“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13964 CONNECTICUT NATURAL GAS CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 30, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO, Commissioner[1]BY THE COMMISSION:??????????? A decision of Review Commission Judge Foster Furcolo isbefore the Commission for review pursuant to section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?\u00a0651 et seq. [?the Act?]. In hisdecision, the Judge affirmed a citation alleging a serious violation of section5(a)(2) of the Act for failure to comply with the construction safety standardpublished at 29 C.F.R. ? 1926.652(b)[2] and assessed a $1000penalty.[3] We affirm the Judge?sdecision to the extent that it is consistent with the following, and reduce thepenalty to $600.??????????? Respondent is engaged in the sale and distribution ofnatural gas. It had excavated a trench for the purpose of repairing a leak in agas pipe. The trench was in the shape of two overlapping rectangles as depictedbelow.[4]??????????? While conducting an inspection of the worksite at astreet intersection in Hartford, Connecticut, two compliance officers observedone of respondent?s employees in the east trench between sections E and F. Theemployee was straddling a six inch diameter pipe that he was repairing. Thedepth of section F of the east trench was 6 feet 8 inches and the width at thebottom of the trench between sections E and F was 2 feet 8 inches. The wall ofsection F of the trench was vertically cut below a concrete overhang thatextended over the trench a distance of 2 feet 7 inches. The wall had linecracks in it. From the top of the wall of section F the concrete overhangmeasured 1 foot 2 inches vertically. Beneath the overhang was 1 to 1 ? feet ofcompact processed stone, followed by an 18-20 inch deep by 4 foot long electricconduit, with compact natural clay silt filled with sand at the bottom. At theintersection of sections E and G of the trench, there was a conically shapedmanhole 8 feet in diameter at the bottom, tapering to 4 feet in diameter at thetop.??????????? Respondent?s expert witness, Dr. Clarence Welti,[5] and area foreman, Mr.Vail, testified that the soil in section F of the trench was stable clay silt.Dr. Welti took and tested soil samples. The only soil sample that he testedfrom the east trench was from the middle of section F; the soil sample testedas stiff, cohesive clay silt.[6]. Dr. Welti testified thatthere was sand at the bottom of the trench and that a large portion of theexcavation was sand. Dr. Welti stated that the west wall (section E) of thetrench was backfill and that backfill soil was generally unstable. Both Dr.Welti and Vail agreed that the trench walls in that area (sections E and F)were supported by the manhole and electric conduit so that no shoring wasneeded.??????????? Both compliance officers and the Area Director testifiedthat the soil throughout the trench was unstable. The Area Director stated thathe had seen this worksite dug up three to five times previously, the site beingoutside his office. He concluded that the soil was backfill sand, which wasunstable due to the disturbed nature of the soil. Compliance officer Hatcherstated that he determined from his observations that the soil throughout thetrench and walls was sandy, backfill soil. Hatcher stated that he had seen thesite opened by respondent on two previous occasions. Compliance officer Normandbent over the edge of the trench to observe the soil; he described the soil assandy. He stated that the west wall (section E) was composed of sand with loosematerial midway down the trench wall.??????????? The Area Director and compliance officer Hatcher claimedthat the concrete overhang posed an additional hazard because of thepossibility of it collapsing on the employee who was working in this areaduring the inspection. The maintained that the possibility of collapse wasincreased due to the vibrations caused by traffic coming within three feet ofthe trench. The Area Director also stated that vibrations from vehiculartraffic increased pressure on the walls. Superintendent Colturi testified thatthe overhang was not dangerous because it was newly poured reinforced concrete.Dr. Welti claimed that the overhang could extend up to four feet withoutexternal support and it would be unlikely that the traffic vibrations wouldcause the overhang to break off.??????????? Vail, the area foreman, signed a Trench Excavation FieldForm, stating that the trench was 32 inches wide and 6 feet 8 inches deep wherethe employee was observed working. The form also included a statement that thesoil was unstable, sandy, and unshored. Vail testified that it was indicated tohim that he was required to sign the form. Compliance officer Hatcher admittedthat he did not inform Vail that he was not required to sign the form. The AreaDirector testified that this form had no official sanction.??????????? Respondent?s safety policy concerning trenches requiredthat all trenches more than 5 feet deep be shored. After respondent received asecond citation on a different worksite for failure to shore a trench,respondent hired Dr. Welti to make a general survey of its excavations toevaluate and correct possible dangers.??????????? In his decision, Judge Furcolo held that respondent hadcommitted a serious violation of ? 1926.652(b). He found that respondent?ssupervisors had knowledge of the standard and the hazardous conditions. Hefound that the trench was 6 feet 8 inches deep and 2 feet 8 inches wide.Although he recognized there was conflicting testimony concerning the stabilityof the soil, he found that the soil was unstable, relying on several factors toreach this conclusion. The Judge was impressed by the ?emphatic? testimony ofthe compliance officers that the soil was unstable, as well as theuncontradicted testimony that the soil at the worksite had been excavated onseveral occasions. He noted that all witnesses agreed that backfill was lessstable than undisturbed soil. The Judge also noted that the foreman had readand signed a statement that the soil was unstable. The Judge contrasted thetestimony of respondent?s expert witness that the trench was stable with theexpert?s other statements that some areas of the trench needed shoring, a largepart of the excavation was sand, and one wall of the trench contained backfill.He also relied on the corroborated testimony that there was substantial amountof traffic near the site and the traffic came within a few feet of the trench.Although he did not specifically