“Docket No. 83-1224 SECRETARY OF LABOR,Complainant,v.JOHN R. JURGENSEN COMPANY, Respondent.OSHRC Docket No. 83-1224DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. By WALL, COMMISSIONER:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Joe D. Sparks affirmed a repeat citation issued by theSecretary of Labor to the John R. Jurgensen Company. The citation had initially allegedthat Jurgensen had violated 29 C.F.R. ? 1926.652(b) by failing to slope or shore thesides of a trench dug in unstable or soft soil; the citation was amended at the hearingbefore the judge to allege in the alternative that Jurgensen had violated 29 C.F.R. ?1926.652(c), pertaining to trenches dug in hard or compact soil. The judge found thatJurgensen had committed a repeated violation of section 1926.652(b) and assessed a $1,600penalty. He alternatively found that if section 1926.652(c) were applicable, a violationof that standard had also been established. The Commission agrees with the judge’s findingof a repeated violation of section 1926.652(b) and affirms the amended citation on thatbasis. We assess a penalty of $1,100. Because we find that Jurgensen violated section1926.652(b), we do 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 in depth, shall beshored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength toprotect the employees working within them. See Tables P- 1, P-2 (following paragraph (g)of this section).To establish noncompliance with section 1926.652(b), the Secretary must show that (1)the trench is at least five feet deep, (2) a significant portion of the trench wall iscomposed of soft or unstable soil, and (3) the trench is neither shored nor slopedappropriately from the bottom of the 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 OSHC 2020, 2023, 1981 CCHOSHD ? 25,488, p. 31,782 (No.78-2528, 1981). aff’d, 681 F.2d 801 (2d Cir. 1981); EdwardKelly & 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 feetdeep and that there was no shoring in it. Also, Jurgensen conceded at the hearing that thewalls were not sloped sufficiently to comply with section 1926.652(b).[[1]] The loneissue, therefore, is whether the Secretary proved the soil in the trench was soft orunstable.A. The EvidenceJurgensen is a heavy construction company that builds pipelines, dams, airports, androadways. In October of 1983, it was installing a drain pipeline in a trench adjacent tointerstate highway 75 near Troy, Ohio. The west wall of the trench collapsed on one ofJurgensen’s employees, who sustained a facial cut as a result. OSHA compliance officerRalph Cannon investigated the accident site after the trench had been filled in; thecitation was issued after his investigation.Jurgensen was installing the eight-inch diameter pipe at the same level in the groundand very near the location of a pipeline that had been laid in 1955. Laying the new lineinvolved locating the manhole for the old line and excavating an eight-to-ten foot widearea around the manhole to allow for placement of a laser beam to be used to align the newline. The new trench was excavated in a direction north of the manhole on a line roughlyparallel to the old pipe and about three feet east of it. The trench was dug with abackhoe using a 36-inch wide bucket, and the bottom of the trench was estimated to bethree to four feet wide. The sides of the trench were of different heights because theground in which it was dug sloped down away from the highway. The west side of the trenchwas 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 trench was\”[g]ood, hard dirt\” and that he was not afraid of going into the trench; hestated that \”if they’d handed me my lunch box down I’d have set in there and ate mylunch.\” At a different jobsite, Dixon had told a supervisor that he would not getinto a trench until it was opened wider; Dixon testified that he would have done the samething at this trench if necessary.Dixon also testified that as the trench was dug back, the gravel fill in which theold pipe was laid was visible at the bottom of the trench on the west side of the trench.The fill would have been placed around the pipe, Dixon stated, and dirt would have beenput on top of the gravel.Jurgensen foreman Jack Harper testified that the soil in the trench was silty, sandyclay, \”good solid dirt\”. The walls of the trench were \”good solidwalls.