ABLE CONTRACTORS, INC.
OSHRC Docket No. 12931
Occupational Safety and Health Review Commission
October 13, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Henry Mahlman, Associate Regional Solicitor, U.S. Department of Labor
Charles E. Snyder, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issues are whether Administrative Law Judge John J. Morris erred in concluding that (1) Respondent's violation of 29 C.F.R. 1926.652(b) was not willful in nature as alleged, (2) the violation was serious in nature, (3) Respondent also violated 29 C.F.R. 1926.28(a), and (4) the inspection that resulted in this proceeding was conducted in conformity with the provisions of the Occupational Safety and health Act of 1970, 29 U.S.C. 651 et seq., "the Act." n1 We reverse and remand for further proceedings.
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n1 The first issue is before us because Chairman Cleary granted Complainant's petition for review of the judge's disposition of the willful allegation. In addition, former Commissioner Moran directed that the judge's decision be reviewed "for error," and Respondent filed exceptions to the judge's findings and conclusions on the other issues. Paragraph 2 of the Commission's Policy Statement, 41 Fed. Reg. 53015 (1976), requires us to consider Respondent's arguments.
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Alleged Violation of 29 C.F.R. 1926.652(b) n2
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n2 The standard requires:
Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.
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Respondent was excavating a trench within a public road in Billings, Montana, to remove an existing sewer line for replacement with a larger line. When inspector James Wilson observed the trench, Respondent's employees were closing it for the day, which required that the remaining old sewer line be connected to the new line to allow discharge of the effluent which had been accumulating during the interruption of the line. While Respondent's backhoe was clearing an area for the connection, one employee, Daniel Wittmer, was in the trench preparing to make the connection. Thereafter the trench was to be backfilled and the road reopened to traffic [*3] for the evening as required by local authorities.
At the time of the inspection the trench was between 6 and 7 feet wide at the top, 46 inches wide at the bottom, n3 and approximately 12 feet deep. Wilson estimated its slope at 1 to 12 on the west side and 2 to 12 on the east side. The trench was not shored. A concrete telephone conduit, between 2 and 4 feet in depth and width and varying from 24 to 36 inches below the pavement, was exposed along the east side. A 6-inch gas main and a telephone cable were located on the west side of the trench 4 feet below the surface.
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n3 Respondent's construction and excavation supervisor gave the bottom width as 30 inches; the judge accepted the inspector's figure.
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Wilson considered the soil uncemented and composed of about 60 percent sand with the remainder rock and gravel. His opinion was based on a sample of the soil taken from the spoils pile. He observed material continuously sloughing off the sides and from around the backhoe bucket. In his opinion, the 6-inch main [*4] would not be sufficient to protect against a cave-in, and the conduit was indicative of previously disturbed soil that would increase the hazard of collapse. At least a cubic yard of soil weighing an average of 3000 pounds could collapse, which would be likely to cause serious injury or death; he concluded that the sides should have been sloped at a 45 degrees angle, or 1 to 1.
Wittmer informed Wilson that Respondent's supervisor, Jimmy Harper, was not present but could be reached by radio. In order to obtain Wittmer's name and address Wilson asked him to come out of the trench; he testified he advised Wittmer not to go back into the trench and Wittmer complied. After 15 or 20 minutes supervisor Harper arrived; he and Wilson discussed whether the employees could safely continue closing the trench. According to Harper, Wilson stated the trench was unsafe and work would have to stop. n4
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n4 Also, Wittmer testified that Wilson refused to allow him to go back into the trench. Before the judge and in its petition for review Respondent argues Wilson acted improperly in that he "shut down" the job. The judge, however, did not resolve the conflicting testimony on this question, nor did he address Respondent's argument. In view of our disposition of the case we need not now consider the issue.
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Harper also testified that Wilson's soil sample was not reliable as it was taken in disturbed soil and was unrepresentative of the overall composition of the trench walls. In Harper's opinion, the bottom foot of the trench was dug in shale or sandstone, and the remaining 11 feet to the pavement consisted of a sand and gravel mixture; the soil above the conduit, while previously disturbed, subsequently had been compacted. He further considered the trench to be stabilized by the telephone coduit, gas main, and telephone cable, as well as by other supporting structures such as trees, mail boxes, and concrete sidewalks. Respondent's president, Bert Reece, also thought that Wilson's soil sample was not representative. He agreed the conduit and gas main would help support the walls, and he described the soil composition as partially cemented angular gravel. Wittmer gave substantially similar testimony, and he denied that the amount of sloughing was abnormal.
Respondent on prior occasions had used trench jacks and planking to support the trench when the soil composition was of a clay type. No shoring [*6] was used on the day preceeding that of the inspection becuase at that time the trench was relatively shallow, between five and six feet deep, and the bottom three feet were in sandstone or shale. That evening Reece and Harper conducted their usual daily discussion of the conditions encountered on the jobsite and their plans for the next day's work. They anticipated that the trench depth would be increasing and that gravel might be encountered. Because the trench jacks and planking would not work properly in sand or gravel, they tentatively decided to use a trench box but made no final decision because they did not feel they could predict the depth and soil composition with certainty.
