WRIGHT & LOPEZ, INC.
OSHRC Docket No. 76-256
Occupational Safety and Health Review Commission
October 14, 1981
[*1]
Before: CLEARY and COTTINE, Commissioners. *
* Chairman Rowland took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See § 12(f) of the Act, 29 U.S.C. § 551(e). Commissioners Cleary and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would therefore have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.
COUNSEL:
Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Charles T. Magarahan, for the employer
Joseph D. Tindall, Jr., for the employer
Communications Workers of America, for the employees
OPINION:
DECISION
BY THE COMMISSION:
This case is before the Commission for review [*2] under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Following an inspection, the Secretary of Labor ("the Secretary") issued two citations to the Respondent, Wright & Lopez, Inc. ("Wright & Lopez"). Items 1(a) and (b) of citation 2 respectively alleged a willful-serious violation of the trenching standards at 29 C.F.R. § § 1926.652(c) and (e). n1 Administrative Law Judge J. Paul Brenton concluded that Wright & Lopez committed a serious but not willful violation of the Act by failing to comply with the standard at section 1926.652(c); he therefore affirmed item 1(a) as serious and assessed a penalty of $325. The judge also modified item 1(b) to reflect a de minimis violation of the standard at section 1926.652(e). Wright & Lopez filed a petition for review of Judge Brenton's decision arguing that neither standard was violated. n2 Former Commissioner Branako directed review of the issues raised in Wright & Lopez's petition. Former Commissioner Moran directed that the judge's decision be reviewed "for error" but he did not specify issues for review. In response to Mr. Moran's direction for review, the Secretary [*3] filed a brief claiming that the judge erred in not characterizing the violations of sections 1926.652(c) and (e) as willful. We reject the Secretary's characterization of the violations as willful. We affirm the judge's conclusion that Wright & Lopez violated the Act by failing to comply with sections 1926.652(c) and 1926.652(e), and we merge the two violations into one serious violation of the Act and assess a $1,000 penalty.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Sections 1926.652(c) and (e) provide:
§ 1926.652 Specific excavation requirements.
* * *
(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 5 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
* * *
(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.
n2 Wright & Lopez also petitioned for review of the judge's denial of its motion for a jury trial. The United States Supreme Court has ruled that employers do not have a right to a jury trial in our proceedings. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). Accordingly, the argument is rejected.
[*4]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I
We first consider Wright & Lopez's contention that section 1926.652(c) does not apply to a non-rectangular trench with three sides less than 8 feet in length. Item 1(a) of the citation alleged that the sides of the trench at issue were neither shored nor sloped, contrary to the requirements of section 1926. 652(c). At the hearing, Compliance Officer Eugene Scott testified that he inspected Wright & Lopez's worksite near the intersection of Shallowford Road and Chamblee-Tucker Road in Chamblee, Georgia. Upon his arrival at the worksite, Mr. Scott observed an employee in a trench working with an air hammer. As Mr. Scott approached the worksite, the employee exited the trench on the instruction of the foreman. The trench began at the curb of a four-lane highway and extended into one lane which was barricaded to exclude traffic. The trench had vertical walls that were not sloped or shored. Mr. Scott, with the help of another compliance officer, measured the trench. In determining the length of the trench, the compliance officer did not measure directly along the two longest sides; instead he [*5] measured down the middle of the open trench. He found it to be 8 feet 4 inches long. The compliance officer testified that according to his measurements the depth was 8 feet 10 inches and the width was 2 feet 4 inches.
Wright & Lopez's safety supervisor for the Atlanta area testified that after the trench was filled, he measured its length by measuring the asphalt cap. The safety supervisor stated that the length of the south wall of the trench was 7 feet 2 inches, the length of the north wall was 9 feet 6 inches, and the length down the middle was 8 feet 6 inches.
In his decision, the judge interpreted the word "length," as used in the standard, to mean "the measure of the greatest dimension of a plane or solid figure." The judge applied this definition to the facts and concluded that the trench here satisfied the length requirement of section 1926.652(c) because the north side of the trench exceeded 8 feet in length.
