W. L. COBB CONSTRUCTION CO.

OSHRC Docket No. 9157

Occupational Safety and Health Review Commission

May 13, 1976

[*1]

Before, BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Lucius M. Dyal, Jr., for the employer

OPINION:

DECISION

By the COMMISSION:

A report by Administrative Law Judge James D. Burroughs, dated February 25, 1975, is before the Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970. n1 The report vacated two allegedly willful citations and the penalties proposed therefor, which totalled $6,615. The report also affirmed one willful citation as nonserious and reduced the proposed penalty of $455 to $75. Finally, the report affirmed a nonserious violation of 29 C.F.R. 1926.651(b) and assessed a $100 penalty where none had been proposed by the Secretary.

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n1 29 U.S.C. 651 et seq.

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The order for review was issued on his own motion by Commissioner Moran. It stated the following issue:

What was the authority for the assessment of a penalty of $100.00 on the 29 C.F.R. 1926.651(b) charge for which [*2] no monetary penalty had been proposed?

The issue was not raised by either party. Neither party petitioned for review; hence there has been no appeal to the full Commission. Respondent has not indicated any interest, whether by letter, brief, or other means, in having the Judge's report reviewed. The Secretary has filed a letter asking for affirmance of the report.

In these circumstances, we decline to re-examine Commission precedents on the directed issue n2 or any other aspect of the Judge's report.

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n2 See, e.g. Allied Structural Steel Co., 14 OSAHRC 689 2 BNA OSHD 1457, 1974-75 CCH OSHD para. 19,184 (No. 1681, 1975).

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Accordingly, the Judge's report is affirmed. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

This Commission is again acting contrary to law by not addressing the directed issue on the asserted grounds that the direction for review was issued sua sponte and the issue specified [*3] therein has not been briefed by the respondent. 661(i), the statutory authority under which Commission members direct review of Judge's decisions, does not restrict a direction for review to those instances in which a party has requested review.

The rule applied in the majority opinion has the further effect of abdicating to the parties a responsibility which the Act gave to the members of the Commission. If Congress wanted to vest in the parties to each case the authority to decide whether the Judge's decision would become final or not, there would have been no need to create the position of Commission member and to grant the holder of such office the power to direct review of a Judge's decision.

Three circuit courts have also refused to adopt the theory that a failure of a party to file a brief constitutes a waiver of appellate review. Brennan v. Smoke-Craft, [*4] Inc., No. 74-2359 (9th Cir., February 13, 1976) at n.6; Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3rd Cir. 1974). Clearly, the Barnako-Cleary review rule is without legal authority.

Furthermore, they do not apply their illegal rule in an evenhanded manner. It was before the Commission as the result of a Cleary sua sponte direction for review which did not specify that any particular issue would be considered on review. As I pointed out in the dissenting opinion filed thereto, my colleagues' action therein cannot be reconciled with their vacation of my directions for review in Secretary v. Francisco Tower Service, supra, and the numerous other cases in which they rely on that decision. Of course, the difference there was that they reached a result favorable to the prosecution by reversing the Judge's vacation of a citation. The rule applied in this case is used only where [*5] it has the effect of affirming a violation which has been questioned in the direction for review.

The only issue upon which this case was directed for review concerns the authority for the assessment of a greater penalty than that proposed by complainant. The Commission errs in affirming the assessment of such a penalty for a number of reasons. When it raises a penalty, its action is not only violative of the equal protection and due process provisions of the Constitution, but also exceeds the authority bestowed on the Commission by Congress. Additionally, as a matter of practice, it is a poor policy because of its chilling effect upon employers who may wish to exercise their right to contest alleged violations. n3 Since I have discussed these points in many prior cases, n4 I will not repeat the rationale that I expressed in those cases. However, the increase in the penalty in this case is particularly improper because none had been proposed by complainant. n5

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n3 If the employer does not contest the Secretary's citation or penalty proposal, both become final, and the penalty cannot be increased thereafter. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974); 29 U.S.C. 659(a).

The United States Court of Appeals for the Third Circuit in Frank Irey Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1203 n. 3 (3d Cir. 1974), has agreed that it is a poor policy by stating that:

"We suggest that by claiming such power the Commission invites criticism of its impartiality or at least its appearances."

n4 See, e.g., Secretary v. Worcester Pressed Steel Co., 20 OSAHRC 737, (1975); Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 355 (1974); Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973); Secretary v. M.A. Swatek & Co., 2 OSAHRC 1276 (1973).

n5 The record establishes that this proposal was made after considering the size of respondent's business, its good faith and history of previous violations, as well as the gravity of the charged violation.