address respondent?s argument that the wallsadjacent to where the employee was working were supported by a concrete manholeand conduit, he found that the sides ?were not shored, sheeted, braced, orotherwise supported.? The Judge did not give any reasons for his denial ofrespondent?s motion to dismiss on the grounds that the standard is vague.??????????? Respondent contends that the standard does not adequatelyinform it of the conditions under which protection is required because of theuncertainty in the term ?unstable or soft material,? because there is noguidance in the standard how the depth of five feet or more is to be measuredwhen the composition of the trench walls is not uniform, and because the phrase?means of sufficient strength to protect employees? is unduly vague. Because ofthese alleged deficiencies in the standard, respondent urges us to limit theapplicability of the standard to situations in which a reasonably prudentperson familiar with its industry would have protected against the hazard,citing Cape & Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir.1975).[7]??????????? We reject the argument. When the various terms of ?1925.652(b) are read in light of the other provisions of the trenchingstandards, their meaning is sufficiently precise to put employers on notice ofwhat the standard requires.[8] First, we note that the phrase?unstable or soft material? as used in ? 1926.652(b) is contrasted with ?hardor compact soil? used in ? 1926.652(c).[9] Read together, thestandards inform employers that some protection is required in any trench 5feet or more in depth dug in soil.??????????? The standards provide further guidance to enableemployers to determine whether a particular trench is regulated by ?1926.652(b) or ? 1926.652(c). In addition to the definitions of ?unstable soil?and ?hard compact soil? in ? 1926.653, ? 1926.652 contains Table P-1, whichillustrates the approximate angle of repose for different types of earthmaterial. This Table lists an angle of repose of ? to 1 for compacted angulargravels, and less steep slopes for average soils, compacted sharp sand, andwell rounded loose sand. Since ? 1926.652(c) requires a slope of not steeperthan ? to 1 for hard or compact soil, it is evident that those materials listedin Table P-1 as having a less steep angle of repose must be considered soft orunstable, and are therefore regulated by ? 1926.652(b).??????????? Similarly, Table P-2 in ? 1926.652, entitled ?Trenchshoring-minimum requirements?, gives specific guidelines for the shoringrequirements in trenches of different dimensions and soil types. An employeruncertain of the phrase ?means of sufficient strength? can look to Table P-2for guidance. See Griffin & Brand of McAllen, Inc., 76 OSAHRC148\/A10, 4 BNA OSHC 1900, 1976-77 CCH OSHD para. 21,388 (No. 4415, 1976).? ??????????? Finally, respondent?s objection to the phrase ?5 feet ormore in depth? is not that it is incomprehensible, but that it does not provideguidance when the material in which a trench is dug is not uniform. Respondentwould therefore have us interpret ? 1926.652(b) as applying only when five feetor more of the depth of the trench is in unstable or soft material. We havepreviously rejected this argument, holding that as long as the trench is morethan five feet in depth and the amount of unstable soil is not negligible, all_____ soil in the trench must be shored or sloped. W. N. Couch ConstructionCo., 76 OSAHRC 44\/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD para. 20,574 (No.7370, 1976). Based on Couch, we reject respondent?s suggested interpretation.??????????? Respondent contends that the Judge erred in concludingthat the soil was unstable. Respondent takes specific exception to the factorson which the Judge relied: the compliance officers? testimony that the soil wasunstable; the testimony of the expert, Dr. Welti, that certain areas of thetrench needed shoring and a large part of the trench was sand;[10] the testimony that thesoil was backfilled; the signing of a form by its foreman stating the soil wasunstable; and the traffic near the trench increasing the possibility ofcollapse.??????????? Respondent argues that its expert?s testimony that thesoil in section F was stable and his analysis of soil samples where work wasbeing performed should be given greater weight than the testimony of thecompliance officers. While expert testimony is commonly given greater weightthan lay testimony, expert testimony need not be accepted even ifuncontradicted. U. S. Steel v. OSHRC, 537 F.2d 780, 783 (3rd Cir. 1976).Indeed, expert testimony is not conclusive; it is up to the trier of fact todetermine what, if any, weight will be given to that testimony. Sartor v.Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944); see DanielConstruction Co., 77 OSAHRC 21\/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para.21,521 (Nos. 7734 & 7672, 1977).??????????? The Judge realized that there was contradictory evidencewith respect to the stability of the soil in various areas of the trench andchose to accord more weight to the testimony of complainant?s witnesses. Eachof complainant?s witnesses testified from his previous knowledge of theworksite and his visual and tactile observations that the soil throughout thetrench was unstable, specifically contradicting Dr. Welti?s testimony that thesoil was stable in some parts of the trench.??????????? More importantly, complainant?s witnesses testified thatthe soil in the trench was backfilled. Dr. Welti admitted that backfill wasgenerally unstable. Moreover, Dr. Welti testified that a large part of thetrench was sand, specifically stating that the western wall (section E) nearthe bottom of the manhole was sandy. Furthermore, respondent?s exhibits, drawnby Dr. Welti, show sand in that wall and the two walls adjacent to it (sectionsD and G). Dr. Welti also admitted that certain areas of trench needed shoring.Finally, he stated that the western wall (section E) of the trench wasbackfill, and as noted, he admitted that backfill was unstable soil.[11]?We agree with the Judge?sassessment of the evidence and the weight that he assigned to the expert?stestimony. Although the Judge did not fully discuss his reasons for rejectingDr. Welti?s conclusions about the stability of the soil in section F, hisrejection was not arbitrary He recognized that there was contradictory evidenceand stated the reasons for his determination. His findings are set forth in hisdecision and are supported by the evidence. See C. Kaufman, Inc., 78 OSAHRC3\/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978);Administrative Procedure Act ? 