OSHRC Docket No. 74

Occupational Safety and Health Review Commission

February 12, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



BURCH, COMMISSIONER: On June 20, 1972, Judge Harold A. Kennedy issued his decision in this case affirming the Secretary's citation and proposed penalty of $650 for a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590).

This case was directed for review by the Commission on July 21, 1972.

After considering the submissions of the parties together with the record on which the Judge based his decision, it is herewith ORDERED that the Judge's decision, attached, be and the same is hereby AFFIRMED.



MORAN, CHAIRMAN, dissenting: I cannot agree that there is evidence in this record sufficient to establish a violation of the Act as charged in the citation. Ironically, the very act charged in this case by complainant as constituting a job safety violation occurred while respondent was in the process of shoring an excavated trench in order to make it a safe place in which to work.

Respondent was engaged in this construction work pursuant to a contract awarded by the City of San Francisco which called for the installation of an underground storm drain for a length of highway in that City. The project required the digging of a sloping trench, ranging from thirteen feet to sixteen feet in depth and dug in sixty foot long sections.

On August 12, 1971, the trench had been partially completed and its sides had been shored except for an eight foot length. On that afternoon, two of respondent's employees entered the trench to finish up the shoring operation. Shortly thereafter, a cave-in occurred and one of the employees was killed.

As the result of an investigation of respondent's job site occasioned by this fatality, the complainant, under the authority of Section 9(a) of the Act, caused a citation to be issued charging respondent with a violation of Section 5(a)(1) because of:

failure to shore, sheet, brace, slope or otherwise support the sides of trench more than four feet in depth in unstable material or soft material while employees were working therein, constituting a recognized hazard that is likely to cause death or serious physical harm to employees.

That it is hazardous for employees to work under the conditions charged was admitted by respondent. The issue is whether there is evidence in this record to establish that it was so recognized. It is not a violation of this section of the Act for an employer to keep a hazardous workplace. It is a violation only if the place of employment he provides is not free from hazards that are "recognized" as conditions "likely to cause death or serious physical harm to his employees."

It is clear from this record that the conditions for which respondent was cited were likely to cause death to employees. The trench caved in while two employees were at work there. One was killed and the other injured.

The evidence is not so clear, however, on whether the objective test of recognition was met.

In adopting this section of the Act, Congress specifically rejected language requiring employers to keep a hazard-free workplace. After criticism of such a "sweeping general requirement" n1 Congress finally enacted the language that is at issue in this case:

Each employer shall furnish to his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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n1 See House of Representatives Report No. 91-1291, Occupational Safety and Health Act, p. 51, "The offensive feature of such a provision is that it is essentially unfair to employers to require compliance with a vague mandate applied to highly complex industrial circumstances. Under such a mistake, the employer will simply have no way of knowing whether he is complying with the law or not, nor will the inspector have any concrete criteria, either statutory or administrative, to guide him in finding a violation."

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Much was said during the Congressional debates as to what the test of recognition should be. Although some of these statements were in conflict as to whether it should be the ordinary prudent man test or should be measured by the standard of knowledge in the industry, there was agreement that the requirement was objective, not subjective as the rejected language had been.

In June 1971, the House of Representatives' Committee on Education and Labor, in a report to Congress on a then pending occupational safety and health bill, quoted with approval the testimony before that Committee of Governor Howard Pyle, President of the National Safety Council, on the reason why there should be a general duty requirement imposed upon employers in addition to specific safety standards. Part of that quotation emphasizes as well as anything could the objective test for recognition which Congress intended. Pyle felt an occupational safety and health law should contain

. . . authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated.

Whether there is evidence to show that the conditions for which respondent was cited meets such a recognition test is the dispositive issue in this case.

There was expert testimony adduced at the hearing to the effect that shoring could have been undertaken from a previously shored position, such as the side of the trench rather than from the bottom as respondent's employees were doing. n2 However, that does not lead to the conclusion that the shoring procedure being employed by the respondent was recognizable as hazardous, or that it was obvious or admitted by all concerned to be of such nature.

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n2 There was also expert testimony that unshored trenches are generally recognized as hazardous in this particular industry, but here the respondent was in the process of shoring the trench.

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Aside from the reliance upon a State of California safety code, which will be discussed below, the only evidence indicating that it was improper to shore from the bottom up was the opinion of an expert witness. The recognition test in this clause, however, is designed for the ordinary prudent employer. If such an employer is unable to recognize that certain work practices or conditions are hazardous without the aid of an expert's opinion, the purpose Congress sought to achieve by the language change discussed above would be frustrated.