On review, Wright & Lopez argues that section 1926.652(c) applies only to trenches having both sides greater than 8 feet in length. For support, Wright & Lopez relies on former Commissioner Barnako's interpretation of section 1926. 652(b) in Burtex Constructors, [*6] Inc., 76 OSAHRC 149/A2, 4 BNA OSHC 1928, 1976-77 CCH OSHD P21,394 (No. 11553, 1976), n3 in which he concluded that section 1926.652(b) applied only to trenches where both walls exceed 5 feet in depth. n4 In response, the Secretary argues that the judge was correct in his interpretation and application of the length requirement. The Secretary contends that, under the rationale used by Wright & Lopez, a trench wall greatly exceeding the length requirement of 8 feet could remain entirely unshored or unsloped as long as the other wall is not longer than 8 feet.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Section 1926.652(b) provides:
§ 1926.652 Specific trenching requirements.
* * *
(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).
n4 In Burtex there was no majority opinion on the interpretation of the standard. Former Commissioner Moran filed a separate opinion concurring only in the disposition of the case. Commissioner Cleary dissented from the majority disposition.
[*7]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
When a standard is subject to two plausible interpretations, the proper interpretation is the one that will better achieve the Act's objective of providing a safe and healthful workplace for employees. n5 The trenching standard at section 1926.652 is intended to protect employees working in trenches from cave-ins. The interpretation urged by Wright & Lopez would expose employees to the hazard of collapse of an unsupported trench wall greater than 8 feet long merely because the opposite wall is not 8 feet long or is of undetermined length. Such a result is neither logical nor mandated by the terms of the standard. We therefore reject the rationale employed in the lead opinion in Burtex, and define "length" as the measure of the greatest dimension of a plane or solid figure. See The American Heritage Dictionary of the English Language, at 748 (1976). The length of the north wall exceeded 8 feet and therefore satisfies the length requirement of section 1926.652(c).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977); S & H Reggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979); GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977).
[*8]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II
We next consider whether the judge erred when he concluded that trench walls composed of saprolite n6 are not excluded from the sloping requirements under Table P-1 of section 1926.652. The judge held that Table P-1 n7 contained an exclusive list of materials that were not covered by the trenching standards and that he could not, as a judge, "legislate" new exemptions despite the fact that the saprolite encountered here possessed the same stability characteristics as the excluded materials.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 According to unrefuted testimony of an expert witness at the hearing, "saprolite" is a generic term for weathered rock as it passes through the many stages of disintegration.
n7 Table P-1 is entitled "Approximate Angle of Repose for Sloping of Sides of Excavations." The table graphically indicates the sloping requirements to be met by an employer who chooses the alternative of sloping the trench walls instead of shoring them. The table indicates that in solid rock, shale, or cemented sand and gravels the walls may be at an angle as steep as 90 degrees, that is, vertical. The "note" says, "Clays, Silts, Loams, or Non-Homogenous Soils Require Shoring and Bracing. The Presence of Ground Water Requires Special Treatment."
[*9]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On review Wright & Lopez argues that since saprolite has the same stability characteristics as the "exempted" materials -- solid rock, shale, and cemented sand or gravel -- saprolite should be exempt from shoring and sloping requirements. The Secretary contends that in order for saprolite to be excluded, it must be stated expressly in the trenching standards or in Table P-1.
Section 1926.652(c) governs trenches dug in hard and compact soil that exceed 5 feet in depth and are more than 8 feet in length. The standard requires that these trenches be shored or sloped, regardless of soil stability, unless the trench falls within one of the exceptions in Table P-1. See CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173, 1981 CCH P25,091, p. 30,993 (No. 76-1228, 1980), appeal docketed, No. 81-1218 (10th Cir. Feb. 25, 1981); Heath & Stitch, Inc., 80 OSAHRC 65/E12, 8 BNA OSHC 1640, 1643, n.8, 1980 CCH OSHD P24,580, p. 30,151 n.8 (No. 14188, 1980), appeal dismissed, 641 F.2d 338 (5th Cir. 1981). Table P-1 permits an unshored trench dug in solid rock, shale, or cemented sand and gravel [*10] to have a 90 degree angle of repose. See CCI, Inc., 9 BNA OSHC at 1173, 1981 CCH OSHD at p. 30,994. To the extent that Wright & Lopez argues that saprolite is so stable that the walls of the trench need not satisfy the sloping requirements of Table P-1, the argument amounts to an impermissible challenge to the wisdom of the standard. The Commission does not have authority to consider that issue. Heath & Stich, Inc., 8 BNA OSHC at 1643, 1980 CCH OSHD at p. 30,152. Moreover, a trench wall composed of soils of differing strengths is only as stable as its weakest component. CCI, Inc., 9 BNA OSHC at 1173, 1981 CCH OSHD at p. 30,994. Thus, even if saprolite was expressly included in Table P-1, section 1926.652(c) would still require shoring or sloping because, according to undisputed testimony, the top 3 feet of the trench wall was composed of compact, crushed fill.
