“SECRETARY OF LABOR,Complainant,v.JOHN R. JURGENSEN COMPANY,Respondent.OSHRC Docket No. 83-1224_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.By WALL, COMMISSIONER:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Joe D. Sparks affirmed a repeat citation issuedby the Secretary of Labor to the John R. Jurgensen Company. The citationhad initially alleged that Jurgensen had violated 29 C.F.R. ?1926.652(b) by failing to slope or shore the sides of a trench dug inunstable or soft soil; the citation was amended at the hearing beforethe judge to allege in the alternative that Jurgensen had violated 29C.F.R. ? 1926.652(c), pertaining to trenches dug in hard or compactsoil. The judge found that Jurgensen had committed a repeated violationof section 1926.652(b) and assessed a $1,600 penalty. He alternativelyfound that if section 1926.652(c) were applicable, a violation of thatstandard had also been established. The Commission agrees with thejudge’s finding of a repeated violation of section 1926.652(b) andaffirms the amended citation on that basis. We assess a penalty of$1,100. Because we find that Jurgensen violated section 1926.652(b), wedo not inquire into the merits of the alternatively-cited section1926.652(c)._Was the Soil Unstable or Soft?_Section 1926.652(b) provides:? 1926.652 _Specific trenching requirements._* * *(b) Sides of trenches in unstable or soft material, 5 feet or more indepth, shall be shored, sheeted, braced, sloped, or otherwise supportedby means of sufficient strength to protect the employees working withinthem. See Tables P- 1, P-2 (following paragraph (g) of this section).To establish noncompliance with section 1926.652(b), the Secretary mustshow that (1) the trench is at least five feet deep, (2) a significantportion of the trench wall is composed of soft or unstable soil, and (3)the trench is neither shored nor sloped appropriately from the bottom ofthe trench. See National Industrial Constructors, Inc., 81 OSAHRC 94\/A2,10 BNA OSHC 1081, 1091, 1981 CCH OSHD ? 25,743, p. 32,132 (No. 76-4507,1981); Joseph J. Stolar Construction Co., 81 OSAHRC 66\/C6, 9 BNA OSHC2020, 2023, 1981 CCH OSHD ? 25,488, p. 31,782 (No.78-2528, 1981). aff’d,681 F.2d 801 (2d Cir. 1981); Edward Kelly & Sons, Inc., 82 OSAHRC 4\/D4,10 BNA OSHC 1340, 1343, 1982 CCH OSHD ? 25,884, p. 32,386 (No. 76-2802,1982). It is uncontroverted that the trench was over five feet deep andthat there was no shoring in it. Also, Jurgensen conceded at the hearingthat the walls were not sloped sufficiently to comply with section1926.652(b).[[1]] The lone issue, therefore, is whether the Secretaryproved the soil in the trench was soft or unstable.A._The Evidence___Jurgensen is a heavy construction company that builds pipelines, dams,airports, and roadways. In October of 1983, it was installing a drainpipeline in a trench adjacent to interstate highway 75 near Troy, Ohio.The west wall of the trench collapsed on one of Jurgensen’s employees,who sustained a facial cut as a result. OSHA compliance officer RalphCannon investigated the accident site after the trench had been filledin; the citation was issued after his investigation.Jurgensen was installing the eight-inch diameter pipe at the same levelin the ground and very near the location of a pipeline that had beenlaid in 1955. Laying the new line involved locating the manhole for theold line and excavating an eight-to-ten foot wide area around themanhole to allow for placement of a laser beam to be used to align thenew line. The new trench was excavated in a direction north of themanhole on a line roughly parallel to the old pipe and about three feeteast of it. The trench was dug with a backhoe using a 36-inch widebucket, and the bottom of the trench was estimated to be three to fourfeet wide. The sides of the trench were of different heights because theground in which it was dug sloped down away from the highway. The westside of the trench was 7 to 8 feet deep and the east side 9 to 12 feet deep.Jurgensen laborer Sammy Lee Dixon testified that the soil in the trenchwas \”[g]ood, hard dirt\” and that he was not afraid of going into thetrench; he stated that \”if they’d handed me my lunch box down I’d haveset in there and ate my lunch.\” At a different jobsite, Dixon had told asupervisor that he would not get into a trench until it was openedwider; Dixon testified that he would have done the same thing at thistrench if necessary.Dixon also testified that as the trench was dug back, the gravel fill inwhich the old pipe was laid was visible at the bottom of the trench onthe west side of the trench. The fill would have been placed around thepipe, Dixon stated, and dirt would have been put on top of the gravel.Jurgensen foreman Jack Harper testified that the soil in the trench wassilty, sandy clay, \”good solid dirt\”. The walls of the trench were \”goodsolid walls.