“SECRETARY OF LABOR ,Complainant,v.THE HORVITZ COMPANY,Respondent.OSHRC Docket No. 81-0992_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:A decision of former Administrative Law Judge Jess D. Ewing is beforethe Commission under 29 U.S.C. ? 661(i). The Horvitz Company wasinstalling and constructing sewers and catch basins at a worksite inCleveland Heights, Ohio. It had excavated a cavity that wasapproximately seven feet deep, nine feet wide and thirteen feet long. The employer was issued a citation alleging a serious violation of thetrenching standard at 29 C.F.R. ? 1926.652(c). Before the hearing, theSecretary of Labor moved to amend the citation to alternatively allege aviolation of the excavation standard at 29 C.F.R. ? 1926.651(c) in thatthe excavation was not shored or otherwise protected against the dangerof \”moving ground.\” The motion to amend was granted by the judge overthe employer’s objection. After a hearing, the judge found a seriousviolation of section 1926.651(c). On review, the employer argues thatthe judge erred in allowing the pre-hearing amendment and affirming thecitation. We have examined the entire record and find no prejudicialerror in the judge’s decision. Accordingly, the judge’s decision isaffirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 30 1984ROWLAND, Chairman, Dissenting:I agree that the judge did not err in granting the Secretary’s motionfor a prehearing amendment,[[1]] but I conclude that the Secretary didnot by a preponderance of the evidence establish a violation of 29C.F.R. ? 1926.651(c). Therefore, I dissent from the majority’s decisionto affirm the judge.The standard at issue, section 1926.651(c),[[2]] requires that \”[t]hewalls and faces of all excavations in which employees are exposed todanger from moving ground shall be guarded by a shoring system, slopingof the ground, or some other equivalent means.\” In interpreting thisstandard, the Commission has previously held that it requires specificproof by the Secretary of employee exposure to a danger from movingground. _Pipe-Rite Utilities, Ltd._, 82 OSAHRC 3\/B1, 10 BNA OSHC 1289,1982 CCH OSHD ? 25,877 (No. 79-234, 1982). The determination of whethersuch a danger exists is a factual matter requiring consideration andevaluation of all the conditions at the worksite including any experttestimony. _Seaward Construction Co_., 77 OSAHRC 75\/C5, 5 BNA OSHC1422, 1977-78 CCH OSHD ? 21,803 (No. 8684, 1977).In this case, the judge credited the compliance officer’s testimony thatthe soil was clay and clay loam over the testimony of Respondent’ssuperintendent that the excavation was dug in rock. He further foundfrom the compliance officer’s testimony that clay soil tends to losestability when exposed to air due to loss of moisture and that vibrationfrom construction equipment and other traffic was a special circumstancesufficient to cause a danger from moving ground within the meaning ofthe standard. In my view, while the judge properly recognized theSecretary’s burden to show a danger from moving ground based on theparticular conditions and circumstances existing at the worksite inquestion, he did not give proper consideration to Respondent’s testimonyregarding the composition of the soil. In addition, his finding on thedanger presented by construction and other vehicles operating adjacentto the excavation is based on unsupported opinion testimony showing onlya possibility of a hazard, which in my view is insufficient to satisfythe Secretary’s burden of proof.The compliance officer, Hutchison, took no soil samples and made notests. His conclusion that the soil was clay and clay loam was basedsolely on visual observation of the excavation. The record shows thatother than two days’ training as a compliance officer, Hutchison’s onlyeducation in recognizing soil type was what he characterized as\”non-formal\” training by persons in the construction industry, whoshowed him various types of soils. Prior to his employment as acompliance officer, his experience with determining soil type consistedof estimating the nature of soil for purposes of measuring its volume incut-and-fill work. As a compliance officer, he had inspected three clayexcavations and one clay backfill excavation in the northeast Ohio area,where the alleged violation at issue here occurred.In contrast, Respondent presented as a witness its superintendent,Carpenter, who had been with Horvitz over 30 years, has a degree incivil engineering, and had been a registered engineer in Ohio for 26years. Carpenter testified from his personal knowledge of theexcavation that it was dug primarily in rock, with an upper layer ofshale mixed with soil. He stated that it had been very difficult to digthe excavation, and that jackhammers had had to be used extensively. Hefurther indicated that his characterization of the material as rock wasconsistent with the configuration of an existing pipe in theexcavation.