\” Harper testified that the distance between the new sanitary line and the oldline was supposed to be at least three feet but that that distance was not maintainedbecause the old line was not straight. As a result, the old line became visible in thetrench where the new line was to be placed. This occurred initially at a distance of about40 feet from the manhole. The cave-in occurred about 35 feet from the manhole.The backhoe operator for the digging of the trench, Stanley Harper, Jack Harper’s son,testified that the soil in the trench was a sandy, silty clay, a hard soil. He could tellthat the soil was hard because it took more power from the backhoe to excavate it thansoft soil.Jurgensen soil expert James Veith, a geotechnical engineer with thirteen years ofexperience, made a soil test boring in April of 1984, about six months after the cave-in.The boring was made twelve feet west of the five-foot wide barrier wall over the oldsanitary line and 22-1\/2 feet north of the manhole. Veith testified that the samplesobtained were representative of the undisturbed soil conditions in the immediate area.According to Veith, the upper 4-1\/2 to 5 feet of soil was somewhat less dense or\”softer\” than the underlying material. The soil sample taken from five to tenfeet below ground was a brown sandy, silty clay with fine to course gravel and rockfragments. Below the 9-1\/2 to 10 foot level, the soil changed color and became glacialtill (soil material deposited by glacial ice masses).Veith also testified that, \”[a]t the test point and location, the undisturbedmaterial is what I would term very stiff, very compact; it would be a very stablematerial.\” He calculated the \”critical height\” of the soil tested, that is,the height at which the soil could safely stand vertically, as ten feet–30 feet dividedby a safety factor of 3. No protection would be needed if trench walls of that heightstood open in winter for one day. However, Veith stated, if the soil in the trench wasbackfill from the 1955 trench, his soil sample of April 1984 was not representative of thewest wall of the trench on the day of the accident.Veith also testified that the State of Ohio imposed compaction requirements onconstruction within a State right-of-way and that the old sanitary line was within aright-of-way. When asked if it would be possible, by using compaction techniques, torestore the ground in a trench that was refilled to the same or similar levels of hardnessor compaction as the original ground, Veith testified that the sandy silty clays of hissamples \”could be spread in a trench and compacted with proper equipment so that thestrength would be comparable to what you have in the undisturbed soil conditions.\” Hefurther testified that the excavation for the old sanitary line could have been compactedto restore the soil to its original state if the Ohio State Department of Transportation’scompaction specifications were followed. Veith had no knowledge, however, of whether theOhio compaction requirements were followed in 1955 when the excavation for the oldsanitary line was backfilled.Veith stated that laborers backfilling a trench tie the backfill into the undisturbedsoil of the trench about half the time.[[2]] He also stated that if the tying-in processwas not done, then the seam between backfilled material and undisturbed soil represented apossible weakness in the soil. Over a long period of time \”there would be somemeeting action that may occur [naturally] that would tie this in slightly,\” Veithtestified, but this would take longer than thirty years.Compliance officer Cannon was a construction specialist who had inspected about 300trenches. Cannon testified that when an excavation is made and then refilled, \”[n]omatter how you treat [compact] that soil, you can’t get it to join the two side walls ofthe former excavation.\” He further testified:Now they come along and they dig another excavation that one side wall is going toeventually come into that backfilled material. If that pipe is going to intersect. . .thenthat side wall is going to be very close or will be in the sidewall of the excavation thatyou’re digging now.And as such, it has no strength as far as the back side of that–the other fill. ..the old excavation.Also, Cannon stated, when gravel is put around the old pipe and the excavatedmaterial placed on top of the gravel, \”the gravel itself is not stable. So that oncethe sidewalls are expanded, the gravel can simply come out of that . . . .\” B. The Judge’s Decision and the Parties’ ArgumentsThe judge found that the soil was unstable, largely because it was dug in backfillfrom the 1955 excavation. He discounted as unrepresentative soil samples taken fromundisturbed soil by Jurgensen’s expert, Veith. The Judge instead relied on the complianceofficer’s testimony that the proximity of the previously excavated trench caused theinstability of the new trench. The Judge noted that Jurgensen’s expert Veith hadacknowledged, as the compliance officer had testified, that it was possible that a seambetween the backfilled material and the undisturbed soil could constitute a weakness inthe soil.Jurgensen argues that the evidence supports a finding that the soil was not unstablebut was hard and compact. Employee Dixon testified that the trench walls were hard, thatthe trench was safe enough for him to eat lunch in, and that he would not have worked in atrench he felt was unsafe. Employees Jack and Stanley Harper corroborated Dixon’stestimony. Soil expert Veith analyzed the soil and determined that it was stable,Jurgensen states. Although the judge discounted Veith’s testimony because Veith’s soilsamples were taken from undisturbed