The following morning, the day of the inspection, the trench commenced from a manhole approximately 6 1/2 to 7 feet deep and thereafter increased to the depth of 12 feet existing at the time of the inspection. The last 50 to 75 feet, the distance of five lengths of pipe, was dug in gravel to a gradually increasing depth. Gravel was exposed for a total of three hours. If the inspection had not occurred, Harper that evening would have informed Reece that these conditions had been encountered during [*7] the day; Reece testified that at that time they would have definitely decided to use a trench box. Harper, however, had authority to install a trench box without consulting Reece, and at the time he began closing the trench for the evening he had already determined to use a box the following day. He did not consider its use necessary during the closing process because he felt that the trench was otherwise supported. Subsequent to the inspection shoring was used.
Respondent had not contested a prior citation alleging a nonserious violation of the Act for failure to comply with 29 C.F.R. 1926.652(c), Complainant's standard requiring shoring or sloping to prevent collapse of sides of trenches in hard or compact soil. There is no dispute that prior to the inspection at issue both Reece and Harper knew the requirements of the standards governing trenches.
On these facts Judge Morris found that Respondent's employee was working in an unshored trench in unstable soil, 7 feet wide at the top, 4 feet wide at the bottom, and 12 feet deep; he concluded Respondent had failed to comply with the standard. Based on the finding and on Wilson's testimony that death or serious harm could result, [*8] he also determined the violation was serious in nature.
The judge also stated that Reece was familiar with the trench standards, that he had not contested the prior citation because it carried only a small penalty, and that Respondent customarily uses shoring and did so at other locations along the same trench. He then said, "The supervisors were at a point of making a decision whether to insert a trench box for the following day's work in the gravel bar deposit," and gave this definition of a willful violation:
"A willful violation is defined as an act or omission which occurs consciously, intentionally, deliberately, or voluntarily, as distinguished from accidentally. Secretary v. Intercounty Construction Corporation, 5 OSAHRC 782 (1973). To establish such a violation, the complainant must prove that the respondent had actual knowledge of the pertinent standard and of the noncompliance therewith." n5
The judge then concluded that the "total record" failed to establish a willful violation of the Act. His only specific finding of fact on the issue is: "4. Respondent did not willfully violate 29 C.F.R. 1926.652(b)."
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n5 Quoting Amulco Asphalt Co., 75 OSAHRC 76/A11, 3 BNA OSHC 1396, 1975-76 CCH OSHD para. 19,873 (No. 3258, 1975), accord, Colorado Pipe Lines, Inc., d/b/a CPL Constructors, 75 OSAHRC 73/A2, 3 BNA OSHC 1865, 1975-76 CCH OSHD para. 21,251 (No. 2805, 1975). See also Western Waterproofing Co., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,527 (No. 9225, 1977), petition for review docketed, No. 77-1324 (8th Cir., April 20, 1977); Kent Nowlin Constr., Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (Nos. 9483 et al., 1977); D. Federico Co., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD para. 20,422 (No. 4395, 1976), aff'd, No. 76-1084 (1st Cir., June 16, 1977), and cases cited therein.
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Complainant contends that Judge Morris' disposition of the willful issue does not satisfy the requirements of the Administrative Procedure Act (APA) n6 because the judge failed to specify what evidence he did or did not consider and failed to give reasons in support of his conclusion. In Complainant's view, [*10] Respondent violated 29 C.F.R. 1926.652(b) in a willful manner since Reece and Harper, being aware of the requirements of the standard and having already determined to use shoring in certain conditions, knowingly did not install shoring when those conditions were encountered. Furthermore, Complainant says Respondent demonstrated a reckless disregard equivalent to flouting the Act because Harper deliberately allowed employees to continue working for three to four hours in a trench which he knew required shoring. According to Complainant, Harper's opinion that the trench was otherwise supported is immaterial because the standard bars subjective judgments concerning the safety of a trench which does not comply with the shoring or sloping requirements. n7
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n6 "All decisions shall include a statement of . . . findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record . . . ." 5 U.S.C. 557(c).
n7 In his brief before the judge, Complainant argued that Harper's opinion should also be disregarded because it is unreasonable considering the circumstances existing at the time of the inspection and because it is inconsistent with both Reece's and Harper's decisions concerning shoring. Judge Morris did not address these contentions.
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Respondent argues that the violation is not willful because at the time of the inspection it was still evaluating the soil composition and intended to provide shoring if it determined that the trench was in gravel. It also argues that the willful allegation is based solely on the prior uncontested citation, which it says is factually distinguishable, and on events subsequent to the inspection. And it contends the violation was not shown to be serious in nature because the trench sides were supported by structures and were stable.
