exceptional circumstances" that abrogates the 72-hour requirement [*53] set forth in Secretary v. Chicago Bridge & Iron Company, supra.

4. The four month delay in issuing the citation was not prejudicial to respondent's presenting the full facts surrounding the investigation of October 11, 1973.

5. On October 11, 1973, respondent had an employee working in a trench which was 14 feet deep in violation of 29 CFR 1926.652(b).

6. The violation of 29 CFR 1926.652(b) was a serious violation within the meaning of section 17(k) of the Act.

7. A penalty of $500 is assessed for the violation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED: (1) That the citation for serious violation issued respondent on February 13, 1974, is affirmed; and

(2) That the notification of proposed penalty issued February 13, 1974, is modified to assess a penalty of $500 for the violation.

Dated this 4th day of November, 1974.

JAMES D. BURROUGHS, Judge, OSAHRC