CEDAR CONSTRUCTION CO.

OSHRC Docket No. 8407

Occupational Safety and Health Review Commission

May 30, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Alan M. Wienman, dated February 18, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: Respondent was issued a citation for repeated violation of 29 CFR 1926.651(i)(1). n1 The citation was affirmed by Judge Wienman and a $1,275 penalty was assessed. The situs of the alleged violation was a 12.8 foot deep trench being dug in hard or compact soil. It was located at a worksite in Lincoln, Nebraska. A seven foot spoil pile was located adjacent to the trench. The repeated nature of the violation resulted from a previous citation issued respondent for the same violation at a worksite in Omaha, Nebraska. It had become a final order of the Commission.

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n1 The standard reads as follows:

1926.651 -- Specific Excavation Requirements

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

[*2]

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In its petition for review and in its brief before the Commission respondent argues: (1) that only an insignificant amount of soil was adjacent to the trench and 1926.651(i)(1) does not apply to trenches; and (2) that, if a violation was established, it was not a repeated violation.

The evidence clearly established that the seven-foot pile containing 20 1b. clods of soil came up to the edge of the trench in which employees were working. This was a violation. As Judge Wienman stated, "This does not constitute compliance. . . and it would be small comfort to an employee injured by falling material to learn that only a minor portion of the seven foot mound of soil had descended upon him."

Section 1926.651 is entitled Specific Excavation Requirements. The instant case involves a trench, which 29 CFR 1926.653(n) defines as follows:

(n) "Trench" - A narrow excavation made below the surface of the ground. In general the depth is greater than one width, but the width of a trench is not greater than 15 feet.

Thus, a trench is a type of excavation. As a narrow excavation, a trench requires [*3] more stringent precautions for the protection of workers than does an excavation. See U.S Engineering Co., No. 4889 (April 7, 1975) (Administrative Law Judge) (slip op. at 19 n.6). See generally 29 CFR 1926.650, 1926.651 and 1926.652. As an excavation, the general requirements of 1926.651 apply to trenches where similar requirements are not included in the trenching standards. Cf. Irvington-Moore, No. 3116 (April 7, 1975). Accordingly, 1926.651(i)(1) is considered applicable to the trench in this case, and a violation is established.

Respondent's contention that the violation was not properly cited as being "repeated" is based on the fact that it occurred over sixty miles away from the previous 1926.651 violation and involved different personnel. The argument is not persuasive. Section 17(a) of the Act refers to an "employer who . . . repeatedly violates the requirements of section 5 of this Act." A determination of whether a violation is close enough in time, place and nature to be considered repetitive must be decided on the particular facts. See General Electric Co., No. 2739 (April 21, 1975) (slip op. at 24-27). Here, the circumstances surrounding [*4] the two violations warrant affirming the second citation as one for a repeated violation. The nature of the previous violation was the same. The geographic separation of the jobsite was not great, and the foreman of the Lincoln, Nebraska, project admitted being aware of the previous citation.

Accordingly, I concur in affirming the Judge's decision.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting two citations issued by the complainant against respondent under the authority vested in complainant by section 9(a) of that Act. Both citations alleged on the basis of an insepction of a workplace in Lincoln, Nebraska, on May 7, 1974, that the respondent violated the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor.

Citation number 1 alleged a nonserious violation of the safety regulation codified as 29 CFR 1926.652(c). This alleged violation was described as follows:

(Job Site by Station 156 and 125)

Employees were working in a trench [*5] approximately 12 feet deep and were inside a 53" high trench shield. The south side of the trench was not sloped at least 1/2 to 1.

Citation number 2 alleged a repeated violation of the safety regulation codified as 29 CFR 1926.651(i)(1). This alleged violation was described as follows:

(Job Site by Station 156 and 25)

Employees were working in a trench approximately 12 feet deep. The excavated material was not stored back at least 2 feet the north side of the cut nor was the excavated material effectively retained to prevent the material from falling in the excavation.

The standard codified as 29 CFR 1926.652(c) provides:

(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.

The standard codified as 29 CFR 1926.651(i)(1) provides: [*6]

(i)(1) In excavations which employees may be required to enter, excavated or other materials shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

Pursuant to enforcement procedures set forth in section 10(a) of the Act, respondent was notified by letter dated May 16, 1974, from Warren Wright, Area Director, Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess penalties of $180 for the alleged nonserious violation and $1,275 for the alleged repeated violation.

The respondent gave due notice of its intention to contest the citations and proposed penalties. After complaint and answer were filed by the parties, a hearing was held on November 20, 1974, at which time both complainant and respondent appeared and presented evidence.

THE ISSUES

Despite an express denial in the answer that "Jurisdiction of this proceeding is conferred upon the Commission by Section 10d of the Act," the parties nevertheless pleaded facts sufficient to establish that the respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter. As a result, no jurisdictional [*7] questions are in dispute, and the primary issue for resolution is whether the respondent violated safety standards as alleged in the two citations, and, if so, what penalties are appropriate.

