SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC Docket No. 84-0556

_DECISION_

Before:BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The primary issue in this case is whether Capform, Inc., a plywood
formwork subcontractor on a multi-employer construction site, violated
two OSHA safety standards alleging (1) that it failed to inspect after
every rainstorm the excavation in which its employees worked and (2)
that it failed to sheet-pile, shore, or brace an excavation wall to
resist the extra pressure created by the operation of a 100-ton crane
above and near the excavation wall. We conclude that Capform violated
those two standards as alleged. We also conclude that the Secretary of
Labor's allegation that Capform violated a third safety standard is
duplicative of the second allegation referred to above and should
therefore be vacated.

Subcontractor Capform built, erected, and dismantled the plywood
formwork into which concrete was poured at a site where a
partially-underground parking garage was being built in Dallas, Texas.
The excavation in which the garage was being constructed occupied a
large city block, and was about 25-30 feet deep. Three sides of the
excavation were protected from collapse by shoring. The side closest to
where Capform employees worked was neither sheet-piled, shored, nor
braced. At the time of the alleged violations, there had been "lots of
rain"--some of it heavy--at the site for the preceding month (including
during the most recent two-week period, when Capform worked at the
rite). A 100-ton crane was positioned at the top of the unshored side of
the excavation, and it was moving back and forth along the excavation
top. The crane's superstructure sometimes came as close as 30 feet to
the edge of the embankment. The crane was used to lift Capform's
formwork out of the excavation after the concrete poured into those
forms had hardened and the forms had been stripped. While the job of
removing the formwork from the excavation was proceeding, three segments
of, the unshored wall of the excavation collapsed. One Capform employee
was killed. Another was injured.

On the day following the accident, one of the Secretary's compliance
officers, Henry R. Slagle, investigated the accident site. As a result
of that investigation, Capform was issued a serious citation alleging
that it had violated three different safety standards: 29 C.F.R. §
1926.651(d), by not having a competent person inspect the excavation
after every rainstorm; 29 C.F.R. § 1926.651(q), by not protecting the
excavation from the extra pressure exerted on it by the crane; and 29
C.F.R. § 1926.651(c), by not guarding the unshored wall of the
excavation that exposed Capform employees to a danger of moving ground.
An $800 total penalty was proposed by the Secretary.

The administrative law judge vacated all three items of the Citation. He
found that Capform did not create or control the hazardous conditions,
and that it did not have--and with the exercise of reasonable diligence
could not have had--notice of the hazardous conditions. The judge
therefore concluded that Capform had established the "multi-employer
worksite" affirmative defense that it had raised. _See_ _Anning-Johnson
Co.,_ 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD ¶ 20,690,
pp. 24,783-84 (No. 3694, 1976); _Grossman Steel & Aluminum Corp.,_ 76
OSAHRC 54/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCH OSHD ¶ 20,691, pp.
24,791-92 (No. 12775, 1976). Review was directed on whether the
Secretary had made out a prima facie case that Capform violated the
three standards and, if so, whether the judge correctly concluded that
Capform had proven the multi-employer worksite defense.

I. _Inspection of Excavation by Competent Person after Rainstorms _

The Secretary alleges that Capform violated section 1926.651(d) by
failing to have a competent person inspect the excavation after every
rainstorm to determine whether the excavation needed increased
protection against cave-ins. Section 1926.6511(d) Provides:

§ 1926.651 _Specifics excavation requirements_

(d) Excavations shall be inspected by a competent person after every
rainstorm or other hazard-increasing occurrence, and the protection
against slides and cave-ins shall be increased if necessary.

A "competent person" is defined at 29 C.F.R. § 1926.32(f):

§ 1926.32 _Definitions._

The following definitions shall apply in the application of the
regulations in this part:

(f) "Competent person" means one who is capable of identifying existing
and predictable hazards in the surroundings or working conditions which
are unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.

To prove a violation of the standard, the Secretary must establish (1)
the applicability of the standard, (2) the existence of noncomplying
conditions, (3) employee exposure or access, and (4) that the employer
knew or with the exercise of reasonable diligence could have known of
the violative condition. _Dun- Par Engineered Form Co.,_ 86 OSAHRC
40/A8, 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD ¶ 27,651, p. 36,033 (No.
82-928, 1986).

There is no substantial dispute about any of the elements of the
Secretary's burden. The standard applies whenever rainstorms occur while
work is done in an excavation, and frequent rainstorms occurred during
the two-week period that Capform employees worked at the excavation
site. The excavation was not inspected by a competent person after every
rainstorm. Capform does not Contend that either its jobsite
superintendent, Pelletier, who was at the jobsite on a daily basis, or
its project manager, Cur., L. Hitt, who was at the jobsite on an
every-other-day basis, were "competent person[s]" as defined in section
1926.32(f). Capform does not contend that any "competent person"
inspected the excavation after every rainstorm. Instead, Capform points
to evidence that the general contractor's insurance agent and a State of
Texas safety inspector had each visited the site, viewed the excavation,
and yet not stated that anything further needed to be done to protect
the unshored wall of the excavation from collapse. This evidence,
however, is of no avail to Capform, since it does not establish when
those persons appeared at the jobsite, much less that they appeared at
the site and inspected the excavation after every rainstorm that
occurred during the two-week period Capform employees worked there.

