“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 \u00a0 OSHRC DOCKET NO. 5486 JOHN R. DAVIES & SON, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 19, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.BY THE COMMISSION:Areport of Administrative Law Judge David G. Oringer, dated November 8, 1974, isbefore the Commission pursuant to an order issued under section 12(j) of theOccupational Safety and Health Act of 1970.[1] The report affirmed acitation alleging failure to comply with the trench timbering requirementsspecified by 29 CFR ? 1926.652(g)(1). Judge Oringer modified the proposedpenalty of $500 to $150.Theorder for review was issued on his own motion by Commissioner Moran. It statedthe following issue:Didthe citation in this case comply with the particularity requirements of 29U.S.C. ?\u00a0658(a)?Theissue was not raised by either party at any stage in these proceedings. It wasmentioned for the first time in the judge?s report, and as noted he affirmedthe citation. Neither party petitioned for review, hence there has been noappeal to the full Commission. Respondent has not indicated any interest,whether by letter, brief, or other means, in having the judge?s reportreviewed. The Secretary has filed a letter asking affirmance of the report.Inthese circumstances and in the absence of any compelling public interest wedecline to pass on the directed issue or any other aspect of the judge?sreport. Abbott-Sommer, Inc., Docket No. 9507 (R.C., February 17, 1976).Further, because of our disposition herein we accord the judge?s report thesame precedential value as an unreviewed judge?s decision, i.e., it is notbinding on OSHRC judges.Accordingly, the judge?sreport is affirmed. So ORDERED.\u00a0FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDated: April 19, 1976\u00a0MORAN, Commissioner,Dissenting:The Commission again errsin refusing to address a viable issue[2] that was directed forreview on the asserted ground that respondent failed to raise it below orpursue it here. They state that respondent ?has not indicated any interest . .. in having the judge?s report reviewed.? This statement is not supported by therecord and even if it was, it would not justify the tergiversation andterminological inexactitude which Messrs. Barnako and Cleary have served up inthe majority opinion.Silenceon an issue on appeal does not necessarily mean that there is no interest. See Brennanv. Smoke-Craft, Inc., No. 74?2359 (9th Cir., February 13, 1976); Brennanv. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir.1975); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad PrecisionIndustries, 502 F.2d 946, 948 (3rd Cir. 1974).Anumber of reasons could exist as to why the issue was not raised below orpursued here. The record establishes that this pro se respondent was sounknowledgeable of Review Commission procedures and the defenses cognizableunder the Act that the judge felt compelled to intercede on his behalf duringtrial. Therefore, lack of knowledge may have been the reason for its silence.Other possibilities include insufficient time, finances, or other resourcesneeded to pursue the matter here or to discover what was possible as a defensebelow.Thepoint of the matter is that various and sundry reasons exist to possiblyexplain respondent?s silence. To conclude that disinterest is the reason defieslogic, is unfair to the respondent, shirks our responsibility to address viableissues, and is unsupported by the record before us.TheCommission is obligated to address the merits of review directed cases. See forexample, the opinion of Mr. Cleary in Secretary v. Thorleif Larsen and Son,Inc., 12 OSAHRC 313, 314?315 (1973). Since I took an oath to faithfullydischarge the duties of the office which I hold, I turn now to a discussion ofthe merits of this case. It is my opinion that the citation herein failed tomeet the ?particularity? requirements set forth in 29 U.S.C. ? 658(a). Thissection provides that:?Each citationshall be in writing and shall describe with particularity the nature ofthe violation, including a reference to the . . . standard . . . alleged[ly] .. . violated.? (Emphasis added.)??Particularity?means that employers must be informed in the citation of the specific actswhich allegedly constitute a failure to comply with the cited standard.[3] Secretary v. L. E.Myers Company, 16 OSAHRC 686, 687 (1975). This requirement is not met whenthe factual description in the citation is effectively nothing more than arecitation of the cited standard. See Secretary v. Union Camp Corporation,5 OSAHRC 514 (1973).Thenecessity for complainant to meet his statutory obligation is clear. Employersneed this information in the citation in order to make the crucial andirrevocable decision of whether or not to contest it within the statutoryperiod prescribed in 29 U.S.C. ? 