In this case, the record indicates only that respondent's employees "normally" brace from the top down. There is no testimony in this record that an ordinary prudent employer should have recognized it as a hazard to shore from the bottom up.

The next question is: Can the recognition requirement be established from evidence which demonstrated that the State of California, prior to and at the time of this alleged violation, had in effect a requirement for shoring trenches with which respondent did not comply?

The decision of the Commission answers this question in the affirmative. In my opinion, the reasons calling for a contrary conclusion are overwhelming.

The Occupational Safety and Health Act is a Federal statute which applies in all 50 States and in a number of other places under the jurisdiction of the United States. n3 Most of these had their own occupational safety acts prior to the date of enactment of this statute. The safety standards which were enforced therein differed from State to State. Among the many reasons why Congress decided to enter this field with Federal regulation was to create uniform national requirements. n4

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n3 Section 4(a) of the Act.

n4 See American Federation of Labor and Congress of Industrial Organizations et al v. Hodgson et al, Civil Action No. 2515-72, U.S. District Court for the District of Columbia, decided December 30, 1972, where it was said that the Act "is designed specifically to achieve on a uniform, nationwide basis the far reaching goal of 'assur[ing] so far as possible . . . safe and healthful working conditions' for all employees working in establishments engaged in interstate commerce. . . ." [emphasis added]

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When the recognition test adopted in this case is applied, Section 5(a)(1) has a meaning in California which it does not necessarily have elsewhere. This permits the States to make changes in their occupational safety codes which will be enforceable through Federal law. Many undesirable consequences can result from this rule, not the least of which is that the definition of what constitutes a safe workplace will depend upon the political jurisdiction where one happens to be working at the time. I cannot associate myself with such a stultification.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) to review a citation and a notification of a proposed penalty issued by the Secretary of Labor against Respondent Engstrum & Nourse, a corporation.

The citation, issued on September 14, 1971, alleges a "serious violation" of the "general duty clause" of the Act as follows:

Failure to shore, sheet, brace, slope or otherwise support the sides of a trench more than 4 feet in depth in unstable material or soft material while employees were working therein, constituting a recognized hazard that is likely to cause death or serious physical harm to employees.

Section 5(a)(1), the general duty clause, provides that each employer:

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Section 17(k) of the Act provides that:

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

Under date of September 17, 1971, the Secretary notified Respondent that a penalty of $650 was being proposed for the violation alleged in the citation. By letter dated September 29, 1971, Respondent advised the Secretary that it intended to contest the citation. The case was filed with the Review Commission on October 12, 1971.

The Secretary's complaint was filed with the Review Commission on October 18, 1971. The complaint alleges jurisdiction, recites issuance of the citation and filing of the notification of proposed penalty and notice of contest and avers that Respondent violated Section 5(a)(1) as follows (Para. IV):

Respondent caused and permitted employees to work in a trench, approximately 16 feet deep, the sides of which had not been shored or otherwise supported to prevent collapse, and which had been excavated in unstable material.

Respondent's answer, which was filed on October 26, 1971, admits Respondent is a California corporation and engaged in a business that affects commerce. It denies violation of the Act and asserts that (Para. II):

At the point where the cave-in occurred there were utility installations which made the shoring of the trench sides extremely difficult and concealed the true condition of the soil, which at one point, only, caused the shoring material to break down, resulting in the injury complained of.

Respondent's answer (Para. V) also admits that four of its employees "employed as carpenters . . . were present at the time of the event complained of, all being represented by LOCAL 2164 of the CARPENTERS APPRENTICE AND JOURNEYMAN UNION."

The case was subsequently assigned to the undersigned and came up for hearing in San Francisco, California, after due notice, on February 11, 1972. The Secretary, Respondent and Local 2164 were represented by counsel and participated in the hearing. Proposed findings and/or briefs have been filed by all parties.

This case involves a Respondent California corporation admittedly engaged in a construction contracting business that affects commerce. The corporation maintains its principal office at 1303 Underwood Avenue in San Francisco, California. It is engaged primarily in public works construction. Its capital investment is approximately $200,000, does an annual gross business of approximately $5 million, and it employs approximately 100 employees on any given workday. Thomas G. Engstrum is its President, and he, with Henry K. Nourse, Jr., owns all of its stock.

