SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORPORATION,
ROCHESTER PRODUCTS DIVISION,
Respondent.

UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, LOCAL 1097,

Authorized Employee
Representative.

OSHRC Docket No. 80-5439

_DECISION_

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was
established to resolve disputes arising out of enforcement actions
brought by the Secretary of Labor under the Act and has no regulatory
functions.  _See_ section 10(c) of the Act, 29 U.S.C. § 659(c).

A citation issued by OSHA alleged that General Motors Corporation ("GM")
violated an employee instruction standard and two trenching standards.
 At issue is whether Administrative Law Judge Foster Furcolo erred in
vacating the two trenching items and affirming the employee instruction
item.  For the reasons set forth below, we conclude that GM violated one
of the trenching standards, but we are divided as to whether the other
alleged violations were proven.[[1]]

_Item 2:  Unshored Trench
_Item 2 of the citation alleged that GM violated 29 C.F.R. § 1926.652(c)
by failing to slope or shore the sides of a trench dug in "hard or
compact soil."[[2]]  At the time of the alleged violation, a crew of
second-shift employees was preparing for the installation of a trough to
collect oil from machinery in a large manufacturing building.  Using the
company's construction equipment, employees had broken through part of
the concrete floor and dug an L-shaped trench.  The leg of the trench
running from north to south was about 20 feet long, 7 feet wide, and 10
to 12 feet deep, with a pipe and adjacent ladder at its north end. The
leg of the trench running from east to west was 38 feet long, 7 feet
wide, and 8 to 10 feet deep.  At the western end of the east-west leg,
the soil sloped from the bottom of the trench to the floor level, and a
ladder was located along the slope.

GM planned to shore the trench before installing the trough.  Long steel
rods called "channels" were lowered with ropes into the trench and
placed against the walls every two feet.  After the channels were
pounded into the bottom of the trench by the bucket of the backhoe,
employees at the top edge of the trench slid plywood sheets down behind
the channels.  Employees in the trench then nailed the sheets together.
 Millwrights at the top edge then tied back the channels and fastened
them to the concrete floor with brackets.

On the evening at issue, employees were shoring the north-south leg, and
both walls of the north end of that leg had been shored. The east-west
leg was still completely unshored.  Jesse DeVittorio and Al LoMonaco,
two of GM's carpenter-masons, were in the trench nailing the plywood
sheets together.  LoMonaco told DeVittorio that it was time for a coffee
break, and they proceeded to leave the trench by the same route that
they had entered it-the slope at the far end of the east-west leg--so as
not to bother a pipe fitter and a welder who were working next to the
ladder in the shored north end of the north-south leg.  DeVittorio
followed LoMonaco around the corner to the east-west leg.  By the time
LoMonaco had climbed up the slope, the unshored north wall of the
east-west leg near the corner had collapsed on DeVittorio.

Following the accident, the worksite was inspected by an OSHA compliance
officer.  The compliance officer did not take any soil samples or
perform any test to analyze the soil.  However, he and other witnesses
for the Secretary testified that the material in which the trench had
been dug was backfill composed of sand, gravel, and loose rocks.  They
testified that the backfill was more firm in some walls than in others. 
Richard Carpenter, GM's superintendent of plant engineering, testified
that the soil was "backfill material" that was "sandy clay."

Judge Furcolo concluded that the Secretary failed to prove a violation
of section 1926.652(c).  He determined that "[t]he soil was certainly
not the 'hard or compact' type alleged in the citation . . . . " He
stated that amending the citation and complaint to allege a violation of
section 1926.652(b)[[3]] was not justified by the evidence, which "does
not establish that the soil was 'unstable' or 'soft' or any other
classification."  He held that because the soil had not been analyzed
there was insufficient proof of a violation of any trenching standard. 
The judge stated that another reason for vacating the citation item was
that GM "was doing the shoring in timely fashion."  The judge noted that
GM did not use the trench in its unshored condition or "refuse to
recognize" that it was required to shore the trench.

The Secretary argues on review that he made the requisite showing that
section 1926.652(c) applies to GM's trench.  He contends that the record
shows that the soil was at best hard and compact, and that such a
showing is sufficient to establish the applicability of the standard. 
The Secretary further asserts that GM violated the standard in that it
allowed its employees to be exposed to unshored areas of the trench and
to work in the partially shored north end of the trench.  GM argues on
review that Judge Furcolo's conclusion that section 1926.652(c) was not
violated and his reasons therefor should be affirmed.