[*6]

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This Commission was established solely to carry "out adjudicatory functions under the Act." 29 U.S.C. 651(b)(3). In this connection, it has authority to assess penalties whenever a proposed penalty is properly contested. 29 U.S.C. 666. This assessment is accomplished by either "affirming, modifying, or vacating" the amount proposed by complainant. 29 U.S.C. 659(c). Of course, where there is no penalty assessed, there is nothing for the Commission to "affirm, modify, or vacate." n6 More importantly, however, the question of whether a penalty should be assessed for respondent's noncompliance with 29 C.F.R. 1926.651(b) is not properly before the Commission.

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n6 The word "modify" means to reduce or lower. See Secretary v. M.A. Swatek & Co., supra.

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The Commission has no jurisdiction to act on a citation or penalty proposal unless an employer contests a "citation or proposed assessment of penalty." 29 U.S.C. 659. [*7] In this case, the respondent did not contest the zero penalty proposal. After all, there was no reason for him to do so since no penalty was proposed. Because the propriety of the zero penalty proposal was not lawfully before the Commission, the Judge had no authority to assess any penalty in lieu thereof. n1 Thus, the Judge's assessment of a $100 penalty is null and void.

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n7 See my concurring opinion in Secretary v. Danco Construction Co., 17 OSAHRC 170 (1975).

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In effect, what Messrs. Barnako and Cleary are telling employers with this decision is to refrain from exercising their right to a hearing because the Commission can - and will - increase the penalty on those who do so. This employer would have had no penalty at all if it hadn't exercised its right to a hearing. Once again, an employer's tentative prayer for relief is met by the summoning of the Avenging Angels.

Since the majority does not address any of the matters covered in Judge Burroughs' decision, it is attached hereto as Appendix A. [*8]

APPENDIX A

DECISION AND ORDER

Stephen J. Simko, Jr., Office of Solicitor, Department of Labor, for complainant

Lucius M. Dyal, Jr., for respondent

STATEMENT OF CASE

Burroughs, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., 84 Stat. 1590 (hereafter "Act"). Respondent seeks review of a non-serious citation, two willful non-serious citations and a willful serious violation issued to it, pursuant to section 9(a) of the Act, on July 9, 1974. Review is also sought of the total penalties of $7,120 proposed for the alleged violations.

The citations were issued as the result of an inspection conducted on July 2, 1974, of a workplace located at 34th Street and 22nd Avenue, Saint Petersburg, Florida. Respondent was engaged in the installation of a drain pipe at the inspected site.

The non-serious citation (designated as citation number 1) alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1926.650(e) and 29 CFR 1926.651(b). The citation describes the alleged violation of 29 CFR 1926.650(e) as follows:

"Employer failed to assure [*9] that personal protective equipment was used to protect the feet of an employee engaged in positioning 18" concrete pipes in an excavation. The hazard of foot injury was increased due to the water in the excavation, creating unstable footing at the inspection site indicated above."

The alleged violation of 29 CFR 1926.651(b) was described in the following manner:

"Employer failed to assure surface encumbrances were removed from the side of the excavation before employees were permitted to work in the excavation. Bricks from the previous road construction were evident on the south edge of the excavation exposing employees to falling objects at the inspection site indicated above."

A penalty of $50 was proposed for the alleged violation of 29 CFR 1926.650(e). No penalty was proposed for the alleged violation of 29 CFR 1926.651(b).

The two willful non-serious citations (designated as citation numbers 2 and 3) allege that respondent willfully violated the standards published at 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(h). Citation number 2 describes the alleged willful violation of 29 CFR 1926.651(i)(1) as follows:

"Employer failed to assure that in an excavation in which employees [*10] were working, excavated materials were effectively stored and retained at least two feet or more from the edge of the excavation at the inspection site indicated above."

Citation number 3 describes the alleged willful violation of 29 CFR 1926.652(h) in the following manner:

"Employer failed to assure that when employees were required to be in trenches four feet deep or more, an adequate means of exit such as a ladder or steps, was provided and located so as to require no more than 25 feet of lateral travel at the inspection site indicated above."

A penalty of $455 was proposed for the alleged willful violation of 29 CFR 1926.651(i)(1). A penalty of $315 was proposed for the alleged willful violation of 29 CFR 1926.652(h).

The willful serious citation (designated as citation number 4) alleges that respondent willfully violated the standard set forth at 29 CFR 1926.652(b). The violation was described as follows:

"Employer failed to assure that sides of trenches in unstable or soft material, five feet or more in depth, were shored, sheeted, braced, sloped, or otherwise supported by a means of sufficient strength to protect the employees working within them at the inspection site [*11] indicated above."

