QUILLIAN PIPE COMPANY, INC.
OSHRC Docket Nos. 10803; 10804
Occupational Safety and Health Review Commission
March 16, 1977
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Charles M. Quillian, President, Quillian Pipe Company, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A decision of Review Commission Judge Paul L. Brady, dated October, 20, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). Review was directed on the following issue:
"Whether the violation of the Act for failure to comply with the standard at 29 C.F.R. § 1926.652(c) in Docket No. 10804 was 'willful' within the meaning of section 17(a) of the Act?"
We answer the above inquiry in the negative and affirm for the reasons set forth below.
At the time of inspection respondent was engaged in excavation for the purpose of installing a pipeline. The evidence establishes, and the Judge found, that respondent was in serious violation of 29 U.S.C. § 654(a)(2) for failing to comply with the occupational safety standard codified at 29 C.F.R. § 1926.652(c). The cited standard requires that trenches more than five feet in depth which are dug in hard or compact soil be shored, sloped, or otherwise supported to preclude [*2] collapse. Respondent's crench, which joined an excavation with sloped sides, was inadequately shored to meet the requirements of the cited standard. n1 The question before us is whether respondent's conduct in this matter can be properly characterized as willful, so as to impose the more burdensome penalty sanctions of 29 U.S.C. § 666(a). n2
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n1 The facts of record are more fully described in Judge Brady's decision, which is attached hereto as Appendix A. Chairman Barnako does not agree to this attachment.
n2 Section 17(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., 84 Stat. 1590.
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The Administrative Law Judge who heard and decided this case determined that the tests for willfulness set forth in both Secretary v. C.N. Flagg & Company, Inc., 11 OSAHRC 632 (1974), and Frank Irey, Jr. v. OSAHRC and Brennan, 519 F.2d 1200 (3d Cir. 1974), had not been met. Sebsequent to the time these cases were decided the Commission issued its decision in Secretary v. Graven Brothers [*3] and Company, OSAHRC Docket No. 2538, March 26, 1976, wherein we stated that willfulness connotes an act done voluntarily by respondent which either intentionally disregards a standard's requirements or demonstrates a plain indifference to the Act. The record before us fails to establish, by a preponderance of the evidence, either intentional disregard of, or plain indifference to, the safety requirements of the Act. n3
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n3 We note in this regard that respondent had installed a shoring system, albeit inadequate, in part of the trench, and had sloped the sides of the adjoining excavation for employee safety.
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The Administrative Law Judge's conclusion that the violation of 29 C.F.R. § 1926.652(c) was not willful n4 is supported by the record. His decision is therefore affirmed. It is so ordered.
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n4 His conclusion is apparently based, in part, on a finding that respondent believed it was in compliance. Credibility findings are properly left to the trial judge. Secretary v. Paul L. Heath d/b/a Paul L. Heath Contracting Co., 20 OSAHRC 297 (1975); Secretary v. Okland Construction Company, OSAHRC Docket No. 3395, February 20, 1976.
[*4]
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DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
I would conclude that the violation is "willful." Respondent's foreknowledge of its failure to comply with the standard at 29 CFR § 1926.652(c) requires this result. In other words, the violation was intentional. Both the majority and the Administrative Law Judge do not distinguish betwen intent and motivation.
On October 9 and 29, 1974, respondent was installing underground sewer and water pipelines along Broadway Street in Macon, Georgia. On the former date, the worksite was inspected by a compliance officer of the Occupational Safety and Health Administration. This resulted in respondent being issued two citations. One citation alleged a "serious" violation through noncompliance with the standard at 29 CFR § 1926.652(b). n5 The other citation alleged three nonserious violations through noncompliance with 29 CFR § 1926.651(i)(1), 652(h), and 650(f). n6
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n5 The citation alleged a failure to shore or brace a trench more than five feet deep.
n6 The citation alleged a failure to retain properly excavated material at least two feet from the edge of an excavation, a failure to provide a ladder within 25 feet of employees for exiting a trench, and a failure to instruct employees to wear a warning vest marked with high visability material while directing traffic.
[*5]
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Upon completion of the inspection, the compliance officer discussed with respondent's president, Mr. Charles Quillian, the conditions observed, the hazards involved, and methods of abatement. The compliance officer also showed Mr. Quillian a copy of the trench and shoring standards and underlined the sections that he considered particularly relevant to pipeline construction. n7
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n7 There is evidence to indicate that the compliance officer gave Mr. Quillian a copy of the applicable regulations.
