CRAWFORD CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 79-928

Occupational Safety and Health Review Commission

March 29, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY AND COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Roger L. Sabo, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission for review under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Secretary of Labor ("the Secretary") issued a citation to the Respondent, Crawford Construction Company, Inc. ("Crawford"), alleging a willful violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for failure to comply with the construction safety standard at 29 C.F.R. 1926.652(b). Crawford timely contested the citation and a hearing was held before Judge Patton. In his post-hearing brief, the Secretary moved to amend the citation under Rule 15(b) of the Federal Rules of Civil Procedure to allege noncompliance with 29 C.F.R. 1926.652(c) instead of section 1926.652(b). n1 In his decision Judge Patton denied the Secretary's motion to amend and vacated the citation. The Secretary petitioned for review of the judge's decision and Commissioner [*2] Cleary directed review on the following issues:

(1) Whether the administrative law judge erred in denying the Secretary's motion to amend the complaint to allege a violation of 29 CFR 1926.652(c); and

(2) Whether [Crawford] would be prejudiced if the amendment of the complaint is allowed.

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n1 Sections 1926.652(b) and (c) provide:

(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).

(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 length of 4-foot minimum shall be provided at the toe of the sloped portion.

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I

Crawford was laying a sewer line near Galion, Ohio, in February, 1979, when its worksite was inspected by a compliance officer of the Occupational Safety and Health Administration ("OSHA"). When the compliance officer arrived, Crawford was reopening a portion of the trench that had been filled a few days earlier. The pipe in the trench was off grade and had to be relaid. The open portion of the trench was dug across a state highway.

Crawford had begun reopening the trench that morning and had finished excavating about an hour before the compliance officer arrived. After Crawford completed excavating, but before the compliance officer arrived, Crawford had shored a portion of the walls of the trench, regarded part of the trench floor, and relaid some of the sewer pipe. When the compliance officer arrived, the employees were gathering plywood to put in more shoring along the walls of the trench.

The trench was approximately 32 feet long, 10 feet 3 inches deep, and 3 feet 4 inches wide. It had vertical walls. There was about a foot of blacktop and macadam base at the top of the trench walls. [*4] Below that was 20 to 24 inches of frozen soil, so the trench was frozen to approximately 3 feet below ground level. When the trench was dug, Crawford had cut through a storm sewer that was discharging water into one end of the trench. That end was shored, and a sump pump in the trench kept the water from accumulating. The weather was cold and windy. Snow had fallen earlier in the day, but the sun had come out by the time of the inspection. Although the temperature was still below freezing, the sun was melting the snow.

The compliance officer looked at the walls of the trench and the material that had been removed from the trench. He attempted to take a soil sample from the trench walls but could not get one because the earth within his reach was frozen hard.

The compliance officer observed an employee attempting to shore the walls. The employee was having difficulty because the bottom of the trench was wet and slippery. When the compliance officer suggested to the employee in charge, Mr. Sand, that it would be easier to protect employees if a nearby trench box was used instead of shoring, Mr. Sand immediately had the trench box brought to the trench and fit into the portion [*5] of the trench where the employees were working.

At the hearing before Judge Patton, the compliance officer expressed the opinion that the soil in the walls of the trench was "sandy." He testified that he had told Mr. Sand that a trench more than five feet deep must be shored or sloped. The compliance officer stated that he asked Mr. Sand why the walls were not shored or sloped, and that Mr. Sand replied that the employees were not expected to be in the trench very long.

Three Crawford employees, Mr. Sand and two workmen who were at the site during the inspection, testified. All three stated that they had been familiar with OSHA's trenching standards before the inspection. They all testified that the soil in the walls of the trench was hard blue clay and was frozen to a depth of about three feet. They testified that they had discussed whether it was necessary to use the trench box and had decided that, under the conditions at that time and place, it was not necessary.

Mr. Sand testified that they had been using the trench box all along except for the portion of the trench across the road. He testified that the frozen earth at the top of the trench walls would be just as hard [*6] as stone or concrete. When asked whether he believed that the trench complied with OSHA's trenching requirements, Mr. Sand testified that he "thought it was safe." He stated that the employees had been shoring the trench walls that day but had relaid the pipe up to the end of that shoring when the compliance officer arrived, and that the employees were getting more plywood to extend the shoring.

