INTERCOUNTY CONSTRUCTION CORPORATION

OSHRC Docket No. 919

Occupational Safety and Health Review Commission

December 19, 1973

Before MORAN, Chairman; CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, Chairman: On January 30, 1973, Review Commission Judge Abraham Gold issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) for failure to comply with the occupational safety and health standard published as 29 C.F.R. 1926.652(c), and that the violation was willful. He assessed a penalty of $10,000 n1, the maximum amount authorized for such an offense pursuant to section 17(a) of the Act. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

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n1 Two other alleged violations were found by the Judge not to have been established by the evidence. The Judge's decision with respect to those two alleged violations is hereby affirmed.

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The Commission has reviewed the record in this case, including the brief filed by complainant. Respondent submitted no brief. On the basis of such review, the Commission affirms the Judge's order with regard to the violation but finds that the $10,000 penalty assessed therefor is inappropriate.

The occupational safety and health standard at issue in this case requires that trenches exceeding five feet in depth be sloped to an angle of repose or, alternatively, shored, sheeted, braced or otherwise protected to guard against injuries from cave-ins.

Substantial evidence in the record establishes the following pertinent facts: On April 12 and 13, 1972, respondent had employees at work at a place of employment which consisted of a trench approximately 40 feet long and 10 feet deep. During that two-day period, six different employees of the respondent were at one time or another working in the trench.

The trench was not sloped to an angle of repose. No shoring, sheeting, or bracing was installed in the trench. However, a portable protective device known as a "mule" n2 was used at least intermittently on each day so that for at least a part of each day employees working in the trench were protected against the danger of a cave-in. Out of a total of approximately 16 hours covered by the eight-hour shift on each day that men were working in the trench, the mule was out of the trench for approximately five hours.

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n2 A portable steel trench shield, with internal dimensions of 20 feet in length, eight feet in height and approximately eight feet in width.

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It appears from the evidence that not more than two workers were ever exposed at one time to the hazard resulting from the failure to comply with the cited standard.

There was evidence that part of one side of the trench was bordered by a solid concrete structure on the east bank which protected a part of the trench from caving in. Although not all of the trench walls were sloped, one portion of one wall appeared from the exhibits to be sloped.

For at least a part of the time that the mule was not being used in the trench, the reason was that, because of a manhole in the trench and because of the configuration of the trench at one point, it was not always possible to move the mule along the trench.

On April 12, respondent's foreman was apprised that the trench did not comply with the applicable occupational safety and health standard and that without the mule being used in the trench, adequate precaution for employees' safety was not being taken. Notwithstanding that knowledge, he authorized removal of the mule for intermittent periods on April 12 and 13.

On the basis of the above facts, the Judge correctly found that respondent did not comply with the occupational safety and health standard requiring shoring, sloping, sheeting, bracing or otherwise protecting against injury from cave-ins and was, therefore, in violation of section 5(a)(2) of the Act.

Judge Gold relied on numerous cases to define a "willful" violation. The Commission agrees that, in the context of this Act, a "willful" violation is properly defined as an act or omission which occurs consciously, intentionally, deliberately or voluntarily as distinguished from accidentally. The evidence in this case establishes that respondent did fail to comply with the appropriate standard consciously and voluntarily, as distinguished from accidentally, even though such failure appears from the evidence to have been motivated in part from a subjective feeling of necessity by respondent's foreman, as the result of the configuration of both the trench and the pipe being laid, as well as the method which had been chosen to effect compliance with the standard. n3

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n3 The removal of the mule on the instances that it was removed was done either because of the configuration of the trench or because the obstruction of a manhole made it impossible to lay a part of the pipe with the mule in the trench.

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Although respondent's violation was willful, we cannot agree with the Judge's statements that the violation was "flagrant" and that respondent "purposely" disregarded the requirements of the standard. Those terms tend to indicate a malicious disregard of the standard rather than a willful or conscious (as opposed to an accidental) failure to comply therewith.