Capform's jobsite superintendent, Pelletier, was on the jobsite daily
and undoubtedly observed the soil after every rainstorm. But the
standard clearly contemplates more than casual observation. Moreover,
Capform itself appears convinced that Pelletier was not a "competent
person". In a section of its review brief devoted to contesting the
Secretary's section 1926.651(c) allegation, Capform, relies on
Pelletier's testimony that he had never had responsibility for
inspecting the condition of soil in excavations and argues that
Pelletier "lacks ... expertise in soils-related areas". The Secretary
has therefore established the existence of noncomplying conditions, that
is, that the excavation was not inspected by a competent person after
every rainstorm or hazard- increasing occurrence.[[1/]]

The existence of employee exposure is not in dispute. Capform employees
worked near the unshored excavation wall while erecting and dismantling
formwork. They also worked in the area while attaching dismantled
formwork to the crane line for lifting out of the excavation--the job
that was being performed when the fatal collapse of the unshored
excavation wall occurred.

Knowledge of the violative condition is also not in dispute. Capform's
supervisors were continually present at the worksite. They admitted that
they knew about the rainstorms, yet did not assure that the excavation
was inspected by a competent person after the rainstorms. The Secretary
has therefore established a prima facie case of Capform's violation of
the cited standard.

We must now decide whether Capform established its multi-employer
worksite defense. To establish the defense, Capform must prove, by a
preponderance of the evidence, that.

1. It did not create the violative condition; and

2. It did not control the violative condition such that it could
realistically have abated the condition in the manner required by the
standard; and

3. (a) It made reasonable alternative efforts to protect its employees
from the violative condition; or

(b) It did not have, and with the exercise of reasonable diligence could
not have had, notice that the violative condition was hazardous.

_See_ _Anning-Johnson_,4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp.
24,783-84; _Grossman Steel,_4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at
pp. 24,791-92.

Capform argues that it did not create or control the violative condition
because it did not dig the excavation and was not responsible for
shoring it. It also argues that it did not have notice that cave-in
risks were increased by rainstorms, because it had no expertise in
determining soil stability. According to Capform, the general contractor
was the employer on the worksite with some expertise and it was
responsible for assuring that the excavation was safe.

The judge concluded that Capform had established the defense. He found
that Capform had neither created nor controlled the hazardous condition,
and that although "it had rained from time to time in the month or so
before the accident, the respondent's supervisory personnel did not have
sufficient knowledge in such matters as to be able to conclude that the
embankment might collapse."

The Secretary contends that inspection by a competent person was clearly
within Capform's control, and that if Capform's, did not have competent
persons on its own staff to do the inspecting, it could have obtained
the services of someone else. The Secretary emphasizes that Capform
never requested an inspection, or even inquired into whether the general
contractor had conducted the inspections required by the standard.

The multi-employer worksite defense does not alter the general rule that
each employer is responsible for the safety of its own employees.
_Anning-Johnson,_ 4 BNA OSHC at 1198-99,1975-76 CCH OSHD at p. 24,784.
Capform's business involved work in excavations. It had a duty to
protect its employees who worked in the excavations. This duty required
Capform to familiarize itself with the OSHA standards and to take
affirmative steps to assure that its employees received the protection
required by the standards.

The standard at issue here, section 1926.651(d), requires that a
competent person inspect an excavation after every rainstorm to
determine whether protection for employees working within the excavation
needs to be increased. Even if Capform lacked expertise in soil
stability, the standard put Capform on notice that rainstorms can
decrease the stability of an unsupported excavation wall and that
inspections to determine whether this had occurred were necessary. If
Capform did not itself employ a "competent person" within the meaning of
the cited standard, that did not prevent it from determining whether the
general contractor, who Capform contends was responsible for the safety
of the excavation, had conducted the required inspections.

If Capform had made such an inquiry and discovered that the inspections
had in fact been conducted, Capform would thereby have known that
compliance with the standard had been attained. If Capform had learned
that the required inspections had not been conducted, it would have been
on notice that its reliance on the general contractor was not
well-founded. It then would have been required by the standard to take
the additional steps necessary to protect its employees--including
itself hiring a competent person to conduct inspections. Capform here,
however, did not even take the minimal step of asking the general
contractor whether a competent person was inspecting the excavation
after every rainstorm.

Because Capform had a duty to know the terms of the cited standard and
because it made no attempt to protect its employees in the manner
required by the standard, Capform is unable to establish its affirmative
defense. We therefore conclude that it violated section 1926.651(d) as
alleged.

II. _Operation of Crane Near Excavation_

The Secretary alleges that Capform violated section 1926.651(q) by not
sheet-piling, shoring, and bracing as necessary the unprotected
excavation wall next to the area where its employees worked. Section
1926.651(q) provides:

§ 1926.651 _Specific excavation requirements. _

(q) If it is necessary to place or operate power shovels, derricks,
trucks, materials, or other heavy objects on a level above and near an
excavation, the side of the excavation shall be sheet-piled, shored, and
braced as necessary to resist the extra pressure due to such
superimposed loads.

The judge vacated this item, as he had the prior one, on the basis of
his conclusion that Capform had established its affirmative
multi-employer worksite defense. The Judge also found it pertinent to
observe that, although the "movements of the crane might have been
factors in the collapse of the embankment...[the crane] was not operated
by the respondent's employees."

The Secretary argues that she proved the crane was near the unshored
excavation, that Capform was using the crane to move forms, that
Capform, supervisor Pelletier knew where the crane was located, and that
both Capform supervisors, Pelletier and Hitt, knew the excavation was
unshored in the area near where the crane was operating. The Secretary
also contends that Capform did not establish its multi-employer defense
because Capform knew of the violative conditions--conditions that did
not require any particular expertise to comprehend.

Capform contends that the cited standard requires the Secretary to prove
that the "hazard of extra pressure on the side of the excavation existed
at the jobsite, and that the Secretary failed to do so. Capform also
contends that it established the multi-employer worksite defense by
proving that its lack of expertise in soil-related matters deprived it
of notice that the moving crane imposed extra pressure on the unshored
excavation wall.

