“Docket No. 80-5439 SECRETARY OF LABOR, Complainant,v.GENERAL MOTORS CORPORATION, ROCHESTER PRODUCTS DIVISION,Respondent.UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 1097,Authorized Employee Representative.OSHRC Docket No. 80-5439DECISIONBefore:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).A citation issued by OSHA alleged that General Motors Corporation(\”GM\”) violated an employee instruction standard and two trenching standards.\u00a0At issue is whether Administrative Law Judge Foster Furcolo erred in vacating thetwo trenching items and affirming the employee instruction item.\u00a0 For the reasons setforth below, we conclude that GM violated one of the trenching standards, but we aredivided as to whether the other alleged violations were proven.[[1]]Item 2:\u00a0 Unshored TrenchItem 2 of the citation alleged that GM violated 29 C.F.R. ? 1926.652(c) by failing toslope or shore the sides of a trench dug in \”hard or compact soil.\”[[2]]\u00a0At the time of the alleged violation, a crew of second-shift employees was preparingfor the installation of a trough to collect oil from machinery in a large manufacturingbuilding.\u00a0 Using the company’s construction equipment, employees had broken throughpart of the concrete floor and dug an L-shaped trench.\u00a0 The leg of the trench runningfrom north to south was about 20 feet long, 7 feet wide, and 10 to 12 feet deep, with apipe and adjacent ladder at its north end. The leg of the trench running from east to westwas 38 feet long, 7 feet wide, and 8 to 10 feet deep.\u00a0 At the western end of theeast-west leg, the soil sloped from the bottom of the trench to the floor level, and aladder was located along the slope.GM planned to shore the trench before installing the trough.\u00a0 Long steel rods called\”channels\” were lowered with ropes into the trench and placed against the wallsevery two feet.\u00a0 After the channels were pounded into the bottom of the trench by thebucket of the backhoe, employees at the top edge of the trench slid plywood sheets downbehind the channels.\u00a0 Employees in the trench then nailed the sheets together.\u00a0Millwrights at the top edge then tied back the channels and fastened them to theconcrete floor with brackets.On the evening at issue, employees were shoring the north-south leg, and bothwalls of the north end of that leg had been shored. The east-west leg was still completelyunshored.\u00a0 Jesse DeVittorio and Al LoMonaco, two of GM’s carpenter-masons, were inthe trench nailing the plywood sheets together.\u00a0 LoMonaco told DeVittorio that it wastime for a coffee break, and they proceeded to leave the trench by the same route thatthey had entered it-the slope at the far end of the east-west leg–so as not to bother apipe fitter and a welder who were working next to the ladder in the shored north end ofthe north-south leg.\u00a0 DeVittorio followed LoMonaco around the corner to the east-westleg.\u00a0 By the time LoMonaco had climbed up the slope, the unshored north wall of theeast-west leg near the corner had collapsed on DeVittorio. Following the accident, the worksite was inspected by an OSHA complianceofficer.\u00a0 The compliance officer did not take any soil samples or perform any test toanalyze the soil.\u00a0 However, he and other witnesses for the Secretary testified thatthe material in which the trench had been dug was backfill composed of sand, gravel, andloose rocks.\u00a0 They testified that the backfill was more firm in some walls than inothers.\u00a0 Richard Carpenter, GM’s superintendent of plant engineering, testified thatthe soil was \”backfill material\” that was \”sandy clay.\”Judge Furcolo concluded that the Secretary failed to prove a violation ofsection 1926.652(c).\u00a0 He determined that \”[t]he soil was certainly not the ‘hardor compact’ type alleged in the citation . . . . \” He stated that amending thecitation and complaint to allege a violation of section 1926.652(b)[[3]] was not justifiedby the evidence, which \”does not establish that the soil was ‘unstable’ or ‘soft’ orany other classification.\”\u00a0 He held that because the soil had not been analyzedthere was insufficient proof of a violation of any trenching standard.\u00a0 The judgestated that another reason for vacating the citation item was that GM \”was doing theshoring in timely fashion.