Mr. Sand testified that the earth originally removed from the trench had been taken away and that a sandy fill had been brought in from somewhere else. He testified that some of the sandy fill might have been frozen to the walls of the trench when the trench was reopened. The material that had been removed from the trench that day was fill, not the original soil.

The other two Crawford employees who testified agreed that the temperature was still below freezing at the time of the inspection. They both testified that the water in the trench was snow melted by the sun and that it had come in through the broken storm sewer. They stated that the pump was preventing the water from accumulating. They stated that some of the difficulty the compliance officer observed with the shoring occurred [*7] because some of the bracing was knocked out by the pipe when it was relaid.

Crawford also presented as an expert witness an engineer who specializes in soil mechanics and engineering geology. He testified that frozen soil does not have the same properties as soil that is not frozen, and that freezing bonds the soil, affording greater stability. He testified that freezing the soil is a common and accepted practice to make the walls of excavations more stable and that frozen soil may be considered "cemented." He testified that, in his opinion, the walls of the trench in question could be vertical because of the frozen soil.

II

After the hearing, the Secretary moved in his post-hearing brief to amend the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure n2 to conform to the evidence. The Secretary moved to allege noncompliance with 29 C.F.R. 1926.652(c) instead of section 1926.652(b), the originally cited standard. The citation as it was proposed to be amended would have alleged that the soil was hard or compact rather than soft or unstable.

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n2 Rule 15(b) of the Federal Rules of Civil Procedure is made applicable to Commission proceedings by section 12(g) of the Act, 29 U.S.C. 661(f), and Rule 2(b) of the Commission's Rules of Procedure, 29 C.F.R. 2200.2(b). It provides:

Rule 15. Amended and Supplemental Pleadings.

* * *

(b) AMENDMENTS TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

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In his decision, Judge Patton denied the motion to amend and vacated the citation. The judge found that the soil was hard or compact, not soft or unstable as alleged, and that the citation must therefore be vacated. Judge Patton denied the motion to amend because he found that Crawford bad not consented to try the issue of whether failure to shore or slope a trench dug in hard soil was a violation. The judge reasoned that because the evidence proving noncompliance with the uncited standard also went to the issue of noncompliance with the cited standard, Crawford's failure to object to the evidence of the nature of the soil could not be construed as consent to try the unpleaded issue. He therefore found that the amendment requested by the Secretary was not permitted by Federal Rule 15(b) and vacated the citation.

III

The Secretary petitioned for review of the judge's decision, arguing that amendment to conform the pleadings to the evidence is proper when the factual questions tried by the parties are material to both legal theories. The Secretary asserts that the change in legal theory here is [*9] minor.

The Secretary argues that Crawford not only consented to try the question of whether the soil was hard, but it based its defense on the fact that the soil was hard. Since no shoring or sloping was used in the cited portion of the trench, the Secretary asserts, the facts establish that Crawford failed to comply with either standard. Therefore the Secretary argues that Crawford's defense that the soil was hard would not justify its failure to take protective measures for its employees working in the trench, and Crawford cannot claim that it would be prejudiced by granting the amendment to allege noncompliance with section 1926.652(c).

Crawford asserts that the record must clearly show that the parties understood that they were trying an unpleaded issue in order for a post-trial amendment to be permitted under Rule 15(b), and that consent cannot be inferred from the introduction of or failure to object to evidence relevant to both the pleaded and unpleaded issues. Even if the amendment is permitted, Crawford argues, it was in compliance with section 1926.652(c) because the frozen earth did not need to be shored or sloped. Crawford asserts that the record establishes that [*10] frozen soil is of equal stability as cemented soil, which need not be shored or sloped under the tables accompanying section 1926.652.

IV

It is well established that administrative pleadings are liberally construed and easily amended. Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Under Rule 15(b) the pleadings are to be amended if an unpleaded issue has been tried with either the express or implied consent of the parties. Consent will be implied where the party opposing amendment has introduced or failed to object to evidence relevant to the unpleaded issue and that party would not be prejudiced by the amendment; that the evidence introduced is relevant to both the pleaded and unpleaded issues is not controlling as long as the amendment is not prejudicial. See Vicon Corp., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1157, 1981 CCH OSHD P25,749, p. 32,159 (No. 78-2923, 1981), appeal filed, No. 81-2359 (8th Cir. December 10, 1981); Bill C. Carroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1809, 1979 CCH OSHD P23,940, p. 29,032 (No. 76-2748, 1979); Mississippi Power & Light [*11] Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2040, 1980 CCH OSHD P24,146, p. 29,341 (No. 76-2044, 1979); Mineral Industries & Heavy Construction Group, 639 F.2d 1289, 1293 (5th Cir. 1981).