8(b), 5 U.S.C. ? 557(c) (1966). In addition, itis uncontroverted that section E of the trench was comprised of backfill andthat backfill is unstable.[12] We agree with the Judge?sdetermination that the soil was unstable.[13]??????????? Respondent also contends that the Judge failed to findthat the trench walls were not ?otherwise supported by means of sufficientstrength to protect the employees working within them.? The Judge made aspecific finding that the trench walls were not otherwise supported; he didnot, however, specifically address respondent?s arguments that the manhole andelectric conduit supported the walls. While normally a remand would benecessary for the Judge to elucidate the reasons for his determination, P& Z Co., Inc., 77 OSAHRC 211\/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHDpara. 22,413 (No. 76-431, 1977), there is sufficient evidence in the record forus to address the issue. Accordingly, we will decide whether the manhole andelectric conduit were of sufficient strength to protect employees. Accu-Namics,Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975).??????????? The electric conduit in section F was four feet long, butthere is no evidence indicating where it was located along the 6 foot longwall. There is also insufficient evidence showing how a 1 foot 6 inches highconduit can support a wall that is 6 feet 8 inches high. On the western wall,the manhole only protected the end of the wall (intersection of sections E andG). It was not large enough to support the entire wall. A major portion of thebackfilled wall had no support (intersection of sections E and D). We hold theevidence does not establish that the walls were supported by other means ofsufficient strength. See Wes Construction Corp., 76 OSAHRC 103\/A2, 4 BNAOSHC 1536, 1976-77 CCH OSHD para. 20,996 (No. 4106, 1976). Accordingly, we findthat a violation of ? 1926.652(b) was proven as to section E of the trench.[14]??????????? Respondent argues that, if a violation exists, it is notserious. First, respondent submits that there is no proof that the violationwould result in a substantial probability of death or serious physical injury.We reject this contention because, as complainant?s witnesses testified, it isprobable that if the trench were to collapse, an employee could be buried orsuffocate. Second, respondent contends that it lacked even constructiveknowledge of the violation because Potvin, the working foreman, made thedecision to excavate deeper than 5 feet without consulting any of hissupervisors. We have held, however, that an employer is responsible for anyviolation that its supervisor creates or of which it has actual or constructiveknowledge, unless the employer can show that the supervisor himself wasadequately supervised regarding safety matters. Constructora Maza, Inc.,78 OSAHRC 6\/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD para. 22,487 (Nos. 13680& 14509, 1978). Respondent had adduced no evidence on this point.??????????? We believe, however, that the Judge?s assessment of a$1000 penalty is too high. Respondent was aware of its safety problems withtrenches. In order to provide additional safety precautions, it retained Dr.Welti to advise of possible dangers associated with excavations and torecommend methods of eliminating the dangers. As a result of this evidence ofgood faith, we reduce the penalty to $600.??????????? It is ORDERED that the Judge?s decision be affirmed and a$600 penalty be assessed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JUN 30, 1978\u00a0??????????? CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.SEPARATE OPINION??????????? Asa new member of the Commission, I must resolve the issue of my participation inpending cases. It is also necessary for me to set out the principles guiding mydecision on this important issue.??????????? Inthis case, Chairman Cleary and Commissioner Barnako reached a unanimous decisionon the merits before I received my commission on May 1, 1978. A decision wasalready in preparation when I assumed office. I have concluded that the wisestexercise of discretion is to decline to participate in this case even though anew Commission member has authority to participate in pending cases. It shouldbe emphasized that by declining to participate I express no opinion on theprocedural or substantive issues in this case or on the appropriateness of theaccompanying order.Discretion of Commission Members??????????? Asa matter of law, it is not necessary for all Commission members to participatefor an agency to take official action. In Drath v. FTC, 239 F.2d 452(D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal TradeCommission issued a cease-and-desist order with only three of its five membersparticipating. The Court of Appeals rejected petitioner?s contention that theFTC can act in its adjudicatory capacity only when all members participate,except when there is a vacancy. The court ruled that official action can betaken by the majority of the requisite quorum. Also Frisher & Co. v.Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v.Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f)of the Occupational Safety and Health Act, 29 U.S.C. ? 661(e), provides:Forthe purposes of carrying out its functions under this chapter, two members ofthe Commission shall constitute a quorum and official action can be taken onlyon the affirmative vote of at least two members.???????????? Thus,the unanimous decision already reached in this case satisfies the quorum andofficial action requirements of the Act and my participation is not necessaryfor the Commission to carry out its adjudicatory functions in this particularcase.??????????? However,it is also settled that a new member of an administrative agency mayparticipate in pending cases. For example, a new member of the CivilAeronautics Board who had not participated in previous proceedings was entitledto vote and break an existing tie where he had familiarized himself with therecord. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing UnitedAir Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[15]. In United thecourt indicated that, where a member voting with the majority without hearingoral argument ?had the record before him and the benefit of briefs?, there wasno abuse of discretion in his participation, 281 F.2d at 56. There are numerousother cases supporting this holding. The clearest statement of law is set forthin Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):Thedecisions of numerous courts and administrative agencies establish that, evenwithout agreement of the parties, a member of an administrative agency who didnot hear oral argument may nevertheless participate in the decision where hehas the benefit of the record before him. [footnotes omitted] \u00a0348 F.2d at 802.