WRIGHT AND LOPEZ, INC.  

OSHRC Docket No. 76-3743

Occupational Safety and Health Review Commission

April 24, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Charles T. Magaraham, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady, dated December 23, 1976, is before the Commission for review pursuant to 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").   Respondent, Wright and Lopez, Inc., was cited for a willful repeat serious violation of the Act for failing to comply with the standard at 29 C.F.R. §   1926.652(b). n1 A penalty of $10,000 was proposed by the Secretary of Labor ("Secretary").   In his decision, the judge affirmed that part of the citation alleging a repeat serious violation of the Act for failure to comply with 29 C.F.R. §   1926.652(b) and assessed a penalty of $5,000.   The judge did not rule on a request by the Secretary for an order that Respondent "cease and desist violation of the trenching standard at 29 CFR §   1926.652. . . ."

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n1 The standard provides 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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Both parties petitioned the Commission for discretionary review of Judge Brady's decision.   On January 10, 1977, former Commissioner Moran directed that the decision be reviewed "for error" without specifying any issues.   On January 19, 1977, Commissioner Cleary granted both petitions for review.   Review was directed on the following specific issues that were raised in the petitions of the parties:

1.   Did the Administrative Law Judge err in finding that respondent failed to comply with the trenching standard at 29 CFR §   1926.652(b)?

2.   Did the Judge err in finding that respondent's violation of section 5(a)(2) was also "serious" within the meaning of section 17(k) of the Act, and that respondent has "repeatedly" violated the Act within the meaning of section 17(a)?

3.   Did the Judge err in finding that the violation was not "willful" within the meaning of section 17(a) of the Act?

4.   Is a $5,000 penalty appropriate under the circumstances of this case?

5.   Did the Judge err in not passing upon the Secretary's prayer for a cease-and-desist order?

For the reasons discussed below, we affirm Judge [*3]   Brady's Order.

I

Respondent, a utility contractor, was engaged in installing underground utility cable for the telephone company on August 9, 1976, in the vicinity of 5998 Buford Highway in Doraville, Georgia, when the trench in which one of its employees was working collapsed. Although the worker was buried up to his shoulders, he was not seriously injured.   Testimony at the hearing established that the trench in question was about 150 feet long, between 10 feet and 10 feet 10 inches deep, and from 20 to 26 inches wide.   The trench walls were vertical and unsloped.   Respondent had installed shoring with uprights and bracing.   The shoring did not extend to the bottom of the trench. No close sheeting or stringers were used.

It is undisputed that the soil in the area of collapse had been previously disturbed and contained pieces of asphalt and gravel.   Nevertheless there is some dispute about the composition and stability of the soil in the trench. Respondent maintains that the soil was hard and compact and that the foreman and laborers at the worksite observed a change in the composition of the soil as trenching proceeded south to the area of the collapse. Respondent's foreman [*4]   characterized the soil north of the area of the collapse as "hard and compact," a characterization under Table P-2 of section 1926.652 that would not require close sheeting.   When the previously disturbed soil was first noticed, the foreman, who characterized it as likely to crack, instructed the employee in the trench to install additional shoring.

At the hearing, the Secretary introduced the expert testimony of a geotechnical engineer who had conducted field tests at the site as well as laboratory studies of the field samples.   The expert took soil samples seven weeks after the collapse. To ensure that his soil samples would be representative of the soil conditions at the time the trench collapsed he drilled through areas that had been paved after the collapse. The expert, relying on topographic maps, stated that before the highway was built a gulley or ravine ran through the area and that water flowing through the gulley would have deposited fill soil. Soil samples showed loose, sandy fill soil at depths of 6 1/2 to 10 feet. Based on the soil samples and tests, the expert concluded that the soil in the area of the trench was unstable for a trench over 5 2/10 feet in depth.   [*5]  

The judge found that the trench at issue was over five feet deep, was dug in "unstable" soil, and that the shoring was not sufficient to protect the employees in the trench. The judge also found that the foreman's knowledge of the conditions was imputable to Respondent in light of the discretion given the foreman regarding safety procedures.   He also observed that there was a substantial probability that death or serious physical harm could occur if the sides of the trench collapsed on Respondent's employee, and thus characterized the violation as serious.   The judge concluded, however, that Respondent's belief that work had been proceeding in stable soil and its good faith efforts at shoring the trench precluded characterizing the violation as willful. The judge did conclude that the similarity of Respondent's previous violations and its awareness of them was a sufficient basis on which to characterize the violation as repeat. The judge assessed a penalty of $5,000.