We reject Capform's argument that the standard requires the Secretary to
prove that the crane's operation near the unshored side of the
excavation created a hazard. The terms of the standard require the
Secretary only to establish that a crane was operating above and near an
excavation wall that was not sheet-piled, shored, or braced; it presumes
that the weight of the crane and the forces created by its operation can
lead to the collapse of unsupported soil. The standard does not require
additional proof that the presence of the crane created extra pressure.
_See_ _H.H. Hall Construction Co.,_ 81 OSAHRC 91/D12, 10 BNA OSHC 1042,
1047, 1981 CCH OSHD ¶ 25,711, p. 32,056 (No. 76-4765).

We find that the Secretary has made out her prima facie case. The
100-ton crane was operating above and as close as 30 feet from the
excavation wall that was neither sheet-piled, shored, nor braced. Also,
Capform employees were exposed to the hazard created by the crane while
they worked, and particularly while they were attaching their forms to
the crane line. Further, the Secretary established that Capform had
actual knowledge of the violative condition by proving that Capform
project manager Pelletier and project superintendent Hitt knew the crane
was operating above and near the excavation wall.

Capform did not establish its multi-employer worksite defense. The most
fundamental element of the defense is that the employer did not create
or control the condition that violated the standard. Here, Capform
created or controlled the violation because the crane that was operating
above and near the unshored excavation wall was being operated in
Capform's behalf, lifting Capform's formwork out of the excavation. The
fact that the crane was not operated by a Capform employee does not
detract from our conclusion that Capform created or controlled the
violation. It is the use of the crane above an unsupported wall, not the
identity of its operator, that creates the hazard.

Even were we to find that Capform had neither created nor controlled the
hazard, we would still find that Capform had not proven its defense. The
defense also requires that Capform prove either (1) that it made
reasonable alternative efforts to protect its employees or (2) that it
did not have, and could not have had, notice that the violative
condition was hazardous. Capform proved neither. Although it was the
responsibility of either the general contractor or the subcontractor
that dug the excavation, and not Capform's responsibility, to
sheet-pile, shore, or brace the pertinent excavation wall, Capform
should at least have asked the general contractor to comply with the
standard by providing the required support for the wall that
subsequently collapsed. Capform wade no such request.

Further, Capform failed to prove that it did not have notice that the
violative condition (the unsupported excavation wall) was hazardous.
Capform is charged with notice (constructive knowledge) of the terms of
the cited standard. The standard requires that an excavation wall be
sheet-piled, shored, or braced when a crane is operating above and near
that wall. Although Capform's onsite supervisors may have lacked
expertise in soil stability, they knew that a crane was operating above
and near an unsupported excavation wall. Under the specific terms of
this standard, therefore, the existence of these prohibited conditions
placed Capform on notice that its employees were exposed to a hazard.
Accordingly, Capform's affirmative defense fails. We find that Capform
violated section 1926.651(q).

III. _Sloping or Shoring of Excavation Wall_

The Secretary's citation also alleges that Capform violated a third
safety standard, section 1926.651(c), by failing to slope or shore the
excavation wall to protect employees from the danger of moving ground.
The judge vacated the allegation on the basis of his finding that
Capform had established its multi- employer worksite defense. Section
1926.651(c) provides:

§ 1926.651 _Specific excavation requirements._

(c) The walls and faces of all excavations in which employees are
exposed to danger from moving ground shall be guarded by a shoring
system, sloping of the ground, or some other equivalent means.

The standard thus requires employers to guard certain excavation walls
by shoring, sloping or equivalent means. We have just concluded that
Capform violated section 1926.651(q), a standard that required Capform
to sheet-pile, shore or brace the excavation wall that partially
collapsed. If Capform had complied with section 1926.651(q) by
sheet-piling, shoring, or bracing the wall, Capform would also
necessarily have been in compliance with the less stringent requirements
of section 1926.651(c). We therefore vacate the section 1926.651(c)
allegation because it is duplicative of the section 1926.651(q)
allegation. _See Cleveland Consolidated Inc.,_ 13 BNA OSHC 1114, 1118,
1986-87 CCH OSHD ¶ 27,829, p. 36,430 (No. 84-696, 1987).

We find that the affirmed violations are serious, as alleged by the
Secretary. Noncompliance with the cited standards increased the risk of
cave-ins at the excavation site, and cave-ins can, as they did here,
result in death or serious physical harm to employees.

The Secretary proposed a total penalty of $800 for violation of the
three standards contained in the citation. We find that a penalty of
$800 is appropriate even though we have affirmed only two of the items.
Capform is a large employer, with about 225 employees at the time of the
citation. Its good faith is suspect because it apparently made no
efforts to comply with either of the violated standards. The gravity of
the violations is high because several employees were exposed to the
hazard presented by the unprotected, 25- to 30-feet high excavation wall
over a two-week period. We therefore assess a total penalty of $800.

Accordingly, we affirm the Secretary's citation insofar as it alleges
violations of sections 1926.651(d) and (q), and vacate the citation
insofar as it alleges a violation of section 1926.651(c). We find that
the affirmed violations were serious and assess a total penalty of $800.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 26, 1989

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC Docket No. 84-0556

Appearances:

For the Complainant:

_Allen Reid Tilson,_ Esquire
Department of Labor, Dallas, Texas.

For the Respondent:

_Steven R. McCown,_ Esquire
Dallas, Texas.

_Louis G. LaVecchia,_ Judge:

_DECISION AND ORDER_

This is a Proceeding under the Occupational Safety and Health Act of
1970 (29 U.S.C. 651 _et_ _seq._). A citation, characterized as "serious"
in view of the violations alleged, was issued to the respondent as a
result of a fatality investigation and inspection of its worksite on
February 22 and 23, 1984 by compliance officers of the Occupational
Safety and Health Administration ("OSHA"). A civil penalty of $800 was
proposed.

