“Docket No. 89-2019 SECRETARY OF LABOR,Complainant,CONCRETE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 89-2019DECISIONBEFORE: FOULKE\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanWISEMAN and MONTOYA\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Commissioners\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0BY THE COMMISSION:This case involves a citation issued by the Secretary alleging that ConcreteConstruction Co. (\”Concrete\”) committed serious violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”), by failing tocomply with provisions of the Secretary’s construction standards. We affirm the decisionof Administrative Law Judge James D. Burroughs to the extent the judge found that theSecretary’s inspection satisfied the procedural requirements of section 8 of the Act, 29U.S.C. ? 657, and to the extent the judge affirmed the citation item alleging thatConcrete failed to comply with 29 C.F.R. ? 1926.21 (b)(2) because its employees were notgiven proper safety instructions. We further affirm that portion of the judge’s decisionfinding that Concrete violated the Act by failing to comply with section 1926.652(e),which requires that trenches dug in locations adjacent to backfill be shored orbraced.[[1]] However, we find that violation de minimis in nature and assess nopenalty.[[2]]Legality of the InspectionCompliance Officer Charles B. Perry inspected Concrete’s worksite along U.S. Route 62in Grove City, Ohio, where Concrete was working on a street and utility improvementproject. At the time in question here, Concrete’s employees were removing sections of anold water line in order to connect fire hydrants on the opposite side of the road to a newline which Concrete had installed approximately five months previously. When Perry arrivedat the jobsite he drove the length of the site but saw no one working. He then went backto the construction trailers, found no one in Concrete’s trailer, but met the inspectorsfor the City of Columbus, Ohio in their trailer. After discussing the work area and thelocations of employees with the inspectors, he drove back down route 62. Two-way trafficwas being maintained on the two lanes adjacent to and about 16 feet from the area wherethe excavation work was being conducted. From his car he observed employees in anexcavation at the intersection with Southwest Boulevard (\”Southwest site\”). Heparked, walked up to the excavation, and photographed two of Concrete’s employees, BrendaBaldwin and Rita McNichols, working in the excavation. He then identified himself to theemployees and asked where their foreman was. Two or three minutes later, the foreman,David B. Schultz, arrived. Schultz directed the employees to leave the excavation, place asnow fence around it to prevent access, and take some tools and material down to a secondexcavation at Addison Drive (\”Addison site\”).Perry showed Schultz his credentials and explained that he was at the worksite toconduct a general-study ( random) inspection. Even though Schultz was aware that Concreterequired its foremen to notify the safety officers at the company’s main office whenever acompliance officer came to a worksite, Schultz did not request that Perry wait forConcrete’s safety officer, nor did Schultz demand a warrant.Perry stated that Schultz remained with him throughout the entire inspection, duringwhich time Perry took measurements of the excavation at the Southwest site and discussedthe nature of the work with Schultz. Perry surmised that the excavation had been dug inrecently excavated backfill because Schultz told him that Concrete was in the process oftying sections of the old water line to the new line. Perry also interviewed the employeesthere regarding the extent of their safety training.Schultz, on the other hand, denied that he was with Perry during the entire inspection.Schultz explained that the city was scheduled to shut off the water service for the areaso that Concrete could cut and plug the old water line at the Addison site in order totransfer service to the new line. Schultz testified that because the city had imposed adeadline for the restoration of water service, he could not stay at the Southwest site buthad to return quickly to the Addison site after directing Baldwin and McNichols to takethe necessary equipment and material there. He said that he looked at Perry’sidentification and then left. He further testified that because he was preoccupied withthe water shutoff, he did not pay that much attention to Perry, and he did not recallseeing Perry take any measurements. He did not contact a corporate safety officer becausehe assumed that Perry had already completed his inspection of the Southwest site, and hehimself did not see anything wrong with the excavation. However, he did not ask how longPerry had been at the job site. According to Schultz, Perry \”followed\” him tothe Addison site, where he and Perry had further discussions, and Perry took some picturesin Schultz’ presence.Perry conducted a closing inspection with Schultz, during which John Lusignolo, one ofConcrete’s safety officials, arrived at the site. Lusignolo objected to Perry’s conductingan inspection in the absence of a corporate safety officer. Alfred R. Gallucci, Concrete’sSafety Officer, disciplined Schultz for not asking Perry to wait for a safety official toarrive.Concrete contends that on these facts, the Secretary failed to comply with section 8(a)and (e) of the Act, which imposes certain procedural requirements for the conduct of aninspection.[[3]] Judge Burroughs rejected Concrete’s contention, and we agree, generallyfor the reasons the judge assignedA. Section 8(a)The Supreme Court has held that the Fourth Amendment requires the Secretary to obtain awarrant in order to conduct a nonconsensual inspection. Marshall v. Barlow’s, Inc.,436 U.S. 307 (1978). The purpose of section 8(a) is to give compliance officers a right ofentry consistent with the Fourth Amendment; thus, section 8(a) must be read in a mannerthat effectuates the Fourth Amendment. See Accu-Namics, Inc., 1 BNA OSHC 1751,1973- 74 CCH OSHD ?17,936 (No. 477, 1974), aff’d, 515 F.2d 828 (5th Cir. 1975),cert. denied, 425 U.S. 903 (1976).Judge Burroughs found that Perry observed employees Baldwin and McNichols in theexcavation at the Southwest site and took at least one photograph before he presented hiscredentials. The judge emphasized, however, that Perry identified himself to Schultz assoon as Schultz arrived, pointing out that prior to Schultz’ arrival, Perry was attemptingto determine the foreman’s whereabouts. Considering that Perry had only been on the sitefor a few minutes, the judge held that Schultz was responsible for the failure to have acorporate safety official present during the inspection. The judge also concluded thateven if Perry had not acted in accordance with section 8(a), Concrete’s rights under theFourth Amendment had not been violated because both excavations were located in plain viewalong a public road and \”[t]here is no evidence that Perry looked where he had noright to look.\”As the judge indicated in his decision, the Fourth Amendment only protects againstintrusions into areas where an employer has a reasonable expectation of privacy.Therefore, it does not require a warrant for a nonconsensual inspection of a workplace tothe extent the workplace is open to the public. Accu-Namics, 1 BNA OSHC at 1754,1973- 74 CCH OSHD at p. 22,233 (citing See v. City of Seattle, 387 U.S. 541, 545(1967)). The record plainly supports the judge’s conclusion that Concrete could not havehad a reasonable expectation of privacy with respect to Perry’s observations andphotographing of the Southwest site before he identified himself to Schultz. The worksitewas alongside and in close proximity to a public road. Furthermore, the record does notshow that Perry left the public right-of-way and entered private property when heapproached the excavation to photograph it. Even assuming he did, the \”openfields\” exception to the Fourth Amendment would apply. Under that principle, there isno constitutional violation when an inspector makes observations from areas on commercialpremises that are out of doors and not closed off to the public, even if the inspectorentered the premises without permission. Ackermann Enterp., 10 BNA OSHC 1709,1982CCH OSHD ? 26,090 (No. 80- 4971,1982).[[4]]The judge did not explicitly find that Schultz consented to the inspection after Perryidentified himself, but such a finding may be implied from the judge’s conclusion thatSchultz was responsible for the failure of Concrete to have a safety official present, asrequired by its policy. In any event, the evidence supports such a finding. A waiver ofFourth Amendment rights occur when an employer \”freely and voluntarily\” consentsto an inspection. Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575,582 (D.C. Cir. 1985). In this case, while Perry may have arrived at an inopportune time sofar as Concrete’s work schedule was concerned, there is no indication that he coercedSchultz or misled Schultz in any way. Perry simply explained that he was on theworksite to conduct an inspection, and Schultz made no further inquiry.[[5]] See LakeButler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 88 n.14 (5th Cir. 1975)(holding that a consensual inspection exists \”where the compliance officer presentedhimself at the plant in the same manner as might any other government official and the[employer’s representative] had the same right of refusal,\” and distinguishing casesin which the search is not lawful because consent was given only after law enforcementofficials made misrepresentations regarding their authority to conduct the search).Accordingly, we conclude that the judge property rejected Concrete’s claim of aviolation of its rights under section 8(a) and the Fourth Amendment.B. Section 8(e)Section 8(e), unlike section 8(a), does not confer a constitutional right; rather, itspurpose is to allow employees and employers to accompany inspectors \”in order toeffectuate a full and complete investigation.\” Chicago Bridge & Iron Co., 1BNA OSHC 1086,1089,1971-73 CCH OSHD ? 15,416, p. 20,644 (No. 224,1973), aff’d,535 F.2d 371 (7th Cir. 1976). The judge found that because Perry and Schultz \”were ineach other’s company during Perry’s inspection,\” Schultz had been \”given anopportunity to accompany [Perry] within the meaning of section 8(a).