In his amended complaint, the Secretary requested that the judge order Respondent to cease and desist from violating the trenching standards at 29 C.F.R. §   1926.652.   The Secretary contended that such an order was [*6]   the only way the requirements of the trenching standard could be impressed upon Respondent, who had previously been cited for serious, repeat, and willful violations for failure to comply with 29 C.F.R. §   1926.652.   The judge did not rule on the Secretary's request for a cease and desist order.

II

On review, Respondent argues that it was attempting to comply with 29 C.F.R. §   1926.652(b) by installing shoring at the time the trench collapsed. It also maintains that if it was in violation of the Act, the Secretary failed to show that it had the requisite knowledge for a serious violation, that it "flaunted" the Act or that the previous trenching violations were sufficiently similar to make out a repeat violation of the Act, or that it intentionally disregarded or was plainly indifferent to the Act to the extent the violation could be termed willful. In addition Respondent contends that the issuance of a cease and desist order would be inappropriate and without justification.   Finally, Respondent contends that $5,000 is too high a penalty because the violation, if any, was the result of a good faith error by its foreman regarding the composition of the soil.

The Secretary argues [*7]   that the failure to properly shore the trench was a serious violation of the Act.   He asserts that proper shoring could have been accomplished without exposing an employee to the hazards of a trench collapse and that, in any event, trench shoring standards apply to the process of extending shoring. The Secretary maintains that the proximity in the time, the location, and the nature of noncompliance between this citation and previously cited trenching violations by Respondent mandate the repeat characterization.   He also points out that Respondent, although familiar with trenching standards and with the consequences of noncompliance, nevertheless failed to ensure that its foreman would comply with the requirements of the trenching standard and thus willfully violated the Act.   In addition, the Secretary contends that Respondent's continued failure to protect its employees warrants a $10,000 penalty.   He also contends that the judge's failure to rule on the request for a cease and desist order is in violation of section 8(b)(3)(A) of the Administrative Procedure Act, 5 U.S.C. §   557(c)(3)(A).   The Secretary argues that the Commission has the authority to issue cease and desist orders [*8]   and that Respondent's persistent failure to take the steps necessary to protect its employees requires the issuance of such an order.

III

Respondent does not contest the findings or conclusions of the Secretary's expert.   In arguing that the trench was adequately shored, Respondent focuses solely on the fact that the employee was in the trench "precisely for the purpose of installing shoring." Respondent relies on Carson's Heating and Ventilating Co., 74 OSAHRC 29/F2, 2 BNA OSHC 3021, 1973-74 CCH OSHD P17,680 (No. 2977, 1974), for the proposition that there can be no violation of the trenching standard when an employee is in the trench for the specific purpose of installing shoring. First, we note that the cited case is an unreviewed judge's decision and therefore is not precedent binding on the Commission.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).   More importantly, the Commission has held that 29 C.F.R. §   1926.652(b) applies to the process of installing shoring. Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD P21,584 (No. 12398, 1977), aff'd, 576 F.2d 72 [*9]   (5th Cir. 1978). The standard thus requires that employees not be exposed to the hazard of a trench collapse during the shoring process.   Moreover shoring could have been installed without an employee being present in the trench. Therefore, Respondent's argument is rejected.

IV

Respondent argues that even if a violation is found, it was not "serious" within the meaning of the Act.   Section 17(k) n2 of the Act provides that a serious violation exists "if there is a substantial probability that death or serious physical harm could result" from the existence of a hazardous condition "unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." Respondent does not dispute that if a trench wall collapses death or serious physical harm could result.   It maintains, however, that it did not know, nor could it with the exercise of reasonable diligence have known, that the trench walls would collapse. This contention is not supported by the facts of record.

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n2 29 U.S.C. §   666(j).