We hold that the judge did err in vacating this item because it was not
proved whether the soil was governed by section 1926.652(b) or by
section 1926.652(c).   The trenching standards divide earth materials
into categories, with trenches dug in each category requiring a
different degree of protection.  The greatest degree of protection by
way of sloping or shoring is required for "unstable or soft" soil.  
Trenches dug in such soil are governed by section 1926.652(b).  At the
other extreme, trenches in "Solid Rock, Shale or Cemented Sand and
Gravels" need not be sloped or shored at all.  _See_ Table P-1, appended
to section 1926.652.   Between these types are trenches dug in "hard or
compact" soil, which are governed by section 1926.652(c).  Such
trenches, if more than five feet deep, must be sloped above the
five-foot level or shored.  _E.g_., _CCI, Inc_., 80 OSAHRC 127/D4, 9 BNA
OSHC 1169, 1981 CCH OSHD ¶ 25,091 (No. 76-1228, 1980), _aff'd_, 688 F.2d
88 (10th Cir. 1982).  Although the shoring requirements for trenches dug
in hard, compact soil are less demanding than for trenches dug in soft,
sandy, or filled soil, both sections require unsloped trenches to be
shored.  _See_ Table P-2, appended to section 1926.652.  It is not the
subject of dispute that the trench in this case was substantially more
than five feet deep and that most of its walls were not sloped.  It is
clear from the record that GM knew that it was required to shore or
slope the walls of the trench and that it had elected to shore the
trench walls due to the worksite conditions.

GM's argument that the Secretary failed to prove the applicability of
section 1926.652(c) therefore reduces to the argument that it should
have been cited under the more stringent provision of section
1926.652(b) instead.  However, under the circumstances of this case,
there is no difference in the requirement of the two standards:  both
require that the trench walls be shored.  As the Secretary points out,
he gave GM the benefit of the doubt by citing under subsection (c)
rather than subsection (b) because subsection (c) requires less
protection.  Thus, if there was a defect in the citation, it tended to
benefit GM and does not constitute grounds to vacate the citation.  We
conclude therefore that the judge erred in vacating the citation for
that reason.

GM also argues that, even if the standard applies, it was not in
violation because the employees in the trench were there for the purpose
of installing the shoring required to comply with the standard.  The
company contends that a violation of the standard only occurs if there
is "needless exposure" of employees to the unshored trench walls.

We agree with GM's argument that an employer cannot be found in
violation of the standard based merely on the presence in the trench of
employees installing the shoring required by the standard.  As GM
correctly states, the question is whether employee presence in the
trench is needless.  In this case, four employees were in the
north-south leg immediately before the accident.  A pipe fitter and a
welder were working in the shored portion at the north end of the leg. 
The other two employees were nailing together the plywood sheets that
formed part of the shoring system.   Inasmuch as the employees in the
north-south leg were either working in a part of the trench that had
already been shored or were engaged in installing the shoring in that
leg, GM did not violate the standard in the north-south leg.

The east-west leg, however, was completely unshored, and GM did not take
any steps to keep the employees out of that leg. Moreover, at the west
end of that leg was a dirt slope along which ran a ladder that employees
used to enter and leave the trench. The presence of the slope and ladder
made it reasonably predictable that employees would use the east-west
leg to gain access to their work area in the north-south leg, and in
doing so they would be exposed to the unshored walls of the east-west
leg.  Because GM did not limit employee access to the trench so as to
eliminate the unnecessary exposure of employees to the unshored walls,
GM did violate the standard with respect to the east-west leg.  _Floyd
S. Pike Electrical Contractor, Inc_., 77 OSAHRC 26/B11, 5 BNA OSHC 1088,
1977-78 CCH OSHD ¶ 21,584 (No. 12398, 1977), _aff'd_, 576 F.2d 72 (5th
Cir. 1978).