\”\u00a0 The judge noted that GM did not use the trench inits unshored condition or \”refuse to recognize\” that it was required to shorethe trench.The Secretary argues on review that he made the requisite showing thatsection 1926.652(c) applies to GM’s trench.\u00a0 He contends that the record shows thatthe soil was at best hard and compact, and that such a showing is sufficient to establishthe applicability of the standard.\u00a0 The Secretary further asserts that GM violatedthe standard in that it allowed its employees to be exposed to unshored areas of thetrench and to work in the partially shored north end of the trench.\u00a0 GM argues onreview that Judge Furcolo’s conclusion that section 1926.652(c) was not violated and hisreasons therefor should be affirmed.We hold that the judge did err in vacating this item because it was notproved whether the soil was governed by section 1926.652(b) or by section 1926.652(c).\u00a0 The trenching standards divide earth materials into categories, with trenches dugin each category requiring a different degree of protection.\u00a0 The greatest degree ofprotection by way of sloping or shoring is required for \”unstable or soft\” soil.\u00a0 Trenches dug in such soil are governed by section 1926.652(b).\u00a0 At the otherextreme, trenches in \”Solid Rock, Shale or Cemented Sand and Gravels\” need notbe sloped or shored at all.\u00a0 See Table P-1, appended to section 1926.652.\u00a0 Between these types are trenches dug in \”hard or compact\” soil, which aregoverned by section 1926.652(c).\u00a0 Such trenches, if more than five feet deep, must besloped above the five-foot level or shored.\u00a0 E.g., CCI, Inc., 80 OSAHRC127\/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ? 25,091 (No. 76-1228, 1980), aff’d, 688F.2d 88 (10th Cir. 1982).\u00a0 Although the shoring requirements for trenches dug inhard, compact soil are less demanding than for trenches dug in soft, sandy, or filledsoil, both sections require unsloped trenches to be shored.\u00a0 See Table P-2,appended to section 1926.652.\u00a0 It is not the subject of dispute that the trench inthis case was substantially more than five feet deep and that most of its walls were notsloped.\u00a0 It is clear from the record that GM knew that it was required to shore orslope the walls of the trench and that it had elected to shore the trench walls due to theworksite conditions.GM’s argument that the Secretary failed to prove the applicability of section1926.652(c) therefore reduces to the argument that it should have been cited under themore stringent provision of section 1926.652(b) instead.\u00a0 However, under thecircumstances of this case, there is no difference in the requirement of the twostandards:\u00a0 both require that the trench walls be shored.\u00a0 As the Secretarypoints out, he gave GM the benefit of the doubt by citing under subsection (c) rather thansubsection (b) because subsection (c) requires less protection.\u00a0 Thus, if there was adefect in the citation, it tended to benefit GM and does not constitute grounds to vacatethe citation.\u00a0 We conclude therefore that the judge erred in vacating the citationfor that reason.GM also argues that, even if the standard applies, it was not in violationbecause the employees in the trench were there for the purpose of installing the shoringrequired to comply with the standard.\u00a0 The company contends that a violation of thestandard only occurs if there is \”needless exposure\” of employees to theunshored trench walls.We agree with GM’s argument that an employer cannot be found in violation ofthe standard based merely on the presence in the trench of employees installing theshoring required by the standard.\u00a0 As GM correctly states, the question is whetheremployee presence in the trench is needless.\u00a0 In this case, four employees were inthe north-south leg immediately before the accident.\u00a0 A pipe fitter and a welder wereworking in the shored portion at the north end of the leg.\u00a0 The other two employeeswere nailing together the plywood sheets that formed part of the shoring system. \u00a0Inasmuch as the employees in the north-south leg were either working in a part of thetrench that had already been shored or were engaged in installing the shoring in that leg,GM did not violate the standard in the north-south leg.The east-west leg, however, was completely unshored, and GM did not take anysteps to keep the employees out of that leg. Moreover, at the west end of that leg was adirt slope along which ran a ladder that employees used to enter and leave the trench. Thepresence of the slope and ladder made it reasonably predictable that employees would usethe east-west leg to gain access to their work area in the north-south leg, and in doingso they would be exposed to the unshored walls of the east-west leg.