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Respondent's foreman and employees at the worksite testified that the collapsed area had been previously disturbed and this condition required that the uprights of the shoring be placed closer together.   At the very time of collapse, extra shoring was being installed to prevent a collapse or cave-in. Thus, the evidence demonstrates that the foreman recognized the possibility of a cave-in and knew that an employee was in the trench. A supervisor's knowledge is imputable to his employer and the employer is responsible for the violation, unless the employer demonstrates that the supervisor was adequately supervised regarding safety matters.   Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978).   Here, Respondent made no such showing.   Except for testimony from Respondent's safety officer regarding the general dissemination of safety information, the occurrence of periodic safety meetings, and the general assertion that employees were disciplined for infractions of safety rules, Respondent introduced no evidence on this point.   In the absence of such evidence, the knowledge of the supervisor is imputed   [*11]   to Respondent.   Therefore, the judge properly held that the violation was serious.

V

Respondent also argues that the judge erred in finding that Respondent had "repeatedly" violated the Act within the meaning of section 17(a). n3 Respondent bases its argument on Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), a decision of the Third Circuit Court of Appeals holding that a repeated violation of the Act requires employer conduct demonstrating a "flaunting" disregard for the Act.   Judge Brady, however, found a repeat violation based on the Respondent's history of past violations involving trenching operations in the Atlanta metropolitan area, rather than any specific "flaunting" attitude on the part of Respondent.   The Commission has held that an employer's "flaunting" attitude is not a factor in determining whether a violation is repeated. Potlatch Corp., 79 OSAHRC 6/A2, B2, 7 BNA OSHC 1061, 1064, 1979 CCH OSHD P23,294 at p. 28,172 (No. 16183, 1979) ("Potlatch"). It is relevant only to the assessment of an appropriate penalty.   Id. Thus, Respondent's argument is rejected.

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n3 29 U.S.C. §   666(a).

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Alternatively, Respondent argues that even if no showing of "flaunting" is required, the Secretary did not show sufficient similarity between the prior uncontested trenching violations and the present allegedly repeated trenching violation.   Under the Potlatch test, a violation of the Act is repeated if "at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." Potlatch, supra, 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. The Secretary may establish a prima facie case of similarity by showing that the earlier and present violations are for failure to comply with the same standard.   Id.

In this case, the Secretary introduced three previous citations concerning trenching violations and referred to a fourth citation.   Respondent was cited twice previously for noncompliance with 29 C.F.R. §   1926.652(b) concerning its failure to shore adequately trenches in soft and unstable soil on October 30, 1974, and on May 1, 1975.   Both section 1926.652(b) citations were uncontested [*13]   and became final orders of the Commission by operation of law n4 before the August 9, 1976, inspection in this case. n5 Respondent attempts to rebut the Secretary's prima facie case by asserting that "the similarity of the soil, weather conditions, depths of the trenches, width of the trenches, shoring methods and numerous other variables was not established by the Complainant." The basis of Respondent's argument is that "[n]o two feet of trench are alike." We cannot accept this argument.   The hazard of collapsing trench walls caused by inadequate shoring is exactly the same in the earlier uncontested citations as in the present citation.   The Secretary has shown through the expert testimony of the geotechnical engineer that the soil around the trench in this case was soft or unstable as had been the soil in the past violations.   The fact that an employer was attempting to comply with the trenching standard in this case does not distinguish this hazard from those involved in the past citations.   Thus, the Secretary has shown noncompliance with the same standard involving the same or a substantially similar hazard. n6 We therefore affirm the judge's finding of a repeated violation.   [*14]   n7

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n4 29 U.S.C. 659(a).

n5 The other two citations, in February of 1974 and December of 1975 were for noncompliance with 29 C.F.R. §   1926.652(c) for failure to shore, slope, or otherwise protect the sides of a trench in hard and compact soil. The February 1974 citation was uncontested and became a final order of the Commission.   The December 1975 citation was contested, affirmed by the judge, and is now on review before the Commission.   Because we find substantial similarity between the prior uncontested citations of 29 C.F.R. §   1926.652(b) and the present alleged violation, we need not consider the similarity with the past §   1926.652(c) citations.

n6 This case was tried and decided prior to our decision in Potlatch.   Usually when there has been an intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense.   See, e.g., Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   However, in view of the facts as discussed above and Wright & Lopez's defense to the repeated violation, we conclude that the defense here would not have been tried any differently had Potlatch been issued before the hearing.   Therefore we need not offer Wright & Lopez an opportunity for a remand.   Cf. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).