soil, Jurgensen argues that this was necessary to gainknowledge of the type of soil Jurgensen encountered prior to the excavation. Also, thejudge found that the soil in the trench was unstable because it contained backfill fromthe 1955 excavation. However, Jurgensen contends, the backfill was required to becompacted by the State of Ohio, and Veith testified that backfilled soil may be compactedto essentially the same hardness as undisturbed ground.The Secretary argues that Table P-2, which follows paragraph (g) of section 1926.652, andwhich includes \”filled\” soil in a category with soft and sandy soils, indicatesthat backfilled soils are unstable soils. He contends that there is no question but thatthe soil in the trench was unstable, backfilled material. Both compliance officer Cannonand Jurgensen expert Veith provided reasons for concluding that the soil was unstable.Compliance officer Cannon testified that disturbed soil can never be compacted so that itwill \”join\” the side walls of an earlier excavation and regain its originalstrength. He also testified that the gravel put around the old pipe could \”simplycome out\” when the wall of the new trench reached that area and that this created anunstable situation. Jurgensen expert Veith agreed that the seam between backfill andundisturbed soil could be a weakness in soil.Further, as the judge found, the soil sample which expert Veith relied on to theorizethat a ten foot high wall of the trench could have stood up safely without support camefrom an area of undisturbed soil. Veith admitted that the soil sample was notrepresentative of the soil material in the backfilled area. Also, the Secretary contends,Veith’s testimony that the soil in the old trench could have been compacted to itsoriginal strength was conjecture, because neither he nor any other witness knew about thecompaction methods used in 1955.C. DiscussionThe west wall of the trench was dug in soil that had been excavated and backfilledwhen the old sanitary line was installed in 1955. The drain pipe Jurgensen was installingwas supposed to be only three feet away–and at the same level in the ground–as the pipeinstalled in 1955. The proximity of the two pipelines made it inevitable that the trenchwall between the two pipelines, the west wall of the Jurgensen trench, would containbackfill from the old trench. In fact, because the old pipe was not laid straight, thewest wall of the Jurgensen trench contained not just backfill from the old trench, but thegravel that had been placed around the old pipe, and the old pipe itself. The old pipebecame visible about 40 feet from the manhole–just five feet beyond where the trench hadcollapsed on Dixon. The issue is whether this wall consisted of soil that was\”unstable or soft\” within the meaning of section 1926.652(b). We conclude thatit was unstable within the meaning of the standard; we therefore need not determinewhether the soil was \”soft.\”The record in this case supports the judge’s finding that the backfilled soil in thewest wall of the trench was unstable. Compliance officer Cannon testified that once thebackfill in the east wall of the old trench was exposed by Jurgensen’s digging of the westwall of its trench, that soil would have \”no strength.\” Cannon also testifiedthat the gravel placed around the old pipe was a source of instability in the new trench,because the gravel could simply \”come out\” of the west wall of the Jurgensentrench where it was visible.[[3]] We agree with the judge’s reliance on this testimony. Aswe noted above, the compliance officer specialized in construction inspection and hadinspected about 300 trenches.Moreover, the Secretary’s trenching standards support the view that backfill can beunstable. For example, 29 C.F.R. ?? 1926.651(m) and 1926.652(e) indicate that backfilldoes not have the strength of undisturbed soil; the standards require that specialprecautions be taken 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 sides of excavationsadjacent to a previously backfilled excavation or a fill, particularly when the separationis less than the depth of the excavation. Particular attention also shall be paid tojoints and seams of 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 taken to prevent slidesor cave-ins when excavations or trenches are made in locations adjacent to backfilledexcavations, or where excavations are subjected to vibrations from railroad or highwaytraffic, the operation of machinery, or any other source.In Table P-2, which follows section 1926.652(g), where the minimum requirements forthe shoring of trenches are set forth, \”filled\” soil is equated with \”soft,sandy\” soil. Table P-2 also treats \”filled\” soil as a soil which requiresmore protection than even soil that is \”[l]ikely to crack.