\” Harper testified that the distance between the newsanitary line and the old line was supposed to be at least three feetbut that that distance was not maintained because the old line was notstraight. As a result, the old line became visible in the trench wherethe new line was to be placed. This occurred initially at a distance ofabout 40 feet from the manhole. The cave-in occurred about 35 feet fromthe manhole.The backhoe operator for the digging of the trench, Stanley Harper, JackHarper’s son, testified that the soil in the trench was a sandy, siltyclay, a hard soil. He could tell that the soil was hard because it tookmore power from the backhoe to excavate it than soft soil.Jurgensen soil expert James Veith, a geotechnical engineer with thirteenyears of experience, made a soil test boring in April of 1984, about sixmonths after the cave-in. The boring was made twelve feet west of thefive-foot wide barrier wall over the old sanitary line and 22-1\/2 feetnorth of the manhole. Veith testified that the samples obtained wererepresentative of the undisturbed soil conditions in the immediate area.According to Veith, the upper 4-1\/2 to 5 feet of soil was somewhat lessdense or \”softer\” than the underlying material. The soil sample takenfrom five to ten feet below ground was a brown sandy, silty clay withfine to course gravel and rock fragments. Below the 9-1\/2 to 10 footlevel, the soil changed color and became glacial till (soil materialdeposited by glacial ice masses).Veith also testified that, \”[a]t the test point and location, theundisturbed material is what I would term very stiff, very compact; itwould be a very stable material.\” He calculated the \”critical height\” ofthe soil tested, that is, the height at which the soil could safelystand vertically, as ten feet–30 feet divided by a safety factor of 3.No protection would be needed if trench walls of that height stood openin winter for one day. However, Veith stated, if the soil in the trenchwas backfill from the 1955 trench, his soil sample of April 1984 was notrepresentative of the west wall of the trench on the day of the accident.Veith also testified that the State of Ohio imposed compactionrequirements on construction within a State right-of-way and that theold sanitary line was within a right-of-way. When asked if it would bepossible, by using compaction techniques, to restore the ground in atrench that was refilled to the same or similar levels of hardness orcompaction as the original ground, Veith testified that the sandy siltyclays of his samples \”could be spread in a trench and compacted withproper equipment so that the strength would be comparable to what youhave in the undisturbed soil conditions.\” He further testified that theexcavation for the old sanitary line could have been compacted torestore the soil to its original state if the Ohio State Department ofTransportation’s compaction specifications were followed. Veith had noknowledge, however, of whether the Ohio compaction requirements werefollowed in 1955 when the excavation for the old sanitary line wasbackfilled.Veith stated that laborers backfilling a trench tie the backfill intothe undisturbed soil of the trench about half the time.[[2]] He alsostated that if the tying-in process was not done, then the seam betweenbackfilled material and undisturbed soil represented a possible weaknessin the soil. Over a long period of time \”there would be some meetingaction that may occur [naturally] that would tie this in slightly,\”Veith testified, but this would take longer than thirty years.Compliance officer Cannon was a construction specialist who hadinspected about 300 trenches. Cannon testified that when an excavationis made and then refilled, \”[n]o matter how you treat [compact] thatsoil, you can’t get it to join the two side walls of the formerexcavation.\” He further testified:Now they come along and they dig another excavation that one side wallis going to eventually come into that backfilled material. If that pipeis going to intersect. . .then that side wall is going to be very closeor will be in the sidewall of the excavation that you’re digging now.And as such, it has no strength as far as the back side of that–theother fill. . .the old excavation.Also, Cannon stated, when gravel is put around the old pipe and theexcavated material placed on top of the gravel, \”the gravel itself isnot stable. So that once the sidewalls are expanded, the gravel cansimply come out of that . . . .\”B. _The Judge’s Decision and the Parties’ Arguments_The judge found that the soil was unstable, largely because it was dugin backfill from the 1955 excavation. He discounted as unrepresentativesoil samples taken from undisturbed soil by Jurgensen’s expert, Veith.The Judge instead relied on the compliance officer’s testimony that theproximity of the previously excavated trench caused the instability ofthe new trench. The Judge noted that Jurgensen’s expert Veith hadacknowledged, as the compliance officer had testified, that it waspossible that a seam between the backfilled material and the undisturbedsoil could constitute a weakness in the soil.Jurgensen argues that the evidence supports a finding that the soil wasnot unstable but was hard and compact. Employee Dixon testified that thetrench walls were hard, that the trench was safe enough for him to eatlunch in, and that he would not have worked in a trench he felt wasunsafe. Employees Jack and Stanley Harper corroborated Dixon’stestimony. Soil expert Veith analyzed the soil and determined that itwas stable, Jurgensen states. Although the judge discounted Veith’stestimony because Veith’s soil samples were taken from undisturbed soil,Jurgensen argues that this was necessary to gain knowledge