III
On review, Wright & Lopez offers several reasons to support its contention that the judge erred in finding a violation of section 1926.652(e). At the hearing it was undisputed that an employee was kneeling in the trench and operating an air hammer as the compliance officer approached the worksite. [*11] The compliance officer testified that the trench was located in one lane (blocked from traffic) of a four lane highway and that, as he stood by the trench, he could feel vibrations from the traffic on the other three lanes. The foreman, who observed the employee operating the air hammer in the trench, admitted that he was aware that the air hammer would cause vibrations but believed that it would not pose a danger. Inasmuch as the trench was shored immediately after the visit of the compliance officer, the actual exposure of the employee to the hazard presented by vibration in and around an unshored trench was 15 minutes.
A vibration expert testified for Wright & Lopez that four months after the inspection he used a vibration meter to measure vibrations at the site caused by the highway traffic. These measurements were then analyzed by a soil engineer hired by Wright & Lopez. The soil engineer testified that the vibrations of passing traffic, combined with the vibrations likely to be cause by the air hammer, would not cause the trench to collapse. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Information about the vibrations from the air hammer was given to the soil engineer by the vibration expert, who in turn got the information from an engineering firm.
[*12]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In his decision the judge, relying on Boh Brothers Construction Co., 76 OSAHRC 142/A2, 4 BNA OSHC 1879, 1976-77 CCH OSHD P21,336 (No. 7184, 1976), construed section 1926.652(e) to mean that "the mere presence of quivers or tremors in or about an excavation from vibrations, regardless of source, constitutes a violation of that standard." The judge concluded that the standard was violated and characterized the violation as de minimis.
Wright & Lopez argues on review that in order to show a violation of section 1926.652(e) the Secretary must prove not only that vibrations were present, but also that the vibrations created an additional danger of collapse. If the mere presence of vibrations requires additional shoring and bracing, Wright & Lopez argues that it does not know how "one [can] correct or add to shoring to offset vibrations which have no effect on trench walls." Wright & Lopez relies on the judge's finding that the vibrations were "slight enough to be insignificant" and argues that section 1926.652(e) was not violated because the Secretary failed to show that the vibrations created an additional [*13] danger of collapse. The Secretary agrees with the judge's interpretation and application of Boh Brothers.
The judge correctly interpreted and applied Boh Brothers. The plain words of the standard require additional precautions when an excavation is "subjected to vibrations." They do not require the Secretary to show that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect. Thus, while the extent of the additional precautions depends upon the amount of vibration, the standard does not permit the employer to do nothing. Here, the compliance officer testified that he felt vibrations when he stood by the trench, and Wright & Lopez took no additional precautions. This is sufficient evidence to support the judge's finding of a violation of section 1926.652(e).