\” Reasoning thatsection 8(e) is \”directory\” rather than \”mandatory,\” the judgeconcluded that any lack of actual accompaniment by a representative of Concrete would notjustify dismissal of the citations. The judge further concluded that even if Perry hadviolated section 8(e), Concrete had not shown that its defense had been prejudiced.Concrete contends that the judge erred in characterizing section 8(e) as nonmandatoryin nature. It asserts that Perry did not formally offer Schultz the opportunity toaccompany him during the inspection and that Perry continued his inspection of theSouthwest site after Schultz left to go to the other worksite. While we agree that section8(e) imposes a mandatory obligation on the Secretary, we reject Concrete’s contention thatthe Secretary failed to comply with its requirements in thecircumstances presented here.As Concrete correctly points out, two courts of appeals have held that section 8(e) isnot merely directory in nature. Neither of these decisions, however, holds that failure ofan employer’s representative to accompany a compliance officer necessarily invalidates thecitations. Rather, the courts emphasized that the Secretary is obligated under the Act toafford an opportunity for accompaniment. Marshall v. Western WaterproofingCo., 560 F.2d 947, 952 (8th Cir. 1977) (\”accompaniment opportunities\”);Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 376 (7th Cir. 1976). aff’g1 BNA OSHC 1086,1971-73 CCH OSHD ? 15,416 (No. 224, 1973) (\”substantialcompliance\” with section 8(e) exists where each employer on a multi-employer worksiteis made aware of its right to accompany the inspector).[[6]] The extent of the effortsrequired on the part of the inspector to satisfy section 8(e) will depend upon thecircumstances of the particular case. See Wright- Schuchart-Harbor Contrac., 1BNA OSHC 1138,1140,1971-73 CCH OSHD ? 15,473, p. 20,752 (No. 559,1973) (rejectingcontention that section 8(e) imposes a \”mandatory jurisdictional requirement\”which precludes the Secretary from citing an employer unless the employer’s representativewas actually present when the inspector observes the violative conditions).Judge Burroughs did not resolve the dispute in the evidence as to whether or notSchultz remained with Perry at the Southwest site. However, since section 8(e) onlyrequires that the employer be afforded the opportunity to accompany the inspector, and notthat the employer’s representative actually exercise that opportunity, resolution of thisdisputed factual matter is not necessary. The judge found that Schultz had been affordedan opportunity for accompaniment because he and Perry were together for at least someperiod of time. The preponderance of the evidence supports that finding. Clearly, Schultzwould have been present during Perry’s inspection of the Southwest site had he notvoluntarily left to go to the Addison site. As previously noted, Perry took no actionsthat would have precluded Schultz from requesting that Perry wait for a company safetyofficer to arrive.[[7]] As the court held in Chicago Bridge, absence of a\”formalized offer\” of the opportunity to accompany the inspector does notautomatically render citations void. 535 F.2d at 376. On the facts here, we conclude thatConcrete received an adequate opportunity to accompany inspector Perry.We further agree with Judge Burroughs that, even assuming Concrete was not afforded anopportunity to accompany inspector Perry, vacation of the citations is not appropriatebecause Concrete’s preparation or presentation of its defense was not prejudiced. See WesternWaterproofing Co., 560 F.2d at 591 (no remedy for violation of section 8(e) unlessthe employer’s defense is prejudiced); Pullman Pwr. Prods.,8 BNA OSHC 1930, 1980CCH OSHD ?24,692 (No.78- 4989, 1980), aff’d, 655 F.2d 41 (4th Cir.1981) (same).Here, Concrete claims that it was unable to challenge Perry’s measurements of theexcavation and was deprived of an opportunity to advise Perry that Concrete had a safetytraining program and that the backfill with which Perry was concerned was compacted andstable. The record, however, demonstrated that Concrete had a full and fair opportunity topresent its defense on these matters. Furthermore, the evidence does not establish thatthe excavations at either the Southwest or Addison sites had been closed by the timesafety officer Lusignolo arrived at the closing conference. Therefore, Concrete has failedto show that Lusignolo could not have reviewed the conditions at either excavation withPerry when he arrived at the closing conference. Accordingly, we find no indication thatany denial of the right to accompany Perry would have been prejudicial to Concrete.Alleged Violation of Section 1926.21(b)(2)At the time of the inspection, employee Baldwin, one of the two employees working inthe excavation at the Southwest site, had been employed by Concrete as a laborer for onlyabout two weeks. Not only was this her first job in the construction industry, but the dayof the inspection was the first occasion that she had ever been in an excavation. UnderConcrete’s policy that more experienced laborers would show newer employees how to performvarious tasks, employee McNichols, another laborer who had been employed by Concrete offand on for about two years, was with Baldwin in the excavation to train Baldwin inremoving a valve, the work assigned for the Southwest site. When hired, Baldwin had beengiven a safety booklet, which she read but did not \”really study.\” Althoughbackhoe operator Willard stated that Concrete had given him training regarding safety inexcavations, it is undisputed that no one had discussed with Baldwin the hazards ofworking in excavations.The cited standard, section 1926.21 (b)(2), requires that the employer \”instructeach employee in the recognition and avoidance of unsafe conditions and the regulationsapplicable to his work environment to control or eliminate any hazards or other exposureto illness or injury.\” Judge Burroughs concluded that Concrete had not complied withthe requirement to give instruction to \”each employee\” because Baldwin had notbeen instructed regarding the hazards in question. The judge rejected Concrete’scontention that Baldwin’s mere reading of the safety booklet was sufficient to satisfy thestandard for two reasons: Baldwin admitted that she had read the rules in only a\”cursory\” fashion, and the rules themselves were \”skeletal.\” He alsorejected Concrete’s reliance on McNichols’ guidance on the ground that McNichols was onlyinstructing Baldwin in how to perform a work task and was not providing safety training.The judge found the violation to be serious and assessed a penalty of $400.Although Concrete contends that the judge erred in finding that it had failed to complywith the standard, Concrete does not assert that if a violation existed, the violation wasnot serious in nature. In addition, neither party takes exception to the judge’s penaltyassessment.Concrete essentially repeats the arguments it made before Judge Burroughs but alsoargues that the judge’s decision is inconsistent. According to Concrete, the judge’sconclusion that reading a safety manual alone is not enough to provide adequate trainingrequires that the employee actually work in the excavation in order to become properlytrained. At the same time, however, the judge faulted Concrete for allowing an untrainedemployee into the excavation. In Concrete’s view, it allowed a new worker to enter theexcavation only with an experienced employee, and the judge failed to specify what moreConcrete should have done to comply with the standard. Noting that employees Willard andMcNichols testified that they considered the excavation safe, Concrete further claims thatthere was no need to give Baldwin instruction regarding hazards because no hazardouscondition existed. We reject these contentions for the following reasons.An employer complies with section 1926.21(b)(2) when it instructs its employees aboutthe hazards they may encounter on the job and the regulations applicable to those hazards.Archer-Western Contrac., Ltd., 15 BNA OSHC 1013, 1020, 1991 CCH OSHD ?\u00a029,317, p. 39,381 (No. 87- 1067,1991), petition for review filed, No. 91-1311(D.C. Cir. July 1, 1991); H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1044,1049,1981CCH OSHD ? 25,712 pp. 32,054, 32,058 (No. 76-4765, 1981). It is undisputed that Concretedid not provide BaIdwin with any training in the avoidance of hazards except to give her asafety booklet. As the Secretary contends and the judge found, that booklet addresses thematter of excavation safety in a cursory fashion which plainly fails to inform employeesof the requirements and specifications of the Secretary’s trench and excavationstandards.[[8]] The evidence plainly supports the judge’s finding that Baldwin’s briefreading of this booklet is not sufficient to inform her of the hazards and applicableexcavation standards within the meaning of section 1926.21(b)(2).Unlike Concrete, we do not interpret Judge Burroughs’ decision to hold that Concretecould only train its employees by actually having them go into the excavation; rather, thejudge simply found that reading the safety booklet alone was inadequate. In any event,section 1926.21(b)(2) does not limit the employer in the method by which it may impart thenecessary training. An adequate safety program that includes appropriate instructions toemployees will satisfy the standard. Archer-Western, 15 BNA OSHC at 1020, 1991CCH OSHD at p. 39,381; Dravo Engrs. & Constructors, 11 BNA OSHC 2010,1984-85CCH OSHD ? 26,930 (No. 81-748, 1984). Nor does the fact that other employees may haveconsidered the excavation safe excuse Concrete from giving the necessary instructions toBaldwin. See H.H. Hall, 10 BNA OSHC at 1049, 1981 CCH OSHD at p. 32,058 (No. 76- 4765,1981) (violation for failure to instruct is separate and distinct from the question ofwhether violations of trench and excavation standards existed).For these reasons, we conclude that Concrete committed a serious violation of section1926.21(b)(2), and we affirm the judge’s penalty assessment of $400.Alleged Violation of Section 1926.652(e)There is no dispute that the excavations at both the Southwest and Addison sites weredug in backfilled material resulting from earlier utility work in those areas. Perrytestified that he believed that the backfill material he observed at the Southwest sitedated from the previous December, about five months before the inspection, when Concretehad first installed the new water line. Both laborer McNichols and foreman Schultz,however, testified that the new water line was to the east of the Southwest site and thatthey were exposing the old water line. McNichols described the backfill as\”settled\” and \”compacted\” and said she was able to walk along thebackfill when exiting the excavation without experiencing any movement of the backfillunder her feet. Similar testimony was given by Willard, the backhoe operator, who statedthat the water line in the Southwest site had been backfilled \”years and yearsago\” and was \”hard\” and \”solid.