of the typeof soil Jurgensen encountered prior to the excavation. Also, the judgefound that the soil in the trench was unstable because it containedbackfill from the 1955 excavation. However, Jurgensen contends, thebackfill was required to be compacted by the State of Ohio, and Veithtestified that backfilled soil may be compacted to essentially the samehardness as undisturbed ground.The Secretary argues that Table P-2, which follows paragraph (g) ofsection 1926.652, and which includes \”filled\” soil in a category withsoft and sandy soils, indicates that backfilled soils are unstablesoils. He contends that there is no question but that the soil in thetrench was unstable, backfilled material. Both compliance officer Cannonand Jurgensen expert Veith provided reasons for concluding that the soilwas unstable. Compliance officer Cannon testified that disturbed soilcan never be compacted so that it will \”join\” the side walls of anearlier excavation and regain its original strength. He also testifiedthat the gravel put around the old pipe could \”simply come out\” when thewall of the new trench reached that area and that this created anunstable situation. Jurgensen expert Veith agreed that the seam betweenbackfill and undisturbed soil could be a weakness in soil.Further, as the judge found, the soil sample which expert Veith reliedon to theorize that a ten foot high wall of the trench could have stoodup safely without support came from an area of undisturbed soil. Veithadmitted that the soil sample was not representative of the soilmaterial in the backfilled area. Also, the Secretary contends, Veith’stestimony that the soil in the old trench could have been compacted toits original strength was conjecture, because neither he nor any otherwitness knew about the compaction methods used in 1955.C. _Discussion_The west wall of the trench was dug in soil that had been excavated andbackfilled when the old sanitary line was installed in 1955. The drainpipe Jurgensen was installing was supposed to be only three feetaway–and at the same level in the ground–as the pipe installed in1955. The proximity of the two pipelines made it inevitable that thetrench wall between the two pipelines, the west wall of the Jurgensentrench, would contain backfill from the old trench. In fact, because theold pipe was not laid straight, the west wall of the Jurgensen trenchcontained not just backfill from the old trench, but the gravel that hadbeen placed around the old pipe, and the old pipe itself. The old pipebecame visible about 40 feet from the manhole–just five feet beyondwhere the trench had collapsed on Dixon. The issue is whether this wallconsisted of soil that was \”unstable or soft\” within the meaning ofsection 1926.652(b). We conclude that it was unstable within the meaningof the standard; we therefore need not determine whether the soil was\”soft.\”The record in this case supports the judge’s finding that the backfilledsoil in the west wall of the trench was unstable. Compliance officerCannon testified that once the backfill in the east wall of the oldtrench was exposed by Jurgensen’s digging of the west wall of itstrench, that soil would have \”no strength.\” Cannon also testified thatthe gravel placed around the old pipe was a source of instability in thenew trench, because the gravel could simply \”come out\” of the west wallof the Jurgensen trench where it was visible.[[3]] We agree with thejudge’s reliance on this testimony. As we noted above, the complianceofficer specialized in construction inspection and had inspected about300 trenches.Moreover, the Secretary’s trenching standards support the view thatbackfill can be unstable. For example, 29 C.F.R. ?? 1926.651(m) and1926.652(e) indicate that backfill does not have the strength ofundisturbed soil; the standards require that special precautions betaken to protect trenches and excavations dug next to backfilled areas.Section 1926.651(m) provides:? 1926.651 Specific excavation requirements.* * *(m) Special precautions shall be taken in sloping or shoring the sidesof excavations adjacent to a previously backfilled excavation or a fill,particularly when the separation is less than the depth of theexcavation. Particular attention also shall be paid to joints and seamsof material comprising a face and the slope of such seams and joints.Section 1926.652(e) provides:? 1926.652 Specific trenching requirements.* * *(e) Additional precautions by way of shoring and bracing shall be takento prevent slides or cave-ins when excavations or trenches are made inlocations adjacent to backfilled excavations, or where excavations aresubjected to vibrations from railroad or highway traffic, the operationof machinery, or any other source.In Table P-2, which follows section 1926.652(g), where the minimumrequirements for the shoring of trenches are set forth, \”filled\” soil isequated with \”soft, sandy\” soil. Table P-2 also treats \”filled\” soil asa soil which requires more protection than even soil that is \”[l]ikelyto crack.