A penalty of $6,300 was proposed for the alleged violation.

The respondent, by letter dated July 22, 1974, and received on July 24, 1974, timely advised the complainant that it contested the citations and proposed penalties.

Complainant did not allege a violation of item 1 of the non-serious citation in the complaint received on August 12, 1974. Item 1 of the non-serious citation alleges a violation of 29 CFR 1926.650(e). Complainant acknowledged at the hearing that he conceded the alleged violation of 29 CFR 1926.650(e) and the penalty proposed for the alleged violation (TR 35, 44, 45).

A hearing was held in the case on October 7, 1974, in Tampa, Florida. No additional persons desired to intervene in the proceedings.

At the commencement of the hearing, respondent made it clear that it was prepared to defend against the willful serious citation on the basis that the standard at 29 CFR 1926.652(b) allegedly applied. It stated that it did not consent by implication or directly to the trial of the issue under any other standard n1 (TR 8, 11, 13).

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n1 Respondent's position was clearly stated to counter the rationale of the Commission's decision in Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974)

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At the conclusion of complainant's evidence, respondent moved to dismiss all the alleged violations (TR 48-51). Judgment was reserved on the questions of whether the standards were violated as alleged, but respondent's motion to dismiss the willful charge was granted (TR 55, 62).

At the close of the hearing, complainant moved to amend with respect to the willful serious citation to conform to the evidence. The motion was granted and complainant was permitted to file a motion subsequent to receipt of the transcript as to the standard on which he relies (TR 173-175). Complainant subsequently amended to allege a violation of 29 CFR 1926.652(b) or 29 CFR 1926.652(c) or 29 CFR 1926.651(c) in the alternative.

JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Pars. I, II, Complaint and Answer).

The following issues are deemed pertinent to a disposition of this case:

1. Did respondent violate [*13] section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1926.651(b), 29 CFR 1926.651(i)(1), 29 CFR 1926.652(h) and 29 CFR 1926.652(b) or 29 CFR 1926.652(c) and 29 CFR 1926.651(c) in the alternative?

2. Were the violations, if they occurred, of 29 CFR 1926.651(i)(1), 29 CFR 1926.652(h) and 29 CFR 1926.652(b) or the alternative standards willfully committed by respondent?

3. Was the violation of 29 CFR 1926.652(b) or in the alternative 29 CFR 1926.652(c) or 29 CFR 1926.651(c), if it occurred, a serious violation within the meaning of section 17(k) of the Act?

4. What penalties, if any, should be assessed in the event any violations are determined?

FINDINGS OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving the issues in this case:

1. On July 2, 1974, the complainant, through two duly authorized compliance officers, conducted an inspection of a worksite located at 34th Street and 22nd Avenue, Saint Petersburg, Florida. The compliance officer arrived at the site at approximately 11:00 a.m. (TR 10).

2. Respondent was installing an 18 inch inside diameter [*14] storm drain. The outside measurement of the drain pipe was 23 1/2 inches (Ex. 11; TR 23, 84).

3. At the time of inspection, respondent was working at an area where the excavation ran perpendicular between two roadbeds (Ex. E; TR 21, 22, 94-96, 133). Traffic flow had to be maintained while the pipe was being laid across the highway (TR 94).

4. The drain pipe was being installed to extend from the westside of the roadway to tie into a trunk line on the east side of 34th Street (Ex. E; TR 69).

5. On a previous occasion drain pipe had been laid under the right roadway and across approximately half of the median. The previous excavation had been backfilled (TR 74, 78-79, 82, 95, 103, 139-40). The drain pipe had to be installed in stages in order to maintain the traffic flow (TR 96).

6. Respondent had a crew working at the site at the time of inspection. The crew consisted of the pipe foreman, four laborers and a backhoe operator (TR 100).

7. The crew came to work at 7:30 a.m. on July 2, 1974. A detour was set up on the road and the backhoe operator commenced excavating around 7:45 a.m. Excavation was commenced at the end of the pipe which had previously been laid (TR 77, [*15] 95, 100, 140, 148). The excavation was finished prior to 11:00 a.m. (TR 77).

8. The excavation made by the backhoe operator was across the bed of the highway and into the median (TR 149). Approximately 6 to 8 feet of the length of the excavation was dug in the median. The remainder was dug in the existing roadbed (TR 98, 141). The roadbed had been compacted with rollers weighing up to 20 tons and had passed a compaction test for stability (TR 132, 133).