\” Schultz was not sure butbelieved that the original water line exposed in the Southwest site had been installed 20years previously, and he recognized the backfill shown in the Secretary’s photograph, as alimestone and crushed gravel mixture, known as \”304,\” which compacts well. Hefurther stated that the Ohio Department of Transportation requires that material placedunder a street be compacted and that the backfill in the Addison site was of similar ageand composition. Perry admitted that a photograph he took of the Addison site did not showany new water line and that he did not know how long the backfill in the Addison site hadbeen there.Concrete also presented the testimony of an expert witness, Daniel G. Longo, a soilsengineer. At Longo’s direction, a few days after the inspection Concrete re- excavated theareas where the employees had been working. Longo described the original backfill as\”pretty well cemented, compacted and stable.\” According to Longo, the newbackfill that Concrete had just used to fill each excavation was readily distinguishablefrom the old backfill associated with the original water line because it was not cementedor compacted.Perry took measurements on both excavations. The Southwest site was 7 feet deep exceptat one end, where its depth was 5 feet, 6 inches. It was 23 feet long, approximately 8feet wide at each end, and 12 feet wide at its middle. The Addison site was 6 feet deep, 9feet long, and 8 feet, 9 inches in width. Although Perry did not measure the bottom widthof either excavation, he testified without dispute that each excavation was sloped onlyalong the one wall where the backfill was evident; the other walls of both excavations hadno sloping.Section 1926.652(e) requires as follows:Additional precautions by way of shoring and bracing shall be taken to prevent slidesor cave-ins when excavations or trenches are made in locations adjacent to backfilledexcavations, or where excavations are subjected to vibrations from railroad or highwaytraffic, the operation of machinery, or any other source.An \”excavation\” is defined at section 1926.653(f) as \”[a]ny manmadecavity or depression in the earth’s surface.\” Section 1926.653(n) defines a\”trench\” as follows: \”A narrow excavation made below the surface of theground. In general, the depth is greater than the width, but the width of a trench is notgreater than 15 feet.\” The cited standard is part of section 1926.652, which isentitled \”Specific trenching requirements.\”Judge Burroughs rejected Concrete’s contention that section 1926.652(e) is inapplicablebecause the two excavations in question do not come within the definition of a\”trench.\” The judge stated that there is no \”absolute rule\”‘ that atrench must be deeper than its width, and he concluded that the excavations should becharacterized as trenches because their width was not substantially greater than theirdepth and they were being used to lay water lines. The judge also concluded that Concreteviolated section 1926.652(e) and that the violation was serious in nature as the Secretaryalleged because it was dug in backfill. We agree with the judge that the standard appliesto Concrete’s worksite and that Concrete failed to comply with its requirements, but wefind the violation to be de minimis.As Judge Burroughs noted, the definition of a trench at section 1926.653(n) by itsplain terms does not impose an absolute requirement that a trench must always be deeperthan it is wide. Rather, the only limiting factor in the definition is that a trenchcannot be greater than 15 feet in width. D. Federico Co. v. OSHRC, 558 F.2d614,616 (1st Cir. 1977). Accordingly, the Commission has held that a ground opening widerthan it is deep may nevertheless still be considered a trench. Trumid Constr. Co.,14 BNA OSHC 1784, 1786, 1987-90 CCH OSHD ?\u00a0 29,078, pp. 38,856-57 (No. 86-1139,1990). Generally speaking, the Commission has considered excavations that have been dugfor pipelines to come within the category of \”trenches.\” Id.; Leone Constr.Co., 3 BNA OSHC 1979, 1975- 76 CCH OSHD ?\u00a0 20,387 (No. 4090, 1976). While theexcavations here, as Concrete contends, may have been dug somewhat wider to allow theemployees to remove the valve at the Southwest site and to cut and place a cap on the lineat the Addison site, that circumstance alone is not a sufficiently distinguishing factorto preclude application of the general principle that a pipeline excavation can beconsidered a trench. [[9]] See West Coast Constr. Co., 4 BNA OSHC 1940, 1976-77CCH OSHD ? 21,419 (No. 7454, 1976) (pipeline excavation that was wider than its depth ata point where it had been widened to allow a catch basin to be installed is a trench underthe definition). See also Wes Constr. Corp., 4 BNA OSHC 1536, 1538, 1976-77 CCHOSHD? 20,996, p. 25,226 (No. 4106,1976) (distinguishing pipeline work from\”traditional\” excavation activity \”such as pouring concrete\”).Accordingly, the judge properly found the excavations at the Southwest and Addison sitesto be trenches covered by section 1926.652(e).The Commission has authority to determine that a violation is de minimis innature where it has \”no direct or immediate relationship to employee safety andhealth.\” E.g., Super Excavators, Inc., 15 BNA OSHC 1313, 1314-15, 1991 CCHOSHD ? 29,498, p. 39,802 (No. 89-2253, 1991). There are several different circumstanceswhich may be taken into consideration in determining whether the necessary relationshipwith safety or health exists in a particular situation, including the likelihood of anaccident occurring. A remote likelihood of an accident is a specific ground on which aviolation may be found de minimis. Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027,1032 (5th Cir. 1989). See Keco Indus., 11 BNA OSHC 1832, 1834-35, 1983-84 CCHOSHD ? 26,810, pp. 34,296-97 (No. 81-1976, 1984) (violation de minimis where the chanceof an employee contacting live electrical parts was negligible); Daniel Constr. Co., 10BNA OSHC 1254, 1260, 1982 CCH OSHD ? 25,840, p. 32,331 (No. 80-1224, 1981), aff’d, 692F.2d 818 (1st Cir. 1982) (violation de minimis where possibility that electrical wires,could be damaged, thus exposing employees to the hazard of electric shock, was remote andspeculative).As Commissioner Wiseman’s separate opinion notes, the standard at issue here, section1926.652(e), requires that where trenches are located adjacent to backfill, \”additionalprecautions\” (emphasis added), such as shoring and bracing, must be taken beyondthe requirements normally applicable to trenches. Because the standard is limited to theparticular safety measures needed to account for the existence of backfill ,[[10]] theonly issue before us is whether, on the record in this case, the presence of the backfillis a condition having a direct and immediate relationship to the safety of Concrete’semployees. The mere fact that Concrete’s trenches may also not have been sloped, as the generaltrench standardsat section 1926.652 (b) and (c) restore, does not preclude a finding of a de minimisviolation in this case, where the evidence establishes only a remote or insignificantpossibility that the backfill itself might collapse. Similarly, the fact that solid rockis the only material explicitly exempted from the sloping, shoring, or other protectionrequired by those general provisions of section 1926.652, which apply to all soil types,has no bearing on the limited issue here of whether Concrete’s trenches were hazardoussolely because of the presence of backfill.[[11]]While the Southwest and Addison sites were dug in a backfilled area as the judge found,the preponderance of the evidence clearly shows that the backfill was compacted andstable. Perry’s testimony indicates that he merely assumed that the backfill hadrecently been placed in the two trenches because he was aware that Concrete had installeda new water line in the area about five months previously. Concrete’s employees, on theother hand, testified from their own personal knowledge that the new water line was notexposed in these trenches and that the existing backfill was considerably older.Concrete’s witnesses, including its expert, soils engineer Longo, all agreed that theexisting backfill not only had been compacted originally but had become hard and stableover time. Longo, furthermore, gave his opinion that the backfill would have no impact onthe safety or stability of the trenches.The uncontroverted evidence plainly establishes that the backfill was solid andcompacted and would not, in and of itself, have had any adverse effect on the stability ofthe walls of the trenches. On these facts ,we find that the likelihood that either of thetrenches might have collapsed as a result of the presence of the backfill was remote. Wetherefore conclude that the violation for failing to shore or brace the trenches becausethey had been excavated in such material is a de minimis violation[[12]].Accordingly, item 1 of the citation, alleging a serious violation of 29 C.F.R. ?1926.21(b)(2), is affirmed, and a penalty of $400 is assessed therefor. Item 4, alleging aserious violation of 29 C.F.R. ? 1926.652(e), is affirmed as a de minimisviolation and no penalty is assessed.Edwin G. Foulke, Jr.ChairmanVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated: May 14, 1992Concurring and Dissenting Opinion WISEMAN, Commissioner, concurring in part and dissenting in part:I agree with my colleagues’ affirmance of Judge Burroughs’ decision to the extent thejudge found that the Secretary’s inspection satisfied the procedural requirements ofSection 8 of the Act, 29 U.S.C. ? 657, and to the extent the judge affirmed the citationitem alleging that Concrete failed to comply with 29 C.F.R. ? 1926.21(b)(2) because itsemployees were not given proper safety instructions; however, I dissent from mycolleagues’ decision to reclassify Concrete’s failure to comply with 29 C.F.R. ?1926.652(e) as a de minimis violation.The standard set forth in 29 C.F.R. ? 1926.652(e) informs employees that backfilledtrenches are governed by a more restrictive requirement than trenches generally. Whereasparagraph (c) of section 1926.652 allows employees the option of sloping, in lieu ofshoring, trenches above five feet when they are dug in hard or compact soil, paragraph (e)of section 1926.652 requires additional precautions such as shoring and bracingto be taken to prevent slides or cave-ins in either of two situations: (1) whereexcavations or trenches are made in locations adjacent to backfilled excavations; and (2)where excavations are subject to vibrations from railroad or highway traffic, theoperation of machinery, or any other source. It is undisputed that the excavations atissue were made in locations adjacent to backfilled excavations, and there is no statedexception to the standard which would forego the additional precautions in the event thebackfill is compacted and stable.Section 1926.652(e) is a standard that includes requirements that by its terms must beobserved whenever specified conditions are encountered, and is predicated on the existenceof a hazard when its terms are not met. The Secretary is not required to prove thatnoncompliance with this standard creates a hazard in order to establish a violation. SeeWright & Lopez, Inc., 10 BNA OSHC 1108, 1111-12, 1981 CCH OSHD ?