\u00a0 Because GM didnot limit employee access to the trench so as to eliminate the unnecessary exposure ofemployees to the unshored walls, GM did violate the standard with respect to the east-westleg.\u00a0 Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26\/B11, 5 BNA OSHC1088, 1977-78 CCH OSHD ? 21,584 (No. 12398, 1977), aff’d, 576 F.2d 72 (5th Cir.1978).We reject GM’s argument that the citation should be vacated because theaccident resulted from employee disobedience to instructions to remain out of the unshoredparts of the trench.\u00a0 The proper inquiry is not the cause of the accident, butwhether GM violated the standard as alleged.\u00a0 See Champlin Petroleum Co. v.OSHRC, 593 F.2d 637, 642 (5th Cir. 1979) (Act is designed to achieve abatement ofhazardous conditions, not fix blame for particular injury).\u00a0 The finding of aviolation is not based on the occurrence of the accident but on the foreseeable exposureof GM’s employees to the unshored east-west leg of the trench. [[4]]The Commission therefore affirms the citation item alleging a violation of section1926.652(c).\u00a0 The parties stipulated that DeVittorio’s injuries were\”serious\” within the meaning of section 17(k) of the Act, 29 U.S.C. ? 666(i).\u00a0 Based on that stipulation and on the obvious danger presented by the unprotectedwalls of a trench 8 to 10 feet deep, the Commission finds a substantial probability thatdeath or serious harm could have resulted from the violation.\u00a0 We therefore concludethat the violation was \”serious.\”\u00a0 Having considered the penalty criteriaset forth in section 17(j) of the Act, 29 U.S.C. ? 666(i), we assess a penalty of $50 forthe serious violation of section 1926.652(c).Item 3:\u00a0 Additional PrecautionsItem 3 of the citation alleges that GM violated section 1926.652(e), which requiresadditional precautions in trenches adjacent to backfilled excavations or subject tovibrations from the operation of machinery.[[5]]\u00a0 Witnesses for both partiestestified that the area in which the trench was dug consisted of backfill.There was also some testimony at the hearing that the trench was subjected tovibrations.\u00a0 Two of GM’s employees–John Boushie, a second-shift pipe fitter, andAnthony Davide, a first-shift millwright–testified that both the backhoe, which waslocated near the edge of the trench on a concrete slab, and another piece of equipmentcalled the \”in-line transfer machine,\” which was situated about 10 to 12 feetaway from the trench, vibrated when they were in operation.\u00a0 The employees did notsay, however, how much the machines vibrated.\u00a0 James Conlon, the Secretary’s expertwitness, testified that when the backhoe pounded the steel channels it transmittedvibrations into the soil that could extend for 5 feet from the channel.\u00a0 The backhoehad been driving channels just before the accident.\u00a0 When asked if there would bevibrations in the soil when the in-line transfer machine was in operation, Conlontestified that it was possible.\u00a0 He stated, however, that \”[v]ibrations aredifficult to predict,\” and he could not be sure whether the in- line transfer machineproduced vibrations in the soil because he had not been at the worksite.\u00a0 Conlonfurther acknowledged that any opinion as to vibrations without having felt them is\”highly theoretical\” and \”into the realm of speculation.\”The compliance officer testified that he did not measure nor did he know howmuch the machines vibrated.\u00a0 According to Carpenter, GM’s superintendent of plantengineering, the in-line transfer machine was designed not to vibrate, and, even if itdid, the vibrations would be negligible.\u00a0 He also testified that any vibrations fromthe in-line transfer machine or the backhoe had \”no bearing\” on the collapse ofthe walls of the east-west leg, for the vibrations were \”in the manner of thousandthsof an inch.\”Judge Furcolo vacated this item.