DAVIS-McKEE, INC.

OSHRC Docket No. 79-2698

Occupational Safety and Health Review Commission

September 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Jacob A. Schlosser, for the employer

Int'l. Union of Operating Engineers, Local #18, for the employees

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor ("the Secretary") issued to Respondent, Davis-McKee, Inc. ("Davis-McKee"), a citation alleging that Davis-McKee willfully violated the trenching standard at 29 C.F.R. 1926.652(c). n1 Administrative Law Judge Cecil L. Cutler, Jr., vacated the citation, and the Secretary petitioned for review of the judge's decision. Commissioner Cottine granted the Secretary's petition under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). We reverse Judge Cutler and affirm the citation as a serious violation of the cited standard. We assess a penalty of $500. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard provides:

1926.652 Specific trenching 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 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. 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.

n2 In a letter filed in lieu of a brief after review was directed, the Secretary asked that the violation be affirmed as serious and refrained from pursuing his earlier contention that the violation was willful. Therefore, we do not address whether the violation was willful.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I.

Davis-McKee, a subcontractor, was repairing a sewer line in connection with the erection of a convention center in Columbus, Ohio, when compliance officer Charles Perry arrived at the worksite. Perry observed two of Davis-McKee's employees operating an earth compactor in a trench. The trench was quite long and turned in two locations. In the southeast portion of the trench, where Perry observed the employees operating the earth compactor, he measured the trench to be 17 feet, 6 inches deep, and, at the top, 15 feet, 11 inches wide. Perry estimated the width at the bottom as 7 feet.

Perry testified that the type of soil in the trench was hard and compact and that the trench was not shored or otherwise supported or adequately sloped. In his opinion, employees were subject to being "crushed or killed" if a cave-in occurred.

Robert Wilson, Davis-McKee's operations manager, testified that the trench was sloped in accordance with the standard except for an area on one side where a concrete caisson was embedded. The caisson was part of the foundation of the convention center. According to Wilson, [*3] the caisson was 10 feet in diameter and was embedded 30 feet into the ground. Wilson testified that the length of wall at the bottom of the trench that was "taken up" by the caisson was 6 to 8 feet.

A sketch of the trench was prepared by an employee of the general contractor after Perry left the worksite on the first day of the inspection. n3 Using the measurements shown on this sketch, an engineer prepared for Davis-McKee cross-section diagrams of various segments of the trench, drawn to scale, which Davis-McKee introduced into evidence. One cross-section diagram, labeled exhibit R-4, depicts a section of the trench next to the caisson and shows the trench wall across from the caisson as having a constant slope of 2.3 vertical feet to 1 foot horizontal. n4 The trench wall located next to the caisson is depicted as having a steep slope, approximately 7 1/2 vertical feet to 1 foot horizontal. Exhibit R-4 also shows the caisson as tangent to or abutting the trench wall only at the top of the trench. The exhibit thus shows a triangular wedge of soil, which widens as the trench depth increases, between the caisson and the trench wall. Wilson testified that exhibit R-4 accurately [*4] depicted the trench in the area of the caisson.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This sketch was introduced into evidence by the Secretary. Compliance officer Perry, however, stated that some of the measurements shown on the sketch did not agree with the measurements he made.

n4 The slope is labeled as 2.3 to 1 on the diagram. Approximately the same slope also can be derived by measuring the slope depicted in the exhibit.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Davis-McKee also introduced into evidence two photographs of the trench taken on the day of the inspection. These photographs show rebars protruding from the ground above the caisson. The trench walls are shown in these photographs to consist almost entirely of soil; only a minimal amount of concrete is shown as constituting part of the trench wall next to the caisson.

II.

In his decision, Judge Cutler concluded that the trench wall opposite the caisson in the area where the two employees were working was sloped to a greater degree than required by 29 C.F.R. 1926.652(c). While the judge found that the trench wall near [*5] the caisson could not be sloped to any significant extent, he concluded that the caisson, in effect, provided shoring or bracing sufficient to prevent collapse or cave-in of that side of the trench. The judge therefore concluded that Davis-McKee had not violated section 1926.652(c).

III.

The Secretary takes exception to the judge's conclusions that a concrete caisson formed part of the facing of the trench and that the caisson provided, in effect, sufficient shoring or bracing to prevent the trench's collapse or cave-in. The Secretary also asserts that the judge erred in finding that the side of the trench opposite the caisson was adequately sloped. The Secretary requests that the citation be affirmed as a serious violation.

The Secretary argues that the caisson provided insufficient protection on that side of the trench because the caisson did not directly abut the trench wall but instead was separated from it by a volume of soil. The Secretary also contends that, because the caisson was circular, soil was present between the caisson and the trench wall on either side of the caisson's center. The Secretary asserts that the trench should have been shored according to the cited [*6] standard since the amount of soil capable of collapsing on exposed employees was not negligible. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The Secretary also argues that the judge erroneously concluded that the caisson was 30 feet in length. Since we affirm the citation on other grounds, we need not address this contention.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Davis-McKee contends that the judge's findings are supported by the record and the Commission should not reweigh the evidence. Davis-McKee asserts that the caisson "minimized any substantial risk of wall collapse" in the area where the employees were working because the caisson had "more inherent strength than a normal earth wall." Davis-McKee also argues that the cited standard is not applicable to the side of the trench by the caisson, because that side of the trench consists of the concrete caisson rather than soil.