[16] See Au Yi Lau v. U.S.Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir.1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir.1976). Thus, a new member possesses the necessary authority to participate inall cases pending before the Commission on assuming office.??????????? Thougha new member may participate in all pending cases, particularly those involvingan impasse, the decision remains a matter of discretion since adjudicatorydecision may be upheld on a majority of a quorum. In FTC v. Flotill prod.,389 U.S. 179 (1967) rev?g 358 F.2d 224 (9th Cir. 1966), an FTC memberappointed to fill one of two vacancies, declined to participate because he hadnot heard the oral argument. Thus, three of the possible four Commissionersactually participated in the decision. As a result, the FTC issued acease-and-desist order based on the affirmative vote of only two members.Despite its obvious impact on the number of members constituting a majority,the Court did not review the exercise of discretion by the new member. Instead,the Court accepted the abstention at face value and upheld the action of thetwo members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5thCir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).In addition, administrative decisions involving two or more abstentions havebeen upheld by reviewing courts without question or comment on the grounds forthese abstentions. All that was necessary to sustain the agency decision was amajority of the required quorum. E.G., Greater Boston Television Corp. v.FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S.923 (1971).Decision Not to Participate??????????? Idecline to participate in this case because a majority of the Commission hasreached agreement on the merits and my vote would have no effect on theoutcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako havereached a unanimous decision, my participation would delay the issuance ofdecisions and conflict with the goal of a prompt and efficient decision-makingprocess. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir.1975), citing 5 U.S.C. ? 555(b). Since abatement is stayed until the Commissionenters a final order, 29 U.S.C. ? 659(b), additional deliberations would delaythe control of hazardous working conditions in any case where the Commissionhas determined that a violation of the Act exists. That result would beinconsistent with the statutory purpose to assure so far as possible safe andhealthful working conditions for every working man and woman. 29 U.S.C. ?651(b).??????????? Iwill, however, participate fully in all cases in which previous Commissiondeliberations have resulted in a one-to-one deadlock. Decisions by an equallydivided Commission are without precedential value, e.g., Life SciencesProducts Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCHOSHD ?22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir.Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission?sadministrative law judges. Moreover, these decisions also promote needlesslitigation in the U.S. Courts of Appeals to decide issues which should initiallybe determined by the Commission, because its members have specialized training,education, and experience in occupational safety and health. 29 U.S.C. ?661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; KeystoneRoofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution ofpending issues also promotes a more uniform application and development ofoccupational safety and health law. After reading the record, I willparticipate in the consideration and decision of these cases.Conclusion??????????? Mydecision not to participate in pending cases which have reached a unanimousdecision by my colleagues, but to participate in those cases with unresolvedissues, promotes the prompt adjudication of cases. It also assures the partiesand the public of the full benefit of Commission review. Both of these resultsare essential in deciding cases affecting the lives, health and safety ofAmerican workers, the operation of American business, and the effectiveadjudication of cases by the administrative law judges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13964 CONNECTICUT NATURAL GAS CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 14, 1976APPEARANCESRobertJ. Murphy, Esq.ForComplainant\u00a0HaroldN. Mack, Esq.ForRespondent\u00a0DECISION AND ORDERFurcolo, Judge:??????????? Thisis a proceeding pursuant to the Occupational Safety and Health Act of 1970, asamended (29 U.S.C. ? 651, et seq.), hereinafter called the Act. The Complainantalleges that the Respondent has violated ? 5(a)(2) of the Act (? 654) by notcomplying with occupational safety and health standard 29 C.F.R. 1926.652(b).??????????? TheRespondent is a corporation engaged in the business of the sale anddistribution of natural gas, and its business affects the commerce of theUnited States.??????????? TheRespondent?s worksite at the corner of Charter Oak Avenue and Prospect Street,Hartford, Connecticut, was inspected by the Occupational Safety and HealthAdministration (hereinafter called OSHA) on June 20, 1975.??????????? OnJune 24, 1975, the following citation, together with notice of proposedpenalty, was issued against the Respondent:??????????? Citation#1, Item #1: The willful violation of standard 29 C.F.R.1926.652(b)…..$6,000.??????????? OnJuly 2, 1975, the Respondent filed notice of contest to the citation and thepenalty proposed therefor.??????????? Thepertinent words of the standard involved are:1926.652(b):?Sides of trenches in unstable or soft material, 5 feet or more in depth, shallbe shored, sheeted, braced, sloped, or otherwise supported . . ..??Section17 of the Act (? 666) has the following pertinent words:(a)Any employer who willfully or repeatedly violates . . . section 5 of this Act .. . may be assessed a civil penalty of not more than $10,000 . . ..?(b)Any employer who has received a citation for a serious violation . . . ofsection 5 of this Act . . . shall be assessed a civil penalty of up to $1,000 .. ..?