GERSTNER ELECTRIC, INC.  

OSHRC Docket No. 997

Occupational Safety and Health Review Commission

August 1, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision of Judge Paul E. Dixon.   Judge Dixon concluded that Respondent was in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), by violating the standards published at 29 C.F.R. 1926.652(a) and (e).   He assessed a penalty of $650.

Review was directed on a number of issues. n1 Having considered the record in its entirety we conclude that the Judge erred in affirming the citation to the extent that it alleged a violation of 29 C.F.R. 1926.652(a). n2   However, our examination of the record convinces us that the real issue in dispute and tried was whether Respondent had failed to comply with the requirements of 29 C.F.R. 1926.652(b) for having failed to shore or slope the sidewalls of a trench which had been dug in unstable soil. n3 Accordingly, we will amend the Judge's order.

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

n1 The parties were asked among other things to brief issues relating to section 17(k) of the Act, 29 C.F.R. 1926.652(e), and reasonable promptness (section 9(a)).   Our review indicates that the trial Judge did not commit reversible error in deciding the first two issues.   The reasonable promptness issue was not raised before or during the hearing and it is not a jurisdictional issue to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties.   Chicago Bridge & Iron Co.,

n2 The standard provides in relevant part as follows:

Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins.

n3 The standard provides in part that:

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.

  [*2]  

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

The relevant facts follow: Respondent had contracted to lay a sewer line in St. Louis County, Missouri.   To that end on May 6, 1972, it dug for 15 feet along Highway 21 so as to tunnel under Lin-Ferry Road.   The trench was 14 feet deep and 30 inches wide.   The bottom 5 feet of the trench was in clay, and the remaining 9 feet was in an unstable mixture of sand, silt and clay, some of which was backfill.   The roads carried heavy traffic. The trench had caved in on several occasions.

On the day mentioned two employees entered the trench for the purpose of shoring it.   One employee, Campbell, was standing on a ladder, and the other, Davis, walked to one end of the trench to start shoring. Campbell called Davis back at which time a wall collapsed killing Davis and injuring Campbell.

As noted Complainant cited Respondent for not having shored or sloped a "bank." That term is defined to mean "a mass of soil rising above a digging level." n4 On the other hand, a trench is a "narrow excavation made below the surface of the ground" n5 the "sides" of which are the "vertical or inclined earth surfaces formed [*3]    as a result of excavation work." n6

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

n4 29 C.F.R. 1926.653(c).

n5 29 C.F.R. 1926.653(n).

n6 29 C.F.R. 1926.653(k).

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

On review Complainant would have us equate "banks" with "sides" notwithstanding the fact that he has given the terms different definitions.   Moreover, the equation, if made, would appear to make the bank sloping provision of paragraph 652(a) redundant to the provisions of the trench shoring-sloping standards prescribed by paragraphs 652(b) and (c).   The redundancy may be avoided and the standards harmonized by construing the term "digging level" of paragraph 653(c) as meaning the level at which digging is commenced.   Under such construction a bank would be a mass of soil rising above a sidewall of a trench.

Under such construction Respondent did not violate 652(a) because its excavation was made in flat ground rather than in a "bank" rising above such flat ground.   But that does not mean the citation should be vacated.   Respondent's case was predicated on the fact that it was in the process [*4]   of shoring the trench when the side caved in. n7 On the other hand Respondent recognized the trench to be very dangerous and recognized that the proper method of shoring was to start at the top and work down.   Respondent did not question the fact that the soil was unstable nor could it in view of the cave-ins. Respondent did not question the fact that death or serious physical harm was substantially probable.

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

n7 We have previously affirmed a citation for violation of section 5(a)(1) on similar facts.   Engstrum and Nourse,

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

Indeed, the entire case was tried by both Complainant and Respondent on issues relating to the failure to shore or slope the sidewalls of a trench dug in unstable soil. Under the circumstances no prejudice will result by conforming the pleadings to the evidence of record.   Accordingly, we will amend the citation to find a violation of 29 C.F.R. 1926.652(b) n8 Cf.   Advance Air Conditioning,   [*5]     Inc., Docket No. 1036, BNA 1 O.S.H.R. 1626 (Rev. Com'n., April 4, 1974).

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

n8 See Rule 15(b) of the Federal Rules of Civil Procedure.