\u00a0 25,728(No. 76- 256, 1981); Austin Bridge Co., 7 BNA OSHC 1761, 1765-66, 1979 CCH OSHD ?\u00a023,935 (No. 76-93 1979). This standard presumes the existence of a hazard when its termsare not met. My colleagues, in determining that Concrete need not comply because itsnoncompliance created no hazard to its employees, are essentially questioning the wisdomof the standard. See Heath & Stich, Inc., 8 BNA OSHC 1640, 1643, 1980 CCHOSHD? 24,580 (No. 14188, 1980) (contention that compliance with ? 1926.652(c) wasunnecessary because soil was stable, was rejected as an \”impermissible challenge tothe wisdom of the standard\”).Furthermore, my colleagues base their de minimis classification on theircontention that it was a remote likelihood that either of the trenches might collapse as aresult of the presence of the backfill. I have had over 40 years of exposure to numeroustrenches through my experience in construction and through inspections as an administratorof safety and health programs. After reviewing the record and closely scrutinizing theexhibited photographs, I am convinced, based on my experience, that Concrete’s trench hadmuch more than a remote chance of collapsing.de minimis wViolations have been classified as de minimis where the items cited aretrifling or where no injury would result or any injury would be extremely minor. SeeFabricraft, Inc., 7 BNA OSHC 1540, 1979 CCH OSHD ? 23,691 (No.76-1410, 1979) (theviolation was de minimis where the failure to install needle guards on sewing machinesresulted in two minor puncture wounds over a 5 1\/2 year time period); J.W. BlackLumber Co., 3 BNA OSHC 1678, 1975-76 CCH OSHD? 20, 114 (No. 4734, 1975) (violationwas de minimis because it was a minor breach of a toilet partitioning standard); R.H.Bishop Co., 1 BNA OSHC 1767, 1973-74 CCH OSHD ? 17,930 (No.637, 1974) (violation wasde minimis where employer failed to provide a receptacle for disposable cups). Also,violations have been classified as de minimis where there is no significantdifference between the protection provided by the employer and that which would beafforded by technical compliance with the standard. See Phoenix Roofing, Inc. V. Dole,874 F.2d 1027 (5th Cir. 1989) (although the court found that an injury would be serious orfatal, it reclassified the citation as de minimis because it concluded that theprotection which Phoenix employed provided safety equal to or greater than that imposed byregulation); Charles H. Tompkins, 6 BNA OSHC 1045, 1047, 1977-78 CCH OSHD ?22,337, p. 26,918 (No. 15428, 1977) (violation was de minimis because employees’climbing safety was not \”appreciably diminished\” by additional distance betweenrungs on scaffold bucks); Erie Coke Corp., 15 BNA OSHC 1561 (No. 88-611, 1992)(violation was de minimis where employer provided flame resistant gloves to its employees,by making them available to its employees but not actually paying for them).On the other hand, a serious violation exists where there is a substantial probabilitythat death or serious physical harm could result from a failure to comply with theapplicable standard. It is not necessary for the occurrence of the accident itself to beprobable. It is sufficient if the accident is possible, and its probable result would beserious injury or death. Brown & Root, Inc., Power Plant Div., 8 BNAOSHC 1055,1060,1980 CCH OSHD ? 24,275, p. 29,570 (No. 76-3942, 1980).In this case, regardless of the compactness and stability of the backfill, there is noguarantee that the excavation would not collapse. Noncompliance with paragraph (e) ofsection 1926.652 creates a hazard of collapsing trench walls, and the probability of aresulting death or serious physical harm. As long as there is any possibility of acollapse, and such collapse would most likely result in serious injury or death to workersin the excavation, it is clear that the violation of this standard would not only have adirect effect on the safety of Concrete’s employees, but that the consequences ofConcrete’s violation could be extremely serious.For a violation to be serious, the Secretary also must prove that the employer knew, orwith the exercise of reasonable diligence should have known, of the existence of theviolation. The knowledge element is directed to the physical conditions which constitute aviolation. See Southwestern Acoustics & Specialty, Inc., 5 BNA OSHC 1091,1092, 1977- 78 CCH OSHD ? 21,582 (No. 12174, 1977). Concrete’s own safety manual cautionsas follows: \”Do not enter a trench that is five feet or more in depth unless it isshored, sheeted, boxed, layed-back or in solid rock.\” By Concrete’s ownacknowledgement, a trench like the one it was cited for, that is, one that is not shored,sheeted, boxed, laid-back or in solid rock is potentially so dangerous that its employeesshould not attempt to enter it.The standard at issue is specific, and based on my experience and my review of therecord, I do not believe Concrete sufficiently rebutted the standard’s presumption of ahazard. Had the trench in this case been dug in solid rock, perhaps it would present nosafety hazard to the two employees working in it at the time of inspection even withoutbeing shored or braced. Solid rock is treated as something other than the types of soilcovered by section 1926.652. See CCI, Inc., 9 BNA OSHC 1169, 1173, 1981 CCHOSHD? \u00a0 25,091 (No. 76-1228, 1980). The trench in this case, however, had not beendug in solid rock; it was adjacent to backfill and it had not even been sloped, much lessshored or braced as called for by section 1926.652(e). There was always the possibility ofa cave-in and resulting probable serious injury or death to Concrete’s employees workingin the trench at the time of the inspection. These are not trifling circumstances havingno direct relationship to the health and safety of Concrete’s employees. Accordingly, Iwould affirm Judge Burroughs’ classification of Concrete’s violation of section1926.652(e) as serious.DONALD G. WISEMAN\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0COMMISSIONERUNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,Complainant,v.CONCRETE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 89-2019APPEARANCES: Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor,Cleveland, Ohio, on behalf of complainant.Roger L. Sabo, Esquire, Millisor and Nobil, Columbus, Ohio, on behalf of respondent.DECISION AND ORDERBurroughs, Judge: Respondent, Concrete Construction Company (\”Concrete\”),contests alleged violations of the following five safety standards: 29 C.F.R. ?1926.21(b)(2) for failure to train employees in the recognition and avoidance of unsafeconditions, 29 C.F.R.? 1926.28(a) for failure to require an employee operating a backhoeto wear a safety belt, 29 C.F.R.? 1926.651(i)(1) for failure to maintain a spoil pile atleast two feet from the edge of a trench, 29 C.F.R. ? 1926.652(e) for failure to takeadditional precautions to support the walls of two trenches where the trenches were dugadjacent to backfilled excavations, and 29 C.F.R. ? 1926.652(h) for failure to provide aladder as a means of exit in a trench that was more than four feet deep. The allegedviolations were set forth in a serious citation issued to Concrete on June 1, 1989.Additional issues raised by Concrete include the validity of the inspection and whetherthe excavations were trenches within the meaning of ?1926.653(n).FACTSConcrete is a corporation engaged in highway paving and utility work in various areasof the State of Ohio. At its peak in 1989, it employed approximately 150 employees (Tr.279). In May 1989, Concrete was working on a contract from the State of Ohio Department ofTransportation to reconstruct State Route 62 in Grove City, Ohio. The project involvedwidening the road, installing storm sewers and relocating a portion of the city water linewhich would be exposed in the subgrade of the new roadway being constructed (Tr. 284). Asa result of the old water line being brittle, Concrete received a change order to itscontract to replace substantially more of the water line (Tr. 284-285). The new water linewas located outside the pavement on the widened roadway–placing it between the curb andthe sidewalk (Tr. 246, 285) and approximately 16 feet from the old water line (Tr. 285).On February 13, 1989, Compliance Officer Charles Perry was assigned to conduct ageneral schedule inspection of the Route 62 project. The inspection was selected throughthe use of the Dodge Reports[[1]] (Tr. 35). Due to the priority of other matters, Perrydid not actually undertake the inspection until May 18, 1989.[[2]] On the date of theinspection, the project had two open excavations. The first was located at the corner ofRoute 62 at Broadway and Southwest Boulevard (\”Southwest\”). The second waslocated at the corner of Addison and Broadway (\”Addison\”).On May 18, 1989, Perry arrived at the Route 62 project at approximately 12:00 p.m. Hedrove the length of the work site (approximately one and a third miles) and did not seeanyone working. He then proceeded to the area where the job trailors were parked. No onewas in Concrete’s trailor. Perry proceeded to the trailer used by the inspectors for theCity of Columbus. He talked with the inspectors for approximately one hour and left toreturn to the Route 62 work site (Tr. 36-37).As Perry drove back to the work site, he observed two employees in an excavation at thecorner of Route 62 and Southwest Boulevard. The employees were identified as RitaMcNichols and Brenda Baldwin. The backhoe operator was also at the excavation sitting inhis equipment. Perry stopped and took one photograph of the employees in the excavation(Ex. C-8; Tr. 37). The acronym \”OSHA\” was on the pocket of Perry’s coveralls,and also appeared on the hard hat he was wearing (Tr. 38).Perry testified that, after taking the photograph, he identified himself to theemployees and asked for the foreman. They informed him that the foreman was not at thesite. Within a few minutes, the foreman, David Schultz, drove up (Tr. 38). According toPerry, he showed Schultz his credentials and explained to him that he was there to make ageneral schedule inspection of the site. Schultz did not ask for a warrant, nor did herequest that Perry wait