\u00a0 Although he found that the soil in thearea was backfill,[[6]] he went on to conclude that a violation of the standard was notproven because the Secretary did not establish that the trench was \”subjected tovibrations from . . . the operation of machinery.\”\u00a0 Judge Furcolo determinedthat the word \”vibrations\” means \”vibrations sufficient to have some effectthat might contribute to a slide or cave-in of any nearby excavation or trench.\”\u00a0 After reviewing the testimony and noting the lack of evidence as to the degree ofthe vibration, he concluded that, even considering the evidence most favorable to theSecretary, there was no proof that the trench was subjected to the alleged vibrations.\u00a0 He therefore vacated the citation item.The Secretary argues on review that the judge misinterpreted section1926.652(e).\u00a0 He contends that the word \”or\” in the standard signifies thatit applies in two distinct situations:\u00a0 where a trench is adjacent to backfilledsoil, or where the trench is subjected to vibrations from the operation of machinery.\u00a0 According to the Secretary, he met his burden of proof under the standard byestablishing that the unshored trench was dug in backfill, regardless of whether thetrench was also subject to vibrations.\u00a0 The Secretary also argues that, in any event,the trench was subjected to vibrations from the operation of machinery.\u00a0 GM contendson review that it was in the process of shoring the trench, and the Secretary failed toshow what additional precautions were required.Chairman Buckley would affirm the judge’s disposition, although he would doso for reasons different than those stated by the judge.\u00a0 He notes that section1926.652(e) requires shoring or bracing in addition to precautions taken to complywith sections 1926.652(b) or 1926.652(c).\u00a0 In this case, GM had already shored partof the trench and was in the process of shoring the remainder.\u00a0 There is no evidencethat GM’s shoring either was or would be, when completed, insufficient to protectemployees in the trench.\u00a0 On the contrary, Conlon, the Secretary’s own expert,testified that the shoring GM had been installing would have been adequate when completed.\u00a0 The Secretary’s allegation is based on the same conditions that allegedlyconstitute a violation of section 1926.652(c):the absence of any protection at all for portions of the trench walls. \u00a0To establish a violation of section 1926.652(e), the Secretary would have to prove thatthe shoring the employer was installing was inadequate to protect against cave-ins fromvibrating machinery or the presence of backfill.\u00a0 The employer’s failure here toprevent exposure of employees to the hazard of a cave-in prior to completion of itsshoring does not establish that it also failed to take precautions in addition to thoserequired by section 1926.652(b) or (c).\u00a0 The Chairman therefore concludes that theSecretary failed to prove that GM violated section 1926.652(e).Commissioner Cleary would affirm the citation item.\u00a0 He agrees with theSecretary’s argument that the plain language of section 1926.652(e) requires additionalshoring or bracing under two alternative conditions–where trenches are dug adjacent tobackfilled areas or where trenches are subject to vibrations.\u00a0 CedarConstruction Co., 77 OSAHRC 63\/A2, 5 BNA OSHC 1311, 1977-78 CCH OSHD ? 21,772 (No.10929, 1977), aff’d 587 F.2d 1303 (D.C. Cir. 1978).\u00a0 He also finds itirrelevant that the required additional precautions would have been taken some time in thefuture.\u00a0 Just as GM violated section 1926.652(c) because the required shoring was notin place when employees were unnecessarily in unshored parts of the trench, GM violatedsection 1926.652(e) because the trench was dug in backfill and lacked additionalprecautions.\u00a0 An employer’s failure to take any precautions to protectemployees against the walls of a trench collapsing violates the employer’s duty to takethe additional precautions required by section 1926.652(e) as well as the precautionsrequired by section 1926.652(c).\u00a0 Although the requirements of sections 1926.652(c)and 1926.652(e) are closely related, an employer is not unfairly burdened when the same orsimilar conditions are the subject of more than one citation item, for a single action onthe employer’s part may be all that is necessary to achieve compliance with the citedstandards.\u00a0 H.H. Hall Construction Co., 81 OSAHRC 91\/D12 10 BNA OSHC 1042,1981 CCH OSHD ? 