659(a).[4] If the cited employerdecides not to contest, specificity of the factual description is needed inorder to fully understand what hazard must be abated. Secretary v. J. L.Mabry Grading, Inc., 9 OSAHRC 98, 110 (1973). Additionally, specificity offacts gives employers an adequate opportunity to raise affirmative defenses. Secretaryv. L. E. Myers Company, supra at 688.InNational Realty & Construction Co., Inc. v. OSAHRC, 489 F.2d 1257,1264 (D.C. Cir. 1973), it was stated that:?. . . the centralfunction of the citation . . . is to alert a cited employer that it mustcontest the Secretary?s allegations or pay the proposed fine. In the typicalcase, the more inaccurate or unhappily drafted is a citation, the more likelyan employer will be to contest it. But a citation also serves to order anemployer to correct the cited condition or practice, and a failure to correctis a punishable violation.?\u00a0Analyzing?inthis light?the factual description in this citation, it is evident that the?particularity? requirement was not met. Respondent was cited for allegedlyfailing to comply with the requirements of 29 C.F.R. ? 1926.652(g)(1), whichprovides that:?Minimumrequirements for trench timbering shall be in accordance with Table P?2.?Thecitation described the facts which allegedly constituted a failure to complywith this standard as follows:?Employer failedto install trench timbering in accordance with the minimum requirements fortrench shoring, as set forth in Table P?2. Location is Station 3 & 90.??Thisdescription of the facts is nothing more than a reiteration of the wording ofthe standard. The Judge below, concluding that this description did notdescribe the nature of the violation with ?particularity,? stated that:?The citation didnot recite whether the violation was of the minimum dimension of the upright[specifications set forth in Table P?2, as incorporated by reference in thecited standard], or in the spacing of the upright, the minimum dimension of thestringers, the maximum spacing of the stringers, and [this] . . . may well haveled to dismissal of the charge.?\u00a0Iagree with these conclusions, but disagree with the Judge?s action in allowingthe complainant to remedy the defect by amendment of the citation. As I haverecently explained in Secretary v. Warnel Corporation, OSAHRC Docket No.4537, March 31, 1976 (dissenting opinion), a citation is a unique document towhich the liberal rules of amendment in the Federal Rules of Civil Procedure donot apply. Therefore, I would vacate the citation and penalty assessmenttherefor.Finally,I must register my disagreement with my colleagues? unsupported assertionregarding the precedential value of the Judge?s decision. Congress provided in29 U.S.C. ? 661(i) that:?The report of thehearing examiner shall become the final order of the Commission within thirtydays after such report . . . unless within such period any Commission memberhas directed that such report shall be reviewed by the Commission.? (Emphasisadded.)?Thissection makes it clear that Judge?s decisions are decisions of this Commissionunless modified by the Commission following a direction for review under thissection.Thedecisions of the United States Courts of Appeal indicate agreement with thisopinion. For example, on appeal of Secretary v. Felton Construction Company,8 OSAHRC 327 (1974), the United States Court of Appeals for the Ninth Circuit,the jurisdiction in which the instant case arose, considered a decision ofReview Commission Judge Stuller which had not been reviewed by the Commissionmembers. Felton Construction Company v. OSAHRC, 518 F.2d 49 (9th Cir.1975). The court used the following language in considering the Judge?sdecision: ?. . . the Commission found,? ?. . . the hearing examiner?s orderbecame the final order of the Commission,? ?. . . the Commission?s order.?Thereis no court decision that treats an unreviewed decision of a Review CommissionJudge any differently than the Ninth Circuit did in Felton Construction. Thecourts have uniformly treated a Judge?s decision the same as those rendered bythe three Commission members. Such treatment is, of course, exactly what theAct contemplates and what its language specifically provides. Accordingly,Judge Oringer?s decision is attached hereto as Appendix A in order that it maybe given the weight to which it is entitled.?APPENDIX A\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 \u00a0 OSHRC DOCKET NO. 5486 JOHN R. DAVIES & SON, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE:December 9, 1974\u00a0Appearances:For the Secretaryof Labor: Altero D?Agostini,Regional Solicitor;John M. Orban,Associate Regional Solicitor;Beverly