until a safety officer of Concrete could be present (Tr. 39).Perry then conducted his walkaround inspection.Concrete weaves a slightly different scenario. Both parties agree that Perry spottedthe two employees in the excavation, parked his car, walked to the area and took at leastone photograph (Tr. 37-38, 222). Baldwin and Willard observed Perry’s presence buttestified that they did not know he was from OSHA. When Schultz arrived at the Southwestexcavation, he directed the workers to place a fence around the opening and go to theAddison excavation and \”cut and plug\” the water line (Tr. 247-248). At the time,McNichols and Baldwin exited the excavation by stepping on a water main and storm sewerpipe (Tr. 20, 22-23, 205). According to Schultz, he noticed Perry standing along side theexcavation but did not know he was a compliance officer. Schultz was busy since he was ina rush to cut through a portion of the old line at the Addison excavation. Water servicehad to be terminated while the cut was made, and Schultz did not want to unduly delayrestoring the water service. According to Schultz, as he was leaving the Southwest site,Perry showed his credentials and told him he was there to conduct an inspection. Schultzresponded that he had to get to the Addison excavation and get the water back in serviceas soon as possible (Tr. 250). Perry did not conduct an opening conference (Tr. 266).THERE IS NO CAUSE TO VACATE \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CITATIONS FOR AN IMPROPER INSPECTIONConcrete asserts that the citation should be vacated, because Perry failed to complywith sections 8(a) and 8(e) of the Occupational Safety and Health Act of 1970(\”Act\”), 29 U.S.C. ? 657. Section 8(a)[[3]] requires the compliance officer topresent his credentials to the appropriate persons at the work site before conducting aninspection. Section 8 (e)[[4]] states that an employer is entitled to have arepresentative accompany the compliance officer during the physical inspection of theworkplace. Concrete contends that the denial of these rights prejudiced the company indefending against the alleged violations. The evidence does not support this contention.Perry did not present his credentials until after he had observed McNichols and Baldwinin the excavation and had taken at least one photograph (Tr. 105, 109). Within a fewminutes after Perry arrived at the site, the foreman, David Schultz, arrived. There is nodispute over the fact that Perry revealed his identity to Schultz (Tr. 205-206, 222, 248).Concrete argues that the compliance officer commenced his inspection from the time he gotout of his car and began taking pictures. It further argues that he did not introducehimself to the two employees in the trench until they had exited the trench and theforeman arrived (Tr. 19, 206, 248-249). The dispute evolves over the fact that Perry didnot immediately identify himself when he arrived at the Southwest excavation.It is undisputed that Perry presented his credentials to Schultz upon Schultz’s arrivalat the site. It is apparent that, prior to Schultz’s arrival, Perry was engaged in tryingto ascertain the whereabouts of the employees’ foreman. Perry estimated that two or threeminutes had elapsed between the time he identified himself to the employees and the timeSchultz drove up (Tr. 39). The slight delay in identifying himself to the employees in theexcavation did not place Concrete at any disadvantage in defending its case. He identifiedhimself to the foreman upon the foreman’s arrival at the site and prior to conducting awalkaround of the site.Under the rationale set forth in AccuNamics, Inc. v. OSHRC, 515 F.2d 828 (5thCir. 1975), there is no basis for dismissal even if Perry had not shown his credentials.The Southwest and Addison excavations were in public view. The jobsite was on a publicroad. There is no evidence that Perry looked where he had no right to look. There has beenno violation of Concrete’s fourth amendment rights.Concrete argues that it is company policy that, when an OSHA compliance officer arrivesat a work site to conduct an inspection, one of its safety officers is to be notified toaccompany the compliance officer on his walkaround (Tr. 283). Schultz stated that he didnot notify a Concrete safety officer because, \”I assumed he had already inspectedwhatever he was looking at, you know, and I didn’t see anything was wrong\” (Tr. 250).Considering that Perry had been on the site for only a matter of minutes, it would seemthat if Concrete had a complaint about lack of notification of a safety officer, it wouldbe with Schultz and not with Perry. Indeed, Alfred Gallucci, the safety officer forConcrete, testified that he had disciplined Schultz for not contacting him (Tr. 308). OSHAcannot be held responsible for a foreman’s failure to follow his company’s policy.Shultz stated that he did not accompany Perry on his walkaround (Tr.266-267), but thisappears to be a matter of semantics; Schultz claimed Perry followed him over to theAddison excavation (Tr. 250). Either way, Perry and Schultz were in each other’s companyduring Perry’s inspection. Concrete was given an opportunity to accompany OSHA’scompliance officer within the meaning of section 8(e) of the Act. The fact that no personfrom Concrete accompanied Perry is not cause for dismissal. The Commission has held the\”walkaround\” requirement to be directory rather than mandatory. ChicagoBridge & Iron Co., 74 OSAHRC 92\/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD ? 16,474(No. 224, 1973); Wright-Schuchart Harbor Contractors, 73 OSAHRC 4\/F13, 1 BNA OSHC1138, 1971-73 CCH OSHD?\u00a0 15,473 (No. 559, 1973).Even if there was a failure to comply with sections 8(a) and 8(e) of the Act, the factsfail to support Concrete’s argument that its defense was prejudiced by the Secretary’saction. In Pullman Power Products, Inc., 80 OSAHRC 77\/B11, 8 BNA OSHC 1930, 1932, _ CCHOSHD ? _ (No. 78- 4989, 1980), the Commission set forth the following rationale fordeciding such cases:[1] In determining that the inspection was not \”meaningful\” and vacating thecitations on that basis, the judge applied an improper legal test. The test to be appliedin determining whether to grant relief to an employer because of the Secretary’s failureto meet the walkaround requirements of section 8(e) of the Act is whether the employersuffered prejudice in the preparation and presentation of its defense. S & HRiggers & Erectors, Inc., 8 BNA OSHC 1173,1980 CCH OSHD ? 24 ,336 (No.76-1104& 76-1739, 1980), appeal filed, No. 80-7297 (5th Cir. April 21, 1980); Titanium MetalsCorp. of America, 7 BNA OSHC 2172, 1980 CCH OSHD ? 24,199 (No. 14080, 1980), appealfiled, No. 80-1333 (3d Cir. March 10, 1980).Concrete’s argument that the citation should be vacated because the inspection wasconducted improperly is rejectedTHE ALLEGATIONSItem 1Alleged Violation of 29 C.F.R. ? 1926.21(b)(2)The Secretary alleges that Concrete violated ? 1926.21(b)(2) by allowing an employeeto work in an excavation without proper instruction to recognize and avoid unsafeconditions. Section 1926.21(b)(2) provides:The employer shall instruct each employee in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment to control or eliminateany hazards or other exposure to illness or injury.Concrete argues that Perry chose to ignore the nature and extent of safety trainingwhich Concrete gives to its employees.Perry observed Brenda Baldwin in the Southwest excavation and took her photograph (Ex.C-8). At the time of the inspection, Baldwin had worked for Concrete for approximately tendays, which is the same amount of time she had spent in the construction industry (Tr.12-13). Prior to her job with Concrete, Baldwin had been employed as a cashier and as abartender (Tr. 11).When Perry interviewed Baldwin, she told him that she had received no training intrench safety (Tr. 13, 50). At the hearing, Baldwin stated that she was mistaken about thesafety training: \”At the time, I was upset. I had just forgotten that when I did gethired by the company, that Dominic Gallucci had given me a hard hat and a safety bookletand I had read it, but I didn’t really study it\” (Tr. 13).Concrete contends that Baldwin’s cursory reading of the safety booklet is adequate tofulfill the requirements of ? 1926.21(b)(2) that it \”instruct each employee in therecognition and avoidance of unsafe conditions.\” The safety booklet in question is 36pages long. Approximately one page is devoted to trenching and excavating. The sum of thebooklet’s \”training\” regarding excavations is as follows (Ex. R-1, pp. 20-21):TRENCHING AND EXCAVATING1. Do not enter a trench that is five feet more in depth unless it is shored, sheeted,boxed, layed-back or in solid rock.2. A ladder must be IN the trench, near the work area and extended 36 inches above thetop of the bank, unless a ramp or steps are provided.3. Install cross-braces against solid ground, not voids.4. Before entering a trench at the beginning of a new work day, inspect for evidence ofcracks, slides or wall failures.5. Know the location of utilities before digging. If in doubt call the utility or OUPSat 1-800-363-2764, 48 hours before digging.6. Excavated or other materials should not be stored closer than two feet from theexcavated edge.7. Be alert to possible contact with overhead power lines.8. Never enter a manhole until it has been checked for gases.The fact that Baldwin gave these skeletal rules a quick read does not inspireconfidence in her ability to recognize and avoid unsafe conditions. Baldwin stated that noone had discussed with her the hazards associated with working in trenches. She had neverentered a trench before that day (Tr. 14). The standard is explicit that the employer shallinstruct each employee. The fact that other employees may have received suchinstructions did not obviate the requirement that instruction be given to Baldwin.Concrete argues that, as a new employee, Baldwin could not be expected to have the sametraining as other, more experienced employees. This may be true, but it is not an excuseto allow her to enter into an excavation without some training or instruction as to thehazards of the job. Concrete contends that the other employee in the excavation, RitaMcNichols, was a trained employee who was looking out for Baldwin. McNichols stated thatshe allowed Baldwin in the excavation because, \”I wanted to get her someexperience\” (Tr. 204). The experience that Baldwin was getting at this particularpoint was to help McNichols \”get ready to take the bolts out and take the valveoff\” (Tr. 204). While this may have given Baldwin some work experience, it does notaddress experience in safety training. Concrete assigns McNichols the role of beingBaldwin’s protector, but nowhere in