9. The backhoe operator experienced difficulty in removing the first 3 or 4 feet of the soil from the surface level. It was hard (TR 150).

10. The top 3 inches of the excavation made in the roadway was asphalt. Approximately three fourths of the excavation was in the existing highway (TR 70, 102, 132). A layer of 8 inches of limerock was below the asphalt. A foot to a foot and 1/2 of compacted subgrade was below the limerock (TR 70, 103, 132, 133).

11. The west end of the excavation was in the median of the highway. After the brick was removed, the excavation was made in the dirt (TR 102).

12. The asphalt was hard and compacted (TR 70). The limerock and compacted subgrade were stable and hard (TR 70, 71, 132, 133). [*16]

13. The earth below the compacted subgrade in the highway and the earth below the brick in the median was sand with traces of clay (TR 19, 26, 32, 70, 73, 133, 139). The dirt was hard (TR 108, 162).

14. No soil was falling from the sides of the excavation (TR 166).

15. The foreman used a shovel to scrape soil from the side of the excavation to build a dam to pump water from the excavation. The soil offered resistance (TR 108, 112).

16. The material removed from the excavation was placed on the asphalt on the southside of the excavation. The pile was approximately 6 feet high at the time of the inspection. The highest point of the pile was approximately 5 feet from the edge of the excavation (Ex. 7, 8, 9, 13; TR 14, 18, 19, 20, 21, 25, 97, 106, 151, 152, 154). The material located in the area within 2 feet of the excavation was approximately 6 inches to 1 foot high (TR 106-107, 154). The pile of material extended along approximately two thirds of the south bank of the excavation (TR 29, 106).

17. When the excavation was approximately half completed, the foreman instructed the backhoe operator to remove the soil from the edge of the excavation. The order was given prior [*17] to the compliance officer's inspection, but the job had not been accomplished at the time of the inspection (TR 153, 158-159).

18. The measurements of the excavation made by the compliance officer were as follows (TR 16, 17):

Depth

Northeast corner - 5 feet 5 inches

Southeast corner - 6 feet

Southwest corner - 6 feet 6 inches

Northwest corner - 7 feet 1 inch

Width - 12 feet 6 inches (surface level)

Length - 31 feet

19. The cut of the excavation in the area which was inspected was specified by the state plan for the job to be 5 feet 5 inches. This included allowing 2 inches for the thickness of the concrete pipe (TR 118, 128, 129). The drain pipe was laid on grade (TR 88).

20. The excavation had some slope n2 (TR 105, 114, 145, 150, 165). The slope resulted from digging the excavation from a side position. The top has to be wider in such instances for the backhoe to reach the bottom (TR 145, 149, 159-160).

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n2 The Compliance Officer testified that there was no slope to the excavation (TR 34). The digging of the excavation from the side would have created some slope. The photographs show a slight slope and respondent's witnesses testified that there was some slope to the excavation.

[*18]

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21. An 18 inch concrete pipe was lying near the center at the bottom of the west end of the excavation. It was ready for positioning when the inspection commenced. The pipe was to be connected to that part of the drain that had already been installed (Ex. 11; TR 23, 24, 33, 34, 85).

22. Three employees were working in the excavation at the time the compliance officers arrived at the site (Ex. 8, 10, 11; TR 18, 20, 26, 28, 33).

23. Two of the employees in the excavation were observed positioning the concrete pipe in place. The backhoe was used to assist in placing the pipe. The backhoe was located approximately 5 feet from the south edge of the excavation (Exs. 6, 8, 10, 12; TR 19, 20, 22).

24. Heavy vehicle traffic was moving on both ends of the excavation. The backhoe was on the side and within 5 feet of the edge of the excavation when it was utilized by the employees working in the excavation. The traffic was traveling within 3 or 4 feet of the ends of the excavation (Exs. 6, 7, 10, 11; TR 19, 20, 21).

25. Respondent's foreman has the responsibility to determine if an excavation is safe [*19] before employees are sent into an excavation. He determined the excavation inspected on July 2, 1974, presented no hazard (TR 102, 111, 113).

26. Approximately 20 to 25 similar crossings had previously been made by respondent (TR 74, 100). All of the crossings were made in similar soil conditions (TR 100). None of the excavations made for the previous crossings reflected any signs of cave-ins (TR 137). No previous cave-ins had occurred n3 (TR 96, 100, 155, 163, 172).