25,712 (No. 76-4765, 1981).\u00a0 Moreover, to the extent that the sameor similar conduct may violate more than one standard, the Commission has the discretionto assess a single, combined penalty for the violations.\u00a0 Wright & Lopez, Inc.,81 OSAHRC 92\/D10, 10 BNA OSHC 1108 ,1981 CCH OSHD ? 25,728 (No. 76-256, 1981); H.H.Hall, 10 BNA OSHC at 1049, 1981 CCH OSHD at p. 32,059.\u00a0 Because the violation ofsection 1926.652(e) involves conduct similar to that of section 1926.652(c), CommissionerCleary would assess a combined penalty for the violations of sections 1926.652(c) and (e).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can betaken by the Commission with the affirmative vote of two members.\u00a0 The two Commissionmembers disagree whether the judge erred in his disposition of this citation item.\u00a0To resolve this impasse and to permit this case to proceed to a final resolution,the members have agreed to affirm the judge’s decision vacating this item but accord itthe precedential value of an unreviewed judge’s decision.\u00a0 See Life ScienceProducts Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No.14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).Item 1:\u00a0 Instruction of EmployeesItem 1 of the citation alleged that GM violated section 1926.21(b)(2), which requiresemployers to instruct employees in the recognition and avoidance of unsafeconditions.[[7]]\u00a0 Judge Furcolo affirmed the item.\u00a0 He stated that the standardrequires an employer to issue instructions regardless of the knowledge or experience ofits employees.\u00a0 The judge found that \”[t]he witnesses who testified in substancethat there were no instructions were positive and definite in their testimony to thateffect while those who indicated the contrary were comparatively vague andindefinite.\”\u00a0 For that reason, he concluded that GM did not give its employeesinstructions on trenching hazards and therefore failed to comply with the standard. \u00a0Judge Furcolo determined that the violation was serious.\u00a0 He assessed a penalty ofonly $50 because \”it was not unreasonable for [GM] to believe its employees werefamiliar with trenching hazards…\”The Commissioners disagree on the disposition of this item.\u00a0Commissioner Cleary would adopt the judge’s decision and affirm the citation item.\u00a0 He notes that employees Boushie, LoMonaco, Davide, and Thomas Martin, asecond-shift welder, testified that no GM supervisor told them not to go into an unshoredtrench or gave them oral or written instructions about the specific safety hazardsinvolved in working in and around trenches. Those four employees also testified that theyhad not attended any safety meetings at GM during which trenching or shoring had beendiscussed.\u00a0 Boushie, Martin, and Davide stated that they were never told by anysupervisor about OSHA’s trenching standards.\u00a0 Boushie, Martin, and LoMonaco testifiedthat no supervisor, including their group leader, instructed them to stay out of theeast-west leg of the trench.\u00a0 Boushie testified that this was the first trench thathe had worked in at GM.\u00a0 Martin stated that when he began work at GM in 1973 he wasnot given any safety booklets.\u00a0 When he was shown a booklet entitled \”SafetyProcedures and Instructions, Rochester Products\” at the hearing, he declared that hehad never seen it before.Gary Murphy, GM’s supervisor for the second shift, and Nick Bianchi, thecrew’s \”group leader\” who directed the work, testified that there were no formalsafety meetings at GM regarding trenching hazards.\u00a0 Rather, informal discussions wereheld at which employees told their ideas about improving working conditions.\u00a0 Murphytestified that he specifically instructed Bianchi, LoMonaco, and DeVittorio to remain outof the unprotected areas of the trench, and he never observed employees in such areas whenhe visited the trench.In C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297, 1977-78CCH OSHD ? 22,481, p. 27,099 (No. 14249, 1978), the Commission stated that it willusually accept an administrative law judge’s evaluation of witnesses’ credibility becausethe judge was the one who \”lived with the case, heard the witnesses, and observedtheir demeanor.