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

For the reasons stated Judge Dixon's order is amended so as to find Responddent in serious violation of 29 C.F.R. 1926.652(b) rather than 29 C.F.R. 1926.652(a), and his decision, as amended, is affirmed to the extent it is consistent herewith.   SO ORDERED.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: A finding of no violation is the only correct disposition in this case. n9 The Commission has correctly decided that the evidence of record does not sustain a violation of 29 C.F.R. §   1926.652(a), but it is mistaken when it acts on its own to change the charge in order to cite respondent for noncompliance with 29 C.F.R. §   1926.652(b) and then affirm the same.

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

n9 Respondent's worksite was inspected on May 6, 1972.   A citation and proposed penalty therefor were issued by complainant on June 1, 1972, an interval of 26 days between the inspection and citation dates.   For the reasons set forth in Secretary v. Plastering, Inc., Secretary v. Advanced Air Conditioning,   658(a).

  [*6]  

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

29 C.F.R. §   1926.652(b) and (e) are not applicable to the facts of this case.

652(b) states:

Sides of trenches in unstable or soft material . . . shall be shored . . . to protect employees . . . (emphasis added)

652(e) states:

Additional precautions by way of shoring and bracing shall be   taken . . . [when] trenches are made in locations . . . subjected to vibrations from . . . heavy traffic . . . [emphasis added]

The evidence of record clearly discloses that at the time of the accident involving Campbell and Davis, employees of respondent were in the trench solely for shoring purposes, i.e., to comply with the requirements ". . . shall be shored . . ." and ". . . shall be taken . . . ."

These two standards do not apply to a situation where an employee is in a trench immediately after its excavation solely to construct a shoring system as prescribed therein.   Secretary v. Carson's Heating and Ventilating Co.,

An employer may be responsible under this Act for hazardous conditions existing during the installation of a shoring system,   [*7]   but a violation should not be predicted on standards that do not apply to that situation.

[The Judge's decision referred to herein follows]

DIXON, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the Act), contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act.

The Citation and Proposed Penalty of $650 was issued June 1, 1972, as a result of an inspection on May 6, 1972, by Complainant of a workplace under Respondent's ownership, operation or control at a job site at the southeast side of Tesson Ferry Road (Highway 21) and Lin Ferry Road in an unincorporated area known as Concord Village, (St. Louis County) Missouri, where Respondent was primarily engaged in the installation of a sewer line approximately 6,000 feet along the southeast side of Tesson Ferry Road.

  The Citation issued June 1, 1972 and incorporated in the Complaint of Complainant filed June 14, 1972, alleges a serious violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. [*8]   ) in that on May 6, 1972 at the aforesaid job site, the Respondent, in violation of 29 C.F.R. Section 1926.652(a) and (e), Volume 37, Federal Register No. 33, dated February 17, 1972 had at its job site, the banks of a trench which were more than five feet high and which were at a location where employees were exposed to moving ground or cave-ins, were not shored or laid back to a stable slope, nor were provisions made for some other equivalent means of protection.   Also, no additional precautions by way of shoring and bracing were taken to prevent slides or cave-ins of the trench which was subject to vibrations of highway traffic, in violation of 29 C.F.R. 1926.652(e).   As a result of the aforesaid alleged violation, one employee was killed and another employee injured.

Standard

29 C.F.R. Section 1926.652 Specific Trenching Requirements:

(a) Banks more than five feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as guide in sloping of banks.   Trenches less than five feet in depth shall also be effectively protected when examination [*9]   of the ground indicates hazardous ground movement may be expected.

(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified   by letter dated June 1, 1972, from Mr. A. F. Castranoya, Area Director of the Seventh Region Area, Occupational Safety and Health Administration, U.S. Department of Labor, that there was proposed to assess a penalty for the aforementioned violation alleged in the amount of $650.

Thereafter, Respondent duly filed its Notice of Contest on June 8, 1972, and thereafter the Secretary filed his Complaint.   The Respondent filed his Complaint.   The Respondent filed his Answer on June 22, 1972, with the case coming on for hearing at St. Louis, Missouri on October 3, 1972.

FINDINGS OF FACT

1.   Wilson Campbell, co-worker with the deceased, Mr. Glenn Davis, was employed by Respondent on Saturday,   [*10]   May 6, 1972, digging for sanitary lines.   Regarding the occurrence, he testifies, "After the ditch was finished we were told to go down and shore it up for safety in laying the pipe.   Before we could get a chance to do that, it caved in" (T. 8).

2.   The section of trench was along Highway 21.   The trench was not shored before Campbell and Davis went down.   There had been a few minor cave-ins previously (T. 9).   Ditches left overnight had caved in a little, even with jacks in them.   No other persons had been hurt to Campbell's knowledge.   There was a look-out man on top, the brother of the deceased.