the record does it indicate that McNichols was givingany kind of safety instructions to Baldwin. When McNichols was asked if it was part of herduties to train other employees, she stated, \”Well, it’s not really that you wouldtrain them. I mean, you just kind of help them — you know, show them — it’s just kind oflike common sense. You just show them how to do other things\” (Tr. 208).The foreman, David Schultz, was not present when McNichols and Baldwin were in theexcavation. He had assigned them the job of cleaning out around the valves in theexcavation and obviously knew they had to go into the excavation to accomplish theassignment (Tr. 270). He was unaware if Baldwin had ever been in a trench prior to thatoccasion and conceded that he had never talked with her regarding the hazards associatedwith trenches (Tr. 271).The fact that other employees may have received some instruction in the recognition andavoidance of unsafe conditions does not satisfy the requirements of the standard. Section1926.21(b)(2) requires that each employee must receive such instruction. It is clear thatMs. Baldwin did not receive any such instruction. The fact that others may have receivedinstruction is a mitigating factor that can be taken into account in the assessment of anappropriate penalty.The Southwest excavation ran east to west and was 23 feet long, 12 feet wide in themiddle, and approximately 8 feet wide at the east and west ends. The south wall was 6 1\/2feet deep. The trench had been previously backfilled (Ex. C-10). Baldwin was working inthe excavation even though she had not been trained in the recognition and avoidance of apotential cave-in. The likely results of such a cave-in would be death or serious physicalinjury. Concrete was in serious violation of ? 1926.21(b)(2).Item 2Alleged Violation of 29 C.F.R.? 1926.28(a)It is alleged that the backhoe operator was operating a backhoe equipped with rolloverprotective structures without wearing a seat belt in violation of section 1926.28(a),which states:The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.In order to establish a violation of ? 1926.28(a), \”the Secretary must prove (1)exposure to a hazardous condition; (2) that some other section of Part 1926 indicates aneed for the use of particular protective equipment in the circumstances presented; andthat (3) the employer failed to require the use of the equipment.\” L.E. Myers Co.,High Voltage Systems Division, 86 OSAHRC 52\/A2, 12 BNA OSHC 1609, 1986 CCH OSHD ?27,476, p. 35,604 (No. 82-1137, 1986).Perry observed the backhoe operator, Robert Willard, moving a backhoe away from theedge of the excavation. He came around behind Perry and Schultz, to whom Perry wastalking. Willard was not wearing a seat belt at the time. Perry told Willard that heshould be wearing the seat belt because the backhoe had a roll-over protective structure(\”ROPS\”). Willard told Perry that he \”didn’t feel he needed to wear a seatbelt because he was in a flat location\” (Tr. 126). According to Perry, in the eventthe vehicle turns over, the operator is generally thrown from the seat and can be crushedby the ROPS. The seat belt is worn to keep the operator inside the vehicle (Tr. 54).Perry stated that his conversation with Willard took place in front of Schultz, thatSchultz did not discipline Willard for not wearing the belt, and that Willard then droveaway into traffic on Southwest Boulevard without fastening his seat belt (Tr. 55). Willardtestified that, as soon as he spoke to Perry, he put on his seat belt (Tr. 229). Theunfastened safety belt is visible in Exhibits C-2 and C-3. It is hanging off the back ofthe operator’s seat. Perry testified that he took the photographs after his discussionwith Willard (Tr. 43, 57). This is inconsistent with his testimony on cross-examinationwhere he stated that the photographs were taken before he talked to Willard (Tr. 124-125).The inconsistency is not material to the finding of a violation.Willard and Schultz testified that Schultz was not present when Perry spoke to Willardabout the seat belt (Tr. 227, 231, 272). Willard also stated that, as soon as he finishedspeaking with Perry, he fastened his seat belt to satisfy Perry (Tr. 224). Schultz statedthat, after Perry spoke with Willard, he saw that Willard put the seat belt on (Tr.271-272). Exhibits C-2 and C-3 support the testimony of Perry that Willard was not wearinga seat belt. The dispute over whether he fastened the belt after Perry spoke to him doesnot alter the undisputed fact that Willard was operating the backhoe without wearing asafety belt. Willard’s lack of use of the seat belt was easily detected. If Concrete hadan effective enforcement procedure, it knew of the violation or should have known of itsince the violation was in plain view.The Secretary has established that Willard was exposed to a hazardous condition.Concrete claims that, because the backhoe was operated on solid, level ground, a seat beltwas not needed (Tr. 224). Perry, however, observed Willard operating the backhoe within afew feet of the excavation and on a heavily traveled street (Ex. C-8). The backhoe couldhave rolled into the excavation or been hit by oncoming traffic. Turning to the secondelement under L. E. Myers, that some other section of Part 1926 indicate a need for theuse this particular protective equipment,? 1926.602 provides:(1) These rules apply to the following types of earthmoving equipment: scrapers,loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agriculturaland industrial tractors, and similar equipment.(2) Seat belts. (i) Seat belts shall be provided on all equipment covered bythis section…(iii) Seat belts need not be provided for equipment which does not have roll-overprotective structure (ROPS) or adequate canopy protection.The Secretary has established that seat belts were required by Part 1926 since thebackhoe had ROPS.The third element of L. E. Myers requires proof that the employer failed torequire the use of the protective equipment. Concrete’s safety booklet has a sectionentitled \”Motor Vehicles and Mechanized Equipment,\” which contains this rule:\”Buckle your seat belt before operating\” (Ex. R-1, p.22). It was apparent fromthe testimony that this rule was neither enforced nor obeyed.When asked if he’d used the safety belt while operating the backhoe on other occasions,Willard replied \”Not too often\” (Tr. 231). Alfred Gallucci, who is in charge ofsafety for Concrete, stated: \”The employees are supposed to wear seat belts on theirequipment, especially in rough terrain, and with rocks in\” (Tr. 306). This isnot in compliance with the standards. Section 1926.602(a) requires that safety belts beworn while the vehicle is in operation, regardless of the terrain.The Secretary has established that Concrete was in violation of ? 1926.28(a). Therewas always the possibility that the vehicle could turn over, throwing the operator out andcrushing him beneath the ROPS. The likely result of this occurrence would be death orserious injury. Concrete’s violation was serious.Item 3Alleged Violation of 29 C.F.R. ? 1926.651(i)(1)The Secretary alleges that the spoil removal from the Southwest excavation was storedwithin two feet of the edge of the excavation. Section 1926.651(i)(1) provides:(i)(1) In excavations which employees may be required to enter, excavated or othermaterial shall be effectively stored and retained at least 2 feet or more from the edge ofthe excavation.Concrete argues that the allegation must be vacated \”since the Secretary has notshown the existence of a safety hazard.\” It also asserts that the Secretary hasfailed to establish any substantial employee exposure.The spoil pile from the Southwest excavation was stored at the edge of the north wallof the excavation (Exs. C-5, C-6, C-8; Tr. 57-58). The weight of the spoil pile created asuperimposed load on the wall of the excavation (Tr. 61).Concrete concedes that part of the spoil pile was at the edge of the excavation butargues that the bulk of it was more than two feet away from the edge and was resting onasphalt (Tr. 221, 254). Concrete’s argument is contradicted by the photographic evidence.Exhibit C-8 shows the spoil pile directly at the edge of the excavation, looming over thetwo employees.Concrete’s argument that the allegation must be vacated because the Secretary has notshown the existence of a safety hazard is without merit. Section 1926.651(i)(1) does notrequire that employees be subjected to a hazard by virtue of violative conditions. Thestandard requires only that \”employees may be required to enter\” an excavation. D.Federico Co., 17 OSAHRC 13\/A2, 3 BNA OSHC 1970, 1974, 1975-76 CCH OSHD? 20,422 (No.4395, 1976). McNichols and Baldwin were instructed by the foreman to clean out around thevalves in the excavation (Tr. 270). They were required to enter the excavation to carryout the assignment. The violation has been established.The argument that the Secretary has failed to establish any substantial exposure is notconsidered to be a serious argument on Concrete’s part for vacating the allegation.McNichols and Baldwin were in the excavation. This fact is undisputed. A cave-in is notcaused by the length of time one remains in an excavation or trench. Such a catastrophecan occur at anytime.A superimposed load on the walls of a trench that has been previously backfilledexacerbates the potential for a cave-in. In the event of a cave-in, employees in theexcavation would likely incur death or serious physical injury. Concrete was in seriousviolation of 1926.651(i)(1).\u00a0Item 4Alleged Violation of 29 C.F.R.? 1926.652(e)The Secretary alleges that the Southwest and Addison excavations were trenches thatwere not shored, sheeted, braced, sloped or otherwise supported as required by section1926.652(e), which states:Additional precautions by way of shoring and bracing shall be taken to prevent slidesor cave-ins when excavations or trenches are made in locations adjacent to backfilledexcavations, or where excavations are subjected to vibrations from railroad or highwaytraffic, the operation of machinery, or any other source.Concrete argues that ? 1926.652(e) is inapplicable because the excavations are nottrenches and that ? 1926.652(e) applies only to trenches, citing Rick KoterzinaConstruction Co., 85 OSAHRC 22\/B1O, 12 BNA OSHC 1334, 1336, 1985 CCH OSHD ? 