IV.

The Commission's review authority includes the authority to decide all issues it could have decided as the initial decision-maker. The Commission is not limited to the role of a reviewing court that must sustain [*7] factual findings of administrative agencies if such findings are supported by substantial evidence. Little Beaver Creek Ranches, Inc., 82 OSAHRC    , 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982). Accordingly, Davis-McKee's argument that we may not disturb the judge's disposition in this case is without merit.

Section 1926.652(c) requires that the walls of trenches more than 8 feet long and 5 feet deep dug in hard or compact soil must be shored or otherwise supported. If shoring or other support is not used, the portions of the walls more than five feet from the bottom of the trench must be sloped. Such sloping must not be steeper than a 1-foot rise to each one-half-foot horizontal. If, however, the trench in question is excavated entirely in solid rock, shale, or cemented sand or gravel, section 1926.652 does not require shoring or sloping. Crawford Construction Co., Inc., 82 OSAHRC 16/A2, 10 BNA OSHC 1522, 1982 CCH OSHD P25,984 (No. 79-928, 1982); CCI Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD P25,091 (No. 76-1228, 1980), aff'd, 10 BNA OSHC 1718 (10th Cir., June 9, 1982).

It is undisputed that the trench on the side of the wall near [*8] the caisson was not sloped in accordance with section 1926.652(c). Exhibit R-4 shows that the caisson was tangent to the trench wall only at the top of the trench and that below this point the trench wall was separated from the caisson by a volume of soil which increased as the trench depth increased. n6 Davis-McKee put exhibit R-4 into evidence, and its operations manager testified that it accurately depicted the trench. The configuration of the trench as depicted in exhibit R-4 is not inconsistent with the photographs of the trench or the Secretary's evidence concerning the trench. Therefore, we find that exhibit R-4 accurately depicted the configuration of the trench. From this exhibit, it is apparent that the caisson did not serve as the trench wall and that the amount of soil between the caisson and the trench wall was not insignificant. n7 See W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1056 n.5, 1975-76 CCH OSHD P20,574 at p. 24,592 n.5 (No. 7370, 1976). Further, because the caisson was not located at the edge of the trench, it was not positioned so as to support the trench wall. Thus, the caisson did not constitute shoring nor did it otherwise [*9] support the trench wall. As evidence also establishes that employees were working in the area of the trench close to the caisson, we find that Davis-McKee failed to comply with the requirements of section 1926.652(c) with respect to the part of the trench wall that was located near the caisson.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Using the dimensions and slopes of the trench walls shown in the exhibit, our calculations indicate that this triangular wedge of soil had a base at the bottom of the trench of approximately 2 feet.

n7 In addition to exhibit R-4, the photographs of the trench indicate that the amount of soil between the caisson and the trench wall was not insignificant. Further, the photographs indicate that the caisson did not reach to ground level, but rather there was a quantity of soil above the caisson adjacent to the trench wall.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We also conclude that the trench wall opposite the caisson was not sufficiently sloped. Exhibit R-4 constitutes an admission by Davis-McKee that the trench wall opposite the caisson had a slope of 2.3 [*10] feet vertical for each foot horizontal. This slope is steeper than that permitted by the cited standard, which requires that, except for the bottom five feet, the trench be sloped no greater than 2 feet vertical for each foot horizontal. Because the trench wall opposite the caisson was not sufficiently sloped above the five-foot mark, it did not comply with section 1926.652(c).

We also find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). n8 To prove a serious violation, it need not be likely that an incident occur. It is only necessary to prove that if an incident occurs, the probable result will be either serious injury or death. See, e.g., Andy Anderson, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4082, 1978). The unrebutted testimony of compliance officer Perry, which we accept, was that the likely result of collapse of the trench would be death or serious bodily harm. We further find that there is ample evidence to establish that Davis-McKee knew or, with the exercise of reasonable diligence, could have known of the presence of the violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - [*11] - - - - - -

n8 Section 17(k) provides:

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.

The Secretary did not allege a serious violation in the citation or in any pleadings filed prior to the hearing. See note 2, supra. However, at the hearing, compliance officer Perry was questioned about the characterization of the violation, to which he responded that he recommended that the citation be characterized as serious. Davis-McKee did not object to this testimony, nor did it take exception to the Secretary's argument on review that a serious violation be found. Under these circumstances, we find that there was trial by consent of the parties of the seriousness of the violation. See Dye Constr. Co., 78 OSAHRC 51/A2, 6 BNA OSHC 1685, 1978 CCH OSHD P22,810 (No. 4172, 1978).