(k) .. . a serious violation shall be deemed to exist . . . if there is asubstantial probability that death or serious physical harm could result from acondition which exists . . . unless the employer did not, and could not withthe exercise of reasonable diligence, know of the presence of the violation.\u00a0Correction of Transcript??????????? TranscriptVol. II, page 92, line 4, is corrected by changing the word ?bearing? to?burying.???????????? TranscriptVol. III, page 121 line 20, is corrected by changing the letters ?F-F? to?E-F.?Motions??????????? 1.At the hearing the Respondent moved to amend its answer to allege that standard1926.652(b) is vague and does not apply to the Respondent?s obligation. Noobjection having been interposed to the motion to amend the answer, it wasallowed. Insofar as interpreted to quash the citation, the motion was denied .. . Tr. Vol. I, pages 7?8.??????????? 2.The Complainant?s motion to sequester witnesses was granted with regard to allwitnesses . . . Tr. Vol. I, pages 5?7.??????????? 3.The Complainant?s motion to amend the complaint to alternatively allege aviolation of standard 652(c) was denied for the reasons stated herein. Thehearing was begun on October 3, 1975; and the witnesses, Smith (directexamination only), Collins, and Vail, testified on that day. On October 6 thewitnesses, Hatcher and Normand, testified; and the Complainant then rested(because of illness, the witness, Smith, was to be cross-examined at a laterdate). The hearing was continued until February 10, 1976. On that date, nearthe conclusion of the cross-examination of the witness, Smith, the Complainantmoved to amend the complaint to charge, in the alternative, a violation ofstandard 652(c). The Respondent objected on the grounds of late notice andprejudice. The Complainant?s motion was denied for the reasons that theRespondent had prepared and tried its case on standard 652(b) and would beprejudiced by the allowance of the motion . . . Tr. Vol. III, pages 76?79.Evidence??????????? Itwas stipulated that the total sales in business done by the Respondent for thefiscal year of 1974 was $48 million and that the Respondent employed 575persons in Connecticut . . . Tr. Vol. I, pages 3?4.??????????? TheRespondent admitted that its employees regularly received, handled and workedwith goods that have been moved across state lines and that it is an employerengaged in a business affecting commerce within the meaning of the Act . . .Answer, paragraphs 1 and 2.??????????? JosephColturi, called by the Complainant, testified that he is the DistributionSuperintendent for the Respondent and that he had discussed trenching standardswith Respondent?s supervisors and foremen (including Robert Vail, foreman ofthe worksite in question) before June 20, 1975 . . . Tr. Vol. I, pages 22 and23. He does not recall saying to the Compliance Officer: ?There is no excusethat it (the trench) is not shored? . . . Tr. Vol. I, pages 25, 26 and 28.??????????? RobertVail, called by the Complainant, testified that he is the Respondent?s areaforeman. He said that the trench was 6 feet 8 inches deep and 2 feet 8 incheswide . . . Tr. Vol. I, pages 37, 38 and 54 . . . had sandy soil in sections,Tr. Vol. I, page 40 . . . but had stable soil, such as clay, where the work wasbeing done . . . Tr. Vol. I, page 62. He testified that he had read and signeda statement saying the soil was unstable and trench was not shored . . . Tr.Vol. I, pages 45 and 46. He also testified that the trench had shoring fromstructures in it, such as a manhole and an electric light duct . . . Tr. Vol.I, page 57. He said that, before June 20, 1975, he was aware of the standardrequiring shoring in unstable soil over 5 feet in depth . . . Tr. Vol. I, page51.??????????? HaroldR. Smith, called by the Complainant, testified that he has been the OSHA AreaDirector for four years; has supervised over 150 trenching inspections, andhimself conducted over 40; took a four-week course in soil mechanics in theUnited States Department of Labor Training Institute; and had extensivetrenching experience in private industry. He has worked in trenches and is veryfamiliar with trenches and soil stability . . . Tr. Vol. I, pages 91, 99 and102; Vol. III, page 74. The Respondent was familiar with trenching standards,including standard 652(b) . . . Tr. Vol. I, pages 68, 73, 75 and 77; Vol. III,pages 16?18, 21 and 30. The Respondent had been cited for a violation ofstandard 652(c) in Wethersfield, Connecticut, Docket No. 10537 . . . Tr. Vol.I, pages 70, 77 and 78; Vol. III, pages 38, 39 and 45. He has seen this generalworksite dug up three to five times, and most of the soil there was backfillsand, including the exact locus of the instant citation . . . Tr. Vol. I, pages80, 81, 84 and 90; Vol. III, page 59. Backfill or nonvirgin soil cannot be reliedon for stability because it is not cohesive due to foreign objects, air pocketsand basic looseness . . . Tr. Vol. I, pages 92 and 93; Vol. III, page 60. Thereis nothing to support the soil in the undercut area (the ?overhang?), and it isvery probable that it will come down because of that plus vibration fromtraffic . . . Tr. Vol. I, pages 84 and 88; Vol. III, page 67. There issubstantial traffic in that area . . . Tr. Vol. III, page 60. The probabilityof an accident is great and death could result. . . Tr. Vol. I, page 83; Vol.III, page 62. At the worksite here, according to the Compliance Officers?report to him, the Respondent?s supervisors told the Complainant?s ComplianceOfficers that the trench should have been shored . . . Tr. Vol. I, page 81. Hegave copies of the Federal Register containing this standard to the Respondentat a seminar in 1971 . . . Vol. III, page 16. The soils here are mostly sandand backfill from other areas. He is familiar with the specific site and hasseen trucks dump sand there. Backfill is very unreliable for stability and isbasically loose. There have been seven citations to contractors at that site orwithin a distance of 50?60 feet. The whole corner has been torn up curb tocurb; that whole street has been torn up on quite a few occasions . . . Tr.Vol. III, pages 58 and 60.??????????? JosephF. Hatcher, called by the Complainant, testified that he has been an OSHACompliance Officer for almost two years and had a construction course thatincluded four days in shoring. Beyond that, as a staff sergeant with the ArmyEngineers for six years, he had had extensive experience in bridge buildingwhere there had to be a firm foundation that would not be on loose or unstablesoil. This work did not include shoring of trenches . . . Tr. Vol. II, pages 24and 26. The Respondent?s employee, Carmine Arcari, was 6 feet 8 inches