\” These provisions, however, do not preclude an employer fromintroducing evidence that the backfill is not soft and unstable.However, Jurgensen has not made such a showing here.Although Veith testified that the undisturbed soil taken from hissamples was very stable and could safely stand vertical to a height often feet, the undisturbed soil he tested was not representative of thebackfilled soil in the west wall of the trench. Veith himselfacknowledged that the soil he tested was not representative of the soilin the west wall of the Jurgensen trench if the west wall was made up ofbackfill from the 1955 trench. It also does not avail Jurgensen thatemployees Dixon, and Jack and Stanley Harper testified generally thatthe soil in the trench was good, solid dirt that appeared to be safe. Weagree with the judge that the opinion of the experienced complianceofficer, and the presence of backfill and gravel, are entitled to moreweight than the testimony of the employees.[[4]] Finally, contrary toJurgensen’s assertion, we do not give any weight to the existence of anOhio transportation department regulation requiring backfilled soil tobe compacted. Unlike Shane, Inc., 77 OSAHRC 37\/E11, 5 BNA OSHC 1217,1219, 1977-78 CCH OSHD ? 21,694, p. 26,053 (No. 13136, 1977) (discussingsection 1926.652(e)), there was no evidence that the soil actually hadbeen compacted. Jurgensen knew even before it dug this trench–andcertainly after it began–that the soil had been disturbed. It,therefore, should have come forward with evidence of compaction at thehearing to rebut the Secretary’s showing of instability. It did not doso. Therefore, the Commission finds that the Secretary establishedJurgensen violated section 1926.652(b)._Was the Violation Repeated?_Under Commission precedent,[a] violation is repeated. . .if, at the time of the alleged repeatedviolation, there was a Commission final order against the same employerfor a substantially similar violation. Potlatch Corp., 79 OSAHRC 6\/A2,7 BNA OSHC 1061, 1063, 1979 CCH OSHD ? 23,294, p. 28,171 (No. 16183,1979). Under Potlatch, a prima facie case of similarity is establishedby a showing that the prior and present violations were for failure tocomply with the same standard. If the standards were not the same,however, the Secretary must present other evidence that the violationswere substantially similar and in such cases evidence that theviolations involved similar hazards is relevant. Id.On August 28, 1981, a one-item serious citation alleging the followingviolation was issued to Jurgensen:29 CFR 1926.652(c): The side(s) of trench(s) in hard or compact soil,including embankment(s), were not shored or otherwise supported when thetrench was 5 feet or more in depth and 8 feet or more in length:Employees installing a sewer line along the north side of CrescentvilleRoad west of route 747 in a trench 11′ long x 6′ wide x 7′ deep were notprotected against hazardous ground movement by shoring, sheeting,bracing, trench box, sloping or an equivalent type protection.Jurgensen contested the citation and another citation issued on the sameday by letter dated September 28, 1981; the Commission docketed the caseas No. 81-2285. On March 25, 1982, Administrative Law Judge Edwin G.Salyers issued an order approving a settlement agreement which wassigned for Jurgensen by a witness in the instant case–its safetydirector, Robert E. Zimmerman. The judge therefore affirmed the twocitations as modified and assessed a penalty. He also issued a \”Noticeof Decision\” in No. 81-2285 stating that the case would become a finalorder on April 26, 1982, unless directed for review.In the instant case, Judge Sparks stated he would take \”official noticeof the records of the Occupational Safety and Health Review Commission[in] Docket Number 81-2285\” in receiving into evidence Jurgensen’snotice of contest, the settlement agreement of the parties, and JudgeSalyers’ Notice of Decision and Order Approving Settlement.Judge Sparks found a repeated violation under Potlatch. He found thatthe prior and current violations, although of different subsections ofsection 1926.652, were substantially similar because they both involvedJurgensen’s failure to protect its employees working on highway projectsfrom the hazard of collapsing trenches and because the two differentsubsections were closely related.Jurgensen argues that to prove a repeated violation under Potlatch, theSecretary has to prove the existence of a prior final order and that theSecretary has never \”introduced the final order of the Commission.\”Jurgensen also argues that the prior and present violations were notfactually similar and that the judge erred in finding the presentviolation was repeated because he failed to find that the presentviolation was \”serious.\”The Secretary contends that the judge properly took official notice thatthe settlement agreement involving the earlier section 1926.652(c)violation had become a final order. The Secretary also points out thatJurgensen did not affirmatively allege or attempt to prove that the 1981citation had not become a final order. The Secretary also contends thatthe prior and current violations were substantially similar because bothinvolved employees exposed to the danger of cave-ins while working ininadequately sloped, inadequately protected trenches.As mentioned above, the Commission precedent for proof of a repeatedviolation is Potlatch. Potlatch has been followed by those courts ofappeals that have examined it. See J.L. Foti Construction Co. v. OSAHRC,687 F.2d 853 (6th Cir. 1982); Willamette Iron & Steel Co. v. Secretaryof Labor, 10 BNA OSHC 1477 (9th Cir. 1982) (unpublished opinion);Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982);Communications, Inc. v. Marshall, 672 F.2d 893 (D.C. Cir. 1981). InBunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981), theFifth Circuit noted its general agreement with Potlatch, but held thatthe Secretary must also prove substantial similarity of violations whenthe prior and current violations are of the same standard. Further, thePotlatch test for proof of a repeated violation was, to a significantextent, derived from the decisions of two other circuits, the FourthCircuit in George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4thCir. 