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On October 18, 1974, at respondent's request, an informal conference was held between Mr. Quillian and the OSHA area director for the purpose of discussing the citations and the proposed penalties. At this time, the trenching and shoring standards were again explained to Mr. Quillian.
At a follow-up inspection on October 29, 1974, the compliance officer observed several employees working in a trench 7 1/2 to 10 feet deep that was neither adequately [*6] sloped nor shored. Mr. Quillian was observed operating a backhoe working in conjunction with them. As a result, respondent was issued a third citation that alleged a "willful" and "serious" violation of 29 CFR § 1926.652(c) n8 for failure to shore the sides of the trench.
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n8 The standard states in pertinent part:
§ 1926.652 Specific trenching equirements.
* * *
(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
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At the consolidated hearing, n9 respondent argued that it was in compliance with § 1926.652(c) since the employees observed in the trench were protected by [*7] either sloping or shoring.
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n9 Respondent did not contest the citations that were issued as a result of the initial inspection. It did, however, contest the amount of the penalty proposed by the Secretary for those violations. It also contested both the citation and the proposed penalty that resulted from the follow-up inspection.
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The majority concludes that the Administrative Law Judge found respondent believed that it was in actual compliance with § 1926.652(c). There is certainly no express finding to this effect, and whether the finding should be implied is doubtful. The Judge merely affirmed the citation as "serious" by noting that there was "ample evidence" that the employees were working in an unprotected section of the trench. Also, he vacated the allegation of willfulness by holding summarily that the Secretary failed to meet his burden of proof on the allegation.
In affirming the vacation of a "willful" violation, the majority also concludes the following:
Respondent had installed a shoring system, [*8] albeit inadequate, in part of the trench, and had sloped the sides of the adjoining excavation for employee safety.
supra at 2.
In my view the record does not support this conclusion. Respondent installed only a single component n10 of a shoring system, not a shoring system, that was in least 5 feet away from the employees in the trench. Additionally, this component only braced the upper half of the trench walls thereby leaving the lower half completely unshored. Thus, to refer to this component as "inadequate" and as a "system" overstates its significance. Actually, this shoring was of no value to the employees in the trench. Mr. Quillian testified that the sloping of the adjoining excavation was not prompted by concern for employee safety. He stated:
A. Because of the length of time sometimes it's as much as a week or week and a half before I get my brick masons in to build these boxes. I don't want to take the risk of them collapsing off and filling full of dirt and then have to go go back and get work done over again.
Q. In other words, it if rained between the time you dug it out and the time you laid the brick if you didn't have it sloped out it would fill up [*9] with dirt?
A. That's right. n11
Also, the photographic exhibits, at best, indicate that only two sides of the adjoining excavation were sloped.
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n10 The component consisted of a single trench jack extended to hold one 3/4" piece of plywood against each side of the trench.
n11 Transcript at 54.
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In sum, despite foreknowledge of the requirements of the standard and methods of compliance, respondent exposed its employees to a condition in violation of that standard without any appreciable effort to comply. Clearly, such conduct satisfies the Graven Brothers test of willfulness. Accord Western Waterproofing Co., Inc., No. 9225, February 24, 1977. n12
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n12 Compare Williams Enterprises, Inc., BNA 4 OSHC 1663, 1668, 1976-77 CCH OSHD para. 21,071, 25,362 (No. 4533, 1976).
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APPENDIX A
DECISION
Edwin A. Hernandez, Office of the Solicitor, [*10] on behalf of complainant
Edward J. Harrell, on behalf of respondent
STATEMENT OF CASE
BRADY, Judge: These proceedings are brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the Act) to contest the penalties proposed in Docket No. 10803, and the citation and proposed penalty in Docket No. 10804, which were issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The Secretary alleges that as a result of certain inspections of the respondent's workplaces in Macon, Georgia, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof.
The hearing in the foregoing dockets was held March 12, 1975, at Macon, Georgia, and no additional perties sought to intervene.
The evidence is undisputed that at the time of the inspections herein on October 9, and October 29, 1974, Quillian Pipe Company, Inc., ws engaged in the construction business as a contractor in the installation of underground pipelines along Broadway Street, [*11] Macon, Georgia.
