UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

July 22, 1975

Before MORAN, Chairman; and CLEARY, Commissioner

BY THE COMMISSION:

A decision of Review Commission Judge William J. Risteau, dated January 17, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time. The Judge held that the respondent violated 29 U.S.C § 654(a)(2) by failing to comply with two occupational safety standards codified at 29 C.F.R. §§ 1926.651(i)(1) and 1926.652(c). He assessed penalties of $300.00 and $50.00 respectively therefor.

The direction for review does not question the Judge’s disposition of the violation of 29 C.F.R. § 1926.651(i)(1). The Commission agrees with this disposition for the reasons given by the Judge and, therefore, affirms the citation for a violation of that standard. However, the Commission is equally divided on whether the Judge properly disposed of the remaining citation.

Chairman Moran would vacate the citation for noncompliance with 29 C.F.R. § 1926.652(c). Considering that the two tables appearing within 29 C.F.R. § 1926.652 indicate that no shoring or sloping is required in trenches that are located in solid rock, he concludes that § 1926.652(c) is not applicable to a trench located in ground consisting of rock and hard or compact soil unless the hard or compact soil reaches a depth of more than five feet. Since the evidence establishes that the trench here in issue was located in rock except for the upper four feet thereof which were located in clay containing limestone particles, he would find the evidence insufficient to establish a violation of the standard.

  Commissioner Cleary agrees with the Judge’s disposition and reasoning in affirming the violation of 29 C.F.R. § 1926.652(c). In his opinion, when a trench more than five feet deep is located in hard or compact soil, the standard applies even though it may be shown that the walls of the trench are composed partially of rock

The cited Regulations read as follows:

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated May 24, 1973, from Charles J. Adams, Director of Area 1730, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess penalties for each of the two serious violations alleged in the amount of $650.00 each, or a total of $1,300.00. and partially of compact soil extending to a depth less than five feet deep. He recognizes that there may be instances when the soil portion thereof is so shallow that it is insignificant, but finds that not to be the situation in this case.

Commissioner Cleary also agrees with the Judge’s penalty assessment. He is persuaded by the convincing testimony of respondent’s two geological engineers that the nature of the rock and soil composing the trench walls is such that the gravity of the violation is very low.

  Accordingly, the Judge’s affirmance of the complainant’s citation for noncompliance with 29 C.F.R. § 1926.652(c) is affirmed by an equally divided Commission, and the decision thereon has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

January 17, 1974

RISTEAU, JUDGE:1

This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act], contesting Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citations allege that as the result of an inspection on May 16, 1973, of a workplace under the ownership, operation, or control of the Respondent, located at S.W. Corner of North Star Road and Buckingham Road, Garland, Texas, and described as ‘Trench (GTE Cables),’ Respondent violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations which were issued on May 24, 1973, allege that the violations resulted from a failure to comply with the following standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926.

After Respondent contested this enforcement action and a Complaint had been filed, the case came on for hearing at Dallas, Texas, on September 12, 1973. No question concerning the Respondent’s status as an employer as defined in the Act or the jurisdiction of this Commission is involved.

DISCUSSION

At the outset it must be decided what effect should be given to Respondent’s letter of June 13, 1973, as it relates to an intention to contest only the proposed severity classification of Serious Citation No. 2 and the proposed penalty for that alleged violation. Complainant maintains that this is the only timely Notice of Contest filed with respect to Serious Citation No. 2 and for this reason has moved to dismiss a subsequent Notice dated July 2, 1973, which states an intention to contest without qualification the allegation of this Citation.

In ruling on this point, this Judge feels compelled to follow Secretary v. Schumann Brothers, Inc., OSHRC Docket No. 1760, which became a final order of the Commission on August 13, 1973. In that case it was held that upon the filing of a limited Notice of Contest ‘the Commission’s jurisdiction to affirm, vacate, or modify, extended to every portion of the Citation and proposed penalty.’ The Notice of Contest of June 13 therefore, supplied sufficient basis for a denial of all aspects of Serious Citation No. 2, regardless of the timeliness of the July 2 communication.

