“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4388 FORISH CONSTRUCTION CO., INC., ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 16, 1976DECISIONBefore: BARNAKO, Chairman;MORAN and CLEARY, Commissioners.MORAN, Commissioner:An April 17, 1974, decisionof Review Commission Judge Henry K. Osterman is before this Commission forreview pursuant to 29 U.S.C. ? 661(i). At issue is whether the Judge assessedan appropriate penalty under 29 U.S.C. ? 666(i).Respondent was charged withnoncompliance with the requirements of the standard codified at 29 C.F.R. ?1926.652(b) for failure to require shoring or sloping of a trench more thanfive feet deep. Respondent timely contested only the penalty. The Judge adoptedcomplainant?s proposed penalty of $650.The evidence establishesthat the gravity of the violation was moderately low. A backhoe performed allthe excavating in the trench. The sole incidence of employee exposure to thehazard occurred when a workman entered the trench for approximately fiveminutes to check a gas line. At no other time did he or any other employeeenter the unshored trench.The evidence of record alsoshows that respondent demonstrated an attitude of cooperation with the Act.Additionally, it indicates that respondent?s employees were afforded safetyinstruction on a regular basis, and that the noncompliant conditions wereabated quickly. Respondent, which employs approximately 30 workers, has nohistory of previous violations.Considering theabove-described evidence in conjunction with the factors enumerated in 29U.S.C. ? 666(i), we find that a $200 penalty is appropriate. Accordingly, theJudge?s decision is modified by substituting $200 for the Judge?s penaltyassessment and, as so modified, the Judge?s decision is affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDated: March 16, 1976\u00a0CLEARY, Commissioner,DISSENTING:I dissent from themajority?s assessment of a $200 civil penalty.The trenching violation was?serious? within the meaning of section 17(k) of OSHA. The penalty factors insection 17(j) of the Act were considered by the Secretary of Labor in thecalculation of a $650 proposed penalty. The Judge also considered the section17(j) factors in light of the evidence adduced at the hearing and found theproposed penalty to be appropriate. I do not find that the evidence warrantsthe reduction in penalty made by the majority to an amount less than one-thirdof that found by the Judge to be appropriate.True, a single employee was exposedto the hazard for a relatively short period. But that employee was totallyunprotected. The trench was not sloped, shored, or braced in any manner. Thesoil was unstable to the point that it gave way when stamped by the complianceofficer. Respondent took no precautions to protect the employee from injury.Accordingly, the gravity of the violation is substantial.I do not questionrespondent?s good faith and cooperation, and the absence of previousviolations. I note also that respondent has properly received full credit foreach of these considerations in the computation of the proposed penalty.Nevertheless, the gravity ofthe trenching hazard is severe and in balance warrants the assessment of ahigher penalty. Although civil penalties that may be assessed under the Act areremedial rather than preventive, the price for not complying with a standardshould be less attractive than compliance if the remedial purposes of the Actare to be fostered. J.M. Roofing Co., 140 OSAHRC 306 BNA 2 OSHC 1428,CCH OSHD para. 19,157.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4388 FORISH CONSTRUCTION CO., INC., ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 17,1974DECISION AND ORDER?APPEARANCES:Jerrold Solomon, Esq. Office of the RegionalSolicitor U.S. Department of Labor J.F.K. Federal Building Boston,Massachusetts (02203)\u00a0LaCroix, Fuller & Brogan (Clayton N.Fuller) 287 State Street Springfield, Massachusetts (01105) For the Respondent\u00a0OSTERMAN, JudgeThis is a proceedinginitiated by the Respondent pursuant to Section 10(c) of the OccupationalSafety and Health Act of 1970, 29 USC ? 