Further, Mr. Charles Quillian, president and operating manager of respondent, personally participated in the trenching operations involved herein. Equipment used in respondent's operations included a crawler backhoe weighing approximately 18 tons, and a loader which weighs approximately 10 tons. The backhoe is used to dig trenches and place the pipe in position for installation. The depth of the trench at the time of the first inspection on October 9, 1974, at Broadway near Chatham Street, was approximately 7 feet. At the time of the second inspection on October 29, 1974, the depth of the trench, at Broadway near Burke Street, was approximately 8 feet. The width of the trenches involved measured approximately 4 1/2 feet at the bottom.
DOCKET NO. 10803
Under section 10(c) of the Act the Commission is charged with affirming, modifying, or vacating penalties proposed by the Secretary. In determining an appropriate penalty, the Commission under section 17(j) of the Act is expressly required to give "due consideration" to the size of the employers business, gravity of the violation, good faith of the employer, and history of previous violations.
In Secretary [*12] v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972) the Commission pointed out that the four criteria provided under section 17(j) cannot always be given equal weight, however, it was indicated that the principal factor to be considered is the gravity of the offense. The Commission stated in Secretary v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), rev'd on another issue 489 F.2d 1257 (D.C. Cir., 1973) that the elements to be considered in determining the gravity of a violation are: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury. Weighing all the foregoing factors in light of the circumstances, it is concluded that the penalty proposed for violation of the standard at 29 C.F.R. 1926.652(b) is not reasonable based on the facts of this record.
In considering the factor of gravity there is no dispute that the number of employees working in the trench varied from two to three, and the soil present was a type of clay. The testimony indicated that immediately upon digging the trench, the pipe [*13] was installed and at least two of the employees worked while standing on top of the pipe at a depth less than five feet (Tr. 42). Although complainant maintains that the trench was not adequately sloped in unstable soil, respondent's testimony indicates that the sides of the trench were sloped to protect the employees working within them (Tr. 41, 196, 209, 216).
Also, in considering the factor of gravity the effect of the stability of the soil is of major importance. Mr. Matthew Henry, compliance officer, testified that the soil was unstable because it was not virgin soil and it was subjected to vibrations from moving vehicles, and pressure from structures in the vicinity (Tr. 104). An opposite view was taken by Mr. Monroe Hicks an employee who often operated the backhoe. He testified that the soil was "real solid", and he had detected no vibration while he was digging, or working in the trench (Tr. 178, 186). He also indicated that he had been instructed by Mr. Quillian to slope the trench while digging with the backhoe (Tr. 179). Mr. James Hicks, another employee, testified that the soil was "real hard stuff" which did not crumble, and he felt that there was no danger of [*14] cave-in (Tr. 194). Mr. Andrew Taylor, another employee, who worked in the trench, stated that it was sloped, and he felt safe as the soil was very hard (Tr. 211). Mr. Jimmy Jackson, a former employee, testified that he was working in the trench, and it was being sloped at the time of the inspection. He stated that the soil was not crumbly or unstable and not the type to cave-in (Tr. 213). This view was shared by Mr. Larry Smith, a former employee, who indicated that he worked in the trench at the time of the inspection and efforts were being made to slope it during that period. He did not find the soil to be loose, and he was not afraid of a cave-in (Tr. 220-222). Mr. Quillian further testfied that the area in which they were digging was a controlled field area on the highway right-of-way, which has a minimum of 95 percent density compaction, and sometimes replaces soil more firmly than in its original state (Tr. 225).
In view of the foregoing testimony with reference to the violation, and upon full consideration of the other factors in determining penalties, a penalty in the amount of $100 is reasonable and appropriate under the circumstances of this case.
The evidence submitted [*15] by the Secretary indicates that ample consideration had been given to the four criteria set forth under section 17(j) of the Act, and therefore, the proposed penalty for violation of the standard at 29 C.F.R. 1926.651(i)(1) in the amount of $95 is deemed reasonable and appropriate. The record does not indicate that the gravity factor was fully considered in determining the proposed penalty for violation of the standard at 29 C.F.R. 1926.652(h). The testimony shows that a ladder had been in use during the trenching operation, but was removed upon installation of the pipe (Tr. 21, 180, 195). Also in view of the amount of work performed on top of the pipe, which provided a means of exit, a penalty in the amount of $50 is deemed reasonable and appropriate under the circumstances.
DOCKET NO. 10804
As a result of the inspection on October 29, 1974, respondent was issued a citation for an alleged willful serious violation of the standard at 29 C.F.R. 1926.652(c). The standard provides in pertinent part as follows:
"Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than five feet in depth and eight feet [*16] or more in length. In lieu of shoring, the sides of the trench above the five-foot level may be sloped to prevent collapse . . ."