The judge characterized the violation of section 1926.652(e) as de minimis since "the reduction in the stability of the earth materials because of the vibrations was negligible, [and] therefore the violation had no direct or immediate relationship to safety or health." The Commission has found violations to be de minimis when "the hazards [*14] presented are too trifling to warrant the imposition of an abatement requirement or the assessment of a penalty." Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1976, 1980 CCH OSHD P24,732, p. 30,445 (Nos. 77-3391 and 77-3890, 1980). We believe the facts in this case do not support the judge's conclusion that the violation does not directly relate to employee safety. A soil engineer, a witness for Wright & Lopez, testified that he performed a stability analysis on samples of soil taken from the area where the trench had been dug. He found that the soil in the trench had a safety factor of 2.77. n9 When he took into account the effect of the vibrations caused by the traffic on the adjacent highway and by the air hammer in the trench, the soil engineer concluded that the safety factor was reduced to 2.48. The presence of vibrations therefore reduced the safety of the trench by nearly 10%. We do not consider this reduction in safety as "negligible." On the contrary, it demonstrates that the vibrations significantly decreased the ability of the walls to withstand collapse and therefore had a direct relationship to employee safety. Accordingly, we reject the [*15] judge's characterization of the violation of section 1926.652(e) as de minimis.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 According to the testimony of a geotechnical engineer, a safety factor of 1 means that there is an even balance between the forces that support a wall of a trench and the forces that would cause the wall to collapse. As the safety factor increases above 1; the ability of the wall to resist collapse also increases.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Wright & Lopez also argues that if the Commission finds a violation of section 1926.652(e), it cannot aoso find a violation of section 1926.652(c) because the violation of section 1926.652(c) is a "lesser included offense" of the violation of section 1926.652(e), Wright & Lopez cites Stimson Construction Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD P21,675 (No. 13812, 1977). That case held that the application of section 1926.651(q) (extra precautions be taken when heavy machinery is located near a trench) to a trench presupposes compliance with section 1926.652(b) (sides of trenches in soft or unstable soil [*16] be shored or sloped). In Stimson, the Commission found a violation of section 1926.651(q) and vacated the item alleging noncompliance with section 1926.652(b) because "when both standards are violated the failure to comply with § 1926.652(b) is included within the violation of § 1926.651(q)." 5 BNA OSHC at 1178, 1977-78 CCH OSHD at p. 26,021. The Secretary does not argue this issue in his brief on review. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 It is unclear as to how the Secretary would characterize the violation of § 1926.652(e). The citation listed the violations of § § 1926.652(c) and 1926.652(e) as separate items and alleged serious-willful violations of the Act for failure to comply with the standards. In the Secretary's brief before the judge, the Secretary argued that the violation of § 1926.652(e) should be combined with the serious violation of § 1926.652(c) because they are part of the same condition that created the possibility of serious physical harm, citing CTM, Inc., 76 OSAHRC 87/D11, 4 BNA OSHC 1468, 1976-77 CCH OSHD P20,912 (No. 5106, 1976), rev'd on other grounds, 572 F.2d 262 (10th Cir. 1978). On review, the Secretary states that the citation "should be reinstated and affirmed."
[*17]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Commission has overruled Stimson to the extent that it requires the Commission to vacate a citation or an item of a citation on the grounds that one violation is included within another cited violation. In H. H. Hall, we recognized that one action by an employer could, under some circumstances, abate both noncomplying conditions. Such circumstances exist here. By Complying with the requirement of additional precautions under section 1926.652(e) when vibrations are present, Wright & Lopez would also be complying with the requirement of sloping or shoring under section 1926.652(c). We also noted in H. H. Hall that the Commission has wide discretion in the assessment of penalties for distinct but potentially overlapping violations and it is appropriate to assess a single penalty for overlapping violations as the Commission has done in the past. See, e.g, CTM, Inc., 76 OSAHRC 8M/D11, 4 BNA OSHC 1468, 1470, 1976-77 CCH OSHD P20,912, p. 25,107 (No. 5106, 1976), rev'd on other grounds, 572 F.2d 262 (10th [*18] Cir. 1978); see also Safeway Stores, 74 OSAHRC 92/D1, 2 BNA OSHC 1439, 1441, 1974-75 CCH OSHD P19,161, p. 22,706 (Nos. 454, 723 & 1070, 1974) (Cleary, Commissioner, concurring in part and dissenting in part), vacated on reconsideration of another ground, 75 OSAHRC 54/C2, 3 BNA OSHC 1123, 1974-75 CCH OSHD P19,694 (1975).
