“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5540 \u00a0 CRAIG D. LAWRENZ & ASSOCIATES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April21, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a sua sponteorder for review. The parties have filed no objections to the AdministrativeLaw Judge?s decision, either by way of petitions for discretionary review orresponse to the order for review. Accordingly, there has been no appeal to theCommission, and no party has otherwise expressed dissatisfaction with theAdministrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1975?78 CCH OSHD para. 20,426 (No. 9507, 1976); CraneCo., 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); seealso Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3dCir. 1976). The order for review in this case describes no compelling publicinterest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975?76 CCH OSHD para.20,367 (No. 4090, 1976).?It is ORDERED that the decision be affirmed.?DATED: APR 21, 1977?FOR THE COMMISSION:?William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Dissenting:??????????? Allcharges should be vacated because complainant failed to issue the citation withreasonable promptness as required by 29 U.S.C. ? 658(a). See my dissentingopinion in the earlier decision in this case dated July 21, 1976. Also see Secretaryv. Jack Conie & Sons Corporation, OSAHRCDocket No. 6794, June 25, 1976.??????????? Moreover,vacation of each of the charges is warranted for additional reasons. Vacationof item 5 is required because 29 C.F.R. ? 1926.651(i)(1),applies exclusively to excavations and respondent?s cavity was a trench. See Secretaryv. Lloyd C. Lockrem, Inc., OSAHRC Docket No.4553, February 24, 1976 (dissenting opinion); Secretary v. Dobson BrothersConstruction Company, OSAHRC Docket No. 3847, February 18, 1976 (concurringand dissenting opinion). Item 6 should be vacated on the basis that it waserror to find respondent in violation of an amended charge. Because of theunique nature of citations under the Act, such amendments, made after thefiling of a notice of contest, are inherently prejudicial and therefore shouldbe prohibited except in the most extraordinary circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31,1976 (dissenting opinion). Finally, vacation of item 7 is appropriate becausethe evidence establishes that an earthen ramp provided ?an adequate means ofexit? from respondent?s trench. Secretary v. Paul Hutchinson & Sons,OSAHRC Docket No. 3301, June 11, 1976.??????????? Furthermore,for the reasons expressed in my separate opinion in Secretary v. SchultzRoof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, 1 disagreewith the manner in which my colleagues are disposing of this case and withtheir views regarding the significance of decisions rendered by ReviewCommission Judges. Since my colleagues do not address any of the matterscovered in Judge Brennan?s decision, his decision is attached hereto asAppendix A so that the law in this case may be known.APPENDIX AUNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5540 \u00a0 CRAIG D. LAWRENZ & ASSOCIATES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 2, 1976DECISIONAND ORDERAPPEARANCES:FORTHE SECRETARY OF LABORHermanGrant, Regional Solicitor219South Bearborn Street Chicago, Illinois 60604Attn:James P. White, Esq.\u00a0FOR THERESPONDENTJohnL. North, Asst. Sec. Craig D. Lawrenz &Associates, Inc.1942Townline Road, Route #3 Beloit, Wisconsin 53511\u00a0FORTHE EMPLOYEES? REPRESENTATIVELaborers?International Union of North America, Local #931616W. Northland Avenue Appleton, Wisconsin 54911InternationalUnion of Operating Engineers, Local #1397283W. Appleton Avenue Milwaukee, Wisconsin 55216\u00a0Brennan, W. H.; A. L. J.??????????? This is an action originally arising under the provisionsof Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.659(c) (hereinafter the Act), to review three numbered items (5, 6, and 7) of aCitation for Nonserious Violations (7 Items),[1] and penalties proposedthereon issued pursuant to Sections 9(a) and 10(a) of the Act (29 U.S.C. 658(a)and 659(c)), on November 6, 1973, by the Secretary of Labor through the AreaDirector of the Occupational Safety and Health Administration for Milwaukee,Wisconsin (hereinafter Complainant), to Craig D. Lawrenz& Associates, Inc., of Milwaukee, Wisconsin (hereinafter Respondent).??????????? This Citation alleges that Respondent on October 4, 1973,at a place of employment located at Highway 29 in Shawano, Wisconsin(hereinafter worksite), violated Section 5(a)(2) of the Act (29 U.S.C.654(a)(2)) due to its failure to comply with the Occupational Safety and HealthStandards for trenching set forth at 29 C.F.R. 1926.651(i)(1),1926.652(a) and 1926.652(h). This Citation set forth the following?descriptions? of the alleged violations.? Item No. 5?29 CFR 1926.651(i)(1)Employer failed tohave excavated materials back at least 2 feet from an excavation in which menworked; i.e., but not limited to; the water pipe trench on highway 29.?Item No. 6?29 CFR1926.652(a)Employer failed toproperly shore or lay