The alleged violation is described in the citation as:
"Employer willfully failed to shore sides of trench in hard or compact soil. Trench was more than five feet in depth and eight feet or more in length."
Mr. Henry, who also conducted the inspection on October 29, 1974, testified that three employees were working in the trench which was L shaped and measured over ten feet in depth. Also, he observed employees working in the trench approximately four or five feet away from a portion of a shoring system which had been erected (Tr. 86, 88).
Mr. Henry stated that specific hazards were involved due to the vibrations which were caused by vehicular traffic, and in view of the overall circumstances he recommended a willful serious violation of the standard (Tr. 92, 93). He stated the soil in the area was apparently of a virgin type and therefore it was termed as hard and compact (Tr. 105).
Mr. Henry acknowledged that there was a large hole at the end of the trench where employees were working as depicted in exhibits 15 and 19 (Tr. 122, 124). He indicated [*17] that respondent's employees were working away from the shoring component and also out of the larger open area previously referred to (Ex. 18, Tr. 128). It was Mr. Henry's contnetion that the trench jack provided no protection for the employees in the trench at the time of the inspection (Tr. 139).
Mr. Wilbur Turner, compliance officer, testified that he accompanied Mr. Henry on the aforesaid inpsection. He indicated that the shoring provided was only a segment of a proper shoring system, and that more jacks and sections were required in order for it to be acceptable (Tr. 237). He further indicated that the shoring present did not extend to the open area but was back approximately five or six feet in the trench (Tr. 239, Ex. 19).
Mr. Alcide King, Area Director, testified with reference to a meeting he had with Mr. Quillian, wherein various aspects of the October 9 inspection were discussed, including procedure, penalties, and abatement of the conditions found to exist (Tr. 151). He stated that he made the final determination as to the issuance of the willful serious citation (Tr. 152). Also, he indicated that an unadjusted penalty for a willful violation could be up to $10,000, [*18] however, he considered an unadjusted penalty of $3,000 reasonable in this case. Under the circumstances no adjustment was allowed for good faith, ten percent was granted for size and twenty percent for previous history, in arriving at the proposed penalty in the amount of $2,100 (Tr. 155). Mr. King revealed that the shoring found to be present was considered prior to issuing the citation (Tr. 161). The issuance of the citation, however, was based primarily on Mr. Quillian's knowledge of the standards involved, in addition to the conditions found to exist at the time of the second inspection. It was contended that he had knowingly failed to provide shoring or sloping, and had done nothing to correct his trenching operation (Tr. 171, 172).
Mr. Quillian testified that at the time of the inspection the employees were working in an area almost under the hydraulic jack (Tr. 37). He indicated that work was being performed in the trench where it joined an open area which had been dug for a catch basin. The area that had been dug for such basin measured approximately eight or nine feet square (Tr. 45). Also, the sides of the excavated area were especially sloped in order to prevent [*19] slides and filling in the event of rain prior to commencement of the brick work (Tr. 54).
There is no dispute as to the depth of the trench, and that its length exceeded eight feet. The nature of the soil involved is not in dispute, nor is it controverted that at the time of the inspection the employees were working in an area where the trench joined an excavation, which had been dug for the purpose of constructing a catch basin. Also, respondent admits that the trench was not sloped.
Although the record contains considerable testimony regarding the type of shoring utilized by the respondent, it must be held that the complainant failed to establish that respondent willfully failed to shore the sides of the trench as alleged. In Secretary v. C.N. Flagg and Company, Inc., 11 OSAHRC 632, 634 (1974), the Commission agreed that in a civil sense "willful" meant:
". . . [I]ntentional, knowing, or voluntary as distinquished from accidental conduct and may be characterized as conduct marked by careless disregard. . . ."
In Frank Irey, Jr., Inc., v. Occupational Safety and Health Review Commission, No. 73-1765, (3rd Circuit, November 4, 1974), it was stated that:
". [*20] . . Willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. Willful means more than merely voluntary action or omission - it involves an element of obstinate refusal to comply."
The evidence reveals that respondent was sufficiently aware of the standard involved, however the evidence falls drastically short of establishing that respondent's level of conduct was of a "willful" nature as defined above. While complainant asserts that respondent's knowledge and ensuing conduct constituted a willful violation, respondent contends that it was in compliance with the standard.