We reject GM's argument that the citation should be vacated because the
accident resulted from employee disobedience to instructions to remain
out of the unshored parts of the trench.  The proper inquiry is not the
cause of the accident, but whether GM violated the standard as alleged. 
_See_ _Champlin Petroleum Co. v. OSHRC_, 593 F.2d 637, 642 (5th Cir.
1979) (Act is designed to achieve abatement of hazardous conditions, not
fix blame for particular injury).  The finding of a violation is not
based on the occurrence of the accident but on the foreseeable exposure
of GM's employees to the unshored east-west leg of the trench. [[4]]

The Commission therefore affirms the citation item alleging a violation
of section 1926.652(c).  The parties stipulated that DeVittorio's
injuries were "serious" within the meaning of section 17(k) of the Act,
29 U.S.C. § 666(i).   Based on that stipulation and on the obvious
danger presented by the unprotected walls of a trench 8 to 10 feet deep,
the Commission finds a substantial probability that death or serious
harm could have resulted from the violation.  We therefore conclude that
the violation was "serious."  Having considered the penalty criteria set
forth in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a
penalty of $50 for the serious violation of section 1926.652(c).

_Item 3:  Additional Precautions_
Item 3 of the citation alleges that GM violated section 1926.652(e),
which requires additional precautions in trenches adjacent to backfilled
excavations or subject to vibrations from the operation of
machinery.[[5]]  Witnesses for both parties testified that the area in
which the trench was dug consisted of backfill.

There was also some testimony at the hearing that the trench was
subjected to vibrations.  Two of GM's employees--John Boushie, a
second-shift pipe fitter, and Anthony Davide, a first-shift
millwright--testified that both the backhoe, which was located near the
edge of the trench on a concrete slab, and another piece of equipment
called the "in-line transfer machine," which was situated about 10 to 12
feet away from the trench, vibrated when they were in operation.  The
employees did not say, however, how much the machines vibrated.  James
Conlon, the Secretary's expert witness, testified that when the backhoe
pounded the steel channels it transmitted vibrations into the soil that
could extend for 5 feet from the channel.  The backhoe had been driving
channels just before the accident.  When asked if there would be
vibrations in the soil when the in-line transfer machine was in
operation, Conlon testified that it was possible.  He stated, however,
that "[v]ibrations are difficult to predict," and he could not be sure
whether the in- line transfer machine produced vibrations in the soil
because he had not been at the worksite.  Conlon further acknowledged
that any opinion as to vibrations without having felt them is "highly
theoretical" and "into the realm of speculation."

The compliance officer testified that he did not measure nor did he know
how much the machines vibrated.  According to Carpenter, GM's
superintendent of plant engineering, the in-line transfer machine was
designed not to vibrate, and, even if it did, the vibrations would be
negligible.  He also testified that any vibrations from the in-line
transfer machine or the backhoe had "no bearing" on the collapse of the
walls of the east-west leg, for the vibrations were "in the manner of
thousandths of an inch."

Judge Furcolo vacated this item.  Although he found that the soil in the
area was backfill,[[6]] he went on to conclude that a violation of the
standard was not proven because the Secretary did not establish that the
trench was "subjected to vibrations from . . . the operation of
machinery."  Judge Furcolo determined that the word "vibrations" means
"vibrations sufficient to have some effect that might contribute to a
slide or cave-in of any nearby excavation or trench."   After reviewing
the testimony and noting the lack of evidence as to the degree of the
vibration, he concluded that, even considering the evidence most
favorable to the Secretary, there was no proof that the trench was
subjected to the alleged vibrations.   He therefore vacated the citation
item.

The Secretary argues on review that the judge misinterpreted section
1926.652(e).  He contends that the word "or" in the standard signifies
that it applies in two distinct situations:  where a trench is adjacent
to backfilled soil, or where the trench is subjected to vibrations from
the operation of machinery.   According to the Secretary, he met his
burden of proof under the standard by establishing that the unshored
trench was dug in backfill, regardless of whether the trench was also
subject to vibrations.  The Secretary also argues that, in any event,
the trench was subjected to vibrations from the operation of machinery. 
GM contends on review that it was in the process of shoring the trench,
and the Secretary failed to show what additional precautions were required.

Chairman Buckley would affirm the judge's disposition, although he would
do so for reasons different than those stated by the judge.  He notes
that section 1926.652(e) requires shoring or bracing _in addition to_
precautions taken to comply with sections 1926.652(b) or 1926.652(c). 
In this case, GM had already shored part of the trench and was in the
process of shoring the remainder.  There is no evidence that GM's
shoring either was or would be, when completed, insufficient to protect
employees in the trench.  On the contrary, Conlon, the Secretary's own
expert, testified that the shoring GM had been installing would have
been adequate when completed.   The Secretary's allegation is based on
the same conditions that allegedly constitute a violation of section
1926.652(c):

the absence of any protection at all for portions of the trench walls.  
To establish a violation of section 1926.652(e), the Secretary would
have to prove that the shoring the employer was installing was
inadequate to protect against cave-ins from vibrating machinery or the
presence of backfill.  The employer's failure here to prevent exposure
of employees to the hazard of a cave-in prior to completion of its
shoring does not establish that it also failed to take precautions in
addition to those required by section 1926.652(b) or (c).  The Chairman
therefore concludes that the Secretary failed to prove that GM violated
section 1926.652(e).

