UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 4388

FORISH CONSTRUCTION CO., INC.,  

 

                                              Respondent.

 

 

March 16, 1976

DECISION

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

MORAN, Commissioner:

An April 17, 1974, decision of Review Commission Judge Henry K. Osterman is before this Commission for review pursuant to 29 U.S.C. § 661(i). At issue is whether the Judge assessed an appropriate penalty under 29 U.S.C. § 666(i).

Respondent was charged with noncompliance with the requirements of the standard codified at 29 C.F.R. § 1926.652(b) for failure to require shoring or sloping of a trench more than five feet deep. Respondent timely contested only the penalty. The Judge adopted complainant’s proposed penalty of $650.

The evidence establishes that the gravity of the violation was moderately low. A backhoe performed all the excavating in the trench. The sole incidence of employee exposure to the hazard occurred when a workman entered the trench for approximately five minutes to check a gas line. At no other time did he or any other employee enter the unshored trench.

The evidence of record also shows that respondent demonstrated an attitude of cooperation with the Act. Additionally, it indicates that respondent’s employees were afforded safety instruction on a regular basis, and that the noncompliant conditions were abated quickly. Respondent, which employs approximately 30 workers, has no history of previous violations.

Considering the above-described evidence in conjunction with the factors enumerated in 29 U.S.C. § 666(i), we find that a $200 penalty is appropriate. Accordingly, the Judge’s decision is modified by substituting $200 for the Judge’s penalty assessment and, as so modified, the Judge’s decision is affirmed.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

Dated: March 16, 1976

 

CLEARY, Commissioner, DISSENTING:

I dissent from the majority’s assessment of a $200 civil penalty.

The trenching violation was ‘serious’ within the meaning of section 17(k) of OSHA. The penalty factors in section 17(j) of the Act were considered by the Secretary of Labor in the calculation of a $650 proposed penalty. The Judge also considered the section 17(j) factors in light of the evidence adduced at the hearing and found the proposed penalty to be appropriate. I do not find that the evidence warrants the reduction in penalty made by the majority to an amount less than one-third of that found by the Judge to be appropriate.

True, a single employee was exposed to the hazard for a relatively short period. But that employee was totally unprotected. The trench was not sloped, shored, or braced in any manner. The soil was unstable to the point that it gave way when stamped by the compliance officer. Respondent took no precautions to protect the employee from injury. Accordingly, the gravity of the violation is substantial.

I do not question respondent’s good faith and cooperation, and the absence of previous violations. I note also that respondent has properly received full credit for each of these considerations in the computation of the proposed penalty.

Nevertheless, the gravity of the trenching hazard is severe and in balance warrants the assessment of a higher penalty. Although civil penalties that may be assessed under the Act are remedial rather than preventive, the price for not complying with a standard should be less attractive than compliance if the remedial purposes of the Act are to be fostered. J.M. Roofing Co., 140 OSAHRC 306 BNA 2 OSHC 1428, CCH OSHD para. 19,157.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 4388

FORISH CONSTRUCTION CO., INC.,  

 

                                              Respondent.

 

 

FINAL ORDER DATE: May 17, 1974

DECISION AND ORDER

 

APPEARANCES:

Jerrold Solomon, Esq. Office of the Regional Solicitor U.S. Department of Labor J.F.K. Federal Building Boston, Massachusetts (02203)

 

LaCroix, Fuller & Brogan (Clayton N. Fuller) 287 State Street Springfield, Massachusetts (01105) For the Respondent

 

OSTERMAN, Judge

This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC § 659(c), (hereafter the Act) to contest a Notice of Proposed Penalty issued by the Secretary of Labor on August 23, 1973 in connection with a Citation issued on the same date.

The alleged violations, the abatement dates and the proposed penalties are as follows:

Serious Violation

Abatement Date

Proposed Penalty

29 CFR 1926.652(b) [Failure to shore or slope a trench more than 5 feet in depth]

Immediate

$650.00

Non-Serious Violation

 

 

29 CFR 1926.100(a) [Failure to require employees to wear protective headgear]

Immediate

None

 

29 CFR 1926.651(i)(1) [Failure to retain material at least 2 feet from edge of trench]

Immediate

None

 

A notice of contest challenging only the proposed penalty was timely filed on August 30th. Thereafter a Complainant and Answer were filed by the parties and a hearing in the matter was held in Springfield, Massachusetts on January 17, 1974.