\” These provisions,however, do not preclude an employer from introducing evidence that the backfill is notsoft and unstable. However, Jurgensen has not made such a showing here.Although Veith testified that the undisturbed soil taken from his samples was verystable and could safely stand vertical to a height of ten feet, the undisturbed soil hetested was not representative of the backfilled soil in the west wall of the trench. Veithhimself acknowledged that the soil he tested was not representative of the soil in thewest wall of the Jurgensen trench if the west wall was made up of backfill from the 1955trench. It also does not avail Jurgensen that employees Dixon, and Jack and Stanley Harpertestified generally that the soil in the trench was good, solid dirt that appeared to besafe. We agree with the judge that the opinion of the experienced compliance officer, andthe presence of backfill and gravel, are entitled to more weight than the testimony of theemployees.[[4]] Finally, contrary to Jurgensen’s assertion, we do not give any weight tothe existence of an Ohio transportation department regulation requiring backfilled soil tobe compacted. Unlike Shane, Inc., 77 OSAHRC 37\/E11, 5 BNA OSHC 1217, 1219, 1977-78 CCHOSHD ? 21,694, p. 26,053 (No. 13136, 1977) (discussing section 1926.652(e)), there was noevidence that the soil actually had been compacted. Jurgensen knew even before it dug thistrench–and certainly after it began–that the soil had been disturbed. It, therefore,should have come forward with evidence of compaction at the hearing to rebut theSecretary’s showing of instability. It did not do so. Therefore, the Commission finds thatthe Secretary established Jurgensen violated section 1926.652(b).Was the Violation Repeated?Under Commission precedent,[a] violation is repeated. . .if, at the time of the alleged repeated violation,there was a Commission final order against the same employer for a substantially similarviolation.\u00a0 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 isestablished by a showing that the prior and present violations were for failure to complywith the same standard. If the standards were not the same, however, the Secretary mustpresent other evidence that the violations were substantially similar and in such casesevidence that the violations involved similar hazards is relevant. Id.On August 28, 1981, a one-item serious citation alleging the following violation wasissued to Jurgensen:29 CFR 1926.652(c): The side(s) of trench(s) in hard or compact soil, includingembankment(s), were not shored or otherwise supported when the trench was 5 feet or morein depth and 8 feet or more in length:Employees installing a sewer line along the north side of Crescentville Road west ofroute 747 in a trench 11′ long x 6′ wide x 7′ deep were not protected against hazardousground movement by shoring, sheeting, bracing, trench box, sloping or an equivalent typeprotection.Jurgensen contested the citation and another citation issued on the same day byletter dated September 28, 1981; the Commission docketed the case as No. 81-2285. On March25, 1982, Administrative Law Judge Edwin G. Salyers issued an order approving a settlementagreement which was signed for Jurgensen by a witness in the instant case–its safetydirector, Robert E. Zimmerman. The judge therefore affirmed the two citations as modifiedand assessed a penalty. He also issued a \”Notice of Decision\” in No. 81-2285stating that the case would become a final order on April 26, 1982, unless directed forreview.In the instant case, Judge Sparks stated he would take \”official notice of therecords of the Occupational Safety and Health Review Commission [in] Docket Number81-2285\” in receiving into evidence Jurgensen’s notice of contest, the settlementagreement of the parties, and Judge Salyers’ Notice of Decision and Order ApprovingSettlement.Judge Sparks found a repeated violation under Potlatch. He found that the prior andcurrent violations, although of different subsections of section 1926.652, weresubstantially similar because they both involved Jurgensen’s failure to protect itsemployees working on highway projects from the hazard of collapsing trenches and becausethe two different subsections were closely related.Jurgensen argues that to prove a repeated violation under Potlatch, the Secretary has toprove the existence of a prior final order and that the Secretary has never\”introduced the final order of the Commission.\” Jurgensen also argues that theprior and present violations were not factually similar and that the judge erred infinding the present violation was repeated because he failed to find that the presentviolation was \”serious.