Having determined that the evidence supports the finding of a willful violation, the Commission turns now to the appropriateness of the penalty assessed.

Section 17(j) of the Act requires the Commission to assess all penalties only after giving due consideration to the four statutory factors of size, history of prior violation, good faith, and gravity of the violation. The Commission is not free in any case to ignore any of the four factors, although the factors need not be accorded equal weight. n4

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n4 Secretary of Labor v. National Realty and Construction Company,

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In a case involving a willful violation, no weight ought to be allowed for good faith because by definition a willful violation connotes a violation which is committed notwithstanding knowledge that it is a violation. The penalty-assessment criteria: "size of the business of the employer being charged" was inserted into this Act to protect small employers against penalties out of proportion to the amount of business they do. This employer is a large business enterprise. Only the criteria "history of previous violations" and "the gravity of the violation" are deserving of any weight in assessing an appropriate penalty in this case.

The record establishes that the respondent had no prior violations under the Act. It also shows that considerable sums of money was spent on safety equipment by respondent who maintained an existing safety program for training its employees.

With regard to gravity, the Commission notes that the Judge did not discuss, and apparently did not consider, any of the elements which the Commission set forth in Secretary of Labor v. Broadview Construction Co. n5 as being critical whenever determining the gravity of a given violation. In Broadview, we held that the following elements must be considered: (1) number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury; and (4) the degree of probability of the occurrence of any injury. The decision below contained no discussion of these elements in reaching the conclusion that "the instant violation is of a high level of gravity." That decision also concluded without discussion of any of these elements that the violation is "obviously serious in nature, there being a substantial probability that death or serious physical harm could result from a cave-in . . . ."

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Although no situation where an employee's life is endangered -- even momentarily -- can be taken lightly, Congress provided for a range in penalties from $1 to $10,000 to be assessed against employers found to be in willful violation of this Act. It would be an abuse of the discretion placed in this Commission therefore if the maximum permissible penalty were to be assessed each time a willful violation is established. Reasons persuading us against the maximum penalty in this case are many.

The evidence indicates that only two employees were exposed at any one time to the risk of cave-in and that such exposure was intermittent, covering a total of not more than 4 to 5 hours during a two-day period of time. The evidence also discloses that a part of the trench was protected against cave-in by a concrete wall and that for a majority of the working time during the two days over which the violation existed, the respondent took precautions against injury due to cave-in by using a mule which qualifies as a means of protection within the language of the standard.

Although the nonoccurrence of an accident is not conclusive evidence that the probability of an accident occurring was low, the fact that a violation existed intermittently for a period of two days without incident is some evidence that the degree of probability was not so high as to become an overriding consideration.

Considering that (1) the number of employees exposed to the risk of injury was small; (2) the duration of their exposure was short; (3) the exposure was intermittent; and (4) partial precautions (use of a mule in the trench) were taken to reduce the risk of injury, the probability that an accident resulting in injury would occur was significantly reduced. Based upon all of the above facts the Commission finds that although the gravity of the violation is substantially more than minimal, it is not of such a severe nature as to require the highest possible penalty. When this fact is coupled with this employer's absence of previous violations and the other circumstances discussed above, it is concluded that an appropriate penalty in this case would be $5,000.

Pursuant to the foregoing, the Commission affirms the Judge's finding that respondent was guilty of a willful violation of section 5(a)(2) of the Act, but vacates the $10,000 penalty assessed by the Judge and substitutes an assessed penalty of $5,000.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: In Secretary of Labor v. Frank Irey, Jr., Inc., Consistent with that decision, I concur in the result reached here by Chairman Moran.

[The Judge's decision referred to herein follows]

GOLD, JUDGE, OSAHRC: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq.; 29 USC 651 et seq. ) and came on for hearing on November 9-10, 1972, at Washington, D.C.

On April 28, 1972, pursuant to Section 9(a) of the Act, Complainant issued a citation for a willful violation, two citations for a total of two serious violations, and a citation alleging 22 non-serious violations.