3.   The trench was being shored by hand.   They had been using metal jacks previously (T. 10).   Previously metal jacks had been put in from the top and jacked out from the top but were not used on this particular section of trench in that it was not too long and the walls looked pretty good and oak boards were going to be used.   Highway 21 is a busy street, with cars going over it (T. 11).

  4.   Campbell was in the trench with Glenn Davis when the cave-in occurred.   They descended on a ladder. Campbell was at the bottom of the ladder during the cave-in, at the north end of the [*11]   trench.

5.   Campbell and Davis had been on a job approximately the same time, from one to two months.

6.   On the day of the fatality, May 6, 1972, Campbell and Glenn Davis were working together and were following the procedure where a ladder was placed in the trench immediately following the excavation by the backhoe which was being operated by Chalres Wilson Martin.

7.   Campbell described their usual digging procedure as following the backhoe, placing the ladder, and then going down the ladder and using oak boards and screw jack (T. 15).   At the time of the occurrence, there were no boards in the trench. Davis was the first to enter the trench and went to the far end to commence the shoring operation.   Campbell called him back with a request to start at the ladder and work to the far end.   As Davis started back the cave-in occurred.

8.   Previosly, Campbell had been utilizing metal and wood jacks which were let down from the top and jacked out.   In the utilization of these jacks he did not go down into the trench with the jacks (T. 17).   At the time of the occurrence there were no 2 X 8's or 2 X 10's in place (T. 17).

9.   The purpose of the operation was to shore the trench   [*12]   to tunnel under Lin Ferry.   Campbell had no prior tunneling experience (T. 18).

10.   Charles W. Martin, an employee of Gerstner on May 6, 1972, was a backhoe operator with approximately 20 years experience in digging trenches. He was employed digging the trench at the southeast corner of Highway 21 (Tesson Ferry) and Lin Ferry Road.   Highway 21 at that point is four lanes and Lin Ferry is   two lanes wide.   There had been previous slide-ins, the ditch would slip and a few cave-ins had occurred during the time of the construction (T. 20).

11.   The object in working that way that particular day was to get a tunnel through under Lin Ferry.   After having dug the trench Davis and Campbell went down on the ladder within approximately ten minutes.   Martin moved his machine to block traffic on Lin Ferry at the time they went down but then moved the back-hoe and traffic was moving while the two employees were in the trench. Flag men were out (T. 22).

12.   It was Martin's opinion that ordinary procedure after trenching was to follow as soon as possible with a ladder and shore up the trench. It was not ordinary for men to go down before any shoring was put in.   At the time of the [*13]   occurrence, the shoring boards and jacks were in the trench but were not in place when Davis and Martin entered the trench to brace the sides (T. 23).

13.   Paul Trusty, general foreman for Gerstner Electric with 26 years experience in trench work was on the job site May 6, 1972, with Glenn Davis, David Davis, Walter Bertlesman, Wilson Martin, backhoe operator, Vernon Kyle, another operator, Leroy Shepherd, Wilson Campbell and a man named Peters.

14.   After the trenching operation had been accomplished Trusty recalled being in the company of Bertlesman, David and Glenn Davis, Wilson Campbell and Vernon Kyle.   He gave instructions to the men around him to stand on a ladder and put boards in the trench while standing on the ladder. They were to take the trench shores, start at the top and shore down and to work behind each board as they went out into the ditch. They were instructed to lower the top jack first (T. 64), to stay at the top of the ladder, place the boards and put jacks in from the top down.   Trusty left   to obtain gasoline for a compressor and last observed Glenn Davis, Campbell and Dave Davis putting boards in the trench. Bertlesman and Dave Davis were to   [*14]   be on top as lookouts (T. 62).

15.   The condition at the trench site was such that boards could not be driven into the trench because of rock and they followed the procedure of starting at the top with something on each side of the trench to stand on to set more boards and put jacks in (T. 62).

16.   2 X 6 X 12 foot boards were being utilized and were to be placed a foot apart with the expectation of standing approximately a week.   Screw jacks would be applied across the top and there were sufficient jacks and planks on the job site to accomplish this purpose (T. 63).

17.   Trusty did not stay at the job site to supervise what the men were doing but crossed the two lane road, (Lin Ferry) to obtain gasoline.   Following the casualty, Trusty observed the deceased with shoring boards across his body with dirt at each end (T. 64).

18.   The lookout men were experienced and Trusty could have given the two lookout men a couple of life-lines or placed a couple of ladders in the trench although he had never seen a lifeline used under the attendant circumstances (T. 67).