\”The Secretary contends that the judge properly took official notice that thesettlement agreement involving the earlier section 1926.652(c) violation had become afinal order. The Secretary also points out that Jurgensen did not affirmatively allege orattempt to prove that the 1981 citation had not become a final order. The Secretary alsocontends that the prior and current violations were substantially similar because bothinvolved employees exposed to the danger of cave-ins while working in inadequately sloped,inadequately protected trenches. As mentioned above, the Commission precedent for proof of a repeated violation isPotlatch. Potlatch has been followed by those courts of appeals that have examined it. SeeJ.L. Foti Construction Co. v. OSAHRC, 687 F.2d 853 (6th Cir. 1982); Willamette Iron &Steel Co. v. Secretary of 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). In Bunge Corp. v. Secretary of Labor, 638F.2d 831 (5th Cir. 1981), the Fifth Circuit noted its general agreement with Potlatch, butheld that the Secretary must also prove substantial similarity of violations when theprior and current violations are of the same standard. Further, the Potlatch test forproof of a repeated violation was, to a significant extent, derived from the decisions oftwo other circuits, the Fourth Circuit in George Hyman Construction Co. v. OSHRC, 582 F.2d834 (4th Cir. 1978), and the Ninth Circuit in Todd Shipyards Corp. v. Secretary of Labor,566 F.2d 1327 (9th Cir. 1977). Although panels of the Third Circuit have not followedPotlatch because they are required by circuit rule to follow a pre- Potlatch precedent,the Third Circuit has not examined the Potlatch test. See Jones & Laughlin Steel Corp.v. Marshall, 636 F.2d 32 (3d Cir. 1980), discussing Bethlehem Steel Corp. v. OSHRC, 540F.2d 157 (3d Cir. 1976). In light of this strong support for the Potlatch test, theprinciple of stare decisis applies with great force. We, therefore, will apply thePotlatch criteria in determining whether the violation in this case was repeated.Under Potlatch, the Secretary must prove the existence of a prior final order againstthe same employer for a substantially similar violation. Jurgensen’s main argument againstthe finding of a repeated violation is essentially that the Secretary never introducedinto evidence the prior final order of the Commission. The Secretary did, however,introduce exhibits which included the prior citation, and Administrative Law JudgeSalyers’ decision approving a settlement agreement in which Jurgensen withdrew its noticeof contest regarding the Secretary’s citation alleging a violation of section 1926.652(c).The Commission takes official notice, from our own records, that the aforementioneddecision of 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 settlementagreement became final order). Thus, at the time of the alleged section 1926.652(b)violation in this case, the earlier citation had become a final order of the Commission.Jurgensen contends that the prior and current citations were not substantially similar.Although the prior final order involved Jurgensen’s violation of section 1926.652(c) andthe present violation is of section 1926.652(b), the two violations were substantiallysimilar and involved similar hazards. As the Secretary has argued, the prior and currentviolations both involved the exposure of Jurgensen employees to the hazard of cave-inswhile working in inadequately sloped, inadequately protected trenches.[[6]] Therefore, theSecretary has established 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, 29U.S.C. ? 666(j), the Commission assesses a penalty of $1,100, rather than the $1600assessed by the judge. Jurgensen is a fairly large employer, with about 450 employees. Thegravity of the violation is moderately high because the unsupported trench presented adanger of cave-in. However, there is no indication of bad faith in Jurgensen’s incorrectassessment of the strength of the trench wall that collapsed. A measure of Jurgensen’sgood faith is demonstrated by the fact that it had a safety program and held weekly toolbox safety meetings. Further, although Jurgensen had violated the Act previously,Jurgensen had also been inspected by the Secretary on occasions when no violations hadbeen found.Accordingly, the Commission affirms the citation insofar as it alleges a repeatviolation of section 1926.652(b), and assesses a $1,100 penalty.FOR THE COMMISSIONRay H.Darling, Jr.Executive Secretary DATED: JUL 21 1986RADER, Commissioner, concurring:From my reading of the trial record it is a close question whether the Secretarycarried his burden of proof in this case. Certainly at the beginning of the trench Ibelieve Jurgensen was entitled to rely on the fact that the dirt was stable, and that thesloping or shoring requirements of section 1926.652(b) were not applicable. However, I ampersuaded to join the majority because as the trench was dug back the gravel fill from theold, adjacent trench became visible. At that point I believe Jurgensen was alerted to thenecessity of shoring or sloping the trench walls at a greater angle.BUCKLEY, Chairman, concurring:I agree with the lead opinion of Commissioner Wall that the Secretary provedJurgensen violated section 1926.652(b). I also concur with Commissioner Wall that theSecretary proved Jurgensen \”repeatedly\” violated the standard under theCommission’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 (6th Cir. 1982). I amuncomfortable with the Potlatch test, primarily because it appears to ignore the plainmeaning of \”repeatedly\” in permitting a finding that an employer repeatedlyviolated the Act after only a single prior violation of a substantially similar standard.However, I will apply Potlatch here and find that Jurgensen \”repeatedly\”violated the Act primarily because the Sixth Circuit has followed Potlatch and becauseJurgensen did not ask that the precedent be re-examined, although provided the opportunityto do so by the direction for review.I previously articulated my misgivings about the Potlatch test in New EnglandContainer Co., 85 OSAHRC ____, 12 BNA OSHC 1368, 1985 CCH OSHD ? 