The above corporate information was supplied by Mr. Engstrum when called as a witness by the Secretary (Tr. 15-18). n1 The Secretary also called Henry K. Nourse, III, who was in the trench at the time of the cave-in referred to in the pleadings, and Donald S. Fischer, the Department of Labor Compliance Officer who investigated the accident for the Secretary. W. Martin Coss also testified for the Secretary as an expert witness on shoring. Respondent called Frank Lassen, Respondent's General Foreman of its "Army Street Circle Project," as its only defense witness.

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n1 Mr. Engstrum also testified that Respondent has had a safety program since 1960. Since July 1971 it has had a safety engineer on its payroll.

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Most of the evidence adduced at the trial related to the physical state of a section of the trench eight feet in length just prior to the time of a cave-in at approximately 1:35 P.M. on August 12, 1971, and the activities of certain of Respondent's employees in the area on that day. At the time of the cave-in two of Respondent's employees, Witness Nourse (III) and Jacinto Salinas, were in the trench installing shoring (supporting timbers). Nourse sustained minor injuries, and the injuries sustained by Mr. Salinas resulted in his death. There is little dispute among the parties as to the relevant facts.

A number of drawings, diagrams and photographs of the accident site were received in evidence. See Secretary's Exhibits 2-11; also Respondent's Exhibit 2.

In May 1961 Respondent was awarded by the City of San Francisco a contract, known as the Army Street Circle Project, calling for the installation of a siphon or underground storm drain to prevent rainwater from standing in a freeway underpass that passes under Potero Street in the Army Street Circle area of the city (Tr. 18-19; 159-60). (Army Street Circle refers to the general area where Potero and Army Streets intersect with the James Lick Freeway (Tr. 29).) The project involved the digging of a sloping trench, ranging 13 to 16 feet in depth (Tr. 161), with a backhoe (a tractor with a mechanical arm and a bucket, Tr. 42) for a distance of a quarter of a mile or more (Tr. 30, 159). The work was done in 60 foot lengths -- i.e., a 60' section would be excavated, shored, a 6'X6' concrete drain poured in place and then the trench refilled (Tr. 30, 160-2). Respondent's procedure was to excavate and shore in two stages: the first eight feet or "top lift" would be dug and shored with one inch plywood. The "bottom lift" or lower eight feet or so would be dug and shored (Tr. 162). The lower part of the trench was shored with 3"X10" wood lagging (vertical timbers) and 6"X6" wales (horizontal timbers) held in place with screw jacks or pipe braces (Tr. 45; 163; Resp's Ex 1). Utilities and pipes presented difficulties in constructing the trench; it was decided to build the north side of the storm drain immediately against the existing sewer (Tr. 162, 164).

The trench was being dug in an easterly direction, and on the day in question, August 12, 1971, the trench had progressed to nearly its lowest point at the intersection of Marin Avenue and Old Bayshore Boulevard (Tr. 44, 161). The trench had been shored to a point where a Pacific Gas & Electric Company (PG&E) vault had been encountered on the right or south face (see Resp's Ex 2, Part C; Tr. 169), leaving only an eight feet length of the trench unshored (Tr. 31). The trench at this point was 16' deep and eight feet wide (at the top, Tr. 31). The side of the vault was flush with the trench and constituted in part the south face of the trench (Tr. 45). The vault measured eight feet in width and 11 feet in depth (Tr. 35). Since the top of the vault was two feet or so below the street level, the vault went down into the trench for a depth of about 11 feet, leaving approximately 5' of dirt under the vault (Tr. 46-47; 172). n2 The trench was excavated down to 16' only on the south side; and below the vault on the south side the dirt was excavated back only to within about a foot of the wall to give it support (Tr. 170-1; see Resp's Ex 2, Part B).

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n2 Mr. Lassen at one point estimated the distance at about five feet (Tr. 172). The Secretary indicates in his findings that the vault was longer horizontally, leaving six feet of dirt under the vault to the bottom of the trench (Secy's Findings, p. 5).

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The top half (approximately) of the north face of the trench, running about six to eight feet down from the surface of the street to the top of the existing sewer, was dirt. The parties dispute how much of the north face was actually exposed. The Secretary's counsel states that there was approximately eight feet of soil above the existing sewer on the north (Secy's Findings, p. 6) whereas Respondent states in its Findings (p. 2) that the "concrete sewer extend[ed] from the excavated arca to approximately six feet from the surface of the street. . ." n3 The lower half of the north face of the trench consisted of the wall of the existing storm drain, running the full length of the 8' unshored section, but it did not descend for a full 16' as it had not been fully dug out on that side (Tr. 39; 49-50; Resp's Ex 2, Part B #5).