[[3]]The judge, recognizing the conflict between the witnesses regarding thecomposition of the excavation, found Hutchison’s testimony more credibleon the basis that it was consistent with photographs taken during theinspection showing one wall of the excavation. The judge made thisfinding despite Carpenter’s specific testimony that the lower five feetof the wall shown in the photographs consisted of rock with a facing oroverlay of dirt. The judge also did not mention Carpenter’s opinionthat based on his knowledge of soil determination it would not bepossible to ascertain whether a material is clay by visual observationalone, and that normally tests would be performed to identify soilmaterial by its particle size. Thus, not only did the judge merely relyon the photographs without explaining how they supported the complianceofficer’s testimony, but the judge made no findings as to whether claycan be detected by visual observation alone. Nor, assuming suchdetection is possible, did the judge make any findings as to whether thephotographs accurately presented the actual conditions in the excavation.The Commission requires that a judge’s credibility finding be made inthe light of, and give consideration to, the entire record, as well asresolve important subsidiary factual issues. The Commission need notdefer to a credibility finding by a judge that does not meet thesecriteria. _C. Kaufman, Inc._, 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1298,1977-78 CCH OSHD ? 22,481, pp. 29,099-100 (No. 14249, 1978). It isobvious that the judge’s credibility finding in favor of the Secretaryin this case is seriously deficient. Not only did the judge leaveunresolved important factual issues raised by the testimony, but hefailed to state any reasons for declining to credit Carpenter’stestimony regarding the inadequacy of visual observation in thecircumstances presented here, despite the fact that Carpenter’stestimony on these matters was unrebutted and uncontradicted. Accordingly, the Commission errs in accepting the judge’s credibilityfindings. _See_ _P & Z Co_., 77 OSAHRC 211\/F5, 6 BNA OSHC 1189, 1192,1977-78 CCH OSHD ? 22,413, p. 27,024 (No. 76-431, 1977). In view ofCarpenter’s professional qualifications, his extensive experience withexcavation work, his personal knowledge of the excavation in question,and the fact that his opinion is consistent with the location of theexisting sewer pipe within the excavation, I would conclude that histestimony of the composition of the excavation is entitled toweight.[[4]] _See_ my dissenting opinion in _Kelly Springfield TireCo_., 82 OSAHRC 47\/B6, 10 BNA OSHC 1970, 1975, 1982 CCH OSHD ? 26,223,p. 33,115, (No. 78-4555, 1982), _petition for review filed_, No. 82-4389(5th Cir. Oct. 6, 1982).The record further shows that the worksite in question was located alongthe northern side of a four-lane divided highway. At the time of theinspection all regular vehicular traffic in both directions wasrestricted to the two southern lanes, with the northern traffic lanesreserved for the use of construction equipment. A fairly wide bermseparated the two pairs of traffic lanes such that, as shown by ablueprint admitted into evidence, the southernmost traffic lanes were ata minimum distance of approximately sixty feet from the excavation. According to Hutchison, he observed several medium-sized trucks and a\”fair amount\” of automobile traffic on the south roadway, and he statedthat a front-end loader and two trucks moved back and forth along theroadway between five and seven feet from the southern edge of theexcavation. Hutchison gave his opinion that because of vibration fromthe construction equipment and the vehicle traffic it would be\”possible\” that a \”piece\” of the excavation wall might become dislodged.Hutchison’s testimony indicates that he did not consider a collapse ofthe entire wall of the excavation even to be a possibility. Furthermore,his concern that a piece might fall was limited to the north wall of theexcavation, that is, the side furthest from the roadway.[[5]] Considering that the excavation was nine feet in width, the constructionequipment then could not have been any closer to the north wall thanfourteen feet. Furthermore, Hutchison conceded that the speed of themoving equipment might have an effect on the danger from vibration, butsaid he could not be sure of its effect. He stated that the speed ofthe construction vehicles was very slow and did not indicate the speedof the traffic passing along the southernmost lanes further distant fromthe excavation. Nor did he state how frequently or, indeed, how manytimes the construction equipment moved past the excavation. Finally, hedid not observe any ground move during the inspection, and the recorddoes not indicate that he actually felt any vibration while he waspresent on the jobsite.