27,269(No. 84-839, 1985). It further contends that the standard under which Concrete has beencited is confusing and that the measurements made by Perry were inaccurate.Three measurements were taken across the top of the Southwest excavation. Theexcavation was wider in the middle, which was 12 feet. The ends were approximately 8 feetin width (Ex. C-10; Tr. 121). No measurements were made of the width at the bottom of theexcavation (Tr. 122-123). The excavation was 23 feet in length (Tr. 123). The depthmeasurement was made by dropping the measuring tape over the side of the excavation (Tr.81, 123). Perry was approximately one foot from the trench wall when making the depthmeasurement (Tr. 81). Perry measured the depth to be 6 feet, 6 inches (Ex. C-10). Heconceded that he did not take into account the sloping of the walls (Tr. 81-82). Hestated: \”When I took the measurements, they were approximate because they were notaccurate\” (Tr. 82). The Addison excavation was measured in the same manner as theSouthwest excavation. The Addison excavation was 6 feet deep, 9 feet long, and 8-3\/4 feetwide (Ex. C- 11; Tr. 86-88). Perry did not measure or feel any vibrations at theexcavations (Tr. 127). Both excavations were in previously backfilled areas (Tr. 61-63,211, 347). Each excavation was approximately 16 feet from a heavily trafficked highway(Tr. 89). Concrete took no additional precautions to support the walls. The walls werealmost vertical.Concrete argues that the excavations in question were not trenches as defined by ?1926.653(n). This section provides:\”Trench\”–A narrow excavation made below the surface of the ground. Ingeneral, the depth is greater than the width, but the width of a trench is not greaterthan 15 feet.Since the excavations in question were wider than they were deep, Concrete contendsthey are not subject to the requirements of ?1926.652(e).Section 1926.653(n) defines trenches as being \”in general\” deeper than theyare wide. The Commission has held that this does not create an absolute rule that trenchesare always deeper than they are wide. Such a rule would lead to the undesirable situationwhere an employer would need only ensure that its excavations were always a foot widerthan they were deep, thus circumventing the intent of the trenching standard.In West Coast Construction Co., 76 OSAHRC 149\/F1, 4 BNA OSHC 1940, 1976-77 CCHOSHD ? 21,419 (No. 7454, 1976),[[5]] the Commission stated (4 BNA OSHC at 1941):[1] We have held that, even though a ground opening is wider than it is deep, it maystill be properly classified as a trench. Leone Const. Co., Docket No. 4090, BNA 3OSHRC 1979, CCH OSHD para. 20,387 (Feb. 10, 1976); D. Federico Co., Docket No.4395, BNA 3 OSHC 1970, CCH OSHD para. 20,422 (Feb. 10, 1976). Indeed, as Respondent pointsout, an opening dug for the purpose of laying pipe is generally classified as a trench. LeoneConst. Co., supra.Like West Coast, this case involves the laying of pipe. The Commission alsopointed out that the cited excavation standard was functionally equivalent to the trenchstandard under similar facts. The Commission, after finding the standards to befunctionally equivalent, concluded (4 BNA OSHC at 1941):Since the issue to be resolved is the same under both standards, whether or not themore appropriate standard was cited is unimportant. If it should be determined that thewrong standard was cited, the proper course is to amend the pleadings to allege the properstandard. D. Federico Co., supra. Since the ultimate issue is the same under bothstandards, any possibility of prejudice from such an amendment is precluded.The Secretary cited ?1926.652(e), because both excavations were made in locationsadjacent to backfilled excavations. Section 1926.651(m) is labeled \”specificexcavation requirements.\” Subsection (m) requires special sloping or shoring shall betaken when an excavation is dug adjacent to a backfilled excavation. [[6]] Both sectionsare directed toward preventing a cave-in in such situations. The depth measurements areless than the width measurements but not to any great degree. Since the excavation wasbeing used to lay a water line, it would generally be thought of as a trench as suggestedby the Commission in West Coast Construction Co., supra.Sections 1926.652(e) and 1926.651(m) are functionally equivalent in terms of protectingagainst a cave-in of excavations or trenches made adjacent to backfilled excavations;therefore, it is unimportant whether the appropriate standard was cited. The end result isthat Concrete did not comply with either standard. An amendment under Fed. R. Civ. P.15(b) would be proper if it was determined that the excavation could not be classified asa trench. Since the excavations were dug to lay a water line, it is plausible to alsorefer to them as trenches.Concrete also takes issue with the accuracy of Perry’s measurements. He tookmeasurements with a steel tape and contemporaneously recorded these measurements in hisnotes (Exs. C-10, C-11; Tr. 58). Concrete’s attack on the measurements centers on Perry’sunfortunate choice of words, \”When I took the measurements, they were approximatebecause they were not accurate\” (Tr. 82). Concrete also states that the reliabilityof Perry’s measurements is impugned because he could not testify from memory as to themeasurements. This argument ignores the fact that the inspection took place on May 18,1989, and the hearing took place on January 8 and 9, 1990. Perry’s job is to inspect worksites and record measurements. Since it was obvious Perry had not reviewed his file beforetestifying, it would be unrealistic to expect him to testify from memory as tomeasurements taken eight months before. He would have been better prepared to testify ifhe had reviewed his case file carefully before being called as a witness.While Concrete elicited testimony from several of its employees to the effect that thetrenches were not as deep as Perry states (Tr. 18, 207, 220, 236), none of these employeestook measurements of the trenches. An approximation made by a measuring tape is consideredmore realistic than guesses by employees who might tend to favor their employer.Concrete also presented the testimony of Daniel Longo, a professional soils engineer.Longo attempted to re-create the excavation sites by digging down to the water line. Hethen took measurements which he purported proved that the Southwest and Addison trencheswere only 4.9 feet and 4.8 feet deep, respectively (Tr. 358-360). Longo conducted hisexperiment in \”late summer of ’89\” (Tr. 319). Perry conducted his inspection inthe middle of May. The photographs Concrete introduced in support of Longo’s testimonyshow that the grade of the road had been cut down several feet (Exs. R-16, R-18, R-19,R-22; Tr. 323). These photographs should be compared with Exhibit C- 5 which shows thesite at the time of inspection. Reference to C-8, taken on the day of the inspection,shows the trench walls to be well above the heads of the two employees. Concrete contendsthat the angle of the photograph makes the trench look deeper than it is, but thephotograph does not appear to be greatly distorted. The Secretary’s photographic evidenceand Perry’s recorded measurements are accepted as factual representations of the trenches.The standard requires additional precautions to be taken in locations adjacent tobackfilled excavations or where excavations are subjected to vibrations. Perry did nottake measurements for vibrations and he did not feel any vibrations at the trenches (Tr.126- 127). This is insufficient to prove that the trenches were subjected to vibrations.It was undisputed, however, that the areas around the trenches were backfilled. Employeeswere working inside both trenches. Concrete was in violation of ?1916.652(e). Theviolation was serious since a cave-in could have occurred at either of the locations.Item 5Alleged Violation of 29 C.F.R.?1926.652(h)The Secretary alleges that a ladder or other safe means of exit from the Addison andSouthwest trenches was not provided for employees working in the trenches. Section1926.652(h) provides:When employees are required to be in trenches 4 feet deep or more, an adequate means ofexit, such as a ladder or steps, shall be provided and located so as to require no morethan 25 feet of lateral travel.A ladder was present lying on the ground above one of the trench walls (Tr. 257). Itwas undisputed that neither trench had a ladder in it (Tr. 95).Concrete argues that the cited standard \”deals only with trenches, notexcavations.\” For this reason, it considered ? 1926.652(h) to be inapplicable. Theargument is without merit in view of the ruling that the excavations can be classified astrenches.Concrete argues that there is no violation even if the standard if applicable. Itsubmits that employees were afforded a safe and effective exit without a ladder. Concretecorrectly points out that the standard \”does not require a ladder, but insteadrequires only the ‘adequate’ means of exit.\” The Secretary concedes, the absence of aladder is not per se a violation of the standard. All that is required is an\”adequate means of exit.\” Perry stated that he observed employees entering andexiting the trench \”using one of the walls of the trench, and with the gravel andmaterial and backfill in the trench, they had to labor extra because the material keptmoving under their feet as they exited and entered the trench\” (Tr. 93-94).All of the employees who testified regarding the exiting of the trenches stated thatthey had no trouble doing so in a safe manner. Baldwin stated that she did not exit on the backfill: \”There was a watermain there, a pipe, and you could climb on it. And, there was an old storm sewer downthere, too, that you could climb down\” (Tr. 22-23). McNichols stated she had notrouble getting in and out of the trench (Tr. 205). She stated that she exited the trenchby stepping up on the old water line, and that the backfill did not move beneath her feet(Tr. 212). When told that Perry had asserted that the backfill moved when people tried toget out, McNichols replied, \”It never happened to me\” (Tr. 212). Donald Stevens,a pipelayer’s helper, testified that he had no trouble exiting the trench and did not\”labor\” to get out (Tr. 238). Schultz observed employees entering and exitingthe trench and stated that they had no trouble getting out (Tr. 257).The Secretary has failed to establish that the trenches were not provided with adequatemeans of exit. Concrete was not in violation of ? 1926.652(h).PENALTY DETERMINATIONThe Commission is the final arbiter of penalties in all contested cases. Secretaryv. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under 17(j) of theAct, the Commission is required to find and give \”due consideration\” to the sizeof the employer’s business, the gravity of the violation, the good faith of the employer,and the history of previous violations in determining the assessment of an appropriatepenalty. The gravity of the offense is the principal factor to be considered. NaciremaOperating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4,1972).Concrete had approximately 150 employees. There was no evidence presented of a priorhistory of violations. Concrete exhibited good faith in dealing with OSHA. It wascooperative during the inspection. The gravity of the four violations is severe. Itemsone, three and four present the potential for a cave-in, a life-threatening occurrence.Item two presented the hazard of the backhoe operator being crushed under the ROPS of anoverturned backhoe. The fact that Concrete has a safety manual, holds weekly safetymeetings (Tr. 281) and the fact that McNichols (Tr. 201), Willard (Tr. 216), Stevens (Tr.234), and Schultz (Tr. 261) testified regarding Concrete’s safety training are consideredmitigating factors in assessing a penalty for item one.After due consideration of the relevant factors, it is determined that the followingare appropriate penalties: Item 1 $400.00 Item 2 $500.00 Item 3 $600.00 Item 4 $600.00 FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in this opinion are incorporatedherein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.ORDERIn view of the foregoing and good cause appearing in support of the determinations, itisORDERED: That the allegations and proposed penalties set forth in the serious citationissued to Concrete on June 1, 1989, are vacated, modified and affirmed as follows: Item No. Disposition Assessed Penalty 1 Affirmed $400.00 2 Affirmed $500.00 3 Affirmed $600.00 4 Affirmed $600.00 5 Vacated None Dated this 10th day of December, 1990.JAMES D. BURROUGHS JudgeFOOTNOTES: [[1]] Subsequent to the inspection here, the Secretary extensively amended Subpart P ofPart 1926, which governs trenches and excavations. 54 Fed. Reg. 45894 (1989). Allreferences to Subpart P in this decision are to the standards as they existed at the timeof the inspection at issue.[[2]] The judge also affirmed citation items alleging that a backhoe operator was notwearing a seatbelt as required by section 1926.28(a) and that excavated material was notstored at least 2 feet from the edge of one trench, contrary to section 1926.651 (i). Thejudge vacated an allegation that Concrete failed to comply with section 1926.652(h) by notproviding an adequate means of exit from both trenches. Neither party takes exception tothe judge’s disposition of these items, and these portions of the judge’s decision are nowa final order of the Commission.[[3]] Section 8(a) provides:In order to carry out the purposes of this Act, the Secretary, upon presentingappropriate credentials to the owner, operator, or agent in charge, is authorized–(1) to enter without delay and at reasonable times any factory, plant, establishment,construction site, or other area, workplace or environment where work is performed…and(2) to inspect and to investigate during regular working hours and at other reasonabletimes, and within reasonable limits and in a reasonable manner, any such place ofemployment and all pertinent conditions, structures, machines, apparatus, devices,equipment, and materials therein, and to question privately any such employer, owner,operator, agent, or employer.Section 8(e) requires:Subject to regulations issued by the Secretary, a representative of theemployer…shall be given an opportunity to accompany the Secretary or his authorizedrepresentative during the physical inspection of any workplace under subsection (a) forthe purpose of aiding such inspection.The Secretary’s regulation at 29 C.F.R.? 1903.8, \”Representatives of employersand employees,\” essentially repeats the statutory language. [[4]] We reject Concrete’s contention in its brief before us that the Southwest siteitself was \”inaccessible\” to the public. The judge made no such finding, andthere is no evidence to support the contention.[[5]] Concrete also asserts that the judge found that Schultz was justified in concluding,when be arrived at the site, that Perry had already completed his inspection. The judge’sdecision, however, does not contain any such finding, and there is no evidence of anybasis on which Schultz could have reasonably determined that Perry had concluded hisinspection.[[6]] In characterizing section 8(e) as \”directory,\” Judge Burroughs citedthe Commission’s decision in Chicago Bridge, where the Commission stated thefollowing reason for its conclusion that section 8(e) is \”nonmandatory\”.[[T]]here is not one scintilla of evidence that section 8(e) was intended to establish anabsolute right in the employer and employees, the denial of which deprives the Secretaryof jurisdiction. On the contrary, the legislative history establishes that section 8(e)was intended to direct the Secretary to afford employees and employers the opportunity toaccompany investigators ….1 BNA OSHC at 1089,1971-73 CCH OSHD at p. 20,644. Considering the context in which theCommission used the term \”nonmandatory,\” it is clear that there is no materialdifference between the Commission’s analysis of the substance of section 8(e) and that ofthe court opinions on which Concrete relies.[[7]] Concrete does not argue that Perry’s taking a photograph of the excavation beforeSchultz arrived violates section 8(e). In any event, the Commission has held that wherethe representative of the employer is temporarily absent from the site, section 8(e) doesnot preclude a compliance officer from taking steps to preserve evidence of a transitoryviolation to which employees are exposed. Environmental Utils. Corp., 5 BNA OSHC1195, 1198, 1977-78 CCH OSHD ? 21,709, p. 26,074 (No. 5324, 1977).[[8]] For example, while the booklet informs employees \”not [to] enter a trench thatis five feet [or] more in depth unless it is shored, sheeted, boxed, layed- back or insolid rock,\” the booklet does not advise employees that the amount of slopingnecessary will vary according to the type of soil, nor does it give employees any guidancein determining soil type. The booklet also does not inform employees that shoring isrequired in trenches that are dug in backfilled areas or are subject to vibration, whichis one of the requirements of Subpart P that is at issue in this case.[[9]]Concrete’s witness, soils engineer Longo, also measured the excavations whenConcrete reopened them after the inspection. The judge discredited Longo’s measurements asnot representative of the conditions existing at the time of the inspection. Concrete doesnot argue that the judge erred in accepting Perry’s measurements rather than those made byLongo. In any event, Longo did not measure a width in excess of 15 feet at either site.Therefore, his testimony does not alter our conclusion that these excavations can beconsidered trenches under the definition.[[10]]The cited standard also requires shoring or bracing where trenches or excavationare subjected to vibration. The judge found that no vibration was present, and theSecretary does not take exception to this finding.[[11]] CCI, Inc., 9 BNA OSHC 1169,1981 CCH OSHD\u00a0 ?25,091 (No.76-1228,1980), aff’d. 688 F.2d 88 (10th Cir. 1982), on which the separate opinionrelies, involves a violation of section 1926.652(c). Since that standard is a general trenchprovision, requiring protective measures dug in all types of soils, not merely backfill,it is inapposite here.[[12]] Concrete relies on a prior decision of the Commission holding that the stabilityor compactness of backfill may be taken into consideration in determining whether aviolation of 29 C.F.R.? 1926.652(e) exists in the first instance. Shane, Inc., 5BNA OSHC 1217, 1977-78 CCH OSHD ?21,694 (No. 13136, 1977). Because we have relied on theevidence of the compactness and stability of the backfill to determine that the violation(continued … )was de minimis and therefore requires no abatement and involves no penalty, weneed not reach Concrete’s argument.[[1]].Dodge Reports are provided as a private service created for construction contractors touse in bidding and scheduling construction projects. The report lists jobsites bylocation, dollar amount, and project description (Tr. 173). OSHA contracted with theUniversity of Tennessee to assist in the general scheduling of inspections for theconstruction industry. Every month, the University of Tennessee sends 20 Dodge Reports toeach area office for OSHA (Tr. 172, 187). Each office uses the reports to make theirgeneral schedule construction inspection list (Ex. R-2, p. 115). James Vaughn, the AreaDirector for OSHA’s Columbus, Ohio, office, testified that a new list is not started untilthe previous list’s 20 inspections were completed (Tr. 189).[[2]]A compliance officer’s time is utilized on a priority system. Catastrophic inspectionsreceive first priority and are followed by complaints and referrals. General scheduleinspections receive last priority Tr. 34-35).[[3]] Section 8(a) states:(a) In order to carry out the purposes of this Act, the Secretary, upon presentingappropriate credentials to the owner, operator, or agent in charge, is authorized–(1) to enter without delay and at reasonable times any factory, plant, establishment,construction site, or other area, workplace or environment where work is performed by anemployee of an employer; and(2) to inspect and investigate during regular working hours and at other reasonable times,and within reasonable limits and in a reasonable manner, any such place of employment andall pertinent conditions, structures, machines, apparatus, devices, equipment, andmaterials therein, and to question privately any such employer, owner, operator, agent oremployee.[[4]]Section 8(e) states:(e) Subject to regulations issued by the Secretary, a representative of the employer and arepresentative authorized by his employees shall be given an opportunity to accompany theSecretary or his authorized representative during the physical inspection of any workplaceunder subsection (a) for the purpose of aiding such inspection. Where there is noauthorized employee representative, the Secretary or his authorized representative shallconsult with a reasonable number of employees concerning matters of health and safety inthe workplace.[[5]] See also: Health & Stich, Inc., 80 OSAHRC 65\/E12, 8 BNA OSHC 1640, 1980CCH OSHD?\u00a0 24,580 (No. 14188, 1980) (trench 12 feet wide and 10 to 11 feet deep). Accord,D. Federico Co. v. OSHRC, 558 F.2d 614 (5 OSHC 1528) (1st Cir. 1977), aff’d, 3BNA OSHC 1970, 1975-1976 CCH OSHD ? 20,422 (No. 4395, 1976) (trench 12 feet wide and 61\/2 feet deep). Trumid Construction Co., OSAHRC , 14 BNA OSHC 1784, 1786, 1990 CCHOSHD ? 28,013 (No. 86-1139, 1990).[[6]] Section 1926.651(m) provides:Special precautions shall be taken in sloping or shoring the sides of excavations adjacentto a previously backfilled excavation or a fill, particularly when the separation is lessthan the depth of the excavation. Particular attention also shall be paid to joints andseams of material comprising a face and the slope of such seams and joints.”