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n3 On page 3 of its Findings Respondent asserts "there is no showing in the record that the soil above the existing sewer was more than four feet . . ."

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Looking down into the trench from above, one could see the following crossing the trench south to north:

1. A 30"X30" concrete duct that came out of the PG&E vault on the south at a level of about six to 6 1/2 feet below the street (Tr. 30) and crossing to the north face above the existing sewer;

2. About a foot ahead (easterly, toward the heading of the trench) of the PG&E duct, at about the same level but running at an angle, there was a 12"X20" wood strut -- one end being braced against the wall of the vault on the south and the other end being braced against the wall of the existing sewer (Tr. 44; 49);

3. At the head or easterly end of the trench was a 20"X20" Pacific Telephone & Telegraph Company (PT&T) concrete duct about three feet below the street (Tr. 44).

The excavation of the trench had stopped at the point where the PT&T duct crossed the trench. n4 The record indicates that on the south face there were two feet or more of unshored trench in length, running from the wall of the concrete vault to the PT&T duct ("approximately two feet" Tr. 204; "possibly two and a half feet, maybe three feet," Tr. 170; also see Secy's Ex 2; Resp's Ex 2, Part A).

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n4 An area ahead of the PT&T duct had been excavated down to the top of that duct. See Resp's Ex 2 and Secy's Ex 4.

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The record shows that the concrete PG&E vault was found to be "cracked real bad" and in need of support. Mr. Lassen called in his supervisor, Larry Stevens, and PG&E officials came out to inspect it. A 12"X12" timber was put in place to support one corner of the vault, and the 12"X12" strut, referred to above, was placed across the trench (Tr. 165-6).

The trench had been cut down, using a backhoe, to a depth of about 16 feet on the south side (leaving about a one foot edge out from the bottom of the vault) so that side of the trench below the vault could be shored (Tr. 171; Resp's Ex 2, #4). Witness Nourse and the decedent Salinas entered the last eight foot-section of the trench that had been dug shortly after lunch to shore it; the cave-in occurred about 15 minutes after the men entered (Tr. 36-38, 61-62). Three pieces of lagging, consisting of 3X10's eight feet long, were placed vertically on the south face below the concrete vault (Tr. 45, 48). n5 Wales of 6"X6" timbers were to have been installed to brace the 3X10's (Tr. 173). Asked if the bracing had been installed at the time of the cave-in, Mr. Lassen explained (Tr. 164):

We were in the process. We . . . had three timbers or 3 X 10's standing upright. And as we were putting our 6 X 6 waler across, the dirt, sand and loose material had come pretty much from this corner (indicating).

Mr. Lassen explained that the corner referred to was where the heading and south face meet at a point 20 inches or so below (Tr. 179) where the 24"X24" PT&T duct enters the soil (see #8 and #8A, Resp's Ex 2, Part C; Tr. 175, 186-189). The fallout material knocked down an upright and threw the two men sideways and backward underneath the PG&E vault (to position #9 on Resp's Ex 2; Tr. 175, 189).

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n5 The timbers were not placed directly below the vault as the dirt was not excavated back even with the vault (see Secy's Ex 3, Resp's Ex 2, Part A).

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Witness Nourse gave this account of the cave-in (Tr. 62):

The dirt fall (sic) away from the 24 X 24 PT&T duct, and knocked me across the trench and underneath the 12 X 20 rigs.

Salinas was thrown much in the same direction as myself, except he was closer to the duct and was covered by a greater volume of the dirt, and by the three or four pieces of lagging, and subsequently died from his injuries.

Witness Nourse explained that "normally we would brace from the top down, but in this particular situation, there was a change made. . ." (Tr. 59). He "assumed" that either the general foreman or the job superintendent had determined that the particular section of the trench should be shored from the bottom up. He recalled that Foreman Simpson staved at street level and observed him and Salinas in the trench and may have in fact handed down lagging material to them (Tr. 60-1). n6

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n6 The witness was not certain if Mr. Simpson or another employee, Orvin Harris, had actually handed the lumber down (Tr. 61). The employees working in the trench on the day of the accident were: Harris, Witness Lassen, Simpson, Salinas and Witness Nourse (Tr. 31).