[[6]]In my view, in order to establish a violation of a standard such as theone at issue here, which requires proof that a hazardous conditionexists, the Secretary must present more substantial evidence than a mereunsupported opinion that the hazard could occur. _See_ _Snyder WellServicing, Inc._, 82 OSAHRC 10\/C5, 10 BNA OSHC 1371, 1380, 1982 CCH OSHD? 25,943, p. 32,515 (No. 77-1334, 1982) (concurring and dissentingopinion). In this case, the compliance officer was not shown to havehad any expertise or familiarity with vibration from equipment at trenchor excavation worksites. There is no indication that his opinion thata hazard of moving ground could exist was based on any consideration ofthe distance of the construction equipment and other traffic from theexcavation or the speed and frequency of movement of those vehicles. On this record, his opinion clearly is utterly speculativeand, as such, is not entitled to dispositive weight. _H.E. Weise,Inc._, 82 OSAHRC 18\/A2, 10 BNA OSHC 1499, 1510-11, 1982 CCH OSHD ?25,985, pp. 32,618-19 (No. 78-204, 1982) (dissenting opinion).Furthermore, Hutchison’s testimony does not establish that a danger frommoving ground would have existed at any time that an employee wasworking within the excavation,[[7]] nor does it show that the employeein the excavation would necessarily have been endangered by the movementof simply a \”piece\” of the excavation wall, as described byHutchison.[[8]] Therefore, the citation should also be vacated forfailure to show employee exposure to moving ground, as required by theterms of the standard.————————————————————————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]] The Secretary filed his motion to amend approximately one weekafter Respondent, in a discussion between counsel, asserted that thewrong standard had been cited. The filing date also was two days afterthe judge ordered a continuance due to the unavailability of thecompliance officer to testify, and it appears Respondent received themotion two weeks prior to the rescheduled hearing date. As I stated inmy dissenting opinion in _United Cotton Goods, Inc_., 82 OSAHRC 8\/A2, 10BNA OSHC 1389, 1982 CCH OSHD ? 25,928, (No. 77-1894, 1982), leave toamend under Federal Rule of Civil Procedure 15(a) is within thediscretion of the trial judge, and may be denied for undue orunjustified delay where the movant had sufficient prior opportunity toamend. In the circumstances of this case, it cannot be said that theSecretary acted with undue delay, and, therefore, the judge did notabuse his discretion in allowing the amendment.Respondent, however, also contends that it was engaged in settlementnegotiations with the Secretary, and to allow the Secretary’s pretrialmotion to amend would frustrate the settlement process. The Secretary,however, would not have been precluded from citing both standards in thealternative in the first instance. Furthermore, the Commission haspreviously held that in situations where a challenge is made to theapplicability of the cited standard, the preferred practice is that theSecretary make a timely motion to amend to alternatively allege aviolation of another arguably applicable standard so as to afford thejudge the opportunity to consider the issues presented. _J.L. MantaPlant Services Co_., 82 OSAHRC 61\/A2, 10 BNA OSHC 2162, 1982 CCH OSHD ?26,303 (No. 78-4923, 1982).[[2]] The judge found this standard more appropriate than the trenchstandard originally cited, section 1926.652(c). Neither party tookexception to this finding, and review was not directed on any issuerelating to the applicability of the excavation standard.[[3]] Carpenter explained that Respondent was installing new catchbasins in several locations along a roadway to join with an existingoutlet sewer pipe. At some point during this work, the rock layer wasencountered. Because of the resistant nature of the rock layer, theexisting sewer pipe had been installed at a shallower depth than atthose locations where there was no rock. At the location at issue inthis case, it had been necessary for Respondent to install a brickfoundation to bring the catch basin up to the level of the pipe.[[4]] I note that the judge did not purport to discredit Carpenter onthose factors such as demeanor, memory, perception, or narration, thatare most effectively analyzed by the trier of fact. _Asplundh TreeExpert Co_., 79 OSAHRC 109\/A2, 7 BNA OSHC 2074, 2078 (No. 16162, 1979).[[5]] Hutchison explained that the south wall of the excavation, theside closest to the roadway, was sloped. The judge erroneously foundthat none of the sides of the excavation was shored or sloped.[[6]] He stated that he had inspected other worksites where pieces of awall rather than the entire wall had collapsed. However, he specifiedno details from which we could conclude that conditions on those otherworksites were in any way similar to those presented here.[[7]] On review, Respondent contends that the judge erred in findingthat an employee had been working in the excavation. While Hutchisondid not observe anyone in the excavation, I agree with the judge thatthe record does establish that an employee had been in the excavationdoing masonry work at some time prior to Hutchison’s observation. Itappears that this employee had taken no more than one hour to performthis work.[[8]] Indeed, Hutchison characterized the conditions as showing a\”potential hazard.\””