Commissioner Cleary would affirm the citation item.  He agrees with the
Secretary's argument that the plain language of section 1926.652(e)
requires additional shoring or bracing under two alternative
conditions--where trenches are dug adjacent to backfilled areas _or_
where trenches are subject to vibrations.  _Cedar Construction Co_., 77
OSAHRC 63/A2, 5 BNA OSHC 1311, 1977-78 CCH OSHD ¶ 21,772 (No. 10929,
1977), _aff'd_ 587 F.2d 1303 (D.C. Cir. 1978).  He also finds it
irrelevant that the required additional precautions would have been
taken some time in the future.  Just as GM violated section 1926.652(c)
because the required shoring was not in place when employees were
unnecessarily in unshored parts of the trench, GM violated section
1926.652(e) because the trench was dug in backfill and lacked additional
precautions.  An employer's failure to take _any_ precautions to protect
employees against the walls of a trench collapsing violates the
employer's duty to take the additional precautions required by section
1926.652(e) as well as the precautions required by section 1926.652(c). 
Although the requirements of sections 1926.652(c) and 1926.652(e) are
closely related, an employer is not unfairly burdened when the same or
similar conditions are the subject of more than one citation item, for a
single action on the employer's part may be all that is necessary to
achieve compliance with the cited standards.  _H.H. Hall Construction
Co_., 81 OSAHRC 91/D12 10 BNA OSHC 1042, 1981 CCH OSHD ¶ 25,712 (No.
76-4765, 1981).  Moreover, to the extent that the same or similar
conduct may violate more than one standard, the Commission has the
discretion to assess a single, combined penalty for the violations. 
_Wright & Lopez, Inc_., 81 OSAHRC 92/D10, 10 BNA OSHC 1108 ,1981 CCH
OSHD ¶ 25,728 (No. 76-256, 1981); _H.H. Hall_, 10 BNA OSHC at 1049, 1981
CCH OSHD at p. 32,059.  Because the violation of section 1926.652(e)
involves conduct similar to that of section 1926.652(c), Commissioner
Cleary would assess a combined penalty for the violations of sections
1926.652(c) and (e).

Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can
be taken by the Commission with the affirmative vote of two members. 
The two Commission members disagree whether the judge erred in his
disposition of this citation item.  To resolve this impasse and to
permit this case to proceed to a final resolution, the members have
agreed to affirm the judge's decision vacating this item but accord it
the precedential value of an unreviewed judge's decision.  _See_ _Life
Science Products Co_., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH
OSHD ¶ 22,313 (No. 14910, 1977), _aff'd sub nom. Moore v. OSHRC_, 591
F.2d 991 (4th Cir. 1979).

_Item 1:  Instruction of Employees_
Item 1 of the citation alleged that GM violated section 1926.21(b)(2),
which requires employers to instruct employees in the recognition and
avoidance of unsafe conditions.[[7]]  Judge Furcolo affirmed the item. 
He stated that the standard requires an employer to issue instructions
regardless of the knowledge or experience of its employees.  The judge
found that "[t]he witnesses who testified in substance that there were
no instructions were positive and definite in their testimony to that
effect while those who indicated the contrary were comparatively vague
and indefinite."  For that reason, he concluded that GM did not give its
employees instructions on trenching hazards and therefore failed to
comply with the standard.   Judge Furcolo determined that the violation
was serious.  He assessed a penalty of only $50 because "it was not
unreasonable for [GM] to believe its employees were familiar with
trenching hazards..."