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n3 The State project engineer testified that a cave-in occurred at one area when respondent started digging (TR 130). This variance in testimony appears to emanate from a difference of opinion as to whether soil falling into an excavation as it is being dug constitutes a cave-in. The project engineer also testified that none of the previous excavations reflected any signs of yielding (TR 137).

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27. Water was noticeable in the bottom of the excavation (Exs. 8, 9; TR 18, 19, 20, 25). A pump was being used to remove the water (Ex. 11; TR 21, 117). [*20]

28. The water came from the 30 or 40 feet of pipe which had previously been laid on the westside. A plug had been placed in the pipe when it was laid to keep it from filling with sand. The water flowed into the txcavation whe the plug was pulled (TR 104, 131, 155, 162-163). There was no seepage from the sides of the excavation (TR 104, 131, 171-172).

29. The sump hole for the pump was located in the northwest corner. It was a foot and 1/2 deeper than the other area of the excavation (TR 118). It was dug specifically to pump out the water (TR 119).

30. No employees were working in the area where the sump hole was dug (TR 118-119).

31. No ladder was in the bottom of the excavation at the time the compliance officers arrived at the site (TR 18). A ladder was placed in the excavation within 5 minutes of arrival of the compliance officers (TR 18, 19, 28, 101).

32. The foreman was present when the excavation was commenced. He left the site just prior to the excavation's being completed and returned when the excavation was almost finished. As he walked to the excavation, the compliance officers arrived, but the foreman was unaware of their identity. The foreman observed [*21] three employees in the excavation without a ladder being in the excavation. He immediately ordered a laborer to get a ladder from the shop and place it in the excavation. This took approximately 5 minutes (TR 101, 113, 120, 121).

33. The compliance officers did not inform anyone that a ladder must be placed in the excavation upon their arrival at the site (TR 32).

34. Employees have been instructed not to go into an excavation without a ladder. They have been reminded of the rule on several occasions (TR 164).

35. Loose bricks were on the surface and immediately adjacent to both sides of the excavation (Ex. 5; TR 18, 33). The bricks were located along the sides of the excavation that were dug in the median. The bricks were part of the median in the middle of the highway (TR 28, 33, 97-98).

36. On February 27, 1973, a citation for serious violation was issued respondent for allegedly failing to comply with the standard published at 29 CFR 1926.652(b). The citation resulted from an inspection of a trench 12 feet wide and 12 feet deep (Ex. 1-A; TR 4). Respondent did not contest the citation (TR 6).

37. On March 6, 1973, a non-serious citation was issued to respondent [*22] alleging it violated three standards promulgated under the Act. One of the violations alleged involved the standard published at 29 CFR 1926.652(h) (Ex. 2-B; TR 4). Respondent did not contest the citation (TR 6).

38. On October 26, 1973, a citation for serious violation was issued to respondent alleging that it violated the standard published at 29 CFR 1926.652(b). The citation resulted from an inspection of a trench 13 1/2 feet deep (Ex. 3-C; TR 5). Respondent did not contest the citation (TR 6).

39. On January 29, 1974, respondent was issued a serious citation alleging a violation of the standards published at 29 CFR 1926.652(b), 29 CFR 1926.652(h) and 29 CFR 1926.652(i)(1). Respondent contested the citation and the case was amicably resolved by the parties. A settlement was approved on July 18, 1974, which resulted in the affirming of non-serious violations of 29 CFR 1926.652(h) and 29 CFR 1926.652(i)(1). The alleged violation of 29 CFR 1926.652(b) was vacated (Ex. 4-D; TR 5-6).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with Occupational safety and health standards promulgated under the Act. Respondent has challenged the [*23] applicability of four standards to its operations at a workplace located at 34th Street and 22nd Avenue, Saint Petersburg, Florida. Respondent was engaged in the installation of a drain pipe at that location.

A. Alleged Violation of 29 CFR 1926.652(b)

Section 1926.652(b) of 29 CFR provides as follows:

"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)."

Complainant submits that the opening made for installation of the concrete drain pipe was a trench. Respondent contends that the opening was an excavation and that 29 CFR 1926.652(b) is not applicable.

A trench is defined at 29 CFR 1926.653(n) as follows:

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

The opening, as measured by the compliance officer, was 12 feet 6 inches wide at the surface level. The depth varied from 5'5" to 7'1". The measurements reflect that the width was [*24] approximately two times greater than the depth. The definition contemplates a trench as being an excavation where the depth is greater than the width. The facts in this case do not coincide with the generally accepted definition of a trench.