The respondent contested the citation and the matter went to hearing on
January 29 and 30, 1985 at Dallas.

The respondent stipulated that it is engaged in a business affecting
commerce and that it is an employer within the meaning of Section 3(a)
of the Act.
Post-hearing briefs and/or replies have been filed by the parties. There
were no intervenors in the action.

_The Alleged Violations_

1a 29 CFR 1926.651(c): The walls oor(sic) faces of excavations(s) in
which employee(s) were exposed to danger from moving ground were not
guarded by a shoring system, sloping of the ground, or some other
equivalent means:

(a) Embankment wall, northwest corner of the west wing of the building
under construction.

1b 29 CFR 1926.651(d): Excavations were not inspected by a competent
person after every rainstorm or other hazard-increasing occurrence for
the purpose of increasing the protection against slides and cave-ins
where necessary:

(a) Unshored embankment wall of excavation for building under construction.

1c 29 CFR 1926.651(q): The side(s) of the excavation(s) were not
sheet-piled, shored or braced as necessary to resist the extra pressure
due to super-imposed loads:

(a) A 100-ton capacity crawler crane was position and operated at points
along and near to the excavation at grade level on the west side of the
west wing of the building under construction.

_The Standards_

The safety standard at 29 CFR 1926.651 provides:

_Specific excavation requirements._

(c) The walls and faces of all excavations in which employees are
exposed to danger from moving ground shall be guarded by a shoring
system, sloping of the ground, or some other equivalent means.

(d) Excavations shall be inspected by a competent person after every
rainstorm or other hazard-increasing occurrence, and the protection
against slides and cave-ins shall be increased if necessary.

(q) If it is necessary to place or operate power shovels, derricks,
trucks, materials, or other heavy objects on a level above and near an
excavation, the side of the excavation shall be sheet-piled, shored, and
braced as necessary to resist the extra pressure due to such
superimposed loads.

_The Relevant Evidence_

Henry Slagle, compliance officer with OSHA, stated that he has been so
employed for 10 years. Before that, he performed similar work for the
State Health Department. He has a degree in mechanical engineering and a
graduate degree in nuclear engineering. He has taught mathematics,
including algebra and trigonometry, at the college level. He has also
had many courses in hazard recognition and abatement procedures
associated with the construction industry in general, and with soil
cave-ins in particular. On-the-job training, as an observer at times, is
a part of his job activities has conducted more than 700 inspections for
OSHA. (Tr. 18-21).

He conducted an investigation of the respondent's worksite on February
22, 1984, where a subterranean parking garage was under construction.
The respondent wag performing form installations for the pouring of
concrete structures. (Tr. 22).

The respondent had 225 employees at the time of the investigation. It
was engaged in removing wooden forms from a concrete wall that had been
poured and cured. A report of a fatal accident at the jobsite had
triggered the investigation. (Tr. 23).

The jobsite embraced a city block area or more, bordered on five sides
by Dallas city streets. (Tr. 24). (Ex. C-26).

The witness made a number of photographs of the jobsite on the second
day of his investigation. (Exs. C-1 through C-24).

The embankment directly above the place where the deceased employee was
working was photographed several times.

After the accident "benching" operations were performed with a view to
stairstepping the involved excavation to prevent further caving-off of
earth. (Ex. C-5).

Exhibit C-7 shows the area where the accident occurred in the lower left
corner. The fresh red soil next to the concrete wall was that which had
caved off from above. After the caving-off the earthen wall above the
accident site appears almost vertical.

Exhibit C-10 shows, in the opinion of the witness, that the earthen
walls remaining after cave-off were obviously not sloped to 45 degrees.

Exhibit C-12 shows the wooden forms with which the deceased workman was
working at the time of the accident.

Preparations were being made by the employees for hoisting the wooden
forms from the excavation by hooking them onto the crane cable. (Tr. 43).

The yellow-colored crane shown in exhibit C-14 was the crane that was to
be used to hoist the wooden forms from the point of the accident. (Tr. 45).

Exhibit 21 shows a water pump that had been used to remove water from
the area. (Tr. 48).

An underground garage was being built at the time of the excavation. The
whole area had been dug down to the level required. At the site of the
accident the bottom of the excavation was about 25 feet from the street
level above. (Tr. 52). The excavation was large, extending several
hundred feet in width, and perhaps two city blocks in length. It had
been dug to various depths, and appeared to be incomplete at the time of
the investigation. (Tr. 52-52).

Auguste Pelletier [respondent's job supervisor] told the CO that he was
on the upper level when the accident occurred. He stated that he did not
see the first batch of earth cave off, but did see the second batch as
it broke away from the top level. The crane was stationed on the asphalt
surface [Yeargen Street] overlooking the excavation where the accident
occurred. (Ex. C-26).(Tr. 54). The asphalt street or driveway was
scheduled to be destroyed during the course of the construction. (Tr. 55).

Pelletier further stated that he saw a man at the bottom of the pit when
the second cave-off happened and he shouted a warning to that
individual. That workman was the victim's uncle. (Tr. 55-56).

Pelletier indicated that it was felt that the asphalt surface of the
street would help hold up the excavation wall at that point. He
expressed the opinion that the cave-offs had happened because of the
presence of the crane on the street above. (Tr. 56).

The CO's investigation revealed that there had been recent rains in the
construction area. (Tr. 56-58). He expressed the opinion that soil
stability changes with moisture content. And he stated that he could
find no one who had inspected the excavation following the rains to
determine if soil stability had degraded. (Tr. 58).

The general contractor's insurance representative had inspected the
job-site at some prior time. (Tr. 59).

