JOHN E. FISHER CONSTRUCTION CO., INC.
OSHRC Docket No. 76-1264
Occupational Safety and Health Review Commission
March 6, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
George H. Lowe, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Judge Abraham Gold is before the Commission pursuant to a direction for review issued by former Commissioner Moran under § 12(j) of the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq. ["the Act"]. In his decision, Judge Gold affirmed one nonserious violation and one serious violation for failure to comply with the standard at 29 CFR § 1926.652(b). n1 Respondent petitioned for review raising only issues that had been considered and decided by the Judge with respect to the serious violation.
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n1 29 CFR § 1926.652(b) reads as follows:
§ 1926.652 Specific trenching requirements.
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(b) 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).
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Having reviewed the Judge's decision and examined the record, we find that the Judge's findings of fact are supported by the evidence of record. Except for one measurement of the top width at one end of the trench, the evidence concerning the dimensions of the trench consisted of estimates by the compliance officer and respondent's foreman as to the depth and width at the top and bottom of the trench at several points. n2 After referring to the evidence as a "melange" of guesses, the Judge made findings with respect to the dimensions of the trench in the area where the employees were located. All of his findings were within the range of estimates given by respondent's foreman. Estimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD para. 21,120 (No. 5873, 1976). Since respondent's evidence supports the Judge's findings, it cannot claim that the Judge erred. Therefore, we conclude that the Judge's findings of fact are supported by a preponderance [*3] of the evidence.
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n2 We would prefer, in cases such as this, that the parties rely upon actual measurements to support their contentions. This is especially true when, as it appears in this case, the parties had the capability of providing more than estimates.
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We also conclude that the Judge's conclusions of law comport with Commission precedent. See CTM, Inc., 76 OSAHRC 87/D11, 4 BNA OSHC 1468, 1976-77 CCH OSHD para. 20,912 (No. 5106, 1976), rev'd on other grounds, 572 F.2d 262 (10th Cir. 1978); Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD para. 22,874 (No. 13964, 1978).
Accordingly, the Judge's decision is affirmed in all respects. So ORDERED.
CONCURBY: COTTINE
CONCUR:
COTTINE, Commissioner, concurring:
I agree that Judge Gold properly concluded that the Respondent has failed to comply with the trenching standard published at 29 C.F.R. § 1926.652(b). However, I cannot subscribe to the manner in which the majority has evaluated the record in this case.
The judge made [*4] findings of fact regarding the specific trench dimensions in the face of conflicting estimates offered by the compliance officer and the Respondent's foreman. n1 The majority erroneously concludes that those findings are supported by a preponderance of the evidence because the judge's figures fall within the range of estimates offered by the Respondent's foreman. However, the judge gave no reason to view the evidence in a light more favorable to the Respondent. Moreover, there is no evidence of record to support any finding as to the precise dimensions of the trench. Therefore, I would accept the full range of estimates offered by both parties and find that the trench was between 3 to 5 feet wide at the bottom, 15 to 20 feet wide at ground level, and 9 1/2 to 14 feet deep. I would conclude that the trench was not properly sloped because no combination of these measurements would result in a configuration that complies with the requirements of the cited standard. Therefore, a violation of 29 C.F.R. § 1926.652(b) has been established.
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n1 The compliance officer estimated that the trench was 5 feet wide at the bottom, 15 to 18 feet wide at one end of the top, but 16 to 18 feet wide at the other end, and 10 to 14 feet deep. The foreman estimated that the trench was 3 to 5 feet wide at the bottom, 18 to 20 feet wide at the top, and 9 1/2 to 11 1/2 feet deep. The judge concluded that the trench was 4 feet wide at the bottom, 18 feet wide at the top, and 10 feet deep.
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