\”\u00a0 In this case, the judge based his finding that GM had notinstructed employees in hazards associated with trenches on his conclusion that theemployee who testified that no such instructions were given were more credible than GM’ssupervisors, whose testimony he stated was vague and indefinite. Commissioner Clearyaccepts Judge Furcolo’s credibility determination and finds that GM did not instruct itsemployees regarding trenching hazards.Moreover, even crediting the testimony of GM’s supervisors, what littleaction GM took to instruct its employees about trench hazards was insufficient under thestandard.\u00a0 GM distributed its safety booklet to some employees, but at least oneemployee, Martin, had never seen it before the hearing in this case.\u00a0 In any event,the booklet contained no instructions on hazards involved in construction work in general,and trenches in particular.\u00a0 The standard is not satisfied by instructions that failto deal entirely with major hazards that employees face.\u00a0 See NationalIndustrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978) (section1926.21(b)(2) requires more than a general safety program).\u00a0 Whatever safety meetingswere held were informal and unstructured. Even if the testimony of Murphy that he gaveon-the-job warnings to remain out of the unshored areas of the trench was to be credited,such warnings alone do not satisfy the cited standard.\u00a0 Sawnee Electric MembershipCorp., 77 OSAHRC 24\/C10, 5 BNA OSHC 1059, 1061, 1977-78 CCH OSHD ? 21,560, p. 25,873(No. 10277, 1977)(Cleary, Commissioner, dissenting).\u00a0 Moreover, GM’s failure to givethe instructions required by the standard cannot be excused on the basis that theemployees were experienced. See Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5thCir. 1976).\u00a0 All employees, both experienced and inexperienced, are entitled to theAct’s protection.Chairman Buckley would vacate the citation item.\u00a0 The standard requiresthat employers instruct employees, but it does not specify the nature and extent of therequired instructions.\u00a0 A violation of such a standard cannot be predicated upon afinding that an employer’s safety program could have been improved.\u00a0 Rather, theremust be a showing that the employer breached a duty to give reasonable instructions.\u00a0H.C. Nutting Co. v. OSHRC, 8 BNA OSHC 1241, 1242, 1980 CCH OSHD ? 24,548, p.30,030 (6th Cir. 1980); Dravo Engineers and Constructors, 84 OSAHRC __\/_, 11 BNAOSHC 2010, 2011-12, 1984 CCH OSHD ? 26,930, p. 34,507 (No. 81-748, 1984).\u00a0 Indetermining whether the instructions that an employer gave were reasonable, the substanceof the employer’s safety program is more important than its form.\u00a0 Jones &Laughlin Steel Corp., 82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD ?26,128, p. 32,887 (No. 76-2636, 1982); Texland Drilling Corp., 80 OSAHRC 106\/C13, 9BNA OSHC 1023, 1026, 1980 CCH OSHD ? 24,954, p. 30,788 (No. 76-5307, 1980).\u00a0 Thestandard should not be interpreted to require employers to tell their employees what isobvious.\u00a0 Butler Lime and Cement Co. v. OSHRC, 658 F.2d 544 (7th Cir. 1981).Employers can permissibly rely on the judgment of experienced employees to perform theirwork in a safe and proper manner.\u00a0 See Davey Tree Expert Co., 84 OSAHRC11\/D11, 11 BNA OSHC 1898, 1900, 1983-84 CCH OSHD ? 26,852, p. 34,400 (No. 77-2350, 1984);Jones & Laughlin Steel Corp., 10 BNA OSHC at 1783, 1982 CCH OSHD at p. 32,888.\u00a0 Thus, section 1926.21(b)(2) requires a level of instruction appropriate to thecircumstances.In Chairman Buckley’s view, the record shows that GM did give adequateinstructions in light of the experience and knowledge of the employees doing the work.\u00a0Judge Furcolo found that it was reasonable for GM to believe that its employees werefamiliar with trenching hazards, and that finding is supported by the record. \u00a0GaryMurphy, the supervisor for the second shift, testified that the crew was composed ofskilled tradesmen, not general laborers, who had shored many trenches and knew what theywere doing. The testimony of the employees shows that they knew the hazards presented byunshored trenches.\u00a0 Boushie acknowledged that he was aware of the hazards of unshoredtrenches because he had prior experience on construction jobs. \u00a0Davide admitted thatwhile he had been an apprentice at GM his leader had instructed him to stay out ofunshored trenches.