659(c), (hereafter the Act) to contesta Notice of Proposed Penalty issued by the Secretary of Labor on August 23,1973 in connection with a Citation issued on the same date.The alleged violations, theabatement dates and the proposed penalties are as follows: Serious Violation Abatement Date Proposed Penalty 29 CFR 1926.652(b) [Failure to shore or slope a trench more than 5 feet in depth] Immediate $650.00 Non-Serious Violation \u00a0 \u00a0 29 CFR 1926.100(a) [Failure to require employees to wear protective headgear] Immediate None \u00a0 29 CFR 1926.651(i)(1) [Failure to retain material at least 2 feet from edge of trench] Immediate None \u00a0A notice of contestchallenging only the proposed penalty was timely filed on August 30th.Thereafter a Complainant and Answer were filed by the parties and a hearing inthe matter was held in Springfield, Massachusetts on January 17, 1974.Because the Notice ofContest filed by Respondent challenged only the penalty proposed for theserious violation, this is the sole issue to be determined, Peter J.Brennan, Secretary of Labor v. Commission and Bill Echols Trucking Company,Civil No. 73?1670 (5th Circuit, November 1973).At the hearing it wasstipulated that Respondent employs an average of 30 persons on a daily basis(Tr. 5). The evidence is clear that at least one employee of the Respondent wasobserved by the Secretary?s compliance officer at work in a trench whichmeasured more than 5 feet in depth; that the sides of the trench were neithersloped nor shored; and that the soil of the trench was unstable.Respondent urges that itsfailure to comply with 29 CFR 1926.652(b) should not be considered a ?serious?violation of the regulation. I disagree. Past experience has shown that acollapse of the sides of such a trench could result in death or serious injuryto anyone standing in the trench.On the issue of the penaltyit was the testimony of the Secretary?s witnesses that full consideration wasgiven to those factors expressed in Section 17(j) of the Act in arriving at theproposed penalty (Tr. 33?37). My independent consideration of proposed penaltyleads me to the conclusion that it is reasonable and appropriate under thecircumstances herein. I find no basis for reducing the amount suggested by theSecretary.FINDINGSOF FACT1. Respondent is acorporation organized and existing under the laws of the Commonwealth ofMassachusetts and is engaged in business as a building contractor employing anaverage of thirty (30) persons on a daily basis.2. Respondent regularlyreceives and handles goods which have moved in interstate commerce.3. On August 14, 1973 at aworksite located at 720 Southampton Road, Westfield, Massachusetts,Respondent?s employee was observed working in a trench more than 5 feet indepth and dug in unstable soil the sides of which had not been sloped, shoredor otherwise supported as required by 29 CFR 1926.652(b).4. Material which had beenexcavated from the trench was also piled less than two feet from the edge ofthe trench.5. Respondent?s employee wasworking in the trench without protective head gear.6. On August 23rd, 1973Respondent was issued two Citations, one charging a serious violation of 29 CFR1926.652(b) and the other Citation charging two non-serious violations; to wit:a violation of 29 CFR 1926.100(a) and a violation of 29 CFR 1926.651(i)(1).7. On August 30th Respondentfiled a Notice of Contest directed solely against the penalty proposed for theserious violation of 29 CFR 1926.652(b).8. Because Respondentelected to contest only the penalty proposed for the serious violation charged,the determination of the Secretary that Respondent was in violation of threeseparate regulations became the final decision of this Commission and can nolonger be challenged by the Respondent.9. The evidence taken at thehearing in the matter discloses that in arriving at the proposed penalty forthe serious violation the Secretary of Labor considered all those factors whichare required to be considered by Section 17(j) of the Act.10. I find the violation of29 CFR 1926.652(b) to be one in which there was a substantial probability thatdeath or serious injury could result had the trench in question collapsed whilean employee was in the said trench.11. I find also that thepenalty proposed by the Secretary is reasonable and appropriate under thesecircumstances.CONCLUSION OF LAW1. Respondent is an?employer? engaged in ?commerce? as those terms are defined by Section 3 of theAct.2. On August 14, 1973 Respondentwas in violation of 29 CFR 1926.652(b); 29 CFR 1926.100(a); and 29 CFR1926.651(i)(1).3. The penalty of $650.00proposed by the Secretary for violation of 29 CFR 1926.652(b) is reasonable andappropriate and not inconsistent with Section 17(j) of the Act.ORDERPursuant to Section 10(c) ofthe Act and Rule 66 of this Commission?s Rules of Procedure, it is ORDERED:1. That the violationcharged in the Citations issued on August 23, 1973 be, and the same hereby are,AFFIRMED.2. That the penalty of $650.00proposed for Respondent?s serious violation of 29 CFR 1926.652(b) be, and thesame here is, AFFIRMED.?HENRY K. OSTERMANJudge, OSHRCDated: April 17, 1974Washington, D.C.”