The Commissioners disagree on the disposition of this item.
 Commissioner Cleary would adopt the judge's decision and affirm the
citation item.   He notes that employees Boushie, LoMonaco, Davide, and
Thomas Martin, a second-shift welder, testified that no GM supervisor
told them not to go into an unshored trench or gave them oral or written
instructions about the specific safety hazards involved in working in
and around trenches. Those four employees also testified that they had
not attended any safety meetings at GM during which trenching or shoring
had been discussed.  Boushie, Martin, and Davide stated that they were
never told by any supervisor about OSHA's trenching standards.  Boushie,
Martin, and LoMonaco testified that no supervisor, including their group
leader, instructed them to stay out of the east-west leg of the trench. 
Boushie testified that this was the first trench that he had worked in
at GM.  Martin stated that when he began work at GM in 1973 he was not
given any safety booklets.  When he was shown a booklet entitled "Safety
Procedures and Instructions, Rochester Products" at the hearing, he
declared that he had never seen it before.

Gary Murphy, GM's supervisor for the second shift, and Nick Bianchi, the
crew's "group leader" who directed the work, testified that there were
no formal safety meetings at GM regarding trenching hazards.  Rather,
informal discussions were held at which employees told their ideas about
improving working conditions.  Murphy testified that he specifically
instructed Bianchi, LoMonaco, and DeVittorio to remain out of the
unprotected areas of the trench, and he never observed employees in such
areas when he visited the trench.

In _C. Kaufman, Inc._, 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78
CCH OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978), the Commission stated
that it will usually accept an administrative law judge's evaluation of
witnesses' credibility because the judge was the one who "lived with the
case, heard the witnesses, and observed their demeanor."  In this case,
the judge based his finding that GM had not instructed employees in
hazards associated with trenches on his conclusion that the employee who
testified that no such instructions were given were more credible than
GM's supervisors, whose testimony he stated was vague and indefinite.
Commissioner Cleary accepts Judge Furcolo's credibility determination
and finds that GM did not instruct its employees regarding trenching
hazards.

Moreover, even crediting the testimony of GM's supervisors, what little
action GM took to instruct its employees about trench hazards was
insufficient under the standard.  GM distributed its safety booklet to
some employees, but at least one employee, Martin, had never seen it
before the hearing in this case.  In any event, the booklet contained no
instructions on hazards involved in construction work in general, and
trenches in particular.  The standard is not satisfied by instructions
that fail to deal entirely with major hazards that employees face. 
_See_ _National Industrial Constructors, Inc. v. OSHRC_, 583 F.2d 1048
(8th Cir. 1978) (section 1926.21(b)(2) requires more than a general
safety program).  Whatever safety meetings were held were informal and
unstructured. Even if the testimony of Murphy that he gave on-the-job
warnings to remain out of the unshored areas of the trench was to be
credited, such warnings alone do not satisfy the cited standard. 
_Sawnee Electric Membership Corp_., 77 OSAHRC 24/C10, 5 BNA OSHC 1059,
1061, 1977-78 CCH OSHD ¶ 21,560, p. 25,873 (No. 10277, 1977)(Cleary,
Commissioner, dissenting).  Moreover, GM's failure to give the
instructions required by the standard cannot be excused on the basis
that the employees were experienced. _See_ _Getty Oil Co. v. OSHRC_, 530
F.2d 1143 (5th Cir. 1976).  All employees, both experienced and
inexperienced, are entitled to the Act's protection.

Chairman Buckley would vacate the citation item.  The standard requires
that employers instruct employees, but it does not specify the nature
and extent of the required instructions.  A violation of such a standard
cannot be predicated upon a finding that an employer's safety program
could have been improved.  Rather, there must be a showing that the
employer breached a duty to give reasonable instructions.  _H.C. Nutting
Co. v. OSHRC_, 8 BNA OSHC 1241, 1242, 1980 CCH OSHD ¶ 24,548, p. 30,030
(6th Cir. 1980); _Dravo Engineers and Constructors_, 84 OSAHRC __/_, 11
BNA OSHC 2010, 2011-12, 1984 CCH OSHD ¶ 26,930, p. 34,507 (No. 81-748,
1984).  In determining whether the instructions that an employer gave
were reasonable, the substance of the employer's safety program is more
important than its form.  _Jones & Laughlin Steel Corp_., 82 OSAHRC
34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD ¶ 26,128, p. 32,887 (No.
76-2636, 1982); _Texland Drilling Corp_., 80 OSAHRC 106/C13, 9 BNA OSHC
1023, 1026, 1980 CCH OSHD ¶ 24,954, p. 30,788 (No. 76-5307, 1980).  The
standard should not be interpreted to require employers to tell their
employees what is obvious.  _Butler Lime and Cement Co. v. OSHRC_, 658
F.2d 544 (7th Cir. 1981). Employers can permissibly rely on the judgment
of experienced employees to perform their work in a safe and proper
manner.  _See_ _Davey Tree Expert Co_., 84 OSAHRC 11/D11, 11 BNA OSHC
1898, 1900, 1983-84 CCH OSHD ¶ 26,852, p. 34,400 (No. 77-2350, 1984);
_Jones & Laughlin Steel Corp_., 10 BNA OSHC at 1783, 1982 CCH OSHD at p.
32,888.   Thus, section 1926.21(b)(2) requires a level of instruction
appropriate to the circumstances.