The post-accident benching operations were voluntary on the part of the
parties so engaged on the day after the fatality. The CO had not yet
made any abatement recommendations. (Tr. 61).

The respondent's job supervisor (Pelletier) stated that the general
contractor nor anyone else had been requested to do anything about the
slope because it was not considered a dangerous situation. (Tr. 62).

The witness felt that it was obvious from observation and the occurrence
of the accident that the side of the excavation rising above the work
pit had not been sloped to a 45-degree angle. (Tr. 63).

It appeared to the compliance officer that the walls under which the
employees were working were originally 70 to 80 degrees in slope, rather
than 45 degrees. The CO alluded to his background in mathematics and his
other experience as qualifying him for estimating the degree of slope in
matters of this kind. (Tr. 63-64).

The CO stated that it was obvious that none of the walls in the
excavation left free-standing were at a slope of 45 degrees or less. A
normal person, assuming he can get a foothold, can climb a 45-degree
slope. He could not see a single wall in the work area or in any of the
photographs that he made at the time, that he felt he could climb. (Tr. 65).

The only precautions against moving earth hazards seen by the CO were
the shoring projects on three sides of the pit. No shoring was seen on
the fourth side, where the accident took place. (Tr. 65).

The combination of the rains, the crane movements at the top of the pit
in which the employees were working, and the vibrations caused by the
movements of the crane, added to the hazard imposed by the unshored side
of the excavation. (Tr. 65). The CO expressed the opinion that the wall
in question should have been sloped at a 45-degree angle. He estimated
that the angle was actually 70 to 80 degrees, in some instances 90
degrees, and in some places there was actually an overhang. (Tr. 71-72).

In addition to the deceased employee (Martin Ramirez) and the injured
employee (Epifonio Fernandez) the respondent had other employees working
in the excavation. They numbered about 22, and were engaged in
installing and removing forms for the construction of concrete
structures. They had been working in the area for two or three days.
(Tr. 90-91).

The CO took soil samples at the jobsite. (Ex. C-30). This sample was
taken at the surface of the original grade, just under the asphalt
pavement, following the scraping off of the surface by the backhoe. (Tr.
95). The soil appeared to be a sandy clay, in the opinion of the
compliance officer. (Tr. 97).

Several methods of abatement of the hazard were mentioned by the CO. The
embankment could have been sloped to an angle of repose, where it would
not be inclined to fall by its own weight, or with the imposition of
other loads on top of it. Shoring could have been done, either at the
lower level or at some point above, and sloping in combination. Or it
could have been benched (stairstepped) to prevent the soil first of all
from cracking off, or secondly, not to fall the full depth to the bottom
of the pit. None of these methods had been pursued at the accident site.
(Tr. 97-98).

A backhoe would be suitable for accomplishing the sloping of the earthen
wall. There was a backhoe at the jobsite. No shoring or benching had
been done. The backhoe could have done both operations. (Tr. 99).

Another technique would be the use of a "work box" or "mule" that can be
lowered into the work area. In the event of a cave-off the worker is
protected by the sides of the box from possible injury or death. (Tr. 99).

On cross-examination the CO stated that neither he nor Gerald Forrester,
the other CO, took any measurements for distance or angle at the
excavation. However, he had been told by the general contractor,
Longcrier, and by the respondent's representatives that the depth of the
excavation was 25 feet. (Tr. 102).

The CO concluded that the respondent did not do any of the excavation
work, and did not create the hazard alleged. He was not aware of any
contractual responsibility on the part of any contractor. He concluded
that no request was made by the respondent to Longcrier for correction
of the hazard. (Tr. 104-105).

The CO did not establish for whom the operator of the backhoe was
working when the benching operation was performed following the
accident. Upon inquiring of the respondent he was told that the operator
was not a Capform employee. (Tr. 106).

The general contractor, Longcrier, told the CO that the excavation work
had been performed by a sub-contractor, Weir Brothers. (Tr. 108).

In his conversations with Pelletier the CO was told that the former
didn't think there was any problem with the embankment before the
accident. (Tr. 111).

The CO also talked with Mr. Hitt, another representative of the
respondent. Hitt did not say that the embankment looked hazardous prior
to the accident.

The CO stated that he had been told by Longcrier's representative that
the City [Dallas] inspected the excavation site and had required the
existent shoring. Nothing had been said about the condition of the wall
[embankment].

He had also been told that the insurance company representative had
inspected the construction site. (Tr. 114).

The CO made a note in his investigation file stating that Hitt, the
project manager, and Pelletier, the job foreman, had said that the
respondent did not create the hazard; that it did not have the authority
or the ability to correct it; and that Capform, the respondent had not
requested the controlling employer to correct it. (Tr. 115).

He confirmed that the red soil shown in Exhibit 10 was the portion of
the embankment that caved off and buried the deceased employee. (Tr. 129).

In view of the configuration of the bank at the site of the accident,
the CO expressed the opinion that the caved-off portion of the bank had
been an overhang before the collapse. (Tr. 133-134).

The greatest angle of slope observed by the CO in the unshored area of
the excavation was 60 to 65 degrees. This was not the result of shoring,
but appeared to the CO to have occurred when the embankment collapsed.
This flattest slope [easiest to climb] of 60 to 65 degrees was right
above the accident scene. (Tr. 138-139).

The concrete wall that the men were working on was estimated by the CO
to be three to five feet from the bottom part of the embankment. The
concrete wall was about nine feet tall. (Tr. 140).

The CO stated that he had concluded that the respondent had no ability
to correct the hazard. (Tr. 144).

The concrete wall did not extend ever the entire length of the unshored
embankment, but the CO estimated that it was 100 to 200 feet long. (Tr.
146). He indicated that exhibits 5 and 6 showed the overhang previously
mentioned. (Tr. 147).