1978), and the Ninth Circuit in Todd Shipyards Corp. v. Secretaryof Labor, 566 F.2d 1327 (9th Cir. 1977). Although panels of the ThirdCircuit have not followed Potlatch because they are required by circuitrule to follow a pre- Potlatch precedent, the Third Circuit has notexamined the Potlatch test. See Jones & Laughlin Steel Corp. v.Marshall, 636 F.2d 32 (3d Cir. 1980), discussing Bethlehem Steel Corp.v. OSHRC, 540 F.2d 157 (3d Cir. 1976). In light of this strong supportfor the Potlatch test, the principle of stare decisis applies with greatforce. We, therefore, will apply the Potlatch criteria in determiningwhether the violation in this case was repeated.Under Potlatch, the Secretary must prove the existence of a prior finalorder against the same employer for a substantially similar violation.Jurgensen’s main argument against the finding of a repeated violation isessentially that the Secretary never introduced into evidence the priorfinal order of the Commission. The Secretary did, however, introduceexhibits which included the prior citation, and Administrative Law JudgeSalyers’ decision approving a settlement agreement in which Jurgensenwithdrew its notice of contest regarding the Secretary’s citationalleging a violation of section 1926.652(c). The Commission takesofficial notice, from our own records, that the aforementioned decisionof Judge Salyers became a final order of the Commission on April 26,1982.[[5]] See Paul Betty, 81 OSAHRC 18\/B11, 9 BNA OSHC 1379, 1384 n.10, 1981 CCH OSHD ? 25,219, p. 31,152 n. 10 (No. 76-4271, 1981)(Commission took official notice of date settlement agreement becamefinal order). Thus, at the time of the alleged section 1926.652(b)violation in this case, the earlier citation had become a final order ofthe Commission.Jurgensen contends that the prior and current citations were notsubstantially similar. Although the prior final order involvedJurgensen’s violation of section 1926.652(c) and the present violationis of section 1926.652(b), the two violations were substantially similarand involved similar hazards. As the Secretary has argued, the prior andcurrent violations both involved the exposure of Jurgensen employees tothe hazard of cave-ins while working in inadequately sloped,inadequately protected trenches.[[6]] Therefore, the Secretary hasestablished that the violation of section 1926.652(b) was repeated.After a consideration of the penalty factors set forth in section 17(j)of the Act, 29 U.S.C. ? 666(j), the Commission assesses a penalty of$1,100, rather than the $1600 assessed by the judge. Jurgensen is afairly large employer, with about 450 employees. The gravity of theviolation is moderately high because the unsupported trench presented adanger of cave-in. However, there is no indication of bad faith inJurgensen’s incorrect assessment of the strength of the trench wall thatcollapsed. A measure of Jurgensen’s good faith is demonstrated by thefact that it had a safety program and held weekly tool box safetymeetings. Further, although Jurgensen had violated the Act previously,Jurgensen had also been inspected by the Secretary on occasions when noviolations had been found.Accordingly, the Commission affirms the citation insofar as it alleges arepeat violation of section 1926.652(b), and assesses a $1,100 penalty.FOR THE COMMISSIONRay H.Darling, Jr.Executive SecretaryDATED: JUL 21 1986RADER, Commissioner, concurring:From my reading of the trial record it is a close question whether theSecretary carried his burden of proof in this case. Certainly at thebeginning of the trench I believe Jurgensen was entitled to rely on thefact that the dirt was stable, and that the sloping or shoringrequirements of section 1926.652(b) were not applicable. However, I ampersuaded to join the majority because as the trench was dug back thegravel fill from the old, adjacent trench became visible. At that pointI believe Jurgensen was alerted to the necessity of shoring or slopingthe trench walls at a greater angle.BUCKLEY, Chairman, concurring:I agree with the lead opinion of Commissioner Wall that the Secretaryproved Jurgensen violated section 1926.652(b). I also concur withCommissioner Wall that the Secretary proved Jurgensen \”repeatedly\”violated the standard under the Commission’s precedent, Potlatch Corp.,79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294 (No. 16183,1979), which received the endorsement of the U.S. Court of Appeals forthe Sixth Circuit in J.L. Foti Construction v. OSHRC, 687 F.2d 853 (6thCir. 