In his brief on review the Secretary contends that the judge erred in not finding Wright & Lopez in willful violation of the Act for failure to comply with sections 1926.652(c) and 1926.652(e). At the hearing, the compliance officer testified that he characterized the violation as willful for several reasons. He stated that during a previous inspection of a Wright & Lopez worksite, he had given the job superintendent a copy of the trenching standards. The compliance officer also testified that before this inspection Wright & Lopez had been issued three citations that alleged serious violations of the Act for failure to slope or shore trenches. One of the previous citations alleged that Wright & Lopez had violated the same standard cited here, section 1926.652(c). The other two previous citations alleged that, contrary to section 1926.652(b), Wright & [*19] Lopez had failed to shore or slope a trench in soft and unstable soil. All three previous citations were uncontested. The compliance officer also testified that in the past two years at least four Wright & Lopez employees had been injured in trench cave-ins.
Wright & Lopez's foreman at the worksite at issue testified that he considered the unsupported trench to be "safe." The foreman, who supervised the employee during the employee's 15 minute exposure in the trench, stated that he had discussed the safety of the trench with the employee and that it had been the employee's decision to enter the trench. When the foreman was asked why an employee was allowed to work in a trench without shoring, the foreman replied "there just wasn't much room to put shoring in that ditch and we didn't need to shore it." The foreman further explained that the trench did not need shoring because the trench was dug in "solid dirt" and in the foreman's view solid dirt walls do not require shoring. The foreman testified that there was a copy of Wright & Lopez's safety manual at the worksite and that the safety manual required the foreman to shore or slope all trenches. Wright & Lopez's safety supervisor [*20] testified that he recalled receiving a copy of the trenching standards and discussing them, in general, with representatives from the Occupational Safety and Health Administration ("OSHA") during an informal conference after the issuance of a citation on May 1, 1975, for violating section 1926. 652(b).
The judge concluded that the violation was not willful because the record did not support a finding of "a deliberate, voluntary, totally conscious, and intentional disregard of or plain indifference to the requirements of 29 C.F.R. [§ ] 1926.652(c)." The judge stated that according to Graven Brothers & Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD P20,544 (No. 2538, 1976), employed knowledge and previous violations do not in themselves establish a willful violation. The judge found that the foreman "made a good faith judgment that the trench was not long enough to require shoring or sloping." The judge noted that the trench was "unusually short and narrow" and that "the trench had to be taped [measured] to an exact minute detail to determine its length so that the complainant could fit it into the standard." The judge also remarked that shoring materials were present [*21] at the worksite in the event that the foreman, a person with 29 years of experience in excavation, decided that shoring was required.
The Secretary argues in his brief on review that Wright & Lopez, having been cited prior to the inspection here for the same or similar violations on three other occasions, was well aware of the requirements of the trenching standards and yet permitted an employee to enter an unsupported trench contrary to the standards. The Secretary contends that Wright & Lopez's history of citations and injuries indicates that its policy of sloping or shoring all trenches was not followed in practice. For these reasons, the Secretary argues, Wright & Lopez made a conscious, deliberate decision not to comply with the Act and by so doing committed a willful violation of section 1926.652(c). The Secretary relies on the Commission decision in Kent Nowlin Construction Co., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (Nos. 9483, 9485 and 9522, 1977), aff'd in part and rev'd in part, 593 F.2d 368 (10th Cir. 1979).
In its brief to the judge, Wright & Lopez argued that the violation was not willful. Wright & Lopez cited Graven Brothers as support [*22] for its contention that in order to establish a willful violation it is not enough for the Secretary to show knowledge of a standard and its subsequent violation. Wright & Lopez argued that under Graven Brothers, the Secretary must prove that a violation, to be classified as willful, was the result of an act done voluntarily with either intentional disregard of the standards or plain indifference to the Act. Wright & Lopez admitted that on three previous occasions it had violated the trenching standards for failure to shore or slope trenches. Wright & Lopez also conceded that its management had been contacted previously at which time the trenching standards and their requirements were discussed. Wright & Lopez also admitted that one of its job superintendents was given a copy of the trenching standards by the same compliance officer. Wright & Lopez argued that if the foreman was wrong in allowing an employee to enter the trench, his actions did not constitute a willful violation because the supervisor had a good faith belief that the trench was in compliance with the trenching standards.
A violation is willful in character if it was committed "with either an intentional [*23]
The test of an employer's good faith, for purposes of determining willfulness, is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances. See Western Waterproofing Co. v. Marshall, supra.