\u00a0 LoMonaco was asked if he knew not to go into an unshored portionof a trench, and replied that he never went down into such an area.The record also shows that GM had an ongoing safety program.\u00a0 Safetybooklets were distributed to employees when first hired. The instructions in thosebooklets were supplemented by oral on-the-job instructions and informal safety meetings.\u00a0Both Murphy and Bianchi testified that trenching hazards had been addressed duringinformal safety meetings.\u00a0 Murphy and Bianchi also stated that they had instructedemployees to stay out of the unshored portions of the trench involved in this case. \u00a0Considering the experience of the employees and their awareness of the hazards associatedwith trenches, Chairman Buckley concludes that the instructions GM gave its employeesconcerning such hazards were reasonable and met the general requirement of section1926.21(b)(2).As noted above, section 12(f) of the Act, 29. U.S.C. ? 661(e), states thatofficial action can be taken by the Commission with the affirmative votes of two members.\u00a0 To resolve their impasse on this issue and to permit this case to proceed to afinal resolution, the members have agreed to affirm the judge’s decision on this citationitem but accord it the precedential value of an unreviewed judge’s decision.In sum, the Commission affirms citation item 2 and assesses a $50 penalty for the seriousviolation of section 1926.652(c).\u00a0 The members have also agreed to affirm JudgeFurcolo’s disposition of citation items 1 and 3, alleging violations of sections1926.21(b)(2) and 1926.652(e), but accord their decision on those two items noprecedential value.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 26 1985 FOOTNOTES: [[1]] As established by the Act, the Commission is composed of three members.\u00a0Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Currently, the Commission has two membersas a result of a vacancy.[[2]] Section 1926.652(c) states:Sides of trenches in hard or compact soil, including embankments, shall beshored or otherwise supported when the trench is more than 5 feet in depth and 8 feet ormore in length.\u00a0 In lieu of shoring, the sides of the trench above the 5-foot levelmay be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each1\/2-foot horizontal….[[3]] The standard provides:Sides of trenches in unstable or soft material, 5 feet or more in depth,shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficientstrength to protect the employees working within them.\u00a0 See Tables P-1, P-2(following paragraph (g) of this section).Appended to section 1926.652, and referred to by it, is Table P-1, whichprovides that trenches dug in solid rock, shale, or cemented sand and gravels need not besloped.[[4]] The parties also dispute whether there was needless employee exposureto ground collapse during the process of shoring.\u00a0 The parties put on conflictingevidence as to whether workmen stood in the north-south leg of the trench to guide steelchannels being pounded into the trench floor by the backhoe.\u00a0 If employees did enterthe unshored leg for that purpose, that would constitute another basis for a violation ofthis standard because GM conceded that this work could have been accomplished withoutemployees in the trench.\u00a0 Inasmuch as employee use of the east-west leg for exitingclearly establishes a violation of the standard, we will not reach the close credibilityquestions raised by this secondary dispute.[[5]] Section 1926.652(e) reads as follows:Additional precautions by way of shoring and bracing shall be taken toprevent slides or cave-ins when excavations or trenches are made in locations adjacent tobackfilled excavations, or where excavations are subjected to vibrations from railroad orhighway traffic, the operation of machinery, or any other source.[[6]] GM argues that Judge Furcolo erroneously found that the trench was \”adjacentto\” a backfilled area because it was within 10 to 30 feet of such an area.\u00a0 Anysuch error was harmless.\u00a0 Statements earlier in the judge’s decision to the effectthat the area in which the trench was dug was backfill are sufficient to establish thatthe trench was \”adjacent to\” backfill under section 1926.652(e).\u00a0 J.D.Blum Construction Co., 76 OSAHRC 58\/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD ? 20,735(No. 3543, 1976).[[7]] The standard provides:The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.”