back to a stable slope the sides of a trench; i.e., butnot limited to; the water pipe trench on highway 29.?Item No. 7?29 CFR1926.652(h)Employer failed tohave a ladder in a trench over 5 feet deep in which men were working; i.e., (a)the trench on Highway 29 for the sewer pipes; (b) the trench on county trunk Hand Anderson Avenue.???????????? Abatement was to be accomplished ?Immediately uponreceipt of this Citation? as to each Item and a penalty of $110 was proposedfor each alleged violation.??????????? Pursuant to Section 10(c) of the Act (29 U.S.C. 659(c)),Respondent by a letter from its Assistant Secretary dated November 20, 1973,noted its? contest to the three Items noted supra and the proposed penaltiesbased thereon.??????????? On December 19, 1973, the Complainant filed hisComplainant herein, followed on January 2, 1974, with the filing ofRespondent?s Answer.??????????? After assignment of this case to the undersigned andissuance of my usual Prehearing Order, to which both parties responded, theComplainant on May 6, 1974, filed a Motion for Leave to File an AmendedComplainant by which the wording of paragraph IV(a)(2) of the originalComplaint was to be changed to conform more closely with the wording of ItemNo. 6 of the Citation, and the Standard cited in the Citation upon which ItemNo. 6 was based was to be corrected from 29 C.F.R. 1926.652(a) to 29 C.F.R.1926.652(b).??????????? The ?description? of the alleged violation for Item No. 6of the Citation, supra, clearly charged a failure to shore or slope the sidesof a water pipe trench on Highway 29. However, the Standard cited wasinaccurate (29 C.F.R. 1926.652(a)), which by its terms applies to ?Banks? andtrenches less than five feet in depth. These inaccuracies were repeated in theoriginal Complaint (par. IV(a)(2)). Respondent objected to this proposedamendment.??????????? In order to correct these inaccuracies, and in theabsence of any showing of prejudice to the Respondent, Complainant?s Motion wasgranted by Order dated May 14, 1974, with time allowed to May 22, 1974, to filean Amended Answer if desired, upon the authority of National Realty &Construction Co. v. OSHRC et al., 489 F.2d 1257 (D.C. Cir., 1973) (R. P.J?8).??????????? Paragraph IV(a)(2) of the Amended Complaint charged asfollows:?Failed to providethat sides of a trench in unstable or soft material, five feet more in depth,be shored, sheeted, braced, sloped, or otherwise supported by means ofsufficient strength to protect the employees working within it. (For example:The water pipe trench at Highway 29 in which men worked.) [29 C.F.R. 1926.652(b)](Item 6 of the Citation)?[2]???????????? At the outset of the trial held on May 23, 1974,Respondent orally moved to amend its Answer to include two affirmativedefenses; that the Citation should be dismissed because an unreasonable lengthof time had elapsed between the date of the inspection, October 4, 1973, andthe issuance of the Citation, November 6, 1973, and secondly that theinspection should be considered void because the Compliance Officer allegedlyfailed to follow the mandatory procedures set forth in the ComplianceOperations Manual (TR. 12).??????????? The Complainant objected to this amendment (TR. 13).??????????? Respondent?s motion to amend was granted and because thiswas the first point in these proceedings that these issues had been raised,additional time was granted the Complainant, if desired by counsel, withinwhich to either present evidence or legal argument tending to rebut these twoaffirmative defenses (TR. 16).??????????? No additional time was requested by Complainant, althoughargument in Brief was addressed to these affirmative defenses.??????????? On December 3, 1974, the undersigned issued his ?DECISIONAND ORDER? in this case, vacating the three contested Items of the NonseriousCitation under consideration because of Complainant?s failure to issue theCitation herein with ?reasonable promptness,? as required by Section 9(a) ofthe Act, 29 U.S.C. 658(a) as interpreted, at that time by the Review Commissionin Secretary of Labor v. Chicago Bridge & Iron Company, 6 OSAHRC 244(1\/23\/74).??????????? On January 2, 1975, Review of this DECISION AND ORDER wasdirected by the Review Commission (R. p. 12).??????????? On July 21, 1976, the Commission issued its DECISION ANDREMAND herein, which reversed the undersigned?s 1974 DECISION AND ORDER, basedupon the Decision of the United States Court of Appeals for the Seventh Circuitin Secretary of Labor v. Chicago Bridge and Iron Company and OSAHRC, 514F.2d 1082 (Decided on April 22, 1975), which reversed the Commission?s 72-hourrule announced in 6 OSAHRC 244 (1974), (R. p. 26) and subsequent CommissionDecisions.