R. ZOPPO CO., INC.  

OSHRC Docket No. 76-5363

Occupational Safety and Health Review Commission

November 25, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

John D. O'Reilly, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo, is before the Commission pursuant to a direction for review by Commissioner Barnako issued under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Furcolo affirmed as serious an alleged willful violation of the Act for failure to comply with the standard published at 29 C.F.R. §   1926.652(c). n2 A penalty of $750 was assessed.   In its petition for review, Respondent, R. Zoppo Co., Inc. ("Zoppo"), contends that the Secretary did not prove, by a preponderance of the evidence, that the trench in question was inadequately sloped above the 5-foot level. Respondent also takes exception to the judge's characterization of the violation as serious, on the ground that the issue of seriousness was not tried with respondent's consent.

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n1 29 U.S.C. §   661(i).   Commissioner Barnako directed review on the issues raised by Respondent's petition for discretionary review.

n2 The standard provides, in pertinent part:

29 C.F.R. §   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 preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal.

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On review Respondent requests the Commission to reconsider issues which have been resolved by the judge.   Having reviewed the record in its entirety we conclude that the judge correctly decided the issues before him and we adopt the judge's findings and conclusions. n3 See, Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n3 Respondent's reliance on Lisbon Contractors, Inc., 77 OSAHRC 106/C9, 5 BNA OSHC 1740, 1977-78 CCH OSHD P22,085 (No. 14926, 1977) in arguing that the violation in this case should be classified as other than serious is misplaced.   Lisbon is distinguishable not only on the basis of the amount of soil to be removed, but also on the position of the employees in the trench. In this case, the compliance officer testified that the employees were working in a crouched or bent over position and that he considered this as a factor in arriving at his conclusion that the violation was serious.

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Accordingly, the judge's decision is affirmed.

SO ORDERED.  

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

The Respondent in this case argues that the violation should be classified as other-than-serious because compliance with the standard would have required the Respondent to cut back the sides of the trench two inches at one end and eight and one-half inches at the other end.   As authority for this conclusion, the Respondent specifically relies on Lisbon Contractors, Inc., 77 OSAHRC 160/F2, 5 BNA OSHC 1741, 1977-78 CCH OSHD P22,085 (No. 11097, 1977).   In Lisbon, the Commission concluded that a trenching violation was other-than-serious where compliance required that the sides be cut back three inches.   The Commission reasoned that the amount of soil to be removed to bring the trench into compliance was not likely to cause serious physical injury or death had that soil fallen into the trench. The Lisbon decision rests on the assumption that in the event of a trench collapse the collapsing soil falling into the trench would be limited to the soil that should have been removed to attain proper sloping.   Nothing in the Lisbon decision supports [*4]   the validity of that assumption, nor is there any support for the assumption in this case. * Lisbon should be overruled as incorrectly decided rather than distinguished on facts inconsequential to the ultimate disposition of this case.   I otherwise join in the affirmance of the judge's decision.

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n* Tension cracks and subsidence do not respect the artificial legal boundaries created by the Commission classification of a violation.

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