1982). I am uncomfortable with the Potlatch test, primarily becauseit appears to ignore the plain meaning of \”repeatedly\” in permitting afinding that an employer repeatedly violated the Act after only a singleprior violation of a substantially similar standard. However, I willapply Potlatch here and find that Jurgensen \”repeatedly\” violated theAct primarily because the Sixth Circuit has followed Potlatch andbecause Jurgensen did not ask that the precedent be re-examined,although provided the opportunity to do so by the direction for review.I previously articulated my misgivings about the Potlatch test in NewEngland Container Co., 85 OSAHRC ____, 12 BNA OSHC 1368, 1985 CCH OSHD ?27,148 (No. 78-1539, 1985). There I found it unnecessary to decidewhether the Potlatch test was correct, particularly with respect towhether a single prior Commission final order is a sufficient basis forcharacterizing a violation as one \”repeatedly\” done. I did state,however, that by authorizing a ten-fold increase in the potentialpenalty when the violation is either willfully or repeatedly committed,\”Congress evidently intended that misconduct engaged in repeatedly waseither circumstantial evidence of willfulness, or of itself was of ahigher order requiring a greater deterrent penalty.\” New EnglandContainer, 12 BNA OSHC at 1369, 1985 CCH OSHD at p. 35,044.The Third Circuit examined this issue in great detail in Bethlehem SteelCorp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976). The court, using Webster’sThird Edition, painstakingly analyzed the difference between the word\”repeat\” and \”repeatedly\”, concluding that while \”repeat\” means \”morethan once\”, \”repeatedly\” is the equivalent of \”often repeated.\” Thecourt stated that, \”[g]iven that the plain and ordinary meaning of theword ‘repeatedly’ is ‘constantly, frequently, occurring again andagain’,. . .we do not believe that only two violations can ever form thebasis of a ‘repeatedly’ violation within the meaning of [29 U.S.C.]Section 666(a).\” 540 F.2d at 162 n.11. It held that \”a broadinterpretation of ‘repeatedly’ would ‘disrupt the graduations ofpenalties and violations so carefully provided in the Act.\” 540 F.2d at161. It quoted its earlier decision in Frank Irey, Jr., Inc. v. OSHRC,519 F.2d 1200 (3d Cir. 1974), for this proposition: \”It is obvious fromthe size of the penalty that can be imposed. . .–ten times that of aserious. . .[violation]–that Congress meant to deal with a moreflagrant type of conduct than that of a ‘serious’ violation.\” Bethlehem,540 F.2d at 161.Before Potlatch, the Commission had held a number of views as to themeaning of \”repeatedly.\” In General Electric Co., 75 OSAHRC 50\/A2, 3 BNAOSHC 1031, 1042, 1974-75 CCH OSHD ? 19,567, at pp. 23,367-68 (No. 2739,1975), it had held that evidence of intentional disregard or flouting ofthe Act was required. In Potlatch a majority rejected thatinterpretation, which had been accepted by the Bethlehem court. It wenton also to reject the \”more than twice\” concept of Bethlehem and offeredas the only reason the \”common usage of the term ‘repeatedly’.\”Potlatch, 7 BNA OSHC at 1064, 1979 CCH OSHD at p. 28,172. I respectfullysubmit that that is not the common usage of the term at all and that theCommission should reconsider this second holding of Potlatch. As statedby former Commissioner Moran in his dissent in George Hyman ConstructionCo., 77 OSAHRC 67\/C7, 5 BNA OSHC 1318, 1328, 1977-78 CCH OSHD ? 21,744,p. 26,171 (No. 13559, 1977):The drafters of the Act purposefully chose to use the term \”repeatedly\”as opposed to \”repeat.\” There is a significant distinction between thetwo. Webster’s Third New International Dictionary (Unabridged) defines\”repeat\” as \”to make or do or perform again.\” However, \”repeated\” isdefined therein as \”renewed or recurring again and again.\” Thus,\”repeatedly\” is descriptive of a rather persistent course of conduct.(Footnote omitted.)Unfortunately, there is little guidance from the legislative history asto the reason for the addition of the term \”repeatedly\” to section17(a), which committees in both the House and Senate previously hadlimited to violations committed \”willfully.\” Congressman Steigerincluded the term in his comprehensive substitute that passed the Houseand neither he nor the conference committee offered any interpretationof it. Comm. on Labor & Public Welfare, Legislative History of theOccupational Safety and Health Act of 1970, 1103 (Comm. Print 1971). Inthe absence of any indication that Congress was giving this term ameaning different than its usual and conventional sense as reflected inthe cited dictionary definition, I cannot agree with Potlatch.It is clear, that when Congress wants to prescribe a substantial penaltywhen a person commits only a second violation, it can express itselfclearly on that point. See The Horse Protection Act, 15 U.S.C. ??1825(a)(2)(A) (\”after one or more convictions. . .\”); The Wholesome MeatAct, 21 U.S.C. ?? 671 (\”has been convicted. . .of. . .more than oneviolation. . .\”); and The Controlled Substances Act of 1970, 21 U.S.C.?? 841(b)(1)(A) and (B), (2), (3), (5) and (6), ? 842(c)(2)(B), ?843(c), 848(a) (\”commits. . .after one or more prior convictions. . .\”)and ??962 (\”if the offense is a second or subsequent offense. . .aperson shall be considered convicted of a second or subsequent offenseif, prior to the commission of such offense, one or more priorconvictions. . .have become final.