Contingent on the Judge’s ruling on the above point, Complainant moved at the pre-hearing conference on September 4 and at the beginning of the hearing on September 12, 1973, to amend Citation for Serious Violation No. 2 so as to change the numerical reference of the allegedly violated Regulation to 29 CFR 1926.652(2)22, a designation which more accurately fits the narrative description of the violation in the Citation.

Such amendment would appear to be permissible under the decision of the Commission in Secretary v. J. L. Mabry Grading, Inc., OSHRC Docket No. 285. Nor can it be said that Respondent was unduly misled or prejudiced by amendment in this fashion, in view of the verbal description of the violation in the Citation and Respondent’s demonstrated ability to prepare its defense.3

The evidence does, moreover, establish a violation of 29 CFR 1926.652(c). Section 1926.653(h) of the same Title defines ‘Hard compact soil’ as ‘all earth materials not classified as running or unstable,’ and it is apparent that the sides of the trench under consideration meet this definition. (Ex. R–5) It is further apparent that the trench is more than 5 feet in depth and 8 feet in length, that it was not shored at the time of the inspection and that it had almost unsloped sides at that time. (Ex. C–1–3)

Moreover, this is a serious violation. The Commission in Secretary v. Standard Glass and Supply Co., OSHRC Docket No. 585, had occasion to interpret the requirements of Section 17(k) of the Act, which deals with the definition of a ‘Serious’ violation.4 Its conclusion was that ‘Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to result when an accident does arise from a particular set of circumstances.’ When this test is applied in the present case, it must be held that the violation here in a serious one, for it is surely likely5 that cave-in of a trench having the physical characteristics of that here involved would cause serious physical harm or death. In addition, the nature of the violation was such that Respondent could with reasonable diligence, know of its presence. Its management is skilled and experienced, and it is not unreasonable to attribute to it knowledge of the requirements of the standards applicable under the Act.

The proposed penalty is, however, excessive. While there exists a difference of opinion as to the likelihood of a cave-in, the undersigned believes that the record as a whole shows the collapse of the trench is only a possibility; a penalty of $50.00 is appropriate.

With respect to Citation for Serious Violation No. 1, relating to excavated materials stored within two feet of the trench, Respondent contests only the classification of the violation as serious or non-serious, and the amount of proposed penalty. In passing upon these two issues, it must first be observed that there are two sources of hazard from this type of violation. First, the increased weight at the top of the trench increases the odds that a cave-in will occur; second, heavy pieces of debris may fall in the trench and cause injury. (Ex. C–2)

When the criteria of the Commission as laid down in Secretary v. Standard Glass and Supply Co., supra, are applied to this situation, it must be found that Citation No. 1 delineates a Serious Violation. The test is not whether there is a significant probability of any injury but whether, if injury does occur, it is reasonably likely that it will result in serious harm or death. The potential injuries here fall in those categories.

The proposed penalty is, however, again excessive. As pointed out above, the evidence shows that the walls of the trench are relatively stable and not likely to collapse, so that the only hazard of consequence is that from debris falling into the trench. On these facts, it would appear that a penalty of $300.00 on Citation for Serious Violation No. 1 is warranted.

Respondent argues that because the Secretary’s Compliance Office cannot recall whether he showed his credentials to Respondent’s foreman, the Inspection of May 16, 1973, was not conducted according to the Act and hence cannot support a valid Citation. The Officer did, however, supply his calling card and explain the purpose of his visit. On similar facts this argument was rejected in Secretary v. California Stevedore and Ballast Co., OSHRC Docket No. 1483. It will receive the same treatment here.

FINDINGS OF FACT

1. On May 16, 1973, employees of Respondent were at work on a construction project located at the southwest corner of North Star Road and Buckingham Road, Garland, Texas.

  2. Part of the work on that project consisted of the excavation of a trench (referred to hereinafter as ‘the trench’) approximately 5’ x 20’ x 9’ deep.

3. The sides of the trench were essentially vertical.

4. The sides of the trench consisted of hard or compact soil.

5. The sides of the trench were not shored, supported, or sloped as required by Regulations [29 CFR 1926.652(c)] promulgated pursuant to the Occupational Safety and Health Act of 1970.