down inthe trench . . . Tr. Vol. II, page 7. The trench had no support system whatever. . . Tr. Vol. II, page 9. The soil throughout the trench and walls was sandy,backfill material . . . Tr. Vol. II, pages 10 and 11. The trench had a 90? wallwith an undercut or overhang of about 2 feet 7 inches . . . Tr. Vol. II, pages16 and 21. Traffic, including work trucks and cars, were passing within 3 to 4feet of the trench . . . Tr. Vol. II, page 13. The Respondent?s Foreman, Vail,agreed the soil was sand and unstable and the trench unshored . . . Tr. Vol.II, page 20. The Respondent?s employee, Potvin, said the Respondent had openedthis particular spot before, and he (Hatcher) has seen the Respondent open iton two other occasions . . . Tr. Vol. II, pages 23, 53 and 61. The Respondent?sForeman, Vail, signed and understood the trenching form, Exh. C?12 . . . Tr.Vol. II, pages 18, 19 and 46. He heard the conversation between theRespondent?s Foreman, Vail, and the Distribution Superintendent, Colturi, inwhich Colturi asked why the trench was not shored, and Vail said he had notrealized he was down to a depth of 5 feet 8 inches; and Colturi told theCompliance Officers that there was no reason for the trench not being shored .. . Tr. Vol. II, page 17. The site was on a main street in Hartford, and thetraffic vibrations would cause movement of earth and be unsafe . . . Tr. Vol.II, pages 16, 54 and 55.??????????? JosephP. Normand, called by the Complainant, testified that he has a Master?s Degreein Mechanical Engineering and has been an OSHA Compliance Officer since March1975. He took a month?s course in OSHA procedures which did not include shoringor soil mechanics, and he had inspected two trenches . . . Tr. Vol. II, pages94 and 97. The soil in the trench and walls was sandy backfill and appeared tobe unstable, and there were small cracks in the walls of the trench . . . Tr.Vol. II, pages 75 and 76. Traffic came within 3 feet of the trench . . . Tr.Vol. II, page 71. Where the Respondent?s employee, Arcari, was working was 2feet 8 inches wide. . . Tr. Vol. II, page 88. The sloping of the trench did notconform to OSHA regulations . . . Tr. Vol. II, pages 87 and 88. The Respondent?sForeman, Vail, signed the trenching form after Compliance Officer Hatcher wentover the items with him. Vail said he did not know they were going that deep .. . Tr. Vol. II, page 84. The Respondent?s Distribution Superintendent,Colturi, said there was no excuse for not shoring the trench . . . Tr. Vol. II,page 84. There were no supports in the trench . . . Tr. Vol. II, page 85. Thehazard was that the trench would collapse, burying the employee in it, thecause being the soil?s unstable condition and vibrations from the traffic . . .Tr. Vol. II, pages 79, 92 and 106.??????????? RomeoPotvin, called by the Respondent, testified that he has been a chief street manfor the Respondent for seven years, a member of the street crew for 12 yearsbefore that, is familiar with sloping of trenches, has participated in trainingsessions on shoring and safety of excavations, and over his 19 years ofemployment has been involved in work assignments that included shoring . . .Tr. Vol. II, pages 157 and 158. One of his responsibilities is determiningsafety of trenches . . . Tr. Vol. II, page 137. The east side wall of thetrench in question had an 18-inch electric conduit encased in concrete and thewest side had a concrete manhole in it. From the surface of the road there were14 inches of concrete reinforced with steel, then a foot or foot and a half ofpacked gravel below that, and then the 18-inch electric conduit . . . Tr. Vol.II, pages 137?139. It was his opinion that, because of these items, the trenchhad its own natural shoring, was sufficiently shored, and was safe . . . Tr.Vol. II, page 159. Steel plates that weighed about a ton each were put over theexcavation Friday and were removed on Monday without any change in theexcavation . . . Tr. Vol. II, page 157. On June 26, the condition of the trenchand soil was the same as June 20 . . . Tr. Vol. II, page 160. The trenchmeasured 5 feet 6 inches at its deepest point and 4 feet 6 inches at all otherpoints . . . Tr. Vol. II, page 153. He and the employee, Arcari, were the onlytwo who had been in the trench . . . Tr. Vol. II, pages 165 and 166. TheRespondent had told him trenches over 5 feet will be shored . . . Tr. Vol. II,page 170. As chief street man, he is not a supervisor; but he is the workingforeman. He did not bring shoring equipment because he would not know if it wasnecessary until the trench was open. The decision not to shore was made by himwithout consulting the Respondent?s management. It was his responsibility . . .Tr. Vol. III, pages 4?7. He did not consider the ?overhang? to be hazardous . .. Tr. Vol. II, page 169. Before June 20, he was familiar with trenchingstandards. Before April of 1974, he had attended OSHA briefings on standards.In April 1974, at another of the Respondent?s worksites, he was in a trenchthat was 6 feet 2 inches at one point but was not shored. At the time, he wasresponsible for safety of employees. The Respondent did not contest thatcitation . . . Tr. Vol. III, pages 4 and 7.??????????? FrankH. Livingston, called by the Respondent, testified that he is a vice presidentfor the Respondent, in charge of employee relations. The discussion about OSHAregulations referred to by the witness, Smith, had very little to do withstandard 652(b); were mostly on posting, and so forth; and there was verylittle on shoring. He wrote the letter (Exh. C?14) which says in part: ?Ameeting was held for all Distribution Division employees on April 30, 1974, andshoring of ditches . . . were covered.? . .. Tr. Vol. III, pages 93?99.??????????? ClarenceWelti, called by the Respondent (the Complainant agreed that he qualified as asoils expert), testified that he was retained by the Respondent to investigatethe worksite after the OSHA inspection. He had previously been retained by theRespondent sometime before to make a survey in general of the Respondent?sexcavations to evaluate possible dangers . . . Tr. Vol. III, pages 100?102. Hewent to the instant worksite on June 26, 1975, and drew a cross section of theexcavation (Exh. R?4) from it. On Exh. R?4, in the F-F area, from the top ofthe excavation, going down, was 1 foot 2 inches of concrete; then compactprocessed stone; then 18 to 20 inches of duct; and then compact clay siltfilled with sand. From the bottom of the processed stone to the bottom of thetrench was 3 feet to 3 feet 6 inches; and