The CO had used the concrete wall as a vertical line of reference in
estimating the 60 to 65 degree-angle of slope in the embankment. (Tr.
144-149).

Epifonio Fernandez, through an interpreter, testified that he had a
ninth-grade education, and that he and his nephew, Martin Ramirez (the
deceased) were employed by the respondent, but could not recall how long
they had been so employed. It had been a little cool before the
accident, and it had rained a few days before. (Tr. 149-152).

At the time of the accident he and his nephew were attaching a "waler"
to one of the wooden forms that had been used in the construction of the
concrete wall. They were waiting for the crane to lower a line so that
the hook could be attached to the waler. The crane had moved about in
the performance of various lifting jobs on the day of the accident and
on the day before. (Tr. 152-153).

The witness stated that his boss, "Pedro" had received instructions from
Pelletier designating the witness and his nephew (the deceased) for the
performance of the work involved in hooking the crane cable to the
wooden forms for removal from the pit. (Tr. 153-154).

Pelletier shouted a warning to the witness when the witness rushed to
the assistance of his nephew. The witness was then struck by falling
dirt. Pelletier had just come to the work area when the accident
occurred. (Tr. 155).

The witness identified the yellow crane in Exhibit 14 as the crane that
was at the scene of the accident. (Tr. 155-156).

There was only two or three feet between the concrete wall and the
embankment in the working area, just enough space to walk in. (Tr. 157).

Many other laborers employed by the respondent and supervised by Pedro
and Pelletier had been working in the area, removing the wooden forms
from the concrete wall. (Tr. 157-158).

The witness stated that he could not walk up the slope in the embankment
as shown in Exhibit 5. Access to the working area was gained by walking
down the embankment shown in Exhibit 22. (Tr. 160).

The witness was himself injured by falling earth and hospitalized after
being pinned against the forms. (Tr. 161).

Gerald Forrester, also a compliance officer for OSHA, has been so
employed since 1973. He has attended all safety courses presented at the
OSHA Institute in Chicago. Included in the courses have been matters
involving soil mechanics and the stabilization of soil materials. (Tr.
165-166).

The witness accompanied Mr. Slagle in the investigation of the instant
jobsite. Soil samples were taken at the site of the accident. Some
sloping was observed, but this had been created by the failed materials.
Where there had been no failure, there didn't appear to be any sloping
at all. (Tr. 166).

In fact, it was virtually vertical, except for the portion that had
caved off. (Tr. 167). The concrete wall running parallel to Yeargen
Street appeared to be about 60 feet long to the witness.

The upper part of the bank in question was a sandy clay, while below
that was what the witness would describe as silty sand. The silty sand
would he considered the weakest strata and a sloping of 60 to 65
degrees, going from the floor of the excavation to the top, would be the
safest angle of sloping in the circumstances. (Tr. 168-170).

Other factors present, in addition to the nature of the soil, were the
imposed load in the form of the crane, and the heavy amount of traffic
in the jobsite area. The pit was 25 to 30 feet in depth at the point
where the crane was located, above the accident site. (Tr. 171-172).

The witness was not familiar with the circumstances under which the
crane had been ordered into place at the top of the embankment or under
whose control it was at the time. (Tr. 175-176).

The heavy traffic referred to by the witness in his testimony was on the
streets other than Yeargen. (Tr. 176). He stated that Yeargen appeared
to be an access to the work area, and he did see some large trucks going
into that area, possibly delivering materials to the jobsite.

Considering the nature of the soil and the angle of the bank as it
probably was before the collapse, the witness felt there should have
been some measures taken to prevent a cave-in because this was not the
type of material that could be depended on to remain in place
indefinitely at that angle. (Tr. 177).

Mr. Ralph Barnes, a geotechnical engineer, dealing with foundation
engineering, studies of soil and rock and the way they react under
loads, and different types of strains, testified with respect to the
subsurface report prepared by Hooper & Associates (Ex. C-25); the
photographs of the jobsite received in evidence, and the soil sample
(Ex. C-10). (Tr. 183-203).

He stated that the materials at the jobsite appeared to be sandy clays,
clayey sands, and sands. (Tr. 193). In his opinion this type of soil is
subject to moving or caving in. (Tr. 194).

The soils shown in the photographs received in evidence; those mentioned
in the soils report; and the soil sample, appeared to have been the type
of soil that caved in. (Tr. 193-194).

The witness testified that basically these soils are variable all the
way from clays through sands at the jobsite. With the exception of pure
sands, they all have a degree of strength that would enable them to
stand on vertical cuts for a period of time before caving off or
sloughing off. But there is no way to evaluate the time factor, whether
it be one day or one year. (Tr. 196). On the other hand, they will
definitely cave off at some time. (Tr. 196).

Weathering of the soil, which causes cracking, can lead to ultimate
caving off or sloughing off. Changes in the weather, such rain versus
sunshine, things that tend to wet and dry the soil, speed up the
process. Loads near the top of the bank can open tension cracks,
weakening the soil, and speeding up the process of caving in. (Tr. 197).

The crane in the photographic evidence, when moving about, could hasten
the weakening process. (Tr. 197).

Heavy rains for a two-week period before the cave-in, and light rain in
the days immediately preceding the cave-in could have speeded up the
fall. (Tr. 198).

Mr. Auguste Pelletier, a native of Quebec, Canada, testified that he had
been in the United States for about a year and a half. He is a
supervisor for the respondent in the construction of concrete forms. He
has been in the construction industry for 37 years, progressing from
laborer to carpenter to foreman, and eventually to supervisor. (Tr.
204-205).

During his 37 years of experience in concrete form work he has worked in
and around embankments and excavations, but he has never had the
responsibility "to look at" them. He has not performed any excavation
work, and stated that he did not have to inspect or observe the
excavations to determine their condition. (Tr. 206).