27,148 (No. 78-1539,1985). There I found it unnecessary to decide whether the Potlatch test was correct,particularly with respect to whether a single prior Commission final order is a sufficientbasis for characterizing a violation as one \”repeatedly\” done. I did state,however, that by authorizing a ten-fold increase in the potential penalty when theviolation is either willfully or repeatedly committed, \”Congress evidently intendedthat misconduct engaged in repeatedly was either circumstantial evidence of willfulness,or of itself was of a higher order requiring a greater deterrent penalty.\” NewEngland Container, 12 BNA OSHC at 1369, 1985 CCH OSHD at p. 35,044.The Third Circuit examined this issue in great detail in Bethlehem Steel Corp. v. OSHRC,540 F.2d 157 (3rd Cir. 1976). The court, using Webster’s Third Edition, painstakinglyanalyzed the difference between the word \”repeat\” and \”repeatedly\”,concluding that while \”repeat\” means \”more than once\”,\”repeatedly\” is the equivalent of \”often repeated.\” The court statedthat, \”[g]iven that the plain and ordinary meaning of the word ‘repeatedly’ is’constantly, frequently, occurring again and again’,. . .we do not believe that only twoviolations can ever form the basis of a ‘repeatedly’ violation within the meaning of [29U.S.C.] Section 666(a).\” 540 F.2d at 162 n.11. It held that \”a broadinterpretation of ‘repeatedly’ would ‘disrupt the graduations of penalties and violationsso carefully provided in the Act.\” 540 F.2d at 161. It quoted its earlier decision inFrank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), for this proposition:\”It is obvious from the size of the penalty that can be imposed. . .–ten times thatof a serious. . .[violation]–that Congress meant to deal with a more flagrant type ofconduct than that of a ‘serious’ violation.\” Bethlehem, 540 F.2d at 161.Before Potlatch, the Commission had held a number of views as to the meaning of\”repeatedly.\” In General Electric Co., 75 OSAHRC 50\/A2, 3 BNA OSHC 1031, 1042,1974-75 CCH OSHD ? 19,567, at pp. 23,367-68 (No. 2739, 1975), it had held that evidenceof intentional disregard or flouting of the Act was required. In Potlatch a majorityrejected that interpretation, which had been accepted by the Bethlehem court. It went onalso to reject the \”more than twice\” concept of Bethlehem and offered as theonly reason the \”common usage of the term ‘repeatedly’.\” Potlatch, 7 BNA OSHC at1064, 1979 CCH OSHD at p. 28,172. I respectfully submit that that is not the common usageof the term at all and that the Commission should reconsider this second holding ofPotlatch. As stated by former Commissioner Moran in his dissent in George HymanConstruction Co., 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\” asopposed to \”repeat.\” There is a significant distinction between the two.Webster’s Third New International Dictionary (Unabridged) defines \”repeat\” as\”to make or do or perform again.\” However, \”repeated\” is definedtherein 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 as to the reasonfor the addition of the term \”repeatedly\” to section 17(a), which committees inboth the House and Senate previously had limited to violations committed\”willfully.\” Congressman Steiger included the term in his comprehensivesubstitute that passed the House and neither he nor the conference committee offered anyinterpretation of it. Comm. on Labor & Public Welfare, Legislative History of theOccupational Safety and Health Act of 1970, 1103 (Comm. Print 1971). In the absence of anyindication that Congress was giving this term a meaning different than its usual andconventional sense as reflected in the cited dictionary definition, I cannot agree withPotlatch.It is clear, that when Congress wants to prescribe a substantial penalty when aperson commits only a second violation, it can express itself clearly on that point. SeeThe Horse Protection Act, 15 U.S.C. ?? 1825(a)(2)(A) (\”after one or moreconvictions. . .\”); The Wholesome Meat Act, 21 U.S.C. ?? 671 (\”has beenconvicted. . .of. . .more than one violation. . .\”); and The Controlled SubstancesAct 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. . .a person shall beconsidered convicted of a second or subsequent offense if, prior to the commission of suchoffense, one or more prior convictions. . .have become final.