19.   Trusty observed the backhoe had dug approximately 5 to 6 feet under Lin Ferry Road and there were cars going over the [*15]   road (T. 69-70).

20.   Carson Eversmeyer, assistant manager and superintendent over construction for Respondent with 20 years experience in trenching operations noted the work started at the job site in March of 1972 for the installation of sewers for the St. Louis Metropolitan Sewer District.   Eversmeyer was not present on May 6, 1972, but had been the managing officer of the work project selecting the rental material to be used an   buying shoring boards and renting hydraulic jacks (T. 74-76).

21.   It was the established procedure for the shoring to take place after the backhoe excavation by the use of oaks boards and shoring solidly.   Both he and Trusty had instructed the trench crew as to how to install the boards and they were mostly experienced men (T. 77-82).

22.   Eversmeyer was present on May 8, 1972, when the trench was dug up revealing shoring boards which were broken up and some at the bottom of the trench beneath the dirt. The trench was clay at the bottom extending up approximately five feet with a balance to the top being black loam.   He observed no sand (T. 78).   Aluminum hydraulic jacks and hydraulic shore extensions had been rented on April 30, to be used [*16]   on daily excavations which were opened, usually a 25 or 50 foot trench (T. 81).

23.   Mr. Alfred R. Brooks, inspector for Metropolitan Sewer District for 11 1/2 years noted the work being done by Gerstner was a 6,000 foot sanitary sewer line trench. On May 6, they had progressed in the neighborhood of a thousand feet or more (T. 83-84).

24.   The soil at the work site in the lower two thirds of the ditch was red clay with rock near the bottom and dirt at the top. The trench ran from the shoulder, or edge of the pavement of Lin Ferry Road away from Lin Ferry and alongside a vacant lot.   Highway 21 (Tesson Ferry) was parallel to the ditch with the ditch running into and under Lin Ferry (T. 85).   He made no observation as to the shoring technique employed by Respondent and was not concerned in his professional capacity as to how the trench was made (T. 87).

25.   Mr. Leo Briguglio, Business Agent Labor Local 110, had visited the job site ten days prior to the occurrence. Mr. Briguglio was familiar with recognized   procedures in trenching and saw nothing while there to find fault with nor received any complaints from the men.   From what he had seen he felt the shoring was   [*17]   recognized shoring for a trench 30 inches wide and 14 feet deep but was not at the job site the day of the accident and knew nothing about the trenching in question.   He had appointed the deceased (Glenn Davis) as steward on the job site (T. 73).

26.   Barbara Horsley, Compliance Officer, Occupational Safety and Health Administration, while at a beauty parlor on the morning of the occurrence which was located in the near vicinity of Lin Ferry and Tesson Ferry Road (Highway 21) heard of the occurrence at issue and upon the completion of her appointment walked one half block to the scene.

27.   She observed a trench about 14 or 15 feet long with vertical sides, a pile of dirt on the north side between Highway 21 and the trench. She observed a part of the wall caved in making one section of the trench wider than the other.   The two affected employees had been removed.   The soil, making up the sides of the trench and the dirt in the area of the trench appeared sandy with a little silt and clay mixed in.   Near the bottom of the trench the soil appeared to be more solid clay (T. 24-26).

28.   She left within ten minutes and attempted to contact the Area Director or his assistant and finally [*18]   called another compliance officer requesting directions.

29.   Mrs. Horsley returned to the scene with a Polaroid camera and 50 foot tape, identified herself, talked to Mr. John Gerstner and took photographs of the area (T. 27 & 28).

30.   She observed the backhoe operator sloping the south bank that had caved in and removing dirt from the north side of the trench. She described the trench   as laying east and west with the west end adjacent and underneath Lin Ferry Road.   There was a partial tunnel under Lin Ferry Road extending about four feet. There was traffic running over Lin Ferry.   She observed a ladder at the east end of the trench about 15 feet from Lin Ferry (T. 29).   The trench was about 15 feet from Tesson Ferry with traffic about 15 feet away to the north side of the trench. She was in the vicinity at approximately 1:00-1:30 P.M. the day of the accident.   It did not appear that shoring had been installed.

31.   When she first arrived approximately 12:00 P.M. she saw no signs of shoring. She saw boards which looked as if they were laid next to the trench. When she arrived a little after 1:00 P.M. there were boards inside the trench but they were stacked in,   [*19]   laying from one side over to the other side of the trench. On both occasions one side of the trench was still standing vertically (T. 30) (Exhibit R-1).