In Chairman Buckley's view, the record shows that GM did give adequate
instructions in light of the experience and knowledge of the employees
doing the work.  Judge Furcolo found that it was reasonable for GM to
believe that its employees were familiar with trenching hazards, and
that finding is supported by the record.  Gary Murphy, the supervisor
for the second shift, testified that the crew was composed of skilled
tradesmen, not general laborers, who had shored many trenches and knew
what they were doing. The testimony of the employees shows that they
knew the hazards presented by unshored trenches.  Boushie acknowledged
that he was aware of the hazards of unshored trenches because he had
prior experience on construction jobs.  Davide admitted that while he
had been an apprentice at GM his leader had instructed him to stay out
of unshored trenches.  LoMonaco was asked if he knew not to go into an
unshored portion of a trench, and replied that he never went down into
such an area.

The record also shows that GM had an ongoing safety program.  Safety
booklets were distributed to employees when first hired. The
instructions in those booklets were supplemented by oral on-the-job
instructions and informal safety meetings.  Both Murphy and Bianchi
testified that trenching hazards had been addressed during informal
safety meetings.  Murphy and Bianchi also stated that they had
instructed employees to stay out of the unshored portions of the trench
involved in this case.   Considering the experience of the employees and
their awareness of the hazards associated with trenches, Chairman
Buckley concludes that the instructions GM gave its employees concerning
such hazards were reasonable and met the general requirement of section
1926.21(b)(2).

As noted above, section 12(f) of the Act, 29. U.S.C. § 661(e), states
that official action can be taken by the Commission with the affirmative
votes of two members.   To resolve their impasse on this issue and to
permit this case to proceed to a final resolution, the members have
agreed to affirm the judge's decision on this citation item but accord
it the precedential value of an unreviewed judge's decision.

In sum, the Commission affirms citation item 2 and assesses a $50
penalty for the serious violation of section 1926.652(c).  The members
have also agreed to affirm Judge Furcolo's disposition of citation items
1 and 3, alleging violations of sections 1926.21(b)(2) and 1926.652(e),
but accord their decision on those two items no precedential value.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 26 1985

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FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three
members.  Section 12(a), 29 U.S.C. § 661(a).  Currently, the Commission
has two members as a result of a vacancy.

[[2]] Section 1926.652(c) states:

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....

[[3]] The standard provides:

Sides of trenches in unstable or soft material, 5 feet or more in depth,
shall be shored, sheeted, braced, sloped, or otherwise supported by
means of sufficient strength to protect the employees working within
them.  See Tables P-1, P-2 (following paragraph (g) of this section).

Appended to section 1926.652, and referred to by it, is Table P-1, which
provides that trenches dug in solid rock, shale, or cemented sand and
gravels need not be sloped.

[[4]] The parties also dispute whether there was needless employee
exposure to ground collapse during the process of shoring.  The parties
put on conflicting evidence as to whether workmen stood in the
north-south leg of the trench to guide steel channels being pounded into
the trench floor by the backhoe.  If employees did enter the unshored
leg for that purpose, that would constitute another basis for a
violation of this standard because GM conceded that this work could have
been accomplished without employees in the trench.  Inasmuch as employee
use of the east-west leg for exiting clearly establishes a violation of
the standard, we will not reach the close credibility questions raised
by this secondary dispute.

[[5]] Section 1926.652(e) reads as follows:

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.

[[6]] GM argues that Judge Furcolo erroneously found that the trench was
"adjacent to" a backfilled area because it was within 10 to 30 feet of
such an area.  Any such error was harmless.  Statements earlier in the
judge's decision to the effect that the area in which the trench was dug
was backfill are sufficient to establish that the trench was "adjacent
to" backfill under section 1926.652(e).  _J.D. Blum Construction Co_.,
76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD ¶ 20,735 (No. 3543,
1976).

[[7]] The standard provides:

The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other exposure
to illness or injury.