n7 Commissioner Barnako would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise.   Potlatch Corp., supra (concurring and dissenting opinion).   Instead, he would look to whether the present violation is of such a nature that the employer, as a result of the notice provided by the other citations, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation.   Where such notice is not apparent from the face of the citation, he would require the Secretary to prove substantial similarity. Where such a showing has been made, he would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

The previous citations and the citation at issue here are similar in that each alleges a failure to properly shore a trench 5 feet or more in depth dug in soft, unstable soil while Respondents' employees were in the trench. Thus, both citations address a single discrete hazard that exists in all situations where employees are working in trenches dug in soft, unstable soil deeper than 5 feet that are not properly shored.   Thus, Commissioner Barnako would conclude that the instant violation of this standard is substantially similar to the prior violations and that the company was therefore on notice from the prior citations that its safety precautions with respect to trenches 5 feet or more in depth, dug in soft, unstable soil were inadequate.

Moreover, Wright & Lopez offered no evidence that, after the entry of the prior final order, it had taken affirmative steps to ensure that a similar violation did not occur in the future.   However, since this case was tried prior to the issuance of Potlatch, supra, Commissioner Barnako would afford Wright & Lopez an opportunity to present evidence as to this defense.   Therefore, Commissioner Barnako would enter a conditional order affirming the citation as repeated, but would afford Respondent 10 days from the issuance of this decision to move that the case be reopened for the taking of additional evidence on the good faith efforts defense.   See Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).   Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion).

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VI

The Secretary argues that the judge erred in finding that the violation was not willful within the meaning of section 17(a) n8 of the Act.   He relies chiefly on Respondent's history of past violations and also the involvement of the same foreman in both the present violation and a past violation.   The Secretary correctly notes in his brief that it is unnecessary to prove any malicious intent to violate the Act in order to establish a willful violation. See Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (Nos. 9483, 9485 and 9522, 1977), aff'd, 593 F.2d 368 (10th Cir. 1979). Respondent cites the Commission definition of willful set forth in Graven Bros. and Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD P20,544 (No. 2538, 1976), as support for its contention that the violation was not willful. In that case we defined a willful violation as "a violation [that is the] result of an act done voluntarily by Respondent which either intentionally disregard[s] the standards or demonstrate[s] plain indifference to the Act." We found, however,   [*16]   that "knowledge of a standard and a subsequent violation of that standard do not in themselves prove [a willful violation]." Graven Bros. and Co., supra, 4 BNA OSHC at 1046, 1975-76 CCH OSHD at p. 24,549. Subsequently, the Commission defined a willful violation as "action taken knowledgeably by one subject to the statutory provisions of the Act in disregard of the action's legality." P.A.F. Equipment Co., Inc., 79 OSAHRC 18/A2, at B2, 7 BNA OSHC 1209, 1214, 1979 CCH OSHD P23,421, at p. 28,342 (No. 14315, 1979) appeal docketed, No. 79-1398 (10th Cir., May 7, 1979).

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n8 29 U.S.C. §   666(a).

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It is undisputed that Respondent was familiary with the applicable trenching standards, having been cited for violations on four previous occasions and having discussed the standards during conferences with compliance officers.   At the time of the cave-in, however, the employer was attempting to shore the trench so as to be in compliance with the standard.   Respondent's error was in allowing one of its crew to   [*17]   be exposed to the hazard of a cave-in while setting the bracing.   The foreman was aware that the bracing could have been installed from above ground, but he did not have any trench jacks at the worksite that day.   When an employer makes a good faith attempt at compliance, the Commission has not found a willful violation. See Williams Enterprises, Inc., 4 BNA OSHC 1663, 1976-77 CCH OSHD P21,071 (No. 4533, 1976).   Clearly, the foreman was attempting to comply with the standard.   Therefore, the judge properly found the violation not willful.

VII

Section 17(a) of the Act authorizes a civil penalty of up to $10,000 for each repeated or willful violation. The Secretary proposed a $10,000 penalty for the alleged willful and repeated violation.   The judge found the alleged violation to be repeated but not willful, and assessed a penalty of $5,000. n9 Respondent employs 200 workers in the Atlanta metropolitan area.   Before the inspection that gave rise to this case, Respondent had been found in noncompliance with the trenching standards three times since 1974.   The Secretary, for these three uncontested trenching citations, proposed penalties of $500, $900, and $1,800, respectively.   [*18]   Compliance officers have met with Respondent's management officials at conferences and have given Respondent copies of the applicable standards.   Recognizing both the potentially serious hazards associated with its work as well as its past violations of the trenching standards, Respondent has attempted in good faith to improve its safety program.   In light of the very serious nature of the hazard posed by an inadequately shored trench, the past history of violations of this same standard, as well as the other section 17(j) factors discussed above, the $5,000 penalty is appropriate and thus is affirmed.