We agree with Judge Brenton's conclusion that Wright & Lopez's failure to comply with the trenching standards at section [*24] 1926.652 was not willful. Although Wright & Lopez had been cited for violations of the trenching standards at other worksites and, thus, knew of the standard's requirements, this fact does not compel the conclusion that the violation was willful. Wright & Lopez, Inc., 80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1265, 1980 CCH OSHD P24,419, p. 29,777 (No. 76-3743, 1980), petitions for review docketed, Nos. 80-1569 & 80-1704 (D.C. Cir. May 27 and June 25, 1980).
The record fails to support a finding that either Wright & Lopez or the foreman actually knew of the violative condition before allowing an employee to work in the unshored and unsloped trench. There is also insufficient evidence on which to base a finding that Wright & Lopez's efforts to discover the condition were so inadequate as to constitute an intentional disregard of the requirements of the trenching standards. The foreman demonstrated some concern for employee safety by examining the trench and determining that it was safe before allowing an employee to enter the trench. Though erroneous under the standard, his determination had a substantial basis in fact because expert testimony established that the trench walls [*25] were composed of saprolite, a stable or stiff soil. We conclude that the foreman's actions were reasonable under the circumstances and do not evince either an intentional disregard of, or plain indifference to, the Act's requirements.
V
We now consider whether the violation of sections 1926.652(c) and 1926.652(e) are serious. For a violation to be deemed serious under section 17(k), 29 U.S.C. § 666(j), n11 of the Act, there must be a substantial probability that death or serious physical harm could result of an incident occurred; the probability that an incident will occur is irrelevant. Frank Swidzinski Company, 81 OSAHRC , 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981). There is no evidence contradicting the compliance officer's testimony that serious bodily injury could occur upon the collapse of the trench. As we have noted, such a collapse could be caused by either violative condition, or by both in combination. Accordingly, we conclude that the violations are serious.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 29 U.S.C. § 666(j) provides:
(j) For purposes of this section, 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.
[*26]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
VI
Under section 17(j) of the Act, 29 U.S.C. § 666(i), the factors to be considered when assessing a penalty are "the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations." As mentioned above, under the circumstances here -- i.e., where two violations stem from the same general condition -- we may, in our discretion, consolidate the violations for purposes of assessing a penalty. Inasmuch as the instances of noncompliance stem from a lack of shoring or sloping, the two conditions are so intertwined that one could not separately calculate penalties, and it was the employer's approach to trench safety that generated both instances of noncompliance, we conclude that assessment of a single, consolidated penalty is appropriate.
At the outset we note that the Secretary proposed a penalty of $7,200 for the alleged willful-serious violations of the Act. Although the record does not indicate the size of Wright & Lopez, in another case involving this company that stemmed from an inspection that occurred within a [*27] year of this inspection, we found that Wright & Lopez employed 200 persons in the Atlanta metropolitan area. As to gravity, the compliance officer testified that a cave-in was possible and, that, if it occurred, an employee in the trench would be seriously injured. In addition, an employee was observed using an air hammer in the unprotected trench for at least 15 minutes. As to good faith, the judge concluded that Wright & Lopez had "an extensive and continuous on-going safety program." We do not agree. In this case the foreman was not adequately supervised. The foreman was never apprised of the OSHA standards even though OSHA representatives had talked to Wright & Lopez's safety supervisor and had given him copies of the applicable standards. Wright & Lopez has a history of noncompliance with the Act. Wright & Lopez did not contest three previous citations for serious violations of the trenching standards; the citations thereby became final orders of the Commission under section 10(a) of the Act, 29 U.S.C. § 659(a). Under these circumstances, we find that a penalty of $1,000 is appropriate.
Accordingly we affirm the judge's decision as modified. We affirm the judge's conclusion [*28] that Wright & Lopez committed a serious violation of the Act for noncompliance with section 1926.652(c). We also affirm the judge's conclusion that Wright & Lopez violated section 1926.652(e) but modify the judge's decision to conclude that the violation was serious. We therefore affirm items 1(a) and (b) of citation 2 but consolidate the violations for penalty purposes and assess a single penalty of $1,000.
SO ORDERED.