32.   There was no bracing or shoring on that side (vertical side).   While there she made out OSHA Form 4 and interviewed Charles Martin and a Mr. Peters.   She also talked with Mr. Gerstner.

33.   She returned the next day at approximately 10 A.M. to obtain additional photographs with the sun shining into the trench (T. 31).

34.   Mrs. Horsley testified as to the methodology utilized in the assessment of a proposed penalty finding a proposed serious violation based upon employees not being protected from moving ground or cave-ins and with respect to the depth of the trench and combination of sandy, silty, clay type soil with the additional factor that there was some backfill type of soil and that material had been moved around or excavated in preparation for the building of Highway 21 approximately a year prior to the occurrence.

Mrs. Horsley felt there was substantial probability of   death or serious physical harm due to the conditions or procedures and designated an unadjusted penalty at $1,000.   She gave credit for adjustment [*20]   factors and determined that 10% should be allowed for good faith as opposed to full credit for 20 % in that Respondent had an average safety program.

35.   Respondent had an employee ratio between 20 and 100 for which she gave 5% credit.   Respondent was given 20% full credit for history in that they had not been inspected by the Occupational Safety and Health Administration previously, resulting in a total reduction of the proposed penalty of 35% and resulting in a net proposed penalty of $650.00 (T. 40-43).   Mrs. Horsley was referred to a newspaper photograph of Mr. Wilson trapped in a trench and before he was removed which photograph indicated shoring boards in various positions with some of them alongside Mr. Wilson (T. 45).

36.   Robert Willey, Compliance Officer, Occupational Safety and Health Administration, arrived at the site of the fatality around 1:30 P.M. and observed the trench running approximately east and west with the western end of the trench at Lin Ferry running back approximately 15 feet east from that point.   He measured the trench and found it to be 11 to 12 feet to the dirt that was in the bottom of the trench and received information from Respondent that there [*21]   was approximately two or three feet of earth in the bottom at that point.   At the east end of the trench was an aluminum straight ladder where dirt had fallen in around it.   The outside of the original excavation had collapsed.

37.   The north side of the trench was still standing vertically and along the north side he observed shoring boards in the trench although they did not look like they had been in place.   Willey, who had experience in soil testing, made an observation that the soil appeared   to be a nondescript mixture of clay, silt and sand.   He described the sand and silt as not very stable and not developing the sheer strength of clay. There was so much disturbance at the time of his observation he found it difficult to tell exactly which part of the trench caved in first (T. 49-53).

38.   Willey gave an opinion that the trench could have been shored by placing boards vertically in the trench while standing on top away from the edge of the trench and driven in four to eight inches to get a toe hold in the foot of the trench and a top trench jack placed about a foot below the top of the ground surface.

39.   Also, metal trench jacks such as were on site could have [*22]   been inserted first and jacked out against the top portion of the trench where the burden is the greatest.   Following this, the lower portion of the trench could have been shored with wooden boards, or using either aluminum or metal trench jacks. It was Willey's opinion the trench could have been shored from the top without having men at the bottom (T. 54-55).

40.   Mr. Willey felt that shoring within ten minutes of backhoeing was a recognized procedure.

DISCUSSION

From a review of the testimony and evidence, the major issue involved are whether or not there was a violation of 29 C.F.R. Section 1926.652(a) and (e) and if so, a further question as to whether the violation was of a serious nature under the criteria provided by Section 17(k) of the Act.

Other issues implicit in the evidence involve whether or not there was an apparent failure to follow a foreman or superintendent's instructions on the part of the employees and what, under the circumstances, was the   proper criterion of supervision by Respondent's foreman once having undertaken that duty.

In dealing with such issues the Commission has treated numerous cases involving one or the other or all of such principles.   [*23]  

These cases can be generally distinguished and divided into several categories.   The first category are those cases dealing with a per se violation of the general duty clause or a standard.   Other cases where Respondent's supervisor or foreman is in active participation.   Other cases involve an occurrence where Respondent's representative has given direction or instruction as to the activity involved.   Others, where there is failure of proper supervision.

In Secretary v. Coors,   However, the violation was reduced to de minimis since a ladder did extend knee high from the lip of the excavation.

In Secretary v. Swatek,   working in an unshored trench 17 feet deep with no ladder. The soil was a mixture of clay and sand part of which was thought to be backfill for a roadbed.   This was found to be a hazardous condition.

In Secretary v. Waterville,   strength with the case being ruled on other grounds, namely, confidentiality of Respondent's financial records.