[3]??????????? This case was remanded for a determination of thecontested Items (numbers 5, 6, and 7) of the Nonserious Citation.??????????? Having reconsidered the entire record herein, thetestimony and demeanor of the witnesses, the exhibits, stipulations,representations, admissions and arguments of the parties, it is concluded thatthe substantial, reliable and probative evidence of this record considered as awhole supports the following findings of fact and conclusions of law.??????????? The following relevant matters were stipulated to by theparties:??????????? Respondent is a Wisconsin corporation with its principaloffice located at 1942 Townline Road, Beloit, Wisconsin. It is engaged in thebusiness of installing water and sewerage systems which affects commerce. Noinjuries were associated with this case. Respondent classifies itself as amedium-sized contractor with sales during 1973 of approximately three milliondollars with about 59 employees on the average. At the time of the inspectionherein, October 4, 1973, it had no known history of prior violations ofemployee health and safety laws.??????????? Based upon these stipulated facts it is concluded thatRespondent is an employer engaged in a business affecting commerce who hasemployees, within the meaning of Sections 3(3), 3 (5) and 3 (6) of the Act, 29U.S.C. 652(3), (5), and (6), and that the Act applies to the worksite involvedherein, within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). Uponthe filing of Respondent?s Notice of Contest herein, the Review Commission hasjurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C.659(c).The Standards citedprovide as follows:Item No. 5 29C.F.R. 1926.651(i)(1)(1) In excavationswhich employees may be required to enter, excavated or other material shall beeffectively stored and retained at least 2 feet or more from the edge of theexcavation.?Item No. 6?asamended 29 C.F.R. 1926.652(b)?(b) Sides of trenches instable or softmaterial, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, orotherwise supported by means of sufficient strength to protect the employeesworking within them. See Tables P?1, P?2 (following paragraph (g) of thissection).?Item No. 7 29C.F.R. 1926.652(h)(h) When employeesare required to be in trenches 4 feet deep or more, an adequate means of exit,such as a ladder or steps, shall be provided and located so as to require nomore than 25 feet of lateral travel.???????????? On October 4, 1973, Compliance Officer Krohn, a 1972 graduate of the University of Wisconsin,conducted an inspection of Respondent?s worksite along the shoulder of Highway29 outside of Shawano, Wisconsin. At this worksite, Respondent was diggingtrenches and installing water pipes on the south side and immediately adjacentto Highway 29. Items numbered 5 and to involve this trench (hereinafter waterpipe trench). About one quarter of a mile east of this water pipe trench, onthe north side and immediately adjacent to Highway 29, Respondent was also digginga trench in connection with the installation of a sewer line. Item number 7involves this trench (hereinafter sewer pipe trench).??????????? Upon his arrival at this worksite, Officer Krohn, pursuant to directions from his superiors under athen effective ?special emphasis? program, conducted an inspection of thissite. He first took photographs of the worksite. This was done, as was theusual practice, for two reasons. First, the ever-changing nature of trenchingsites, and second, the worksite was immediately adjacent to a public highway,open to public view. These photographs were admitted as Exhibits C?1, 2, 3, 4,6, 7, 8, 9, 10, and 11 over Respondent?s objection.[4]??????????? Exhibits 1 through 4 show the spoil pile above the waterpipe trench having a continuous slope with the side of this trench. This spoilpile was not set back any distance from the lip of this trench nor was thispile retained in any way. The photographs (Exhibits C?1 through 4) show twoworkmen in this trench identified by Respondent as its employees. Exhibits C?1through 4, together with the testimony of Officer Krohnconclusively establish the violation alleged in Item number 5 of the NonseriousCitation herein (TR. 24?37).??????????? After taking his photographs of this worksite, theCompliance Officer asked a workman for the man in charge of the trenchingactivity and was directed to Mr. Vertz, Respondent?sforeman of the crew working in and on the water pipe trench. The Officer, afteridentifying himself and explaining the reason for his inspection, conducted anopening conference with Mr. Vertz. The ComplianceOfficer then conducted a so-called ?walk around? inspection of this worksitewith Respondent?s representative Vertz. They werelater on, during the course of this inspection, joined by Respondent?s sitesuperintendent Zuege. During the opening conference,the Compliance Officer advised Mr. Vertz thatemployee representatives were entitled to join in the inspection. TheCompliance Officer interviewed employees of both the laborers? union andequipment union, and a representative of the laborers? union joined theinspection party (TR. 60?68).??????????? Photographic Exhibits C?6 and 7 relate to Item number 6of the Citation herein and depict the left side of the water pipe trench. Thistrench was dug in ?loose sandy soil? (TR. 39) and was between 7 and 8 feetdeep. This depth was established by the Compliance Officer who asked the jobforeman Vertz its depth, who replied 7 or 8 feet (TR.39). This statement was