A Notification of Proposed Penalty was issued on April 28, 1972. A total penalty of $12,640 was proposed by Complainant. Respondent has contested only the alleged willful violation and items 2 and 22 of the citation for nonserious violations. Under Section 10(a) of the Act all other items in the citations and the penalties proposed therefor became a final order of the Review Commission upon the expiration of 15 working days from the date on which Respondent received the Notification of Proposed Penalty.

The contested items in the Citations, as amended by the Complaint, charge Respondent with violating the following standards contained in 29 CFR:

(Willful)

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.

(Item 2)

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.

(Item 22)

1904.2 Log of occupational injuries and illnesses.

Each employer subject to the act shall maintain in each establishment, a log of occupational injuries and illnesses. Each employer shall record on the log each recordable occupational injury and illness within 2 working days after receiving information that a recordable case has occurred. Occupational Safety and Health Administration Form OSHA No. 100 n1 shall be used for this purpose and shall be completed in the form and detail provided for in the form and the instructions contained therein. The log may be maintained in another manner if approved in accordance with the provisions of 1904.13.

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n1 Filed as part of the original document.

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A penalty of $10,000 was proposed for the alleged willful violation of 29 CFR 1926.652, $65 for item 2 and $100 for item 22.

Section 5(a)(2) of the Act requires that each employer comply with occupational safety and health standards promulgated under the Act.

Under Section 17(c) of the Act, a civil penalty of up to $1,000 may be assessed for a nonserious violation. Section 17(a) provides that a penalty of up to $10,000 may be assessed for each willful or repeated violation. Section 17(j) declares that the Review Commission shall have authority to assess all civil penalties after giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.

In the Answer to the Complaint, Respondent conceded that the Occupational Safety and Health Review Commission has jurisdiction over this proceeding pursuant to Section 10(c) of the Act. Respondent's Answer also admitted that it is a corporation authorized to do business in Virginia with its principal office and place of business located at Hyattsville, Maryland; that it is engaged in general construction work; that at all times herein pertinent it was engaged in the installation of a sewer line at the intersection of Eads Road and Fort Scott Drive, Alexandria, Virginia; that many of the materials and supplies used by Respondent and its employees at this worksite were received directly from outside Virginia and accordingly, Respondent was and is an employer engaged in a business affecting commerce, within the meaning of Sections 3(3) and 3(5) of the Act.

Respondent is a contracting organization specializing in underground construction, such as installation of water mains and sewer mains (Tr. 198), and is installing a large interceptor sewer system for Arlington County, Virginia, at the aforesaid job site. The inside diameter of the sewer pipe is 66 inches, and the outside diameter about 78 inches (Tr. 198).

There are three excavations at the site. The first and longest is about two blocks long, located south of the office trailer; the second is a "squeeze-box" excavation north of the trailer; and the third is north of that (Tr. 175-176). Respondent has 30-40 employees at the site on this $1 million project (Tr. 222-223).

Nonserious item #2 relates to the first excavation; the willful violation charge involves the third trench.

An inspection of the site was conducted by the Area Director and a Compliance Officer on April 13, 1972, after an employee of Respondent had complained by telephone to the Occupational Safety and Health Administration on the morning of April 12 and again on the morning of April 13 (Tr. 29, 173).

Nonserious item #2 will be considered first. Area Director Lapsley Ewing testified that during the inspection he observed large amounts of spoil pile extending right to the edge of the first excavation (Tr. 40-44, Exhs. C-2, C-3, C-4). Compliance Officer William Corrigan testified that he saw dirt piled closer than 2 feet from the edge of that trench in several areas (Tr. 176). The Project Manager of the job, Kenneth Crumrine, said that rain runs into the trench, so he had directed the foreman to leave a small quantity of dirt along the edge of the trench to serve as a dike to keep the water from running into the trench (Tr. 208-209, Exh. C-3), but that Joy Construction Company, which operated under a contract with the telephone company, had placed the large pile of spoil at the edge of that trench (Tr. 224); that he observed some of that material being placed there by one of Joy's cranes only a few days prior to April 13 (Tr. 225, 229, 230). It was his testimony that Respondent completed the excavation on the Friday prior to April 13 (Tr. 209), turning it over to Joy at that point, with Respondent's employees leaving that area (Tr. 230) on Friday (April 7).