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n9 Penalties are assessed by the Commission.   Penalties recommended by the Secretary are merely advisory.   29 U.S.C. §   661(i); Long Mfg. Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977).

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VIII

The Secretary also contends that the judge's failure to rule on the request for a cease and desist order violates the requirements of section 8(b)(3) of the Administrative Procedure Act, 5 U.S.C. §   557(c)(3), which provides in part:   [*19]  

"All decisions . . . are a part of the record and shall include a statement of -- (A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; . . ."

The Secretary argues that the Review Commission has the authority to issue a cease and desist order and, in this case, should exercise that authority.   Even assuming, without deciding, that we have such authority, the Secretary has failed to demonstrate the appropriateness of this extraordinary relief in this case.

Accordingly, the judge's decision finding a repeated, serious violation of the Act for failure to comply with 29 C.F.R. §   1926.652(b) and assessing a penalty of $5,000 is affirmed.   SO ORDERED.  

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part.

A violation of 29 C.F.R. §   1926.652(b) is properly found in this case.   However, I would find the violation to be willful. The respondent was well awre of the cited trenching standard inasmuch as it had received a number of previous citations for trenching violations.   Moreover, Respondent's representatives had conferred with representatives of   [*20]   the Secretary regarding those citations and had received copies of the trenching standards.   In addition, the foreman at this site had been involved in a previous trenching violation.   He was also familiar with the safety requirements for trenching and the means of installing shoring from ground level without exposing employees to the hazard of a trench collapse.

When the foreman discovered the previously disturbed, unstable soil, he directed that additional shoring be installed. He admitted at the hearing that the protection could have been afforded by installing trench jacks, which the Respondent previously had used, without any employees working in the trench. Nevertheless, the foreman allowed an employee to remain unprotected in the trench while another employee went to obtain materials for additional shoring. This decision by the foreman was not a mere "error," as the majority describes it.   The decision was made knowingly in disregard of the requirements of a standard with which the foreman was familiar and in disregard of the employee's safety.   Such conduct constitutes a willful violation under the Commission precedent quoted by the majority.   P.A.F. Equipment Co.,   [*21]   79 OSAHRC 18/A2, at B2, 7 BNA OSHC 1209, 1214, 1979 CCH OSHD P23,421, at p. 28,342 (No. 14315, 1979) appeal docketed, No. 79-1398 (10th Cir., May 7, 1979); see also Acme Fence & Iron Co., 79 OSAHRC    , 7 BNA OSHC 2228, 1980 CCH OSHD P24,235 (No. 78-982, 1980); Communications, Inc., 79 OSAHRC    , 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), appeal docketed, No. 79-2148 (D.C. Cir. Sept. 27, 1979); accord, National Steel and Shipbuilding Co. v. OSAHRC, 607 F.2d 311 (9th Cir. 1979); Georgia Electric Co. v. Marshall, 595 F.2d 309, 317-19 (5th Cir. 1979); Intercounty Construction Co. v. OSAHRC, 522 F.2d 777, 779-81 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976).

The majority apparently does not consider a violation to be willful when the employer makes any effort to comply with the cited standard, even though the employer has consciously ignored the safety of certain employees in the process.   The reliance on Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD P21,071 (No. 4533, 1976), appeal docketed, No. 79-1559 (D.C. Cir. May 30, 1979), is misplaced.   In that case, the Respondent [*22]   attempted to stabilize an extremely heavy counterweight by erecting a wood base beneath one end.   The base proved ineffective and the counterweight fell, ultimately resulting in fatal injuries to two employees.   Furthermore, the evidence in Williams did not indicate that the Respondent actually knew that its abatement efforts were inadequate or that any employees were in peril.   In contrast to Williams, the foreman here admittedly was familiar with the applicable OSHA requirements.   He recognized the need for additional abatement steps and knew that an employee was exposed unnecessarily to the hazards involved.   His action in allowing an employee to remain in the trench constituted a willful violation chargeable to the Respondent.