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General Foreman Lassen was also at the bank helping hand down shoring materials when the cave-in occurred (Tr. 181-182). He agreed that shoring should be done from the top down; also, it was his understanding that a trench of four feet in depth was to be shored (Tr. 195).

According to Mr. Lassen, the trench had been excavated from solid, compacted material consisting of moist sand and clay (Tr. 179). The banks were "good" until the fall-out of "white sand and dry material occurred" (Tr. 175). Mr. Lassen estimated that a yard or yard and a half of sand fell during the cave-in (Tr. 177).

Compliance Officer Fishcer said he went to the Army Street Circle worksite about 5:00 P.M. on the day of the cave-in to make inspection (Tr. 69). He returned carly on the following morning and took a number of photographs of the scene (Tr. 71; Secy's Ex 5-11). He never saw the concrete vault on the south face of the trench but said he knew it existed (Tr. 96). It was his understanding that the cave-in came from the south face of the trench (Tr. 90; 97). He "went down the ladder several feet" and grabbed some soil which he considered to be dry, sandy and unstable (Tr. 87-90, 95).

Mr. Fischer recommended issuance of a citation for a "serious violation" (Tr. 69-70) and a proposed penalty of $650 on the basis that an initial penalty should be $1000, reduced 5% for size (as Respondent had 100 employees Tr. 85); 10% for good faith (as Respondent had a "hard hat program," furnished glasses and equipment and had "started" a safety program and a new safety engineer, Tr. 86, 100); and 20% for history (for having no previous record of any violation Tr. 87). Mr. Fischer re-inspected the Army Street Circle several times after the accident and found the shoring "excellent" (Tr. 87).

Mr. Coss is employed by the Plank Company, which is in the business of renting, selling and shoring services and equipment. He is a high school graduate and had learned shoring from the "school of hard knocks" -- by working in trenches for 20 years and eight years in shoring (Tr. 114). He testified that he had advised a number of firms about shoring methods, served on safety committees, and has taught shoring techniques. Mr. Coss had not been to the accident site but claimed to know that the condition of the soil in the Army Street Circle Area was "unstable" (Tr. 120). He was unwilling to classify firm, sandy clay, however (Tr. 120). Complex hypothetical questions were posed to him, but he could only answer with the opinion that any trench, whether excavated from stable or unstable dirt, "has to be shored" before men can enter and "never" from the bottom (Tr. 120-140). He indicated that shoring from the bottom of a trench would be proper "as long as they shored the trench from the inside of the shoring that is already placed" (Tr. 149). He believed that employers in the street and highway construction would agree with his opinion on shoring (Tr. 129). He understood California law n7 to require trenches five feet or more in depth to be shored but would shore even "if there were just a couple of inches of earth over the vault" (Tr. 150, 155).

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N7 The parties stipulated into evidence California Safety Bulletin S-158, said not to have the force of law, and Section 1541(b) of the Construction Safety Orders issued by the Division of Industrial Safety for the State of California (Tr. 151, 157; Secy's Exs 12 and 13).

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The trench in question could have been safely shored in Mr. Coss' opinion by shoring with the use of timbers and blocking, screwjacks and timbers, or "aluminum hydraulics." He agreed that the wood brace and the utility ducts in the trench presented a problem but not an insurmountable one; he felt the men could install the shoring without going into the unshored part of the trench (Tr. 130-136).

Mr. Coss agreed on cross-examination that it is not customary to shore the heading of a trench. He would not venture an opinion on what was needed to be done to protect a cracked vault without seeing it (Tr. 146).

Respondent admits in its answer that it uses products manufactured outside of the State of California and that it is engaged in a business which affects commerce. The record also shows that it employs as many as 100 workmen on a given day and that it grosses as much as $5 million a year. From the record it is clear that Respondent is an "employer" and a "person engaged in a business affecting commerce who has employees" within the meaning of the Occupational Safety and Health Act of 1970.

Respondent put in issue the constitutionality of the Occupational Safety and Health Act at the outset of the hearing (Tr. 6-10). The undersigned ouverruled Respondent's objections on this ground and must do so here. It is well established that an administrative body is without authority to pass on the constitutionality of a statute which it is called upon to administer. PUC v. United States, 355 U.S. 534, 539 (1958); Engineers Public Service Co. v. SEC, 138 F. 2d 936, 951-53 (D.C. 1943), 332 U.S. 788 (dismissed -- moot). Of course an employer must, in the usual case, exhaust his administrative remedy before the courts will determine the constitutionality of legislation. See Lance Roofing Company, Inc. v. Secretary of Labor,    F. Supp    (N.D.Ga. decided May 23, 1972); Cf. PUC v. United States, supra.