B. Lord,AttorneyU.S. Department ofLaborOffice of theSolicitor300 North LosAngeles StreetRoom 7313 FederalBuildingLos Angeles,California 90012\u00a0For the RespondentJohn R. Davies,Jr.John R. Davies& Son2101 East LambertRoadLa Habra,California 90631\u00a0For the EmployeesPaul R. Guzman,Business AgentLaborersInternational Union of America1\/832 EastChestnut StreetSanta Ana, California?DECISIONAND ORDERDavid G. Oringer, Judge:Thisis a proceeding under Section 10c of the Occupational Safety and Health Act of1970, 29 U.S.C. 651 et seq. (hereinafter referred to as ?the Act?) toreview a citation for serious violation issued by the Secretary of Labor(hereinafter referred to as ?Complainant?) pursuant to Section 9(a), and aproposed assessment of penalty in the amount of $550, thereon issued, pursuantto Section 10(a) of the Act.Thecitation issued on or about November 9, 1973, alleges that as a result of aninspection of the employer?s workplace on November 1, 1973, the employer,(hereinafter referred to as ?Respondent?), at a workplace under its ownership,operation, and\/or control, violated one occupational safety and health standardduly promulgated pursuant to Section 6(a) of the Act, in a serious manner.Thestandard allegedly violated by the respondent reads as follows:1. 29 C.F.R.1926.652(g)(1)(1) Minimumrequirements for trench timbering shall be in accordance with Table P?2. (SeeTable P?2, Annexed to Decision.)?The violation, as allegedby the complainant, is described as follows: Standard Description of Alleged Violation 29 C.F.R. 1926.652(g)(1) \u00a0 Employer failed to install trench timbering in accordance with the minimum requirements for trench shoring, as set forth in Table P?2. Location is Station 3 + 90. \u00a0 \u00a0Notificationof proposed penalty was issued to the respondent by the complainant, on evendate, to wit, November 9, 1973, proposing a penalty of $550 for the allegedserious violation. On or about November 19, 1973, the respondent filed a timelyNotice of Contest with a representative of the Secretary of Labor, contestingthe citation and the proposed penalty. The case was assigned to the undersignedon February 1, 1974 for hearing and disposition pursuant to Section 12(e) ofthe Act.Pursuantto notice, the trial of this case was held on March 5, 1974 in Los Angeles,California.Havingheard the testimony and observed the demeanor of the witnesses, and havingconsidered the same, together with the citation, notification of proposedpenalty, notice of contest, pleadings, representations, stipulations andadmissions of the parties, it is concluded that substantial evidence, on therecord considered as a whole, supports the followingFINDINGSOF FACT1.The respondent, John R. Davies & Son, is engaged in the constructionbusiness and uses equipment which has been manufactured outside the State ofCalifornia. In addition thereto, he receives correspondence from outside theState of California (Tr., p.5).2.During the year the inspection took place, the average number of employees ofthe respondent was 69. At the time of the hearing the employer employedapproximately 48 employees (Tr. p. 4).??????????? 3. On November 1, 1973 the Occupational Safety and HealthAdministration conducted an inspection of the respondent?s worksite located at7th Street and Channel Drive in Long Beach, California (Tr. p. 5).4.At the time in question, the respondent was under contract with the Bixby RanchCompany to lay underground utilities of power and telephone lines (Tr. p. 5).5.On November 9, 1973, as a result of an inspection by an authorizedrepresentative of the complainant on November 1, 1973 conducted at a workplacewherein the respondent employed employees, the aforesaid respondent was issuedone citation alleging a serious violation of that standard found at 29 C.F.R.1926.652(g)(1), as well as a notification of proposed penalty, proposing apenalty in the amount of $550 for the alleged serious violation (Citation,Notification of Proposed Penalty, Complaint).6.The respondent filed a timely notice of contest (Notice of Contest).7.At the time of the inspection herein concerned, at station location number 3 +90, the trench was 8 feet deep, approximately 46 inches wide, and approximately250 feet long (Tr. p. 19).8.The trench was in soft, loose, sandy material (Tr. p. 19, 84).9.The trench contained a ladder as a means of access. There was also a shovel inthe trench (Tr. 20, 21). The trench was shored with uprights and jacks. The spacingof the horizontal uprights was approximately 8 feet apart (Tr. p. 21, 22).10.During the inspection, an employee came out of the trench by virtue of themeans of access which was a ladder in the vault area (Tr. 16, 20, 21).11.The employee of the respondent, one Jesus Ruiz, was