\”) In fact, the Senateversion of the Occupational Safety and Health Act would have provided increased criminalpenalties for the second conviction of a willful violation. Comm. on Labor & PublicWelfare, Legislative History of the Occupational Safety and Health Act of 1970, 566 (Comm.Print 1971). Therefore, since Congress knew how to specifically prescribe an enhancedpenalty for a mere second violation, I can not conclude that it intended to give the term\”repeatedly\” such a tortured interpretation.I acknowledge that a significant number of the other federal courts of appeals, as citedin Commissioner Wall’s lead opinion, have declined to follow Bethlehem. Most of thosecourts, however, have not focused their attention on Bethlehem’s analysis of the minimumnumber of prior violations necessary to constitute \”repeatedly\” violating theAct. Rather they have focused on Bethlehem’s requirement that flouting of the Act’srequirements must be proven and have rejected it, finding that a violation need not becommitted \”willfully\” to have been committed \”repeatedly.\” To theextent that they have even considered whether two previous violations must be proven, theyhave done so without setting forth an analysis comparable to that offered by the ThirdCircuit. See J.L. Foti Construction; Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d1327 (9th Cir. 1977).I agree with Judge Kennedy of the Ninth Circuit who, having considered this mattercarefully in his dissent in Todd Shipyards, 566 F.2d at 1327, concluded: If every second offender were a repeated violator it would make no sense for the statuteto direct that the history of violations be considered in assessing the relatively minorpenalties for single violations. . . The more stringent penalties prescribed by section666 are reserved for instances where an employer’s deliberate disregard of the Act may beinferred.While I believe Potlatch should be reexamined, Jurgenson has not requested it in thiscase, although provided the opportunity to do so by the direction for review. Nor does mycolleague believe that its reexamination here is appropriate, particularly in light of theSixth Circuit’s unexplained statement in J.L. Foti Construction, that \”repeatedlymeans, simply, occurring more than once.\” I would hope that when that court focuseson that question it will come to the same conclusion I have. However, for now, under thesecircumstances, I will follow Potlatch and J.L. Foti here and find Jurgensen had repeatedlyviolated section 1926.652(b).SECRETARY OF LABOR, Complainant, v.MARTIN WRIGHT ELECTRIC COMPANY Respondent.OSHRC DOCKET NO. 84-1115ORDER The parties’ Stipulation and Settlement Agreement as to the serious citation isapproved. The administrative law Judge’s decision is therefore set aside as to the seriouscitation alleging a violation of 29 C.F.R.?1926.500(d)(1). The settlement agreement makesno mention of the 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 COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY Dated: September 15, 1986WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.MARTIN WRIGHT ELECTRIC CO.,Respondent.OSHRC DOCKET No. 84-1115STIPULATIONS AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and complete settlement of the instant matterwhich is currently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter \”theCommission\”) has jurisdiction of this matter pursuant to section 10(c) of theOccupational 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 its place of businesslocated in San Antonio, Texas. It is engaged in the business its employees perform varioustasks in the nature of installing electrical equipment. During the course of its business,respondent uses materials and equipment which its receives from places located outside SanAntonio, Texas. Respondent, as a result of the aforesaid activities, is an employerengaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act,and has employees as defined by section 3(6) of the Act, and is subject to therequirements of the Act.(c) As a result of an inspection conducted on September 26, 1984, at respondent’sworkplace at the Carlyle condominium project, San Antonio, Texas, a citation alleging oneserious violation of the standard at 29 CFR 1926.500(d)(1), with a Proposed Penalty of$250.00 and a citation alleging one non-serious violation of 29 CFR 1926.400(h)(1), with,no Proposed Penalty, was issued to respondent on October 17, 1984 pursuant to section 9(a)of the Act.(d) Respondent submitted a notice of contest dated October 30, 1984, informing Complainantof its intention to contest the alleged violations and the Proposed Penalty. The notice ofcontest was received by the Austin, Texas Area Director, Occupational Safety and HealthAdministration, on November 1, 1984. Thereafter, the parties duly filed a complaint and ananswer.