Respondent maintains that the employees were working in the trench where the shoring had been provided close to a sloped excavated area which had been opened for a catch basin. There is ample evidence, however, which shows that the employees in the trench were not working within the shoring provided and not working in the open excavated area. Exhibit numbers 15 and 18 specifically indicated such exposure. It therefore must be held that the respondent committed a serious violation in view of the depth of the trench. [*21]
Upon full consideration of the criteria for determining a reasonable penalty, a penalty in the amount of $200 is deemed reasonable and appropriate.
At the time of filing its brief herein the respondent also filed a motion for directed verdict. The basis of said motion is that the standard at 29 C.F.R. 1926.652(c) is so vague the respondent could not determine what was required in order to comply therewith.
The foregoing standard is enforceable and not unduly vague as the courts recognize that if a regulation affords a reasonable warning of the conduct proscribed, in light of common understanding and practices, the test of vagueness has been met. Ryder Truck Lines, Inc., v. Brennan, 497 F.2d 230 (5th Cir. 1974).
FINDINGS OF FACT
1. Quillian Pipe Company, Inc., is a corporation having a place of business and doing business among other places at 5854 Columbus Road, Macon, Georgia, wherein it is engaged in the utility construction business as a contractor in the installation of pipelines.
2. On October 9, 1974, and October 29, 1974, respondent was engaged in the excavation of soil and the installation of pipeline at or near Broadway Street, in Macon, Georgia.
3. [*22] That on October 9, 1974, and October 29, 1974, authorized representatives of the Secretary conducted inspections of respondent's workplaces at Broadway Street, near Chatham Street, and Broadway Street near Burke Street, in the city of Macon, Georgia.
As a result of such inspections on October 9, 1974, two citations were issued respondent, and on October 29, 1974, respondent was issued one willful serious citation. Notice of proposed penalties were issued with the citations.
4. On October 9, 1974, the trench was approximately 7 feet in depth and 4 1/2 feet in width at the bottom. On October 29, 1974, the trench measured approximately 8 feet in depth and 4 1/2 feet in width at the bottom. During the trenching operation there was no evidence of the soil sliding.
5. Immediately upon digging the trench, 24 inch pipe, in 8 foot sections, was installed therein.
6. Ladders were used in the trenching operation, however, they were removed from the trench upon lowering the pipe in place for installation.
7. The proposed penalty in the amount of $500 for violation of the standard at 29 C.F.R. 1926.652(b) is found to be unreasonable, and a penalty in the amount of $100 is deemed appropriate. [*23]
8. The proposed penalty in the amount of $95 for violation of the standard at 29 C.F.R. 1926.651(i)(1) is deemed reasonable and appropriate.
9. The proposed penalty in the amount of $95 for violation of the standard at 29 C.F.R. 1926.652(h) is unreasonable and a penalty in the amount of $50 is deemed appropriate.
10. The proposed penalty for violation of the standard at 29 C.F.R. 1926.652(c) is found to be unreasonable and a penalty in the amount of $200 is deemed appropriate. Said violation is found to be of a serious nature.
CONCLUSION OF LAW
1. Quillian Pipe Company, Inc., at all times pertinent hereto, was an employer engaged in a business effecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties in the subject matter herein, pursuant to section 10(c) of the Act.
2. Respondent is and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.
3. On October 29, 1974, the respondent was in violation of the standard at 29 C.F.R. 1926.652(c). The violation was not "willful" but [*24] constituted a serious violation within the meaning of section 17(k) of the Act.
4. Respondent failed to comply with the above regulation thereby violating section 5(a)(2) of the Act.
On the basis of the foregoing findings of facts and conclusions of law, and the entire record, it is
ORDERED:
(1) Respondent's motion for directed verdict is hereby denied.
(2) The proposed penalty for violation of the standard at 29 C.F.R. 1926.652(b) is hereby modified and a penalty in the amount of $100 is assessed.
(3) The proposed penalty for violation of the standard at 29 C.F.R. 1926.651(i)(1) is hereby affirmed.
(4) The proposed penalty for violation of standard at 29 C.F.R. 1926.652(h) is hereby modified and a penalty in the amount of $50 is assessed.
(5) The citation issued for the willful serious violation of the standard at 29 C.F.R. 1926.652(c) and the penalty proposed therefore are hereby modified, and that part of the citation alleging serious violation of the standard is affirmed and a penalty in the amount of $200 is assessed.
Dated this 20th day of October, 1975.
PAUL L. BRADY, Judge