An additional issue was raised in paragraph IX of the Answer wherein the respondent averred that the Occupational Safety and Health Act of 1970 violated various provisions of the Fourth, Fifth and Sixth Amendments of the United States Constitution. The constitutional issues will not be discussed herein. The undersigned Judge is persuaded that neither the Commission nor its several Judges have jurisdiction to pass on the constitutionality of the statute from which the Commission derives its authority. The respondent is entitled to have the constitutional questions determined by a court, but this decision and order is limited to the issues relating to compliance with occupational safety and health regulations.

SUMMARY OF THE EVIDENCE AND DISCUSSION

Prior to the taking of testimony counsel for the parties stipulated to certain facts revealed by the inspection conducted by OSHA Compliance Officer Uldis Sid Levalds. The parties agreed that the soil in which the trench was excavated [*8] was the type of soil described in 29 CFR 1926.652(c), i.e., hard or compact soil; that the trench was 12.84 feet deep; that the east side of the trench was cut back approximately 9 feet from the east edge of the bottom of the trench, and the west side of the trench was cut back at the top approximately 5 feet, 8 inches; the trench was approximately 24 feet long; the trench was cut from the bottom up approximately 65 inches vertically; at the 65 inch level the trench was then cut horizontally approximately 16 inches on both sides and proceeded to its total cut at the top in a benching manner. The parties failed to agree on the bottom width, the complainant contending the width was 40 inches and the respondent maintaining the width was approximately three feet.

Uldis Sid Levalds testified that on May 7, 1974, he inspected a worksite of Cedar Construction Company between 56th and 70th and Cornhusker Streets in Lincoln, Nebraska, where a trench was being dug and pipe laid on the south side of Cornhusker. Levalds identified himself to Loyal Bridges, the job superintendent, and also talked to two laborers who came out of the trench. Levalds informed Bridges that he wished [*9] to take some measurements and photographs of the trench. The bottom of the trench measured 40 inches.

Levalds testified one photograph (Ex. G -- 1) showed a 53 inch steel box in the lower part of the trench, and a spoil pile containing clods coming right to the edge of the cut. Levalds noted that trench boxes were used in lieu of a shoring system to protect employees from possible ground movement, but that the vertical sides of the trench were approximately 12 inches above the top of the box. Levalds observed clods on the spoil pile which he estimated weighed as much as 20 pounds each. He stated the spoil pile was not comprised of uniform soil structure, and under the conditions it would have been easy for the soil to shift and for clods to roll down.

Levalds stated he tried to portray an apparent violation of regulation 29 CFR 651(i)(1) in Exhibit G -- 1 by showing spoils at the edge of the cut. The hazard, Levalds testified, was that if there was movement in the spoil pile material coming into the trench could easily strike an employee who might be bent over exposing the back of the head, the back, or the kidney area. Levalds said that he was familiar with a fatality on this [*10] particular job at another location where a man was killed upon being struck by moving soil while inside the box. Two employees were affected by the violation.

On cross-examination Levalds stated that he computed the theoretical slopes of the trench sides by using measurements from the bottom of the trench. Computed in this fashion the slope on the north side was approximately three quarters to one and the slope on the south was .4 to 1.

Levalds also testified that the spoil pile reached a height of approximately 7 feet above ground level.

Levalds computed the proposed penalties. For the alleged repeated violation the unadjusted penalty was $1,700, which penalty was reduced 20 percent for good faith and 5 percent for size. For the nonserious violation relating to 29 CFR 1926.652(c) respondent was also accorded an abatement credit in computation of the proposed penalty.

Exhibits G -- 4 and G -- 5 document the fact that complainant received two previous citations for alleged violations of trenching and excavation regulations. A citation issued June 12, 1972, relating to a worksite in Papillion, Nebraska, alleged a violation of safety regulation 29 CFR 1926.652(g) (Ex. [*11] G -- 5). Mr. DeShazo, counsel for complainant represented that the June 12, 1972, citation was not contested and thereby became a final order of the Commission. Mr. Monaghan, counsel for respondent, objected the admission of Exhibit G -- 5 on the ground that it did not pertain to violation of any regulation in issue in the instant case, but he did not dispute Mr. DeShazo's representation relative to the finality of the citation.

Respondent was also issued a citation August 2, 1973, for alleged repeated violations following a July 19, 1973, inspection at 7515 D Street, Omaha, Nebraska. The standards alleged to have been violated were 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) (Exhibit G -- 4). Mr. DeShazo asked the undersigned Judge to take notice that this citation ultimately was disposed of by a stipulation approved by a Judge which became a final order of the Commission. The records of the Commission reveal that Judge Paul E. Dixon, on December 7, 1973, entered an order on stipulation and motion for withdrawal of notice of contest in the case of Peter J. Brennan v. Cedar Construction Co., Inc., The order related to the August 2, 1973, citation [*12] for repeated violation. The charges had been modified by stipulation from a repeated violation to a serious violation of 29 CFR 1926.652(b) and 29 CFR 1926.651(i). The citation, as amended, and a penalty in the amount of $400 were affirmed.