\”) In fact, the Senate version of theOccupational Safety and Health Act would have provided increasedcriminal penalties for the second conviction of a willful violation.Comm. on Labor & Public Welfare, Legislative History of the OccupationalSafety and Health Act of 1970, 566 (Comm. Print 1971). Therefore, sinceCongress knew how to specifically prescribe an enhanced penalty for amere second violation, I can not conclude that it intended to give theterm \”repeatedly\” such a tortured interpretation.I acknowledge that a significant number of the other federal courts ofappeals, as cited in Commissioner Wall’s lead opinion, have declined tofollow Bethlehem. Most of those courts, however, have not focused theirattention on Bethlehem’s analysis of the minimum number of priorviolations necessary to constitute \”repeatedly\” violating the Act.Rather they have focused on Bethlehem’s requirement that flouting of theAct’s requirements must be proven and have rejected it, finding that aviolation need not be committed \”willfully\” to have been committed\”repeatedly.\” To the extent that they have even considered whether twoprevious violations must be proven, they have done so without settingforth an analysis comparable to that offered by the Third Circuit. SeeJ.L. Foti Construction; Todd Shipyards Corp. v. Secretary of Labor, 566F.2d 1327 (9th Cir. 1977).I agree with Judge Kennedy of the Ninth Circuit who, having consideredthis matter carefully in his dissent in Todd Shipyards, 566 F.2d at1327, concluded:If every second offender were a repeated violator it would make no sensefor the statute to direct that the history of violations be consideredin assessing the relatively minor penalties for single violations. . .The more stringent penalties prescribed by section 666 are reserved forinstances where an employer’s deliberate disregard of the Act may beinferred.While I believe Potlatch should be reexamined, Jurgenson has notrequested it in this case, although provided the opportunity to do so bythe direction for review. Nor does my colleague believe that itsreexamination here is appropriate, particularly in light of the SixthCircuit’s unexplained statement in J.L. Foti Construction, that\”repeatedly means, simply, occurring more than once.\” I would hope thatwhen that court focuses on that question it will come to the sameconclusion I have. However, for now, under these circumstances, I willfollow Potlatch and J.L. Foti here and find Jurgensen had repeatedlyviolated section 1926.652(b).————————————————————————SECRETARY OF LABOR,Complainant,v.MARTIN WRIGHT ELECTRIC COMPANYRespondent.OSHRC DOCKET NO. 84-1115ORDERThe parties’ Stipulation and Settlement Agreement as to the seriouscitation is approved. The administrative law Judge’s decision istherefore set aside as to the serious citation alleging a violation of29 C.F.R.?1926.500(d)(1). The settlement agreement makes no mention ofthe citation for an other than serious violation of 29 C.F.R. ?1926.400(h)(1). The judge’s decision to vacate that citation is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: September 15, 1986WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.MARTIN WRIGHT ELECTRIC CO.,Respondent.OSHRC DOCKET No. 84-1115_STIPULATIONS AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement ofthe instant matter which is currently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590;29 U.S.C. ? 651 et seq.) (hereinafter \”the Act\”).(b) Respondent, Martin Wright Electric Co., is a corporation with itsplace of business located in San Antonio, Texas. It is engaged in thebusiness its employees perform various tasks in the nature of installingelectrical equipment. During the course of its business, respondent usesmaterials and equipment which its receives from places located outsideSan Antonio, Texas. Respondent, as a result of the aforesaid activities,is an employer engaged in a business affecting commerce as defined bysection 3(3) and 3(5) of the Act, and has employees as defined bysection 3(6) of the Act, and is subject to the requirements of the Act.(c) As a result of an inspection conducted on September 26, 1984, atrespondent’s workplace at the Carlyle condominium project, San Antonio,Texas, a citation alleging one serious violation of the standard at 29CFR 1926.500(d)(1), with a Proposed Penalty of $250.00 and a citationalleging one non-serious violation of 29 CFR 1926.400(h)(1), with, noProposed Penalty, was issued to respondent on October 17, 1984 pursuantto section 9(a) of the Act.(d) Respondent submitted a notice of contest dated October 30, 1984,informing Complainant of its intention to contest the alleged violationsand the Proposed Penalty. The notice of contest was received by theAustin, Texas Area Director, Occupational Safety and HealthAdministration, on November 1, 1984. Thereafter, the parties duly fileda complaint and an answer.