apparently the onlyemployee exposed and the record does not disclose how long the employee was inthe trench (Tr. p. 1?166).12.Shoring that is provided for a trench which does not meet the standards createsa hazard of collapse of the sides of the trench. In the event of a trenchcollapse, there is a probability that death or serious injury would occur (Tr.p. 110).13.A reading of Table p?2 that gives the minimum requirements for trench shoringas part of that standard under 29 C.F.R. 1926.652, reveals that minimumrequirements for trench shoring require maximum spacing of six feet and, insoft, sandy or loose soil there should be closed sheeting, neither of whichexisted in the trench in question. (See that standard found at 29 C.F.R.1926.652 and Table P?2 therein.)14.The penalty proposed for the serious violation alleged in the instant cause wasinappropriate (Tr. p. 1?166).OPINIONInthis cause the respondent represented his company, unaccompanied by counsel.Certain objections that may have been raised, had he been represented bycounsel, were not raised in the instant cause. In my opinion, the citation inthis case does not describe the violation with sufficient particularity. Thedescription of the alleged violation, in the citation, relates that ?employerfailed to install trench timbering in accordance with the minimum requirementsfor trench shoring, as set forth in Table P?2, location station 3 + 90?.Ido not believe that the citation states the violation with sufficientparticularity as required by the governing Act. Table P?2 gives minimumrequirements for uprights, stringers, cross braces, and gives maximum spacingfor various types of soil. The citation did not recite whether the violationwas of the minimum dimension of the upright, or in the spacing of the upright,the minimum dimension of the stringers, the maximum spacing of the stringers,and, if similarly stated in the complaint, may well have led to a dismissal ofthe charge. The complaint, however, remedied the defect by relating that thefailure of the respondent was in using uprights which were spaced a distance of8 feet between each upright.Ina Commission decision, the majority opinion decided that a defective citationmay be cured by a subsequent pleading in a proceeding brought pursuant toSection 10 of the Act, Secretary of Labor v. J. L. Mabry Grading, Inc.,DOCKET No. 285, decided April 27, 1973. Inasmuch as this tribunal isconstrained to follow that Commission decision, the complaint was sufficientlyparticular to advise the respondent of what he allegedly violated and thereforeconstituted due process of law.Inmy opinion, the compliance officer did observe Mr. Ruiz exiting from the trenchat the site and time of the inspection. While Mr. Guzman, in his zeal to helptake the statement of Ruiz, used the word ?loamy? rather than ?loose?, in myopinion this soil was, in fact, described by Mr. Ruiz in Spanish, at the timethat he made the statement, as ?tierra suelta?, or loose soil.Therespondent argues that inasmuch as the foreman or supervisor had to go aboutwith the compliance officer, if Mr. Ruiz was exposed it was because the foremanwas not present. I do not find this a telling argument in view of Mr. Fegley?stestimony on page 159 of the transcript, where he stated that he occasionallyleaves the site and being that his truck driver has been around 20 years andMr. Ruiz for 17 years and his operator and carpenter each for four years, theemployees know what to do and they do not shut down the job site when heleaves. On page 160 of the transcript, in answer to the question, ?We?retalking about men who know what to do in your absence?. Mr. Fegley stated,?That?s right?. In other words, the foreman depended upon the men to performtheir jobs in his absence.Inreading Mr. Ruiz?s testimony and his statement and observing him on the stand,it is my opinion that he was in the trench and was exposed. I further believethat the employer was under the impression that 8-foot spaced uprights may havebeen sufficient. I credit Mr. Raymond?s testimony on page 14 that Mr. Fegleytold him that the State called for 8-foot spacing between uprights.Interestingly enough, if I correctly understand the testimony on page 14 aboutthe first trench, the respondent was told to and did bring the spacing up tothe minimum, which was 6 feet, despite the fact that the first trench observedwas between 4-feet 8-inches and 5-feet deep, and therefore the respondent wasnot mandated so to do by the standard. The first trench was 5 feet or less indepth, so that anything that the respondent did in response to the complianceofficer?s suggestions was not necessary on his part, inasmuch as the standarddoes not require sheeting and does not require such bracing, in a trench