Because the Notice of Contest filed by Respondent challenged only the penalty proposed for the serious violation, this is the sole issue to be determined, Peter J. Brennan, Secretary of Labor v. Commission and Bill Echols Trucking Company, Civil No. 73–1670 (5th Circuit, November 1973).

At the hearing it was stipulated that Respondent employs an average of 30 persons on a daily basis (Tr. 5). The evidence is clear that at least one employee of the Respondent was observed by the Secretary’s compliance officer at work in a trench which measured more than 5 feet in depth; that the sides of the trench were neither sloped nor shored; and that the soil of the trench was unstable.

Respondent urges that its failure to comply with 29 CFR 1926.652(b) should not be considered a ‘serious’ violation of the regulation. I disagree. Past experience has shown that a collapse of the sides of such a trench could result in death or serious injury to anyone standing in the trench.

On the issue of the penalty it was the testimony of the Secretary’s witnesses that full consideration was given to those factors expressed in Section 17(j) of the Act in arriving at the proposed penalty (Tr. 33–37). My independent consideration of proposed penalty leads me to the conclusion that it is reasonable and appropriate under the circumstances herein. I find no basis for reducing the amount suggested by the Secretary.

FINDINGS OF FACT

1. Respondent is a corporation organized and existing under the laws of the Commonwealth of Massachusetts and is engaged in business as a building contractor employing an average of thirty (30) persons on a daily basis.

2. Respondent regularly receives and handles goods which have moved in interstate commerce.

3. On August 14, 1973 at a worksite located at 720 Southampton Road, Westfield, Massachusetts, Respondent’s employee was observed working in a trench more than 5 feet in depth and dug in unstable soil the sides of which had not been sloped, shored or otherwise supported as required by 29 CFR 1926.652(b).

4. Material which had been excavated from the trench was also piled less than two feet from the edge of the trench.

5. Respondent’s employee was working in the trench without protective head gear.

6. On August 23rd, 1973 Respondent was issued two Citations, one charging a serious violation of 29 CFR 1926.652(b) and the other Citation charging two non-serious violations; to wit: a violation of 29 CFR 1926.100(a) and a violation of 29 CFR 1926.651(i)(1).

7. On August 30th Respondent filed a Notice of Contest directed solely against the penalty proposed for the serious violation of 29 CFR 1926.652(b).

8. Because Respondent elected to contest only the penalty proposed for the serious violation charged, the determination of the Secretary that Respondent was in violation of three separate regulations became the final decision of this Commission and can no longer be challenged by the Respondent.

9. The evidence taken at the hearing in the matter discloses that in arriving at the proposed penalty for the serious violation the Secretary of Labor considered all those factors which are required to be considered by Section 17(j) of the Act.

10. I find the violation of 29 CFR 1926.652(b) to be one in which there was a substantial probability that death or serious injury could result had the trench in question collapsed while an employee was in the said trench.

11. I find also that the penalty proposed by the Secretary is reasonable and appropriate under these circumstances.

CONCLUSION OF LAW

1. Respondent is an ‘employer’ engaged in ‘commerce’ as those terms are defined by Section 3 of the Act.

2. On August 14, 1973 Respondent was in violation of 29 CFR 1926.652(b); 29 CFR 1926.100(a); and 29 CFR 1926.651(i)(1).

3. The penalty of $650.00 proposed by the Secretary for violation of 29 CFR 1926.652(b) is reasonable and appropriate and not inconsistent with Section 17(j) of the Act.

ORDER

Pursuant to Section 10(c) of the Act and Rule 66 of this Commission’s Rules of Procedure, it is ORDERED:

1. That the violation charged in the Citations issued on August 23, 1973 be, and the same hereby are, AFFIRMED.

2. That the penalty of $650.00 proposed for Respondent’s serious violation of 29 CFR 1926.652(b) be, and the same here is, AFFIRMED.

 

HENRY K. OSTERMAN

Judge, OSHRC

Dated: April 17, 1974

Washington, D.C.