According to Mr. Crumrine, Respondent's employees were to return to work in that trench only after the telephone repairs were completed (Tr. 209), it being the job of Respondent to refill the area after the telephone company's work was done. He asserted that before turning the trench over to Joy, Respondent had loaded on its trucks all the dirt excavated from the trench and hauled it to a stockpile behind its trailer (Tr. 225-226).

As to the small amount of dirt along the edge of this trench, admittedly placed there by Respondent, this does not per se suffice to lead to a finding of a violation of the standard in issue. Insofar as the large spoil pile is concerned, this record falls short of establishing that the violation was created by Respondent, or that Respondent's employees were exposed to the violative condition.

We turn next to item #22. The Compliance Officer testified that on April 13, 1972, he inquired of Mr. Ellis (Respondent's Construction Safety Officer) and Mr. Gregorio (Construction Foreman) as to the whereabouts of OSHA Form 100, Log of Occupational Injuries and Illnesses (Tr. 179), and Mr. Ellis said that he figured it was at the main office at Hyattsville (Tr. 179-180). The Area Director said that Mr. Ellis told him that it should have been at the site because he had brought it there sometime ago (Tr. 63). In his testimony, Mr. Crumrine related that the trailer at the site had been broken into during the weekend before the inspection; that glass was broken out of both ends of the trailer, and the doors sprung; that the telephone was torn from the wall; that the files were in disarray; that since confidential cost records and the job diary were kept there, he removed the manila folder to Respondent's adjacent job office about half a mile away (Tr. 207-208); that the folder contained that log, and he would have left it at the job site if he had noticed that it was among the contents (Tr. 207).

The telephone service had been restored and arrangements made for a glass company to replace the broken windows, but as of April 13 the glass had not been installed (Tr. 208). The log contained no entries (Tr. 207). There had been no injuries at the site (Tr. 264). The Area Director and Compliance Officer were told by Mr. Ellis on April 13 that the trailer had been broken into (Tr. 266).

Since the log had been removed unintentionally and temporarily from the trailer at the job site solely because the trailer had been vandalized, and there is no evidence that there were any recordable injuries or illnesses, a finding of a violation of the relevant standard is not justified.

This brings us to the remaining charge, that of a willful violation. This entire matter springs from the Complaint of one Michael Burch, who was employed by Respondent as a truck crane oiler. His testimony was that on April 12, 1972, two laborers of Respondent were working at the bottom of the third trench, which was cut vertically, with no shoring whatever (Tr. 108); that he had seen the cut in the section of the trench made with a backhoe n2 (Tr. 110); that at about 9:00 or 9:15 a.m. he went to a public telephone and notified the Occupational Safety and Health Administration (OSHA) of the foregoing (Tr. 110); that a mule n3 was put into the trench at around 11:00 a.m. that day (Tr. 111), after which the laborers worked within the confines of the mule (Tr. 112); that the mule was lifted out of the trench by a backhoe at about 2 o'clock and the men were back at work in the trench until quitting time around 4 o'clock (Tr. 115-116); that it rained all that night and during the next morning, resulting in some water accumulating at the bottom of the trench and some small dirt slides, with mud piling up around the base of the pipe (Tr. 124).

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n2 An excavating machine in which the bucket is rigidly attached to a hinged stick on the boom and is drawn toward the machine in operation. Webster's Third New International Dictionary, Unabridged.

n3 A portable steel trench shield, with internal dimensions of 20 feet in length, 8 feet in height, and approximately 8 feet in width (Tr. 206).

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He went on to say that on the morning of April 13 two laborers were in the trench shovelling muck away from the base and mouth of the pipe (Tr. 124-125); that he then made his second telephone call to OSHA, leaving the job site for 25-30 minutes (Tr. 126), and when he returned, the mule was back in the trench (Tr. 127). He placed the time of this call at 9:00 or 9:30 a.m. (Tr. 133).

