ANDY ANDERSON, d/b/a ANDY ANDERSON IRRIGATION AND CONSTRUCTION

OSHRC Docket No. 76-4082

Occupational Safety and Health Review Commission

April 21, 1978

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Ron Campbell, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Alan M. Wienman is before the Commission pursuant to a direction for review by former Commissioner Moran issued under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. In his decision, Judge Wienman affirmed a single serious violation of 29 C.F.R. 1926.652(c) and 1926.652(h) and assessed a $300 penalty. We affirm the Judge's decision, but reduce the penalty to $150. n1

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n1 Neither party has taken exception to the Judge's action affirming a nonserious violation of 29 C.F.R. 1926.100(a). Accordingly, this item is not before the Commission on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).

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Respondent was engaged in installing [*2] sewer pipe in a trench measuring approximately 70 feet long. The trench varied from 6-8 feet in depth. It was 25 inches wide at the bottom and between 25 and 33 inches wide at the top. Two Occupational Safety & Health Administration compliance officers inspected the worksite on September 1, 1976. Upon arrival, one of the compliance officers presented his credentials and inquired who was in charge of the trenching operation. Respondent's foreman, Mr. Matthies, stated that he was in charge and accompanied the compliance officers during the inspection. No attempt was made to contact respondent's owner, Mr. Anderson, who testified at the hearing that when he was not present at a worksite Matthies was in charge.

With respect to the 1926.652(c) n2 allegation, compliance officer Rogers testified that the trench was dug in hard and compact soil, that the walls of the trench were vertical and that they had not been shored. He opined that it was "highly likely" that the trench could cave in, and that an employee could be crushed or suffocated were the trench to collapse. The compliance officer also testified that there was no ladder or ramp in the trench providing a means of exit [*3] requiring no more than 25 feet of lateral travel. He stated that this constituted a violation of 1926.652(h). n3

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n2 1926.652 Specific trenching requirements.

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(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 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to prevent collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal . . . .

n3 1926.652 Specific trenching requirements.

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(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

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One of respondent's employees, Steffens, testified that he was working in the trench on the day of the inspection. He was engaged in connecting sections of pipe at the west end of the trench, a procedure taking approximately [*4] 3-5 minutes for each connection. No ladders were present in the trench, but the employee had caved-off a slope at the east end that he walked up to exit the trench. All of respondent's witnesses were of the opinion that collapse of the trench was unlikely. Anderson stated that the trench was dug in hard soil and testified that there was no "strong" possibility of collapse.

Judge Wienman held that compliance had complied with the requirements of section 8(e) of the Act, 29 U.S.C. 657(e). n4 He rejected respondent's claim that, by failing to contact Anderson before the inspection began, complainant failed to follow the mandate of section 8(e). The Judge stated that Matthies was a management representative within the meaning of that section of the Act. In addition, he found that respondent had not been prejudiced by the actions of the compliance officers, as Anderson could only have pointed out that the soil was hard and compact, a fact admitted by complainant. The Judge held that respondent had violated 1926.652(c) and 1926.652(h). He concluded that the possibility of a trench collapse was greater than estimated by respondent's witnesses, characterized the violation as [*5] serious, and assessed a $300 penalty.

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n4 29 U.S.C. 657(e) provides, in pertinent part, the following:

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(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.

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In its submissions on review, respondent takes exception to the Judge's conclusions that the Secretary complied with section 8(e), that respondent violated the standards, and that any violation was serious. Respondent also argues that the $300 penalty was "excessive." Respondent asserts that Anderson could have provided "useful information" to the compliance officers had he been contacted before the inspectioon. Specifically, respondent claims that Anderson would have informed the compliance officer of the "near impossibility" of the trench collapsing. Respondent also maintains [*6] that, although technical violations of the standards were present, the trench was safe. Finally, respondent argues that the violation cannot be deemed serious because the possibility of a trench collapse was small.

We reject respondent's contentions and affirm the Judge's decision. Respondent does not claim that its foreman was not in charge of the worksite at the time of the inspection, only that complainant's representative should have contacted Anderson. This argument is without merit. Section 8(e) requires only that a "representative of the employer" shall be given an opportunity to accompany the inspector. In Northwestern Insulation Company, Inc., 77 OSAHRC 32/F3, 5 BNA OSHC 1148, 1977-78 CCH OSHD para. 21,614 (No. 12632, 1977), the Commission held that a foreman working in a managerial capacity, with no person superior in authority at the worksite, was a "representative of the employer" within the meaning of section 8(e) of the Act. Foreman Matthies was a representative of respondent inasmuch as he was in charge of the worksite at the time of the inspection. n5

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n5 In Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947 (8th Cir. 1977), the court held that there must be a showing of prejudice to an employer in its ability to defend on the merits of a citation before evidence will be suppressed for failure to comply with section 8(e). Respondent has not shown such prejudice.

[*7]

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The Judge properly found a violation of the standards. The trench was not sloped sufficiently to comply with the requirements of 1926.652(c). Examination of Exhibit G-4, which was prepared by the compliance officer after measuring the dimensions of the trench with a steel tape, confirms that respondent was violating the standard. The diagram shows, for example, one point in the trench that was 8'5" deep, 25" wide at the bottom, and 33" wide at the top. Compliance with the cited standard would require a width at the top of 66". No ladder was present in the trench, and the exit from the east end was as much as 70 feet from where the employee was working.

Contrary to respondent's assertions, the violation was properly classified as serious. Section 17(k) of the Act, 29 U.S.C. 666(k), provides that a serious violation shall be deemed to exist if there is a "substantial probability that death or serious physical harm could result from a condition . . . ." Respondent contends that, because the possibility of a trench collapse was slight, the violation cannot be deemed serious. It is well settled, [*8] however, that in determining the seriousness of a violation, only the probable result and not the likelihood of an accident is relevant. Thermo Tech, Inc., 77 OSAHRC 192/A2, 5 BNA OSHC 2044, 1977-78 CCH OSHD para. 22,281 (No. 15381, 1977), appeal filed, No. 77-3438 (5th Cir. Dec. 13, 1977); Sun Outdoor Advertising, Inc., 77 OSAHRC 35/E8, 5 BNA OSHC 1159, 1977-78 CCH OSHD para. 21,632 (No. 13334, 1977). The probable result of the trench collapsing on an employee would be crushing or suffocation. The violation was therefore properly classified as serious.

We find, however, that the imposition of a $300 penalty is excessive in light of respondent's small size, its previous history of no violations and its good faith. Accordingly, we assess a penalty of $150.

It is ORDERED that the Judge's decision be affirmed and the penalty reduced to $150.