In Secretary v. Bi-Co,

Secretary v. Blue,   area that had been previously excavated, it was found to constitute a serious violation.

Secretary v. Irey,

Secretary v. Fischbach,   Employer cited under general duty clause Section 5(a)(1) involving fatal injury to an employee where soil from the face of the trench moved inward against sheeting before the center cross brace was secure.   It was held that Respondent did not furnish to each of his employees employment and a place of employment which was free from recognized hazards that was causing or was likely to cause death or serious physical harm . . . in that the Respondent did not take reasonable precaution in his trenching and shoring operations.

  Turning to cases involving foreman's participation or instructions in the occurrence cited as violations the Commission has considered;

Secretary v. Madden,   [*26]   boom within "plus or minus ten feet" from an overhead energized power line.   The Commission held that based upon this evidentiary material a violation was established.   The violation was found to be serious.

In Secretary v. Hidden Valley,

Secretary v. Capitol,

Secretary v. Hansen, OSAHRC Docket No 141, reflected the Respondent giving specific oral instructions to its employees to stay clear of a loading area.   Employees were repeatedly reminded of danger involved.   There was nothing to show that Respondent's owner knew [*27]   or reasonably should have known that the deceased employee would disobey instructions.   The Review Commission held that the presence of such conditions and because of the nature of the operations (log loading) to require Respondent to provide 1 on 1 supervision of its employees would place Respondent under the unreasonable burdensome duty of having to   establish the whereabouts of each of its employees prior to every operation of its equipment.

This line of reasoning was followed in Secretary v. Mountain States Telephone,   In reversing the finding of violation by the trial judge the Commission in different concurring opinions found that the employer did not know the existence of a short circuit in the tool prior to the fatality and could not have known so even with the exercise of reasonable diligence.   So too, in Secretary v. Block, OSAHRC Docket No 82, where an employee cleaning a cement mixer was killed when the mixer was inadvertently started and where explicit instructions and demonstrations were given to the employee on locking out the [*28]   electrical circuit, the trial judge found that the Respondent provided reasonable and adequate orientation and supervision to employees working in and around the cement mixer.   However, referring to the general duty clause of Section 5(a) and (1) and with reference to hazardous conditions, the Judge stated,

The hazardous condition cannot be adjudged as fully corrected or effectively eliminated until various nonmechanical factors, including but not limited to employee's ignorance, misconduct, or habitual carelessness are overcome to the extent possible by educational techniques, supervision and observation. Only when an employer has met his obligations in these respects, in both mechanical and human areas which together form the "condition" may it be held that he has met the standard of care which the Act imposes on employers subject to its jurisdiction.

In Secretary v. Robbins,   It was held, with the supervisor having such knowledge of the dangerous    [*29]   wire it was Respondent's duty to take the necessary steps to safeguard against possible death or serious bodily harm to his employees.   Respondent through his supervisor knew the hazard and failed to take all necessary measures to insure the safety of the employee.   In so holding, the Judge stated,

Ordinarily, the Respondent is not responsible for an employee disobeying instructions of management, but the Respondent is responsible for the actions, or the failure to act where obviously there is an affirmative duty to do so of supervisory personnel.

The foreman at the time of the accident was a foreman of the Respondent, acting as management and his failure to act was the responsibility of management.

Secretary v. Eller Bros.,   The superintendent gave instructions and then left and went to another job site across the highway. He took no steps to have a high tension line deenergized or to designate a person to observe clearance of the crane.   An employee was electrocuted and upon the issue as to Respondent's responsibility the Judge took the view that an employer is put to a higher standard [*30]   than merely informing an employee of the regulation or the hazard involved and is charged with the ultimate duty of furnishing a safe workplace for the employees.

This undoubtedly implies that the employer will take whatever action is necessary to accomplish the job in a safe manner . . .   In order to safely accomplish a job, it would appear undisputed that the employee must have adequate assistance.   It does little good to warn an employee of the hazard if the employer then lets him undertake the job without adequate assistance to accomplish it in a safe manner.

Here, the Judge felt additional assistance should have been given by way of a lookout in that Respondent could have foreseen the inability of the crane operator to maneuver under high tension wires.

  Secretary v. Pittston,   The Judge held that the employers hatch boss and gangway man did not fulfill their responsibilities or that of the Respondent (i.e., to see to it that the ladder was secure all of the time that it was in use by Respondent's employees)   [*31]   holding the Respondent to the primary duty of providing safe employment and a safe place of employment and that he could not shift the burden to the employee.