Mr. Burch said that the walls of this trench were vertical except for the back, which was terraced in step fashion, with the height of each step about 4 to 4 1/2 feet (Tr. 151).

The Compliance Officer described the trench as consisting of hard, compact soil (Tr. 177), with an overall length of 35-40 feet (Tr. 178). He further stated that looking down toward the mule he observed the cut to be vertical, but not exactly so, because as the backhoe would pull out, going from north to south, it would not make an exactly vertical cut on the end of the trench (Tr. 177-178), but he saw no sloping of the walls and no adequate bracing (Tr. 178); that he did see 3-4 braces in the trench (Tr. 178-179).

The Area Director also said that this trench consisted of hard, compact soil (Tr. 58), and he asserted that the walls were unsloped (Tr. 60). He felt that the walls were vertically configurated for the most part, with a portion at the north end angled to a point, which appeared to him to be the result of slough or slide (Tr. 60).

According to Compliance Officer Corrigan, Mr. Gregorio, the foreman, told him that it was almost impossible to put the trench box (mule) into the excavation because of a bend in the pipe and a slight bend in the trench (Tr. 180); and Mr. Gregorio admitted that men worked in that trench on the 12th without the trench box, but denied that they did so on the 13th. He (Mr. Corrigan) opined that after removal of the mule, the work could have been performed without violating safety standards if there had been shoring, bracing, or sloping of the trench (Tr. 181).

Project Manager Crumrine, who was not as the site on April 12 or 13 (Tr. 200) because he was attending an arbitration meeting at Hyattsville, testified that the job plan was to slope the banks (Tr. 205). The construction foreman, Americo Gregorio, said that the banks were sloped one-half to one, but admitted that he made no measurement (Tr. 297-298). However, the construction safety officer of Respondent, Peter Ellis, testified that he thought that the site was safe because the west bank had adequate slope and there was a solid concrete structure on the east bank to protect the area (Tr. 267).

Mr. Crumrine said that the depth of the cut at the point of the first section of pipe was 10.7 feet (Tr. 217).

Area Director Ewing took photographs during the inspection (Tr. 106). One portion of one wall of the third trench does appear to be sloped (Exh. C-10), but clearly there is no sloping of the opposite wall (Exhs. C-8, C-9). Some of the photographs presented by the Government were taken from angles which leave something to the imagination.

In his testimony, foreman Gregorio said that on April 12 at 11 or 11:30 a.m. he received a telephone call from the corporation President who informed him that OSHA had telephoned that there was a ditch 25 feet deep with no mule and no protection for the men; that the President directed that he put a mule in the third trench, and he did so (Tr. 273-274); that the first section of pipe had been laid, and gravel was put down to a height of 15 inches above the invert (bottom on the inside) of the pipe (Tr. 276); that the mule was pulled ahead by a shovel (Tr. 276); that there was no way to move the mule along the trench and still bring the next section of pipe into line, because there was a manhole on the right side of the trench (Tr. 278); that he just pulled the mule out and set it on the back of the shovel (Tr. 278).

The foreman testified that it is common practice for pipelayers to get inside a pipe being laid in a trench, and wait for the next section of pipe (Tr. 277); that his pipefitters, while inside the first pipe, reached out and lubricated the edges of the concrete pipe with a vegetable soap, then installed a rubber gasket or ring on the end; that one of the men got out on the gravel bed, and while standing next to the pipe, directed the shovel operator to move the pipe to join the other section of pipe, meanwhile guiding the pipe into position (Tr. 278-280). The foreman admitted that he entered the trench on April 12 (Tr. 280). As to April 13, he declared that the mule was put into the trench sometime between starting time (7:30 a.m.) and 8:15 a.m. (Tr. 281), an operation which he claimed took a few minutes; that he thought that on April 13 he saw laborers on the gravel in the trench, cleaning the dirt on top of the gravel, but was not positive (Tr. 282-283); that he got down into the trench on April 13 near the first section of pipe, and did not consider that trench to be unsafe (Tr. 283).