The witness stated that he was aware of safety requirements for
embankments and excavations. He indicated that a 45 degree angle was
supposed to be used, and that shoring was necessary. (Tr. 206).

He was the job supervisor for the respondent at the jobsite where the
accident occurred. The respondent's job was to build forms for the
pouring of concrete structures. No work was done with reinforcement
steel, nor did the respondent's employees pour any concrete. (Tr. 207).

The excavation was about 27 to 30 feet deep at the point where the
respondent's employees were working. Twenty employees were engaged in
the work. Pedro Molina was assisting the witness as a supervisor. (Tr. 208)

The witness had been the supervisor at this jobsite for about a month
when the accident occurred. No excavation work had been done by the
respondent nor did it work on any of the embankments in the area. The
embankments were shored on three sides. There was no shoring in the area
where the accident happened. With regard to the embankments in the
accident area, the witness stated "I find the slope was all right to
me." He made this determination "just by looking at it." He did not
recall seeing any cracks In the embankment near the accident site. (Tr.
209).

The witness stated that he saw no sloughing of material, nor did he see
the embankment slide or move in any way. (Tr. 210).

The employees had been working in the area for about a month, and there
had been no problem reported to him about the embankment that had
failed. He knew of no problems with any of the embankments in the area
that had not been shored. (Tr. 210).

During the month prior to the accident there had been "lots of rain,
lots of rain." He saw no changes in the embankments after the rains.
(Tr. 210).

When the accident occurred the witness was just coming onto the
job-site. He "saw the dirt coming down, and that's it." He normally
arrived on the job at 3:00 a.m., or 5:00 a.m. (Tr. 211).

On the day following the accident the witness, arriving about 5:00 a.m.,
saw Longcrier employees sloping the bank where the collapse had
occurred. The witness had not had any discussions with any
representatives of Longcrier concerning the condition of the embankment
that was not shored. He stated that Longcrier had its own "safety guide"
and that he was not concerned at all prior to the accident that the
embankment was hazardous. (Tr. 211-212).

The witness identified the yellow crane in exhibit C-15 as the one that
had been on the surface above the accident site before the accident
occurred. He indicated that it had moved about on that surface, but that
it had not moved when in close proximity to the accident site. (Tr.
215-216).

The witness completed the 12th grade in Canada, but has had no other
formal education. He had no courses in mathematics. (Tr. 216).

He knew that the respondent's employees were working below the unshored
embankment. (Tr. 217).

Mr. Curt Hitt, Project Manager for the respondent, has been so employed
for 5 years. (Tr. 219). The respondent was engaged in wall form work at
the construction site. The general contractor at the site was Longcrier.
Capform does no excavation work; no shoring activities; no steel
operations; and does not own or have any type of earth-moving equipment.
It was employed only to do concrete form work at the construction site.
(Tr. 219-221).

The witness stated that the exposed embankment was sloped to some degree
along its full length. He assumed that the unshored embankment was
adequate, in view of the fact that the other three sides of the site had
been shored. (Tr. 222). He saw no indications of possible sloughing off
of bank material on the unshored embankment. (Tr. 223). Neither of the
two pieces of machinery shown in Exhibit C-15 belonged to or were leased
by Capform. (Tr. 224). He assumed that the equipment was owned by the
general contractor. The equipment was not operated by the respondent's
employees. (Tr. 224).

It had rained during the month or so that the respondent had been
engaged in form work at the excavation, but the witness saw no signs of
deterioration in the unshored embankment. (Tr. 225). He had observed the
slope of the embankment before the accident, and that it was adequate.
(Tr. 226). However, he had not checked the sloping in assuming that it
was adequate. (Tr. 226).

The witness stated that he knew that the respondent's employees were
going to be working at the bottom of the slope. (Tr. 226).

Mr. Clyde Enright, an employee of the Longcrier Company, stated that he
was employed at the excavation site. (Tr. 227). He was not approached by
the respondent's representatives with any complaints about the unshored
embankments. Nor was there any complaint registered with respect to any
lack of sloping. (Tr. 228-229).

Epifonio Fernandez was recalled by the complainant and asked whether the
crane shown in Exhibit C-15 had been working over the site where the
accident occurred. He replied that "it was there." (Tr. 231).

Henry Slagle was recalled by the complainant and asked about the
conversation he had with Gus Pelletier about the crane. He stated that
Pelletier expressed the opinion that the crane had helped to cause the
cave-off. He further indicated to the CO that the asphalt paving could
have or should have helped hold the embankment from collapsing. (Tr. 234).

_Discussion_

Multi-employer construction sites have been the subject of many
decisions by the Review Commission, which has applied the rules set
forth in _Anning-Johnson Co.,_ 76 OSAHRC 54/A2, 4 BNA 1193, 1975-76 CCH
OSHD ¶ 20,690 (Nos. 3694 & 4409), and _Grossman Steel & Aluminum Corp._,
76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691 (No. 12775,
1976), in determining whether a subcontractor can be held to have
violated the Act in the circumstances present in that particular case.

The significant language in_Anning-Johnson_ reads:

We... recognize... the availability to an employer of certain
affirmative defenses... [A]n employer ... has an opportunity to
demonstrate that it did not create the alleged hazard nor did it control
the hazard such that it realistically had the means to rectify the
condition...

Once a cited construction subcontractor has established that it neither
created nor controlled the hazardous condition, it may affirmatively
defend against the Secretary's charge by showing either (a) that its
employees who were or may have been exposed to the hazard were protected
by means of realistic measures taken as an alternative to literal
compliance with the cited standard, or (b) that it did not have nor with
the exercise of reasonable diligence could have had notice that the
condition was hazardous.