The State of California has provided for the shoring of all trenches five feet or more in depth, regardless of the soil involved. Bulletin S-158, issued by the State's Division of Industrial Safety, states in part (Secy's Ex. 12):

Trenches 5 feet or more deep and over 8 feet long must be braced at intervals of 8 feet or less. * * *

Section 1541(a) of a Safety Order issued by that Division states that all trenches five feet dep or more "shall be effectively guarded against the hazard of moving ground as hereinafter provided." Subsection (b) provides (Secy's Ex 13):

(b) Protection While Installing Shoring. Special provisions shall be made by the employer to prevent injury to workmen engaged in the installation of shoring. This may be done by providing and requiring the use of special devices such as longhandled jacks that will allow upper cross braces to be placed from the ground surface before men work in the trench at these points. In the deep trenches requiring additional braces, workers shall then progress downward, protected by cross braces that have already been set firmly in place. Reverse procedure shall be followed when removing shoring.

It is thus clear that at least in California that the failure to properly shore a trench five feet or more in depth is a "recognized hazard." Respondent's general foreman on the Army Street project expressed familiarity with California requirements, except that he understood that they also applied to trenches only four feet deep. It is also apparent from the record that the risk in failing to properly shore trenches does involve the likelihood of death or serious injury.

Careful review of the whole record convinces the undersigned that two of Respondent's employees were called upon to enter into a trench that should have been shored on the north face and the south face. The lower part of the trench on the north was supported by the wall of the existing sewer, but there was five feet of dirt above it, running the full eight feet length of the section being worked on. It is true that the wall of the concrete vault made up most of the south face, but it is apparent that five feet of dirt was exposed underneath the vault. It is concluded, therefore, that shoring should have been in place on the north as well as on the south, irrespective of the type of soil, before any workmen entered the trench. Failure to do so breached a duty imposed on Respondent by the Occupational Safety and Health Act of 1970 to protect employees Salinas and Nourse (III) from a "recognized hazard" of employment. n8

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n8 This is true whether the cave-in came from the heading or on the south face, although it appears to have occurred at or near where the heading and face meet just below the PT&T duct. Resolution of the issue of causation of the injuries or the death is not essential to the determination of a violation of the Act. See Dale M. Madden Construction Co., Inc.,

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Unquestionably, the eight feet section of the trench being worked on at the time of the cave-in presented serious problems for Respondent. Excavation of the trench and installation of the new storm drain in the section in question alongside the cracked vault and beneath the utility ducts called for considerable skill and care. Shoring on the south wall around the vault would have been more difficult than above the sewer on the north. The undersigned is persuaded by the evidence that shoring below the vault on the south could have been installed, if not from the top, then from the side (working from the shored part of the trench west of the vault) without requiring the men to enter into the exposed area. The testimony of Witness Coss was at least impressive on the point that shoring can be done by employees working from a point that has been shored (Tr. 135, 149).

Without necessarily agreeing with the formula used to compute it, the penalty proposed by the Secretary is considered to be appropriate. n9 Respondent's good faith can hardly be questioned, and it has no previous record of a violation. However, Respondent is an employer of considerable size, and the violation had a substantial effect on employment safety. The penalty of $650 is therefore approved.

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n9 Section 17(j) of the Act gives the Commission authority to assess civil penalties, "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." The Secretary requests in his Findings that the 5% credit for size be disregarded and that the penalty be raised to $700.

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Based upon the foregoing findings, and the whole record, the following findings of law are entered:

1. Jurisdiction of this proceeding is conferred by Section 10(c) of the Occupational Safety and Health Act of 1970.

2. Respondent is an "employer" and "a person engaged in business affecting commerce who has employees" within the meaning of Section 3(5) of the Act.

3. Respondent violated Section 5(a)(1) of the Act by permitting workmen to enter and work in an unshored trench of five feet and more and, thus, failed to furnish its employees with employment and a place of employment free from recognized hazards that could cause or likely cause death or serious physical harm to employees.

Upon the basis of the foregoing, it is ORDERED that the citation issued herein on September 14, 1971, and the proposed penalty assessed thereon be, and the same are, AFFIRMED.