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In assessing a penalty, we consider the factors set forth in section 17(j) of the Act, 29 U.S.C. 666(i), and determine that a penalty of $500 is appropriate. In assessing this amount, we find that, while the gravity of the violation is high, Davis-McKee made an attempt to comply with the standard by sloping the trench wall opposite the caisson.

Accordingly, we reverse the judge and find a serious violation of 29 C.F.R. 1926.652(c). We assess a penalty of $500.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

The evidence in this case is insufficient to establish that either side of Davis-McKee's trench violated 29 C.F.R. 1926.652(c). Therefore, I dissent from the majority's affirmance of the citation. Rather, I agree with the judge that the citation should be vacated.

As the majority notes, section 1926.652(c) does not require an employer to slope the walls of a trench if the trench is excavated in solid rock, shale, or cemented sand or gravel, or if the trench is shored or otherwise supported. In this case, a concrete caisson was embedded nest to one of the trench walls. Administrative [*13] Law Judge Cecil R. Cutler, Jr., found that this caisson provided, in effect, shoring or bracing sufficient to prevent collapse or cave-in of that side of the trench in the area where employees were working.

Nevertheless, the majority concludes that there was a wedge of soil between the trench wall and the caisson which was "not insignificant," and, therefore, the trench wall should have been shored. However, the Secretary did not put into evidence any measurements or calculations to show that the volume of this soil was significant, nor did the Secretary show that this soil could cause a collapse or cave-in of the trench. Although the Secretary introduced evidence as to the depth and width of the trench, he failed to introduce evidence showing the trench wall's slope or measurements from which the slope of the wall could be derived. Evidence of the slope of the trench wall would be necessary for determining the quantity of soil between the wall and the caisson. The majority relies solely upon Davis-McKee's evidence -- in particular exhibit R-4 and two photographs of the trench -- to conclude that the trench did not comply with the cited standard.

Exhibit R-4, a cross-section [*14] diagram of a portion of the trench, was drawn by Thomas Ashton, an engineer who had never seen the trench. n9 Ashton drew exhibit R-4 based on exhibit C-1, a drawing of the trench made by the general contractor at the site. At the hearing, the compliance officer marked with an "X" the location on exhibit C-1 where he had seen two Davis-McKee employees working in the trench. Exhibit R-4 shows a cross-section of the trench at a location different from that where the compliance officer testified that he observed the employees working. Therefore, the majority's reliance on exhibit R-4 is inappropriate. Further, in exhibit R-4 Ashton apparently set the slopes of both trench walls arbitrarily, because exhibit C-1, the drawing on which exhibit R-4 is based, does not give the slope of either trench wall or provide measurements from which the slopes can be calculated. n10 Therefore, the quantity of soil between the caisson and trench cannot be reliably determined on the basis of exhibit R-4. Because exhibit R-4 does not depict the trench at the location where the employees were working, and because the evidence does not establish that exhibit R-4 reliably represents the slope [*15] of the trench wall by the caisson, I am unable to conclude that there was a significant amount of soil between the caisson and the trench wall.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Davis-McKee's operations manager, Wilson, testified that exhibit R-4 properly depicted the trench on the day of the inspection. However, Wilson was not questioned at that point in the hearing about the slopes of the trench walls. Therefore, it cannot be inferred from Wilson's general approval of the exhibit that the slopes depicted in the exhibit were correct.

n10 Ashton testified: "On examination of the photographs, it was apparent that the slope of the soil in the trench near the caissons was much steeper than a one-half to one slope. So we adjusted our cross-section to reflect the fact that this slope was more nearly vertical." Ashton's testimony, however, does not indicate why the particular slopes of approximately 7.5 to 1 on the side of the caisson and of 2.3 to 1 on the opposite side were depicted in the exhibit.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I do not find the photographs of the trench any [*16] more persuasive in showing that Davis-McKee failed to comply with section 1926.652(c). The photographs are too small and indistinct to reveal with any precision the slope of the trench wall or the amount of soil that was present between the caisson and the adjacent trench wall. Further, the record does not indicate whether the photographs depict the portions of the trench where Davis-McKee's employees were working. Therefore, the photographs provide no support for finding that there was a significant amount of soil between the caisson and the trench wall.

I also disagree with the majority's conclusion that the trench wall on the side of the trench opposite the caisson was not sufficiently sloped. The Secretary introduced no evidence of the slope of the trench wall opposite the caisson or any measurements from which this slope can be calculated. Therefore, the majority relies solely upon exhibit R-4 in finding that the trench wall opposite the caisson was too steeply sloped. As noted above, exhibit R-4 does not depict the portion of the trench where the compliance officer testified that Davis-McKee's employees were working, and the slopes of the two trench walls shown in exhibit [*17] R-4 apparently were selected arbitrarily. Because exhibit R-4 does not provide reliable evidence of the slope of the trench wall opposite the caisson, and because there is no other evidence of the slope of this wall, I find no basis for concluding that the trench wall opposite the caisson did not comply with section 1926.652(c). Therefore, I would affirm the judge's vacation of the citation.