6. The failure to shore, support, or slope the walls of the trench resulted in a situation wherein Respondent’s employees were exposed to death or serious physical harm from cave-in of the trench.

7. Due to the relative stability of the sides of the trench, the likelihood of cave-in and resulting death or injury was low.

8. Excavated materials to a height of approximately three feet were stored at a distance of less than two feet from the side of the trench.

9. The storage of such excavated material within two feet of the side of the trench is prohibited by Regulations [29 CFR 1926.652(i)(1)] promulgated pursuant to the Occupational Safety and Health Act of 1970.

10. The storage of excavated material within two feet of the side of the trench resulted in a situation wherein Respondent’s employees were exposed to death or serious physical harm either from the increased likelihood of cave-in of the trench due to the weight of the excavated material or from large pieces of debris falling into the trench.

11. There was a substantial probability of death or serious physical harm resulting from the storage of excavated materials within two feet of the side of the trench.

12. Due to the relative stability of the sides of the trench, the likelihood of cave-in and resulting death or serious physical harm from this cause was low.

13. Respondent could, with the exercise of reasonable diligence, have known that the trench did not meet requirements of the Regulations, as specified above.

CONCLUSIONS OF LAW

1. On May 16, 1973, Respondent violated Sections 1926.652(c) and 1926.651(i)(1) of Title 29, Code of Federal Regulations, comprising safety standards promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; each of these was a ‘serious’ violation, as defined in the Act.

2. A penalty of $50.00 for violation of 29 CFR 1926.652(a) is appropriate, as is a penalty of $300.00 for violation of 29 CFR 1926.651(i)(1).

ORDER

On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that Citations for Serious Violations Nos. 1 and 2, issued on May 24, 1973, be, and they are AFFIRMED. It is further ordered that the total of the proposed penalties be reduced to $350.00 and that that amount be assessed against Respondent.

APPENDIX I

[Ed. Note: See fn 3 for explanation of this content and accompanying footnotes.]

11

Moreover, any ambiguities surrounding the Secretary’s allegations could have been cured at the hearing itself. So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue.28 This follows from the familiar rule that administrative pleadings are very liberally construed29 and very easily amended.30 The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if

12

The Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.31

1 [Ed. Note: There is no footnote 1 in the judge’s original text.]

2 652(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.

3 See the Decision of the Court of Appeals for the District of Columbia in National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, decided December 13, 1973. Portions of Slip Opinion are attached as Appendix I.

4 17(k)

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is 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.

5 The Compliance Officer considered that there was a high possibility of such occurrence.

28 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350 (1938); Golden Grain Macaroni Co. v. FTC, 9 Cir., 472 F.2d 882, 885–886 (1972); L. G. Balfour Co. v. FTC, 7 Cir., 442 F.2d 1, 19, 21 (1971); Swift & Co. v. United States, 7 Cir., 393 F.2d 247 (1968).

29 Professor Davis states the rule with characteristic verve:

The most important characteristic of pleadings in the administrative process is their unimportance. And experience shows that unimportance of pleadings is a virtue. * * *

1 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 8.04 at 523 (1958). See also Tashof v. FTC, 141 U.S.App.D.C. 274, 437 F.2d 707 (1970).

30 NLRB v. Fant Milling Co., 360 U.S. 301 (1959); NLRB v. International Union of Operating Engineers, Local 925, 5 Cir., 460 F.2d 589 (1972); NLRB v. Pallette Stone Corp., 2 Cir., 283 F.2d 641 (1960).

31 Allowing subsequent amendment of a citation’s charges will not disturb the central function of the citation, which is to alert a cited employer that it must contest the Secretary’s allegation or pay the proposed fine. In the typical case, the more inaccurate or unhappily drafted is a citation, the more likely an employer will be to contest it. But a citation also serves to order an employer to correct the cited condition or practice, and a failure to so correct is a punishable violation. 29 U.S.C. § 666(d). Obviously an employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize. Thus, before penalizing a failure to correct a cited violation, the Commission must satisfy itself that the citation defines the ‘uncorrected’ violation with particularity. 29 U.S.C. § 658(a).