Hence, if the respondent neither created nor controlled the hazardous
condition the remaining question is whether it had or with the exercise
of reasonable diligence could have had notice that the condition was
hazardous.

It is undisputed that the respondent did not create the hazardous
condition of the embankment. It is likewise quite clear that the
respondent did not control the hazard because it lacked the authority or
equipment to abate or correct the hazardous condition.

The respondent's project manager did not have an educational background
in soil mechanics, nor sufficient experience in the recognition of soil
degeneration in the embankment to be apprised of the hazardous condition
of the embankment at the site of the accident. He appears to have been
justified in assuming that the shoring of three sides of the excavation
indicated that the unshored portion of the pit was found to be safe by
the general contractor's safety representative, as well as the insurance
company representative and the Dallas city inspector's tacit approval.

Neither can it be said that the respondent's job foreman, with no
experience in the excavation trades, and an education totally lacking in
mathematics of any kind, knew or should have known that the embankment
was in a hazardous condition. He saw nothing alarming in the angle of
sloping of the embankment before the accident occurred. The precise
angle of sloping prior to the accident will never be Known since a
considerable portion of the embankment ended up at the bottom of the pit
after the collapse of the soil. Thus, it would be pure speculation to
assume that common sense should have warned the foreman that the bank
was in a hazardous condition thereby constituting a danger to the
employees he assigned to perform the form work in the pit.

_Findings_

All of the evidence, including the testimony, demeanor, and credibility
of the witnesses, and the photographic, graphic, and documentary
evidence, has been evaluated in the light of the briefs of law and
argument submitted by the parties. The following findings of fact are made:

1. The respondent, Capform, was engaged on February 22, 1984, as a
subcontractor for the performance of concrete form work at a large
building construction site in Dallas, Texas.

2. The construction site embraced an area of one or more city blocks
which had been excavated to a depth of 25 to 30 feet by another
subcontractor (Weir) under the direction of the general contractor,
Longcrier Construction Co.

3. The respondent did not participate in the excavation activity, but
was engaged at a later time by the general contractor for the
performance of concrete form work at the bottom of the excavation.

4. The respondent does not operate any excavation equipment or
machinery; nor does it operate cranes or other lifting equipment.

5. Since three sides of the excavation had been shored against the
possibility of collapse, the respondent assumed that embankment left
unshored was considered safe from possible collapsing of the soil.

6. The excavation site had been inspected by a Dallas city inspector and
by the general contractor's insurance company with no known disapproval.

7. On February 22. 1984 the unshored embankment collapsed at a point
directly above two of the respondent's employees, preparing to extract
concrete forms from a wall that had been constructed on the floor of the
excavation resulting in the death of one man and injuries to the other.

8. A heavy-duty crane (100-ton capacity) was stationed an the pavement
of the street above the accident site, apparently for use in removing
the concrete forms from the pit below. The movements of the crane might
have been factors in the collapse of the embankment, but it was not
operated by the respondent's employees. The street (Yeargen) was not
heavily traveled by general traffic.

9. The angle of sloping of the collapsed embankment, viewed after the
accident, appeared to be 60 to 83 degrees.

10. The respondent's job foreman, with a limited education and command
of the English language, lacked any expertise in soil mechanics or
engineering, and failed to notice anything about the condition of the
embankment before the fall which might have indicated that a collapse of
earth might occur while the men were working below.

11. The respondent's project manager, also lacking in expertise with
respect to soil mechanics, did not notice anything in the condition of
the embankment to indicate that a hazardous condition was present.

12. Although it had rained from time to time in the or so before the
accident, the respondent's supervisory personnel did not have sufficient
knowledge in such matters as to be able to conclude that the embankment
might collapse.

13. The respondent did not create the hazardous condition, nor did it
control the hazard.

14. The respondent did not have nor with the exercise of reasonable
diligence could have had notice that the condition of the embankment was
hazardous.
In view of the findings above I conclude that the respondent did not
violate either of the three safety standards set forth in the citation.
The citation will be vacated.

_Conclusions of Law_

1. The Review Commission has jurisdiction of this proceeding and the
parties.

2. The respondent did not violate the safety standards set forth at 29
CFR 1926.651 (c), (d), and (q).

_Order_

The citation is vacated.

So ORDERED.

Louis G. LaVecchia
Administrative Law Judge

August 14, 1985
Dallas,

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

CAPFORM, INC.,

Respondent.

OSHRC DOCKET NO. 84-0556

Pursuant to the provisions of Section 556 of the Administrative
Procedures Act (5 U.S.C. 556), the undersigned hereby certifies to the
Occupational Safety and Health Review Commission the record in this
proceeding, consisting of the following:

1. Those documents forwarded to the undersigned by notice dated July 27,
1984, from the Commission;

2. All documents issued by or filed with the undersigned in this matter
numbered J-1 through J-22;

3. The original and three copies of the transcript of hearing, the
original totaling 236 pages;

4. All exhibits received into evidence; and

5. The undersigned's decision and order in this matter dated August 14,
1985.

LOUIS G. LAVECCHIA
Administrative Law Judge

Dated: August 14, 1985

------------------------------------------------------------------------

FOOTNOTES:

[[1/]] Capform also argues that the cited standard requires the
Secretary to prove that the hazard of cave-ins "was _increased _in the
unshored embankment at the jobsite after a rainstorm" (emphasis
supplied), and that the Secretary failed to do so. We reject this
contention. The standard very clearly intends that rainstorms be
considered hazard-increasing occurrences unless and until an inspection
by a competent person establishes otherwise, and it only requires proof
that rainstorms had occurred. Capform does not dispute that rainstorms
had occurred at the jobsite while its employees worked there.