(e) On March 22, 1985, a hearing was held before Commission Administrative Law JudgeStanley M. Schwartz on respondent’s notice of contest. On June 27, 1985, Judge Schwartzissued his Decision and Order in which he affirmed the serious citation alleging aviolation of 29 CFR 1926.500(d)(1) and vacated the non-serious citation alleging aviolation of 29 CFR 1926.400(h)(1). The Judge also assessed a penalty of $75.00.Thereafter, respondent filed a timely Petition for Discretionary Review to the Commissionand on August 21, 1985, Commissioner Rader granted review of the issues raised inrespondent’s petition. The Commission issued a Briefing Notice on April 30, 1986.Respondent submitted its brief to the Commission on June 6, 1986.IIINow, the Secretary of Labor and Martin Wright Electric Co., in order to conclude thismatter 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 andthat the worksite at issues is no longer in existence.VThe Secretary hereby withdraws its Citation for alleged violation of 1926.500(d)(1), withprejudice, issued to respondent on October 17, 1984. The Secretary believes that thejudge’s decision was correctly decided. However, particularly in view of the fact that theworksite which was the subject of the citation is no longer active, the Secretaryhas determined that further litigation of this case is not merited. Accordingly, theSecretary requests the Commission set aside the judge’s decision.VIRespondent and Complainant agree that each party shall bear its own costs.VIIRespondent agrees to post this Stipulation and Settlement Agreement in accordance withCommission Rule 7.WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approvedby the Commission.ORLANDO J. PANNOCHIA Attorney for the Secretary of Labor.PAY SARY CHURAK, ESQ. Tom Jospeh, P.C. \u00a0The Administrative Law Judge decision in this matter is unavailable in thisformat. To obtain a copy of this document, please request one from our Public InformationOffice 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’s openingstatement, was that the trench was dug in hard or compact soil and that the wallstherefore had to be sloped only above the five-foot level as required by section1926.652(c). Jurgensen admitted, however, that the walls were not sloped from the bottom,and it further conceded that section 1926.652(b) requires that walls of trenches dug insoft or unstable soil be sloped from the bottom. Moreover, although there is conflictingevidence on the precise amount the walls were sloped, the record establishes that therewas no significant sloping below the five-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 sidewalls to eliminate sheer[sic] planning.\” Webster’s Third New International Dictionary (Unabridged) defines\”shear\” as \”a strain resulting from applied forces that cause or tend tocause contiguous parts of a body to slide relatively to each other in a direction parallelto their plane of contact, . . .\”[[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 finding that thesoil in the trench was unstable backfill because the Judge vacated an item referring tothe same trench in another citation which called for the taking of additional precautionsagainst cave-ins where trenches are dug adjacent to backfilled locations. However, thejudge did not vacate the other citation because the soil was hard or compact, but becausehe concluded there was no evidence of any additional protection required if a violation ofthe other standard were found. We do not find his decision inconsistent.[[5]] Under section 12(j) of the Act, 29 U.S.C. ? 561(j), a judge’s decisionbecomes a final order of the Commission thirty days after its issuance unless directed forreview by a member of the Commission. The judge’s decision approving the settlementagreement was not directed for review.Normally, where our decision relies on official notice of a material fact not ofrecord, we would offer the aggrieved party the opportunity, upon timely request, to showthat the fact noticed is erroneous. Anoplate Corp., 86 OSAHRC ____, \” 12 BNA OSHC1678, 1692, 1986 CCH OSHD ? 27,519, p. 35,690 (No. 80-4109, 1986), 5 U.S.C. ? 556(e). Inthis case, however, the judge stated he would take official notice of the pertinentCommission records, and he found that the previous citation had become a final order ofthe Commission. In arguing against this finding, Jurgensen has not attempted to show it iserroneous nor has Jurgensen requested an opportunity to submit evidence demonstrating itis erroneous. Under these circumstances, we think it unnecessary to offer Jurgensen afurther opportunity to rebut the noticed fact.[[6]] Jurgensen also contends that a repeated violation may not be found because thejudge did not specifically find that the violation was \”serious,\” only\”repeated.\” The contention lacks merit. Although the present violation was\”repeated\” and the prior violation \”serious,\” Potlatch does notrequire that a separate finding of serious be made in conjunction with the finding of arepeat violation. See Austin Road Co., 80 OSAHRC 76\/E11, 8 BNA OSHC 1916, 1918, 1980 CCHOSHD ? 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 and current violationsresulted in substantially similar hazards, not whether they both resulted in a likelihoodof death or serious physical harm).”