Secretary v. Broadview Seed Co., OSAHRC Docket No 124, where six employees riding a forklift truck which was not equipped with appropriate safety devices were injured and where the employees had been previously instructed not to ride the forklift truck and other means had been furnished by the employer to reach the desired level.   There was evidence that the foreman was supervising said employees and a conflict as to whether or not the foreman directed the employees to ride the forklift.   The Judge found that the foreman was a supervisor authorized to speak for management in the direction of the work to be done and in operating the forklift felt that Respondent was responsible for the actions of its supervisor referring to the Nacirema "neglect to exercise proper supervision." The aforementioned case (Broadview Seed Co.) decision of trial [*32]   judge affirmed by the Review Commission 2 to 1 January 15, 1973.

Secretary v. Republic Creosoting,   band resulting in ties falling on him and killing him and where the deceased was inexperienced and given no safety instructions it was held that employer's foreman who had responsibility of supervision knew or should have known deceased had not received training and took no effective steps in providing adequate safety regulations or instructions.   It was held, in finding Respondent in violation that Respondent could not divest itself of responsibility for the violation charged . . . by alleging the deceased employee's misconduct as the cause of the fatal injury . . . . that Respondent failed to provide adequate supervision of its employees which created the hazardous condition found to exist.

In Secretary v. National Realty,   safety rule.   While the trial judge held it to be an unavoidable accident, the Commission upon review held that the permission of the employer need not be shown in order to find a serious violation . . .   It was only necessary to show that the employer knew, or with the exercise of reasonable diligence could have known of the forbidden practice.

With respect to the standard, 29 C.F.R. Section 1926.652(a) the evidence is clear that Respondent excavated a trench 14 or 15 feet long, approximately 15 feet deep and 30 inches wide.   The trench was not shored nor was it laid back to a stable slope.   The composition of the soil was variously described as clay at the bottom extending up approximately five feet, with the top being black loam with no sand (T. 78), or with the lower two thirds of the ditch being red clay with rock near the bottom and dirt at the top (T. 85) or as solid clay at the bottom with sandy dirt with a little silt and clay (T. 24-26) or as non-descript mixture of clay, silt and sand (T. 49-53).

  With respect to 29 C.F.R. Section 1926.652(e) "Additional Precautions" where excavations or trenches are made in locations adjacent to backfilled excavations or where [*34]   excavations are subjected to vibrations from railroad or heavy traffic or the operation of machinery or any other source.   The evidence discloses that except for a brief period of time there were automobiles being operated over Lin Ferry Road in close proximity to the excavation (T. 69-70) (T. 22) with another highway (Tesson Ferry) located parallel to the ditch. It is, therefore, apparent from the foregoing that at the time of the occurrence, Respondent's trench which had banks more than five feet high was not shored or laid back to a stable slope and that further the trench was in close proximity to travelled highways.

In the language of Secretary v. Madden,

The posture presented by the Respondent is that Respondent furnished all the material and devices along with instructions to shore the trench in a safe manner.   The materials supplied by Respondent for these purposes consisted of oak boards, hydraulic jacks and screw type jacks. Respondent's representatives, Trusty and Eversmeyer are unequivocal in their testimony with respect to giving the exact instructions to Respondent's trench crew [*35]   as to the proper method of shoring and bracing the trench from the top. The question arises, was this sufficient under the circumstances?

It is apparent from a review of the evidence that there is sharp conflict on this issue.   Mr. Campbell, coemployee of the deceased, testified "Well, we were digging for sanitary lines.   After the ditch was finished we were told to go down and shore it up for safety in   laying the pipe.   Before we could get a chance to do that, it caved in"

When asked upon cross examination with respect to following the backhoe and preparing to shore, Mr. Campbell testified;

Q: Is that your usual procedure, to follow that closely behind it?

A: That's right.

Q: That's the first step before shoring it isn't it?   You dig the trench, then you go down on the ladder, and then you start the shoring, is that it?

A: That's it, right.

It is incredible that within minutes after Respondent's foreman had given verbal instructions to the trench crew to shore from the top and then departing to obtain gasoline, that some five or six experienced men working at the job at the time directly disobeyed orders and commenced the activities leading to the fatality.   Two [*36]   of the men would enter the trench which was supplied with but one ladder and the other two or three men, including the backhoe operator would go about their regular duties, as lookout, and flagman while their fellow employees descended into an area where there was unstable soil, which was in close proximity to a highway where there was moving traffic. The trench was twice as deep as the height of an average man with a history of previous slide-ins or cave-ins during the period of construction.