from the bottom of the concrete tothe bottom of the trench was about 5 feet or a little less . . . Tr. Vol. III,pages 113 and 114. He took samples and they tested out as follows: Sample No.1, from the area marked A-A on Exh. R?4, was noncohesive sand; No. 2, from thesame area but deeper, was coarser material, with some gravel, but wasnoncohesive; No. 3, between the areas marked C-C and F-F, was stiff, cohesiveclay silt. The F-F slope was stable . . . Tr. Vol. III, pages 118?120. Themanhold and the electric duct also helped stabilize the trench wall. . . Tr.Vol. III, pages 122 and 123. The clay silt would retain stability of the trenchup to 10 feet, independent of the manhole and duct . . . Tr. Vol. III, pages133 and 134. The A-A area would have to be shored . . . Tr. Vol. III, page 134.The soil beneath the duct was natural or nonplaced soil . . . Tr. Vol. III,page 141. The soil in the trench bottom was sandy; a large part of theexcavation was sand . . . Tr. Vol. III, pages 152 and 154. Sandy soil or soilwhich has been backfilled is very unstable and requires sheeting . . . Tr. Vol.III, pages 154 and 155. One wall of the trench contained backfill; the otherwall was totally different . .. Tr. Vol. III, page. 154.??????????? Variousphotographs were introduced, showing the worksite, and various exhibits,including C?11 and C?12. Exh. C?11 was the March, 1974, instructions of theRespondent to its employees. Section 5M of that document states in part:?While working in any area where thetrench is 5 (60?) or deeper, or other conditions are such that the trench issubject to cave-in, the side walls of the excavation shall be adequately shored. . ..???????????? Exh.C?12, a form used by the Compliance Officer in excavation cases, described thesoil as ?unstable? and ?sandy.? It was signed by the Respondent?s Foreman,Vail, under the typed words: ?I hereby verify the above to be true andaccurate.?Discussion??????????? Thereis little doubt that Respondent specifically knew about standard 652(b). TheComplainant?s witnesses were very positive about discussions with theRespondent?s personnel concerning it, and the Respondent?s witnesses rememberedthe discussions but in a less detailed way. In addition, the Respondent?sForeman, Vail, testified that he was aware of standard 652(b) before June 20,1975 (the date of the inspection). The Respondent?s knowledge is alsocorroborated by Exh. C?14 (the Livingston letter) and by Exh. C?11.??????????? Thereis virtually no controversy about the measurements of the trench: TheRespondent?s Foreman, Vail, testified it was 6 feet 8 inches deep and 2 feet 8inches wide; and I so find.??????????? Therewas contradictory testimony on the question of stability. However, in additionto the emphatic testimony of the OSHA Compliance Officers that the soil wasunstable, there was the uncontradicted testimony that the general site had beentorn up on several occasions by various contractors. Every witness whotestified on ?backfill? agreed that it is less stable than ?virgin soil.? Inaddition, although he had an explanation as to why he had done so, the factremains that Respondent?s Foreman, Vail, had read and signed a statement (Exh.C?12) saying the soil was unstable. Although the Respondent?s expert witness,Welti, said the trench was stable, he also testified that certain areas neededshoring, a large part of the excavation was sand, and one wall of the trenchwas very different from the other in that it contained backfill. Thephotographs (C?9, c?10 and R?1) of the worksite corroborated the testimony thatthere was substantial traffic there, some of it coming within a few feet of theexcavation. The evidence was quite conclusive that the soil was unstable, and Iso find.??????????? Ifound no need to refer to Exh. C?16 in coming to this conclusion, and it playedno part in my decision.??????????? Wasthe violation willful? The evidence is clear that the Respondent had actual andspecific knowledge of standard 652(b) and did not comply with the standard.However, while it is not necessary for the Complainant to show malice,?willful? does require a conscious and deliberate decision, an intentional andknowing violation of the Act, or action taken knowledgeably in disregard of theaction?s legality. Here, the Respondent had instructed its foreman to shoretrenches over 5 feet or wherever the soil was such that it was necessary. Ithad also issued the instructions spelled out in Exh. C?11. In addition, someweeks before the inspection in the instant case, the Respondent had retained asoils expert to investigate possibly dangerous excavations (apparently soRespondent could take preventive measures in such places).??????????? Theevidence here falls short of establishing willful misconduct, and I find therewas no willful misconduct on the part of the Respondent.??????????? Theparties have fully tried the case on the major issue of whether there was aserious violation where the hazard was death or serious injury because ofunstable soil; and the Respondent has always been aware that that is the majorissue . . . Tr. Vol. I, pages 83, 84 and 93; Tr. Vol. II, pages 16, 34, 49, 54,62, 67, 79, 92, 98, 106 and 125?132; Tr. Vol. III, pages 20, 27, 29, 34, 37,38, 41, 42, 43, 57, 58, 62, 69 and 70. I find that the Complainant hassustained the burden of proving such a serious violation of standard 652(b).Findings of Fact??????????? Havingheard the testimony, observed the witnesses, and examined the exhibits, thefollowing Findings of Fact are made:??????????? 1.At all times concerned, the Respondent regularly received, handled or workedwith goods which had moved across state lines.??????????? 2.As concerns Item #1 of Citation #1, the trench in question was over 5 feet indepth; its sides were in unstable or soft material; and they were not shored,sheeted, braced, sloped, or otherwise supported.??????????? 3.The conditions described in Item #1 of Citation #1 exposed the Respondent?semployees to sustaining serious or fatal harm because of the hazard of collapseof the trench.??????????? 4.One or more officers or supervisory personnel of the Respondent was aware ofthe hazardous conditions described herein and knew that employees were exposedto such hazard.??????????? 5.The Respondent?s conduct was not willful or deliberate or intentional.Conclusions of Law??????????? 1.At all times concerned, the Respondent was an employer engaged in a businessaffecting commerce within the meaning of the Act; and the Occupational Safetyand Health Review Commission has jurisdiction over the subject matter and theparties.??????????? 