Respondent presented one witness, Loyal Ray Bridges, the construction foreman who described the means by which the excavation had been open for installation of sanitary sewer pipe. He stated that respondent had tried to achieve the required slope to meet safety regulations, sloping at least 1/2 to 1 from the top of the box.

Bridges also testified that he requested a state safety inspector, Carl Kenny, to inspect the ditches for safety conditions; Kenny visited the site, and Bridges followed any instructions Kenny might of had. Employees had been instructed by Bridges and their union never to enter a ditch they felt unsafe.

Significantly, Bridge's testimony in no way contradicted the compliance officer's observation that spoils from the trench were piled right to the edge of the cut, and this condition was clearly portrayed in the photographic exhibits. Respondent's "defense" to the charge that it had violated 29 CFR 1926.651(i) [*13] was to note, in its proposed findings, that a substantial portion of the soil pile was more than two feet back from the edge of the trench. This does not constitute compliance with the regulation, and it would be small comfort to an employee injured by falling material to learn that only a minor portion of a 7 foot mound of soil had descended upon him.

The evidence amply supports a finding that the respondent was in serious violation of regulation 29 CFR 1926.651(i)(1) for there was substantial probability of death or serious physical harm could result from the condition, and the respondent cannot plead ignorance of circumstances created by deliberate action.

The record also amply establishes that this was a "repeated" violation of regulation 29 CFR 1926.651(i)(1) in view of the record in the case of Peter J. Brennan v. Cedar Construction Co., Inc., That citation, at noted, charged respondent with violating regulation 29 CFR 1926.651(i) and one additional trenching standard. Respondent's contention that it should not be charged with a repeated violation because the [*14] earlier citations related to conditions created by other crews employed by respondent is totally without merit. Testimony of the foreman, Bridges, provides some insight into the nature of a respondent's safety program, notably the subjective instruction to employees that they not enter ditches they felt to be unsafe. After giving due consideration to the gravity of the offense, respondent's previous safety record including prior violations of excavation regulations, and the respondent's good faith and size, we conclude that a penalty of $1,275 is appropriate under the circumstances.

We also conclude that the evidence fails to support the allegation that respondent violated regulation 29 CFR 1926.652(c). This charge was based on the compliance officer's evident misinterpretation of the requirements of that regulation. When trenches are opened in hard or compact soil, the regulation sanctions sloping of the walls above the 5 foot level in lieu of shoring. There is no requirement that the bottom 5 foot be sloped, only that "the sides of the trench above the 5 foot level. . . shall not be steeper than a 1 foot rise to each 1/2 foot horizontal." The trench in question had [*15] been widened in excess of the requirements of the regulation by bench type cuts.

In its brief the complainant relied on the case of Secretary of Labor v. F.F. Green Construction Company, Inc., 5 OSAHRC 329, as authority for the proposition that "for every foot of rise from the bottom of the ditch the side must be out from the vertical a distance of at least six inches." This statement appears to support the compliance officer's theory, but is inapplicable to the instant case since the Judge in F.F. Green Construction Co. was interpreting the requirements of regulation 29 CFR 1926.652(b) which relates to trenches cut in unstable or soft material.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that the substantial evidence in the record as a whole supports the following findings of fact:

1. Respondent, Cedar Construction Co., is a Nebraska corporation with an office and principal place of business located at 13901 L Street, Omaha, Nebraska, where it is engaged in construction work.

2. Respondent employs approximately 40 employees in various construction projects including, at all times relevant to this matter, [*16] approximately 7 employees in a construction site between 56 and 70th Streets and Cornhusker Highway in Lincoln, Nebraska, where it was engaged in a business affecting commerce.

3. On May 7, 1974, at respondent's aforementioned worksite excavated or other material was not effectively stored and retained at least two feet from the edge of an excavation which employees were required to enter.

4. The hazard created by the above conditions is that soil and dirt clods may fall from the spoil pile into the trench, and there is substantial probability that death or serious physical harm could result from such an occurrence. Two of respondent's employees were affected by this violation.

5. On May 7, 1974, at respondent's aforementioned worksite the sides of a trench excavated in hard or compact soil were sloped in lieu of shoring above the 5 foot level in compliance with safety regulation 29 CFR 1926.652(c).

CONCLUSIONS OF LAW

1. Respondent is and at all times material was an employer within the meaning of section 5(a) of the Act.

2. Jurisdiction of the parties and the subject matter is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the [*17] Act.

3. Respondent has repeatedly violated occupational safety and health standard 29 CFR 1926.651(i)(1) by failing to effectively store and retain excavated or other material at least 2 feet from the edge of excavations which employees were required to enter. Due consideration having been given to the evidence of record, it is concluded that a penalty in the amount of $1,275 is appropriate for said repeated violation.

4. Respondent on May 7, 1974, was not in violation of the safety regulation codified as 29 CFR 1926.652(c).

ORDER

Based on the above findings of fact and the conclusions of law, it is ORDERED that:

1. The citation for nonserious violation issued to the respondent May 16, 1974, and the penalty proposed thereon are hereby vacated.

2. The citation for repeated violation issued to the respondent May 16, 1974, and the $1,275 penalty proposed thereon are hereby affirmed.