At one point foreman Gregorio testified that at 4:00 to 4:15 p.m. on April 13 a "nightcap" was placed on the pipe (Exh. C-8); that two men put it on; that one man, Mr. Peay, was on top of the ditch and handed down 3-inch boards, about 6 1/2 to 7 feet long, to another worker, Mr. Sanders, who was on top of the first section of pipe; that Mr. Sanders stood the boards up in front of the pipe (Tr. 290-291). This story that a worker put a nightcap on the pipe from a position atop the pipe, and not while standing in the trench, is implausible.

The testimony of witnesses Burch and Gregorio supports a finding that employees of Respondent worked in the trench at a depth of more than 5 feet on April 12 and 13, 1972, during periods when the mule was not in the trench. Respondent's Counsel contends in his brief (p. 27) that the employees in the trench were safe from harm because they worked within the pipe or in extremely close proximity to a formidable manhole. The weight of the evidence shows that the foreman and laborers were in the trench itself on both days. In the event of a cave-in, escape into the pipe or manhole would be highly unlikely. Any suggestion that enough dirt from a cave-in might flow into the open pipe or manhole to enable the trapped worker to reach safety is also less than meritorious.

Considering the record in its entirety, it is found that Respondent did not comply with the safety requirement of shoring, sloping, bracing, or otherwise supporting the sides of a hard or compact trench more than 5 feet deep and 8 or more feet long, while its employees were working in said trench on April 12 and 13, 1972. Hence, a violation of 29 CFR 1926.652(c) is established.

The next issue is whether the violation was willful. The term "willful" has been defined as meaning an act committed intentionally, knowingly, or voluntarily as distinguished from accidentally, but is susceptible to varying interpretations. It may mean one thing in civil matters and quite another in criminal prosecutions. When used in the latter, generally it has been construed to mean an act done with evil motive, bad purpose, or corrupt design. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223 (1933). Wilson v. United States, 250 F. 2d 312, 319 (9 Cir. 1957). When used in a statute calling for a civil penalty, it was interpreted as meaning purposely or obstinately, and as describing the attitude of a doer who, having a free will or choice, either disregards the statute or is plainly indifferent to its requirements. United States v. Illinois Central R. Co., 303 U.S. 239, 58 S.Ct. 533 (1938). In Levy v. United States, 140 F. Supp. 834, 836 (D.C. W.D. La. 1956), which involved a suit to recover from the Government the amount of a civil penalty assessed against plaintiff for failure to pay social security and withholding taxes, the Court noted that the term has been interpreted to mean consciously, intentionally, deliberately, or voluntarily as distinguished from accidentally.

In the instant case, Respondent's construction safety officer attended classes on safety, conducted such classes for all of Respondent's supervisors and employees, and distributed the Department of Labor safety and health regulations to Respondent's superintendents (Tr. 241, 245, 248, 249, 250, Exhs. R-4-11). Despite all this exposure to safety information, and the fact that the job plan called for sloping of the walls of the trench in question, the walls were not sloped, and only some minor, inadequate bracing was installed. A mule was at the site, but it was not until an employee complaint reached OSHA that the mule was placed in the excavation. Employees worked in the trench on April 12, and again on the following day, in violation of the standard; violating the safety requirement on April 12 was bad enough, but repeating it on April 13 cannot be regarded as other than flagrant.

The foreman, acting as management, knew that the walls had to be sloped, shored, or otherwise supported; a mule was at the site for this reason. He testified that the job plan was to slope the walls (Tr. 297); at one point in his testimony he would have us believe that the sloping was indeed performed (Tr. 298), despite photographic evidence to the contrary, and the testimony of the Safety Officer who claimed only that one side of the trench had adequate slope and there was a solid concrete structure on the other side to protect a man standing in the area (Tr. 267).

This record establishes that Respondent, acting through its construction foreman, knowingly and purposely violated the standard at 29 CFR 1926.652(c), intentionally disregarding its requirements.