Applying these principles to the case before us, we find that the amendment sought by the Secretary would introduce a new legal theory; it would not raise any new questions of fact. The parties tried the factual issues relevant to the unpleaded allegation -- the nature of the soil and whether the trench walls were supported. Mr. Sand and the two workmen, Crawford's own witnesses, testified that the soil was hard, blue clay that was frozen to a depth of about three feet; and its expert testified that the frozen soil could be considered "cemented" within the meaning of the tables accompanying section 1926.652. We therefore conclude that the amendment should be permitted unless Crawford would be prejudiced by the amendment.

We find that Crawford's ability to prepare and present its case was not impaired by the change in legal theory. As we have said, the nature of the soil was fully litigated. Although the question of prejudice was specifically directed for review, and Crawford opposes the [*12] amendment in its brief, it does not make any claim of prejudice. Crawford has not asserted that there is any additional evidence that it would have presented if the amendment had been made before the hearing. Indeed, Crawford argues that if the amendment is permitted the evidence shows that it was not in violation under the amended allegations. We are therefore unable to find that Crawford will suffer prejudice from the amendment. The motion to amend is granted.

Although we have resolved the issues specified in the direction for review, it is still necessary to determine whether Crawford was in compliance with section 1926.652(c), as it claims. In the interests of adjudicative efficiency, the Commission will make the necessary determinations itself instead of remanding the case to the administrative law judge. The record before us is complete and the Commission has the ultimate authority to make findings of fact. Franklin R. Lacy, 81 OSAHRC 7/A2, 9 BNA OSHC 1253, 1981 CCH OSHD P25,170 (No. 3701, 1981), citing Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

V

Section 1926.652(c) requires that the walls of trenches [*13] more than 8 feet long and 5 feet deep that are dug in hard or compact soil be shored or, if shoring is not used, the portion of the walls greater than five feet from the bottom of the trench be sloped. Horowitz Brothers, Inc., 75 OSAHRC 54/E5, 3 BNA OSHC 1131, 1974-75 CCH OSHD P19,596 (No. 3004, 1975). It is undisputed that the walls of the trench were vertical and that Crawford employees were working in a part of the trench where the walls were unshored. The judge found that the soil in the walls of the trench were frozen to a depth of two to three feet, and that below the frozen soil the sides were composed of blue clay, which is hard and compact soil. These findings, which are supported by a preponderance of the evidence, establish a prima facie showing of noncompliance with that standard. CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD P25,091 (No. 76-1228, 1980), appeal filed, No. 81-1218 (10th Cir. Feb. 25, 1981). The Secretary's prima facie showing may be rebutted by showing that the trench in question was excavated entirely in solid rock, shale, or cemented sand or gravel, which, under the tables accompanying section 1926.652, are not required [*14] to be sloped or shored. Id. We find that the Secretary's showing has not been rebutted.

Crawford claims that because the soil was frozen, it was as stable as "cemented sand" and that it therefore required no shoring or sloping. Even if we were to share Crawford's assumption that frozen soil need not be sloped or shored, the fact remains that the soil was frozen only to a depth of three feet. The remainder was composed of unfrozen clay, which was hard or compact soil. The Commission has held that trenches must comply with section 1926.652(c) if a significant portion of the trench walls are hard or compact soil. See CCI, Inc., 9 BNA OSHC at 1173, 1981 CCH OSHD at 30,994; cf. W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1056, 1975-76 CCH OSHD P20,574, p. 24,592 (No. 7370, 1976) ( 1926.652(b) applies if there is a significant amount of soft or unstable soil). We consider seven feet of hard soil to be a significant amount. We therefore find that Crawford was not in compliance with section 1926.652(c).

VI

The Secretary alleged that the violation was willful. A violation is willful if it was committed with either an intentional disregard [*15] of the requirements of the Act or a plain indifference to them. Mel Jarvis Construction Co., 81 OSAHRC    , 10 BNA OSHC 1052, 1981 CCH OSHD P25,713 (No. 77-2100, 1981). The record here does not demonstrate that Crawford acted with either intentional disregard of or plain indifference to the requirements of the Act.