An excavation is defined by 29 CFR 1926.653(f) in the following manner:

"Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench." (Underlining added)

The definition indicates that the determining factor in resolving when an excavation becomes a trench is based on its depth-to-width relationship. Since the width is approximately twice the depth in this case, it is concluded that respondent's employees were working in an excavation in lieu of a trench as alleged. n4

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n4 This determination is consistent with the view of the Commission in Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974). In that case the Commission concluded that an opening 8 feet wide and 6 feet deep was an excavation.

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Complainant moved to amend the citation to allege a violation of 29 CFR 1926.651(c). This standard applies to excavations and provides:

"The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means."

The amendment was permitted over the objection of respondent. Respondent made clear its position at the commencement of the hearing that it consented only to the trial of the issue under 29 CFR 1926.652(b). This was the only standard alleged in the citation and complaint with respect to the shoring, sheeting, bracing or sloping of the excavation.

In Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974), the employer was charged with a violation of 29 CFR 1925.652(a) which is applicable to trenches. The opening was determined by the Commission to be an excavation. The Commission granted an amendment and decided the issue under 29 CFR 1926.651(c) which applies to excavations. In granting the amendment, the Commission stated:

"Even though respondent was cited [*26] under 29 CFR 1926.652(a), we conclude that the issue of whether respondent failed to comply with 29 CFR 1926.651(c) was tried by consent of the parties. The underlying factual question to be decided was whether the excavation was adequately sloped or shored. This issue was tried and respondent, therefore, would not be prejudiced by amendment of the pleadings to conform to the evidence presented at the hearing.

"There is overwhelming precedent in support of such amendments. In Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973), the Commission specifically endorsed this procedure. In Brisk we held that '[a]lthough we find respondent in violation of a different section of the Act than the Judge, the facts upon which the violation is based are identical.' Amendment of pleadings to conform with evidence is expressly provided for in rule 15(b) of the Federal Rules of Civil Procedure and has been generally accepted as affording due process. See American Newspaper Pub. Ass'n v. N.L.R.B., 193 F.2d 782, 799 (7th Cir. 1951), cert. denied, 344 U.S. 812 (1952); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 225 (1938)."

As in Copelan, the underlying [*27] factual question to be determined is whether the trench or excavation was adequately shored or sloped. The facts surrounding the basic issue are the same whether determined under 29 CFR 1926.652(b) or 29 CFR 1926.651(c).

There is no dispute over the fact that the excavation was not shored or sloped. The basic issue must be resolved by determining if the standard required shoring or sloping. The standard requires a shoring or sloping where "employees are exposed to danger from moving ground." The evidence does not support a determination that respondent's employees were exposed to moving ground.

Section 1926.651(c) does not state that every excavation must be shored or sloped. The standard implicitly recognizes that some excavations are safe for employees to enter and work. Thus, one cannot conclude that all excavations expose employees to moving ground. The preponderance of the evidence must support such an ultimate conclusion. The mere fact that employees enter an excavation that is not shored or sloped does not per se establish the violation.

The compliance officer took no soil samples (TR 31). His determination was based on a visual observation of the sides of the [*28] excavation (TR 32). He observed an employee walking across the material removed from the excavation and concluded the excavation was soft and unstable (TR 26). The employee sank into the soil up to his shoe tops. The softness of disturbed soil does not automatically indicate that the undisturbed soil will also be soft.

Most of the excavation was made in a roadbed which was topped with 3 inches of asphalt. An 8 inch layer of hard and compacted limerock was below the asphalt. A foot to a foot and 1/2 of compacted subgrade was below the limerock. The roadbed had been compacted with rollers weighing up to 20 tons and the roadbed had passed a compaction test for stability. Traffic had also traveled over the street for several years. This is convincing evidence that the excavation in the roadbed was stable.

The evidence fully supports the determination that the soil in the roadbed and median was hard. The backhoe operator testified that he had difficulty in excavating the soil from the first 3 or 4 feet from the surface level (TR 150). The foreman used a shovel to scrape soil from the sides of the excavation and found it hard (TR 108, 112). A pipelayer who was in the excavation [*29] testified that he found the sides to be hard (TR 162). One of the laborers also testified that the sides of the excavation were hard (TR 171).

The state project engineer responsible to see that the job was built in accordance with state specifications testified that the excavation was stable n5 (TR 137). Approximately 20 to 25 similar highway crossings had already been completed and none of them reflected any signs of cave-ins and no previous cave-ins had occurred.

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n5 The state project engineer was also respondible for seeing that good safety procedures were being followed (TR 138).

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Complainant has failed to carry his burden on the issue.