confirmed by the testimony of foreman Vertz (TR. 149). The sides of this trench were neithershored, sheeted, braced nor sloped in conformity to the recommendationsappearing in Table P?1 in the Trenching Standards, as specifically referencedin 1926.652(b). Compliance Officer Krohn accuratelyestimated the width of this trench at its bottom to be about 2 feet. Foreman Vertz measured the top of this trench and told theCompliance Officer it was 14 feet wide. Table P?1 under ?Compacted Sharp Sand,?the type of soil closest to that in which this trench was dug, provides for aslope of 1 1\/2 feet horizontally for every 1 foot of vertical distance. Thus,in order to comply with the cited Standard, the top of this trench should havemeasured 21 feet across (1 1\/2 x 7 depth = 10 1\/2 per side of trench x 2 = 21).Exhibits C?1 through 7 clearly show two of Respondent?s employees working inthis water pipe trench. Thus, the photographic exhibits plus the testimony ofthe Compliance Officer conclusively establish the violation alleged in Itemnumber 6 of the Nonserious Citation herein (TR. 37?46).??????????? After completing the inspection of the water pipe trench,the inspection party next traveled to the sewer pipe trench about a quarter ofa mile down Highway 29. Photographic Exhibits C?8, 9, 10 and 11 depict thisworksite. This sewer pipe trench was over 4 feet deep. One wall of this trenchwas about 8 feet, the other side about 12 feet. From two to four ofRespondent?s employees were working in this trench, and there was no ladder orsteps or other adequate means of exit from this trench, the employees climbingout the lower side of this trench unaided. Exhibit C?10 clearly depictsfractures in one side of this trench. Thus, the photographic exhibits, plus thetestimony of Officer Krohn, conclusively establishthe violation set forth in Item number 7 of the Nonserious Citations herein(TR. 48?52).??????????? Upon the conclusion of the ?walk around? phase of thisinspection, a closing conference was held by Officer Krohnwith Respondent?s Superintendent Zuege. Each of theconditions observed were discussed and abatement times, as set forth in theCitation herein, were agreed to by Superintendent Zuege.The inspection in its entirety took about three hours.??????????? Based upon the creditable evidence of this record,Respondent?s second defense, i.e., that the inspection should be consideredvoid because the Compliance Officer allegedly failed to follow the mandatoryprocedures set forth in the Compliance Operations Manual (TR. 12), must fail.??????????? The inspection conducted by Officer Krohnnot only complied with the statutory provisions of Section 8 of the Act, 29U.S.C. 657, but also substantially complied with the instructions andprocedures set forth in the Compliance Operations Manual to that degreenecessary to assure the effective and uniform implementation of the Act?thedirective contained in the Forward of this Manual (TR. 59?69; 99?101).??????????? Officer Krohn testified atlength concerning how the proposed penalty of $110 for each of the threeNonserious Violations was computed (TR. 53?55, Exhibit C?12). Maximum allowabledeductions of 20 percent were allowed this Respondent for its good faith andabsence of any history of prior violations, as well as 5 percent for its size.The Compliance Officer recommended adjusted penalties of $55 per violation,which were raised by the Area Director to $110 after Officer Krohn consulted with a more experienced Compliance Officerin the Area Office as well as discussing the matter with the Area Director.??????????? Based upon an independent consideration of the factors mandatedby Section 17(j) of the Act, 29 U.S.C. 666(i), in thelight of the evidence of this record, it is concluded that the penalties asproposed by the Area Director are appropriate and reasonable.??????????? Based upon the foregoing findings and conclusions andpursuant to the provisions of Section 10(c) and 12(j) of the Act, 29 U.S.C.659(c) and 661(i), it is hereby,??????????? ORDERED:??????????? 1. That Items numbered 5, 6, and 7 of the Citation forNonserious Violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), forfailure to comply with the Occupational Safety and Health Standards set forthat 29 C.F.R. 1926.651(i)(1), 1926.652(b) and1926.652(h), and the penalties proposed thereon, are AFFIRMED.??????????? 2. A total civil penalty of $330 is ASSESSED.WILLIAM E. BRENNANJudge, OSAHRCDated: September 2, 1976?Hyattsville, Maryland[1] Items numbered 1,2, 3, and 4 of this Citation were not contested and thus have become the FinalOrder of the Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a).[2] At the beginningof the hearing herein, argument was heard on the propriety of allowing thisamendment. Based upon these arguments and the authorities cited, the rulingallowing the amendment was confirmed (TR. 2?11).[3] See Secretaryof Labor v. Couahlan Construction Company, 20 OSAHRC 641 (10\/23\/75); Secretaryof Labor v. Jack Conie & Sons Corp., ?? OSAHRC ?? DOCKET NO. 679?(6\/25\/76).[4] See: Accu-Namics,Inc. v. OSHRC et al, 515 F.2d 828 (CA 5, 1975).”