A penalty of $10,000 has been proposed by OSHA. The foreman supervised about 9 men at the site (Tr. 299); Respondent has 30-40 employees at the site (Tr. 222-223), and an annual gross revenue of about $18-$20 million (Tr. 268). The record does not disclose any previous violations. The instant violation is of a high level of gravity. It is obviously serious in nature, there being a substantial probability that death or serious physical harm could result from a cave-in, and Respondent knew of the presence of the violative condition. On the question of good faith, we have evidence that the Corporation President told the Safety Officer to purchase whatever is needed for safety purposes; over $200,000 was spent (Tr. 244-245); and a safety education program was undertaken; but there has been a lack of adherence to safety standards nevertheless. In addition to the three contested items, OSHA issued citations on April 28, 1972, for 2 serious violations and 20 nonserious items which were not contested by Respondent. Clearly, Respondent has failed to require its supervisors to comply with safety standards.

Taking into account the size of Respondent's business, the gravity of the violation, good faith of Respondent, and history of previous violations, it is determined that a penalty of $10,000 is appropriate for this willful violation.

Counsel for Respondent moved to strike from the Complaint all allegations and references to citation items and proposed penalties which were not the subject of a timely notice of contest. The motion was granted at the hearing. Respondent's Counsel also has moved for certain amendments to the transcript of hearing. Said motion is hereby granted.

FINDINGS OF FACT

1. Respondent is a corporation authorized to do business in Virginia, with its principal office and place of business at Hyattsville, Maryland; it is engaged in general construction work and at all times pertinent herein was engaged in the installation of a sewer line at Eads Road and Fort Scott Drive, Alexandria, under a contract with Arlington County, Virginia.

2. Many of the materials and supplies used by Respondent and its employees at said worksite were received directly from outside Virginia.

3. A substantial amount of excavated material was stored less than 2 feet from the edge of an excavation at said worksite, but this condition was not created by Respondent, nor were its employees exposed to the violation; said condition was caused by another construction firm at a time when it was in control of the trench, operating under a separate contract with a public utility; a very small amount of spoil left by Respondent within 2 feet of the edge of this excavation was not of such significance as to amount to a safety violation.

4. OSHA Form 100, Log of Occupational Injuries and Illnesses, was not maintained at the worksite on April 13, 1972, because the trailer in which it had been kept was vandalized during the previous weekend and the log was removed unintentionally and temporarily to Respondent's adjacent job office half a mile away; there were no recordable injuries or illnesses.

5. On April 12 and 13, 1972, Respondent, acting through its construction foreman, permitted its employees at the said work site to work in a trench more than 5 feet deep and 8 or more feet long, the sides of which trench consisted of hard or compact soil and were not shored, sloped, braced, or otherwise supported, thereby violating the safety standard at 29 CFR 1926.652(c).

6. The construction foreman of Respondent, acting as management, knew the requirements of said safety standard and intentionally and purposely acted in violation of the standard, in utter disregard of its requirements.

7. A penalty of $10,000 for said willful violation is appropriate, considering the size of Respondent's business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

CONCLUSIONS OF LAW

1. Respondent is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. Respondent was not in violation of 29 CFR 1926.651(i)(1) on April 13, 1972.

3. Respondent was not in violation of 29 CFR 1904.2 on April 13, 1972.

4. Respondent willfully violated Section 5(a)(2) of the Act on April 12 and 13, 1972, in its failure to comply with the safety standard at 29 CFR 1926.652(c).

5. A penalty of $10,000 for the said willful violation is appropriate, pursuant to Section 17(a) and 17(j) of the Act.

ORDER

IT IS ORDERED that the Citation for Willful Violation, as amended, be and the same hereby is AFFIRMED, and a penalty of $10,000 therefor is hereby assessed.

IT IS FURTHER ORDERED that Items 2 and 22 of the amended Citation for other than Serious Violations, and the penalties proposed therefor, be and the same are hereby VACATED.