B. Alleged Violation of 29 CFR 1926.651(b)

Section 1926.651(b) of 29 CFR provides as follows:

"Trees, boulders, and other surface encumbrances, located so as to create a hazard to employees involved in excavation work or in the vicinity thereof at any time during operations, shall be removed or made safe before excavating is begun."

Complainant alleges that bricks were [*30] evident on the south edge of the excavation and that employees were exposed to the possibility of falling bricks.

Approximately 6 to 8 feet of the excavation was made in the median. The surface of the median was brick. When the excavation was made the surface brick were not removed from the edge of the excavation. The photographs introduced as exhibits 5 and 11 vividly show some of the brick lying in a precarious position insofar as employees were concerned. It appears obvious from the photographs that no attempt had been made to remove the brick as the soil was excavated.

The standard requires that such surface encumbrances be removed or made safe if their location creates a hazard to employees involved in the excavation work. Employees were working in the area where the brick were at the surface of the excavation. There was heavy traffic in the area and the possibility existed that vibration from traffic could have caused the brick to fall. The violation has been established.

C. Alleged Violation of 29 CFR 1926.651(i)(1)

Section 1926.651(i)(1) of 29 CFR provides as follows:

"In excavations which employees may be required to enter, excavated or other material shall [*31] be effectively stored and retained at least 2 feet or more from the edge of the excavation."

Complainant alleges that the excavated material was not stored and retained at least 2 feet or more from the edge of the excavation.

When employees are working in an excavation the standard requires an employer to store the excavated material at least 2 feet from the edge of the excavation. Respondent's pipe foreman and backhoe operator concede that at least 6 inches to a foot of excavated material was stored within 2 feet of the excavation (TR 106-107, 154). The violation has been established.

D. Alleged Violation of 29 CFR 1926.652(h)

Section 1926.652(h) of 29 CFR provides:

"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."

Complainant alleges that the excavation had no means of exit, such as a ladder.

The standard cited by the complainant specifically applies to trenches. There is no comparable standard under the specific requirements for excavations. The opening in the earth has been determined to be an excavation [*32] in lieu of a trench. The following question is posed: Whether standards specifically applicable to trenches can also be applied to excavations?

Subpart P of 29 CFR 1926 applies to excavations, trenching, and shoring. The applicable standards are categorized under the following headings:

"1926.650 General protection requirements

1926.651 Specific excavation requirements

1926.652 Specific trenching requirements

1926.653 Definitions applicable to this subpart"

The general requirements would be applicable to all excavations if the condition was not covered under one of the specific requirements for excavations or trenches.

The definition of a trench as specified by 29 CFR 1926.652(n) is as follows:

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

It is clear from the definition that a trench was intended to be a specific type of excavation, i.e., one in which the depth is greater than the width. This conclusion is made abundantly clear by the definition of excavation. Section 1926.653(f) of 29 CFR defines an excavation as follows:

"Any manmade cavity or depression [*33] in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench." (Underlining added)

The definitions support the conclusion that not every excavation was intended to be construed as a trench. The standards make a distinction based on the depth-to-width relationship. Under the definitions, all trenches are excavations but not all excavations are trenches.

If complainant had intended to apply specific trenching standards to excavations, as determined under the definitions, the distinction made in the standards between trenches and excavations would be meaningless. In lieu of promulgating specific standards for trenches and specific standards for excavations, complainant should have promulgated one set of standards that applied regardless of whether the opening was an excavation or a trench. However, complainant chose to incorporate the distinction in the standards and made certain standards apply apecifically to trenches and certain standards specifically applicable [*34] to trenches.

The excavation in this case is not a trench within the definition specified by complainant in 29 CFR 1926.653(f) and (n). It is an excavation. Accordingly, the general requirements of 29 CFR 1926.650 and the specific requirements set forth for excavations in 29 CFR 1926.651 are applicable. Since the excavation is not a trench, the cited standard has no applicability. Section 1926.652(h) of 29 CFR is specifically applicable to trenches.

There is no standard under 29 CFR 1926.651 that corresponds in language to 1926.652(h). Accordingly, the alleged violation must be vacated.

E. Nature of Violation

Complainant submits that the violation of 29 CFR 1926.651(i)(1) was a willful violation within the meaning of section 17(a) of the Act. Complainant contends that the respondent, through its pipe foreman, "made its choice, a conscious, intentional, deliberate voluntary decision, which, regardless of a venial motive, properly is described as willful." The facts do not justify such a conclusion.