(e) On March 22, 1985, a hearing was held before CommissionAdministrative Law Judge Stanley M. Schwartz on respondent’s notice ofcontest. On June 27, 1985, Judge Schwartz issued his Decision and Orderin which he affirmed the serious citation alleging a violation of 29 CFR1926.500(d)(1) and vacated the non-serious citation alleging a violationof 29 CFR 1926.400(h)(1). The Judge also assessed a penalty of $75.00.Thereafter, respondent filed a timely Petition for Discretionary Reviewto the Commission and on August 21, 1985, Commissioner Rader grantedreview of the issues raised in respondent’s petition. The Commissionissued a Briefing Notice on April 30, 1986. Respondent submitted itsbrief to the Commission on June 6, 1986.IIINow, the Secretary of Labor and Martin Wright Electric Co., in order toconclude this matter without the necessity of further litigation,stipulate and agree as follows:IVRespondent hereby states that the alleged violation of 1926.500(d)(1)has been abated and that the worksite at issues is no longer in existence.VThe Secretary hereby withdraws its Citation for alleged violation of1926.500(d)(1), with prejudice, issued to respondent on October 17,1984. The Secretary believes that the judge’s decision was correctlydecided. However, particularly in view of the fact that the worksitewhich was the subject of the citation is no longer active, the Secretaryhas determined that further litigation of this case is not merited.Accordingly, the Secretary requests the Commission set aside the judge’sdecision.VIRespondent and Complainant agree that each party shall bear its own costs.VIIRespondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rule 7.WHEREFORE, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.ORLANDO J. PANNOCHIAAttorney for the Secretary of Labor.PAY SARY CHURAK, ESQ. Tom Jospeh, P.C.———————————————————————— The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected]_), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Jurgensen’s position at the hearing, as stated in its counsel’sopening statement, was that the trench was dug in hard or compact soiland that the walls therefore had to be sloped only above the five-footlevel as required by section 1926.652(c). Jurgensen admitted, however,that the walls were not sloped from the bottom, and it further concededthat section 1926.652(b) requires that walls of trenches dug in soft orunstable soil be sloped from the bottom. Moreover, although there isconflicting evidence on the precise amount the walls were sloped, therecord establishes that there was no significant sloping below thefive-foot level.[[2]] Veith described the tying-in process this way. \”[T]hey will do alimited amount of benching or time stepping the fill into the sidewallsto eliminate sheer [sic] planning.\” Webster’s Third New InternationalDictionary (Unabridged) defines \”shear\” as \”a strain resulting fromapplied forces that cause or tend to cause contiguous parts of a body toslide relatively to each other in a direction parallel to their plane ofcontact, . . .\”[[3]] The occurrence of the cave-in suggests that the compliance officeraccurately assessed the stability of the soil in the Jurgensen trench.[[4]] Jurgensen contends that the judge acted inconsistently in findingthat the soil in the trench was unstable backfill because the Judgevacated an item referring to the same trench in another citation whichcalled for the taking of additional precautions against cave-ins wheretrenches are dug adjacent to backfilled locations. However, the judgedid not vacate the other citation because the soil was hard or compact,but because he concluded there was no evidence of any additionalprotection required if a violation of the other standard were found. Wedo not find his decision inconsistent.[[5]] Under section 12(j) of the Act, 29 U.S.C. ? 561(j), a judge’sdecision becomes a final order of the Commission thirty days after itsissuance unless directed for review by a member of the Commission. Thejudge’s decision approving the settlement agreement was not directed forreview.Normally, where our decision relies on official notice of a materialfact not of record, we would offer the aggrieved party the opportunity,upon timely request, to show that the fact noticed is erroneous.Anoplate Corp., 86 OSAHRC ____, \” 12 BNA OSHC 1678, 1692, 1986 CCH OSHD? 27,519, p. 35,690 (No. 80-4109, 1986), 5 U.S.C. ? 556(e). In thiscase, however, the judge stated he would take official notice of thepertinent Commission records, and he found that the previous citationhad become a final order of the Commission. In arguing against thisfinding, Jurgensen has not attempted to show it is erroneous nor hasJurgensen requested an opportunity to submit evidence demonstrating itis erroneous. Under these circumstances, we think it unnecessary tooffer Jurgensen a further opportunity to rebut the noticed fact.[[6]] Jurgensen also contends that a repeated violation may not be foundbecause the judge did not specifically find that the violation was\”serious,\” only \”repeated.\” The contention lacks merit. Although thepresent violation was \”repeated\” and the prior violation \”serious,\”Potlatch does not require that a separate finding of serious be made inconjunction with the finding of a repeat violation. See Austin Road Co.,80 OSAHRC 76\/E11, 8 BNA OSHC 1916, 1918, 1980 CCH OSHD ? 24,688, p.30,301 (No. 77-2752, 1980), rev’d on other grounds, 683 F.2d 905 (5thCir. 1982) (repeat violation involves determining whether prior andcurrent violations resulted in substantially similar hazards, notwhether they both resulted in a likelihood of death or serious physicalharm).”