With respect to the foreman's responsibility of supervision it is felt that his efforts were seriously deficient.   As stated in the various cases this was not a factual situation wherein the foreman, with the exercise of reasonable diligence could not have known of the inherent danger attendant to shoring operations in the soil conditions heretofore described along with the other attendant circumstances of the close proximity of two   roadways, the fifteen foot depth of the trench, with prior experiences of slide-ins or cave-ins during the period of construction.

In this combination of circumstances it is felt that if, assuming the foreman's testimony to be accurate, he gave instructions [*37]   to the trenching crew, that this fact would not be sufficient in affording the employees a safe place to work.   Respondent's employees, both Campbell and Martin made mention of previous slide-ins and cave-ins during the time of the construction and it is reasonable to assume, Trusty was as knowledgeable.

While Respondent's foreman gave instructions to the trenching men to stand on a ladder and put boards in the trench while standing on the ladder the evidence discloses that only one ladder was utilized with two men attempting to provide the shoring. On prior occasions trench jacks had been utilized working from the top down.

The foreman was also aware of automobile traffic moving over Lin Ferry Road.   He was experienced in trenching operations.

Respondent's other supervisor, Mr. Eversmeyer, also testified that on daily excavations hydraulic jacks and hydraulic shore extensions were utilized.

It is felt that the factual situation in this case falls within the principles set forth in the prior enumerated cases that while ordinarily the Respondent is not responsible for an employee disobeying instructions of management, the Respondent is responsible for the actions, or the failure [*38]   to act, where obviously there was an affirmative duty to do so, of its supervisory personnel.   In the case at bar, it is abundantly apparent that once, the foreman undertook the duty of supervising Respondent's employees in the shoring of the trench, he could not abandon that duty by the mere   giving of oral instructions, in the face of the various elements existing at the time in question which gave rise to the ultimate fatality.

As to the nature of the violation, Section 17(k) of the Act specifically requires that in order for there to be a "serious violation" that:

A substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.

The Respondent, through its foreman reasonably could have known of the foregoing "conditions" and "operations" and could reasonably have anticipated that death or serious physical harm could result in the absence of adequate supervision. The   [*39]   violation was a serious violation

PENALTY

Having found Respondent in serious violation of the standard, a review of the factors involved in imposing a proposed penalty of $650.00 considering the criteria established by the Nacirema

The evidence reveals that while the gravity of the occurrence in the case at bar was quite severe resulting in death and is the principal factor to be considered, and while it is found that the foreman did not adequately supervise the trenching operation, credit given   the employer for its past history, size and good faith appears appropriate.   Respondent did as a matter of fact furnish the appropriate materials for properly shoring the trench in a safe fashion.   With the equipment at hand, the trench could have been shored without the fatality and injury but for the lapse of supervision by Respondent's foreman. Based on the foregoing it is felt [*40]   that a penalty of $650.00 is appropriate.

CONCLUSIONS OF LAW

1.   At all times mentioned herein, Respondent was and is an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), and the regulations promulgated thereunder, including 29 C.F.R. 1926.652(a) and (e) and the Occupational Safety and Health Review Commission has jurisdiction over the parties in subject matter.

2.   On May 6, 1972, Respondent violated 29 C.F.R. 1926.652(a) and (e) a duly promulgated standard pursuant to Section 6 of the Act in that Respondent maintained a trench with banks more than five feet high which was not shored, laid back to a stable slope or had other equivalent means of protection where employees may be exposed to moving ground or cave-ins and having taken no additional precautions by way or shoring and bracing to prevent slides or cave-ins in a location where excavations are subjected to vibrations from highway traffic and wherein two employees were working without proper supervision by Respondent's foreman.

3.   Respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 by violating the Occupational Safety [*41]   and Health standard as alleged in the Citation for serious violation.

  4.   There was substantial probability that death or serious harm could have resulted from the conditions cited in the Citation for serious violation and Respondent knew or could have known of the presence of this violation by the exercise of reasonable diligence.

5.   The violation alleged in the Citation for serious violation constituted a serious violation within the meaning of Section 17(k) of the Occupational Safety and Health Act.

6.   The penalty proposed for this violation in the amount of $650 was appropriate with respect to the gravity of the violation, the size of the Respondent's business, the good faith of the Respondent and Respondent's history of previous violation.

7.   Immediate abatement was reasonable.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is hereby ordered that the Citation for serious violation, the abatement period fixed therein, and the penalty proposed therefore in the amount of $650 are affirmed in all respects.