2.At all times concerned, the Respondent knew, or with the exercise of due diligenceshould have known, of the alleged violation.??????????? 3.On the date in question, the Respondent was not in compliance with 29 C.F.R.1926.652(b); and the Complainant has sustained the burden of proving theRespondent violated ?\u00a05(a)(2) of the Act (? 654).??????????? 4.The Complainant has not sustained the burden of proving the Respondentwillfully violated 29 C.F.R. 1926.652(b) but has sustained the burden ofproving the Respondent committed a serious violation of 29 C.F.R. 1926.652(b).Order??????????? Thewhole record having been considered, and due consideration having been given to29 U.S.C. ? 666(j), it is ORDERED:??????????? Citation#1 is affirmed insofar as a serious violation is alleged, and a penalty of$1,000 assessed therefor.\u00a0?So ORDERED.?FOSTER FURCOLOJudge, OSHRCDated: June 14, 1976?Boston, Massachusetts\u00a0[1] CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.[2] The standardreads as follows:? 1926.652 Specific trenching requirements.(b) Sides of trenches in unstableor soft material, 5 feet or more in depth, shall be shored, sheeted, braced,sloped, or sheeted, braced, sloped, or otherwise supported by means ofemployees working within them. See Tables P-1, P-2.[3] The citation asissued alleged a willful violation of the standard and proposed a $6000penalty. The Secretary did not except to the Judge?s recharacterization of theviolation as serious. Accordingly, the Commission will not review this matter.See Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339,1976-77 CCH OSHD para 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC37\/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).[4] Throughout thisdecision that sections of the trench will be designated by the letters shown onthis diagram. This follows the designations used by respondent in its exhibits.[5] Dr. Welti was theonly witness qualified and accepted as an expert; he was qualified as an expertin soil and foundations.[6] The other twosoil samples were from the west trench (section A & between sections C& F); both of these tested as noncohesive sand.[7] Respondent movedat trial to amend its answer to include the affirmative defense of thevagueness of the standard. The Judge granted the motion to amend andinterpreted the amendment as a motion to dismiss. He denied the motion todismiss without stating any reasons at trial or in his decision.[8] CommissionerBarnako notes, however, that the Commission, consistent with Cape &Vineyard, has limited the applicability of certain broadly drafted standards soas to assure that employers have adequate notice of the conduct such standardsrequire. In such cases, the applicability of the standards is limited byexternal or objective criteria, such as other standards or the understanding ofreasonable persons familiar with the circumstances of the employer?s industryregarding the hazard involved. See, e.g., B & B Insulation, Inc., 77 OSAHRC49\/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977), appealfiled, No. 77-2211 (5th Cir. 1977); Grand Union Co., 75 OSAHRC 88\/A2, 3 BNAOSHC 1596, 1975-76 CCH OSHD para. 20,107 (Nos. 7031 & 7533, 1975).[9] The standardreads in pertinent part:? 1926.652 Specific trenchingrequirements.(c) Sides of trenches in hard orcompact soil, including embankments, shall be shored or otherwise supportedwhen the trench is 5 feet in depth and 5 feet or more in length. In lieu ofshoring, the sides of the trench above the 5-foot level may be sloped topreclude collapse, but shall not be steeper than a 1-foot rise to each ?-foothorizontal . . . .[10] Respondent doesnot take exception to its own witness? testimony but to the fact that the Judgerelied on it to determine that the soil was unstable.[11] The only soilsample analyzed by Dr. Welti which was relevant to the east trench was takenfrom the middle of the eastern wall [section F]. This was analyzed as cohesiveclay silt. Dr. Welti?s testimony that the soil was stable refers specificallyto section F of the trench. We note that one compliance officer testified thatthere were line cracks in this wall.[12] Respondent?semployees were exposed to the hazard of a cave-in in section E of the trench.One of respondent?s employees was straddling a pipe located in the middle ofthe trench between sections E and F. Also, employees had access to that sectionof the trench as shown by complainant?s photographs of tools along the wall ofsection E. See Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).[13] We also rejectrespondent?s contentions that the Judge erred in relying on the statementsigned by the foreman and on the evidence of substantial traffic near thetrench. Respondent had objected to the introduction of this statement on thegrounds that counsel for the Secretary suggested that a violation wasestablished by it. The Judge denied the objection, ruling that the statementwas cumulative of the foreman?s testimony. The foreman was well aware of thestatements concerning the trench as indicated by his insistence that the trenchbe remeasured before he signed the form. He also testified that he read theform before signing it. The Judge?s reliance on the fact that substantialvehicular traffic near the trench added to the instability of the soil wasbased on testimony that the traffic vibrations increased the possibility ofcollapse. Both of these factors constituted additional evidence cited by theJudge in support of his determination that the soil was unstable. This evidencewas not decisive. The Judge?s finding that the soil was unstable is supportedby evidence of record without resort to these factors, and undisputed evidenceestablishes the instability of section E of the trench.[14] We do not decidewhether a violation of sections A, B, C and D was proven. Although there wasproof that the soil was unstable, there was no evidence of employee access tothese sections of the trench. See n. 11, supra. Furthermore, there wasinsufficient proof concerning the depth of these sections of the trench.[15] A Commissionermay vote simply to avoid an impasse. Public Service Commission of State ofN.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v.United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring inresult).[16] The Courtdistinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied,sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958),because oral argument was statutorily required if a party requested it. 348F.2d 798, n. 14.”