There is no dispute over the fact that 6 inches to a foot of the excavated material was stored within 2 feet of the excavation. The evidence does not indicate that the excavated [*35] material was deliberately stored within the prohibited zone. The backhoe operator was digging the excavation from the northside and storing the excavated material on the southside. The material in the prohibited zone, according to the backhoe operator, resulted from spillage from the bucket as the material was being placed on the southside of the excavation (TR 153). This appears logical in view of the small amount of excavated material within the prohibited zone and taking into account the position from which the backhoe operator was digging. The highest point of the pile was some 5 feet from the edge of the excavation.

The evidence reflects that the foreman was concerned about the excavated material in the prohibited zone and had ordered the backhoe operator to remove the soil from the edge of the excavation. This order was given prior to the compliance officers arriving at the site.

In the recent case of Secretary v. C.N. Flagg & Company,    OSAHRC    (Docket No. 1734, September 19, 1974), the Commission stated that willful when used in the civil sense "means intentional, knowing, or voluntary as distinguished from accidental conduct and may be characterized as conduct [*36] marked by careless disregard." The facts of record do not meet the criteria for a willful violation.

F. Penalty Determination

The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In Nacirema, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense.

Three persons were working in the excavation. The excavated material stored within 2 feet of the edge of the excavation was on 3 inches of asphalt, which in turn rested on several inches of limerock and a compacted subgrade of a foot or more below the limerock. The 6 inches to a foot of excavated material in the prohibited zone presented no problem to employees. The weight of the soil in the prohibited zone was not sufficient to cause a collapse of the asphalt and subgrade which [*37] had been compacted by 20 ton rollers when the roadbed was constructed. The gravity of the violation must be considered extremely low. Accordingly, a penalty of $75 is deemed to be fair and reasonable.

The bricks on the edge of the excavation presented a possibility of a greater hazard than the storage of a small amount of excavated material on the asphalt. The photographs (exhibits 5 and 11) show some of the bricks to be in a precarious position. Vibrations from the activity of the employees in the excavation could have caused the brick to fall into the excavation. In such an event the likelihood also existed that the brick could have fallen on employees. While complainant proposed no penalty for the violation, it is concluded that the facts warrant the assessment of a penalty of $100.

Respondent's past history, based on previous citations issued to it, has not been good. The assessment of the penalties takes into consideration this established fact.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act.

2. The respondent was at all times material hereto [*38] subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. On July 2, 1974, respondent had three employees working in an opening in the earth at 34th Street and 22nd Avenue, Saint Petersburg, Florida. The width of the opening was approximately twice the depth and was an excavation within the meaning of 29 CFR 1926.653(f) and (n).

4. The excavation was stable and the soil hard. There was no "danger from moving ground" and respondent was not in violation of the standard published at 29 CFR 1926.651(c). Since the opening was an excavation, the trenching standards published at 29 CFR 1926.652(b) and (c) are not applicable.

5. Excavated material was stored within 2 feet of the edge of the excavation in violation of 29 CFR 1926.651(i)(1). The violation was not willful and was of a non-serious nature.

6. The standard published at 29 CFR 1926.652(h) was specifically promulgated to apply to trenches and cannot be applied to excavations that are not trenches. All trenches are excavations, but by definition promulgated by complainant all excavations are not trenches. The excavation [*39] in this case was not a trench and 29 CFR 1926.652(h) is not applicable.

7. Brick were scattered at the surface level and on the edge of the excavation in violation of 29 CFR 1926.651(b).

8. Respondent was not in violation of 29 CFR 1926.650(e) since the issue was conceded by complainant.

9. A penalty of $75 is concluded to be fair and reasonable for the violation of 29 CFR 1926.651(i)(1). A penalty of $100 is determined to be fair and reasonable for the violation of 29 CFR 1926.651(b).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That item 1 of the non-serious citation (designated as citation number 1) issued to respondent on July 9, 1974, is vacated and that item 2 of the same citation is affirmed;

(2) That the willful and non-serious citation (designated as citation number 2) and issued to respondent on July 9, 1974, is modified to affirm only a non-serious violation in lieu of a willful and non-serious violation;

(3) That the willful and non-serious citation (designated as citation number 3) and issued to respondent on July 9, 1974, is vacated;

(4) That the willful and serious citation (designated as number [*40] 4) issued to respondent on July 9, 1974, is vacated;

(5) That the notification of proposed penalty issued respondent on July 9, 1974, is modified to assess a penalty of $100 for item 2 of the non-serious citation and a penalty of $75 for citation number 2 which was issued as a willful and non-serious citation and that the remaining proposed penalties are vacated.

Dated this 25th day of February, 1975.

JAMES D. BURROUGHS, Judge, OSAHRC