Crawford had used the trench box throughout the job except when it reopened the trench across the road. It is evident from his testimony that Mr. Sand reasonably and in good faith helieved that the frozen soil added stability to the trench walls. Even so, Crawford generally used shoring. The portion of the trench where water entered through the broken storm sewer was shored, and the employees were preparing to extend the shoring when the compliance officer arrived. Under these circumstances, we do not construe the statements of Mr. Sand to the compliance officer or the testimony of Crawford's employees as demonstrating that they knew they were in violation but did not care.

VII

A willful violation was alleged. Where a violation is alleged to be willful but is not proved to be so, an other than serious violation may be affirmed; a serious violation may not be [*16] found unless the parties have expressly or impliedly consented to try the issue of whether the violation was serious. Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975). Here, the compliance officer testified without objection that there was a high probability of fatality if a cave-in occurred. Although that testimony was presented for the purpose of describing the gravity of the violation, the parties tried all the factual issues relevant to a serious violation. We therefore amend the pleadings to allege a serious violation.

We find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j), which states that a violation shall be deemed serious "if there is a substantial probability that death or serious physical harm could result . . . ." The trench was over ten feet deep, well above the head of any employee working in the bottom of the trench. The compliance officer testified that if the walls should collapse there was a high probability of a fatality. The record is clear that Crawford had knowledge of the violative condition. This evidence shows that the violation was serious.

In [*17] assessing a penalty, we must consider the factors set forth in section 17(j) of the Act, 29 U.S.C. 666(i): the gravity of the violation, the employer's size, good faith, and history of previous violations.

Crawford is a small company, with only 20 employees. It has no history of previous violations. It generally used a trench box to protect the employees working in the trench, and the employees were also shoring the trench. When the compliance officer suggested that it would be more effective to use the trench box than to shore, Crawford quickly brought the trench box. These facts indicate a high degree of good faith on Crawford's part.

We find that the gravity of this violation was moderate. Trench cave-ins frequently result in fatalities, and we have therefore normally considered trenching violations to have a high degree of gravity. The frozen soil here, however, increased the stability of the walls. We cannot determine exactly how long any employee worked in the unshored portion of the trench. It does not appear to have been long, however, and Crawford was about to extend the shoring. On balance, we deem a penalty of $100 to be appropriate.

Accordingly, the judge's [*18] decision is reversed. The citation is amended to allege noncompliance with 29 C.F.R. 1926.652(c); a serious violation of the Act is found and the citation as amended is affirmed. A penalty of $100 is assessed.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the majority's decision to amend the citation. In my view, the parties did not impliedly consent to try an alleged violation of section 1926.652(c). Accordingly, I would affirm Judge Patton, who denied the amendment and vacated the citation.

An amendment of the pleadings under Rule 15(b) may not be based on implied consent unless the parties squarely recognized at trial that they were trying an unpleaded issue. International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888 (5th Cir. 1977); 3 Moore's Federal Practice P15.13[2] at 15-171, 15-172 (1980). See Vicon Corp., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1981 CCH OSHD P25,749 (No. 78-2923, 1981) (concurring opinion), appeal filed, No. 81-2359 (8th Cir. Dec. 10, 1981).

Here, the citation, the complaint and the hearing were directed toward an alleged violation of section 1926.652(b). The Secretary was given full opportunity [*19] to amend, and indeed amended the description of the cited condition once before trial; however, the Secretary nevertheless persisted in the section 1926.652(b) charge throughout the hearing. I therefore conclude that the parties did not squarely recognize that an alleged violation of section 1926.652(c) was being tried.

The majority reasons that Crawford elicited testimony on the composition of the soil. However, the fact that Crawford elicited such testimony, and indeed defended on the ground that the soil was not soft as alleged, does not show implied consent. The evidence concerning the nature of the soil was relevant to both sections 1926.652(b) and (c). Consent cannot be implied from the introduction of evidence relevant to both a pleaded and unpleaded charge. International Harvester Credit Corp., supra. See McLean-Behm Steel Erectors Inc. v. OSHRC, 608 F.2d 580 (5th Cir. 1979). Since all of the proof related to the violation originally charged, I disagree with the majority's conclusion that Crawford impliedly consented to try an alleged violation of the unpleaded standard.

Therefore, I conclude that Judge Patton correctly denied the Secretary's post-trial [*20] motion to amend the pleadings. Inasmuch as the record shows that the Secretary did not establish that the soil was soft or unstable, I also conclude that the judge was correct in vacating the citation for section 1926.652(b). Accordingly, I would affirm Judge Patton's decision.