thatis not in excess of 5 feet in depth. Anything required by the complianceofficer in the first trench about which he testified was ultra vires and thecooperation by the respondent was certainly more than necessary. However, inthe second trench, in my opinion, the violation came about as a lack ofunderstanding of federal shoring requirements by the respondent. I do creditthe compliance officer?s testimony that Mr. Fegley was under the impressionthat the uprights had to be spaced 8 feet apart rather than 6 feet apart (Tr.,p. 14).Itis my opinion that there is sufficient proof that Mr. Ruiz was exposed in thetrench, so that technically a violation existed.Whilethe gravity was much less than that in many, many serious cases, and theexposure in this case was minimal and the cooperation excellent, neverthelessthe violation was proven to be a serious one in that credible testimony wasadduced that there was a danger of collapse of the trench and that in the eventof collapse of the trench serious injury or death could result. It is patentlyobvious that a reading of the standard at Table P?2 thereof would have advisedthe respondent that the standard requires no more than 6 feet between uprightsand a measuring of the uprights would clearly reflect that they were 8 feetapart rather than 6 feet. I further believe that it was the common usage of therespondent to space his uprights 8 feet apart because of a misunderstanding ofthe requirement of the federal standards.Inconsidering the penalty, however, in view of the extreme cooperation of thedefendant in correcting the spacing of uprights in a trench where it was notrequired, its immediate attempts to correct whatever was wrong throughout theproject, the fact that only one man was exposed and the record being absent ofany evidence as to how long the exposure took place, mitigation of the proposedpenalty is appropriate. The employee was not asked how long he was in thetrench, whether it was a second, a minute, five minutes or an hour. In additionthereto, there was shoring in the trench, although it lacked two feet from theminimum. The violation alleged is that the respondent did not meet the minimumrequirements of trenching, which is an implicit admission by the Secretary thatonly minimum trenching requirements were necessary and therefore his proof ofsoft, sandy or filled earth was in reality not necessary to the charge,inasmuch as the minimum requirements of spacing were 6 feet. The fact thatthere was shoring that lacked the 2-foot differential certainly decreases thehazard, just as the lack of proof as to the length of time of exposuredecreases the exposure. Further, in my opinion, in view of what I consider wasmore than adequate cooperation, I find the penalty to be excessive in the instantpremises and assess a penalty of $150 in lieu of the $550 penalty proposedtherefor.Basedon the foregoing considerations, the Judge makes the followingCONCLUSIONSOF LAW1.At all times herein mentioned, this respondent was engaged in a business affectingcommerce, within the meaning of Section 3 (5) of the Occupational Safety andHealth Act of 1970.2.The respondent was, on the date of inspection at its workplace hereinconcerned, and at all times mentioned herein, an employer subject to the safetyand health regulations promulgated by the Secretary of Labor and referred to inthe citation and complaint herein.3.The respondent, on the day of the inspection herein concerned, was in seriousviolation of that standard found at 29 C.F.R. 1926.652(g)(1).4.The penalty of $550 proposed for the alleged serious violation in that standardfound at 29 C.F.R. 1926.652(g)(1), found proven herein, is inappropriate, andis herewith modified to the sum of $150.Inview of the foregoing, good cause appearing therefor, it is ORDERED that:1.The serious violation, alleged in the complaint, to wit, of that standard foundat 29 C.F.R. 1926.652(g)(1), be, and the same, is herewith AFFIRMED.2.The penalty proposed for the serious violation, found proven in 1. above, inthe sum of $550, is inappropriate, and is herewith MODIFIED to the sum of $150.?SO ORDERED?David G. Oringer,Judge, OSAHRCDated: November 8, 1974APPENDIX A\u00a0[1] 29 U.S.C. ? 651et seq.[2] See, e.g., Secretaryv. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976.[3] See Brennan v.OSAHRC and Hendrix, 511 F.2d 1139, 1142 (9th Cir. 1975).\u00a0[4] This sectionprovides that:?If, withinfifteen working days from receipt of the notice [of proposed penalty] . . . theemployer fails to notify the Secretary that he intends to contest the citationor proposed assessment of penalty . . . the citation and the assessment, asproposed, shall be deemed a final order of the Commission and not subject toreview by any court or agency.?”