We agree that the judge's decision fails to comply with the APA, but we think it appropriate to remand rather than decide the issue of willfulness on the record before us, as Complainant asks. The judge's single enumerated "finding of fact" on the issue, although designated as such, is not a statement of fact and thus plainly is inadequate. Arguably, Judge Morris made implicit as opposed to explicit findings with respect to the knowledge and intentions of Respondent's supervisors, on which he apparently based his decision. His decision, nevertheless, is still inadequate [*12] because factors of the kind on which he apparently relied are not necessarily dispositive; n8 we are not told why they compel the result in this case. He also does not tell us on what evidence he may have based these implicit findings although the evidence sharply conflicts so that credibility determinations may be necessary. As is apparent from the record and the parties' various contentions, there are a number of factual findings to be made as well as a number of evidentiary conflicts to be resolved. Accordingly, we remand for additional findings, conclusions, and reasons therefor with respect to the willful allegation. n9 Butler Lime and Cement Company, 5 BNA OSHC 1870, 1977-78 CCH OSHD para. 21,788 (No. 855, 1977); Evansville Materials, Inc., 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975).
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n8 Compare C.N. Flagg & Co., d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD para. 19,251 (No. 1409, 1975) with C.N. Flagg & Co., 74 OSAHRC 66/A2, 2 BNA OSHC 1195, 1974-75 CCH OSHD para. 18,686 (No. 1734, 1974), petition for review denied, No. 74-2362 (2d Cir., Jan. 12, 1976), and Western Waterproofing, supra note 5, 5 BNA OSHC at 1067 & n.8, 1977-78 CCH OSHD para. 21,572 at 25,882 and 25,885 n.8 with F.X. Messina Constr. Corp., 74 OSAHRC 34/D1 (No. 3860) (Administrative Law Judge), aff'd, 505 F.2d 701 (1st Cir. 1974). See also General Electric Co., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977-78 CCH OSHD para. 21,853 (No. 11344, 1977) (concurring opinion).
n9 Respondent does not dispute that the trench at the time of the inspection failed to comply with the standard. On the other hand, in arguing that the violation was not shown to be serious, Respondent puts into issue the stability of the trench, which is one of the issues on which the evidence conflicts. Moreover, the matter of stability is pertinent to Respondent's decision not to shore the trench at the end of the day; in view of the judge's disposition of the willful allegation we cannot say he discounted Respondent's testimony on the issue. Therefore on remand additional findings of fact and appropriate reasons are necessary as to the seriousness of the violation as well as to the willful allegation.
In addition, the judge did not address Respondent's contention that the allegation was improperly based on events subsequent to the inspection, although he indicated at the hearing he would give such evidence little weight. In view of our disposition we express no opinion whether Respondent's subsequent conduct is relevant except to note there is case law on the question. E.g., Western Waterproofing, supra note 5, 5 BNA OSHC at 1067 n.6, 1977-78 CCH OSHD para. 21,572 at 25,884-85 n.6.
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Alleged Violation of 29 C.F.R. 1926.28(a) n10
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n10 The standard requires:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
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Wilson observed Respondent's employees operating earthmoving equipment without using the seat belts provided with the equipment. An employee was operating one machine within 18 inches of the edge while backfilling the trench; another was excavating at one end of the trench. Respondent provides and maintains seat belts but leaves their use entirely to the discretion of employees. Harper testified he would not wear a belt except in limited circumstances where it would be possible to be hit by another piece of machinery. Reese would wear a belt only where necessary to prevent being thrown against [*14] the control panel. Both stated that in order to be able to get clear of the equipment they would not wear a belt in circumstances where the equipment would be likely to tip or fall. Reece himself had experienced such a fall when a machine he was operating turned over. However, the equipment Wilson observed was also provided with rollover protective structures (ROPS).
Wilson did not discuss with Harper his observations with respect to the operation of the earthmoving equipment. Harper was unaware that the employees' failure to use the seat belts was considered a possible violation until after the citation alleging the violation has been issued.
Complainant contended before the judge that the alleged violation is established by undisputed evidence that while front-end loaders were equipped both with seat belts and ROPS n11 the operators were not using the belts and were not required to do so. Respondent defended saying the work being performed was not shown to be of such nature as to require the use of seat belts, while Complainant argued that the standard does not allow an employer to judge for itself whether protection is necessary in any situation.
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n11 See 20 C.F.R. 1926.602(a)(1)-(2) and Sweetman Constr. Co., 76 OSAHRC 35/A14 (1974) (Administrative Law Judge), aff'd, 76 OSAHRC 35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD para. 20,466 (No. 3750, 1976).
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Respondent also contended that Wilson acted improperly because he conducted his inspection before Harper arrived and so denied Harper the opportunity to accompany him on the inspection; on review before us it asserts that had the proper procedure been followed, Respondent would have been able to investigate the circumstances under which seat belts were not being worn.
Judge Morris found that an employee was operating a front-end loader without wearing the attached seat belt, but he made no other findings. He rejected Respondent's argument because in his view the standard imposes a duty on the employer to require the use of protective equipment. He then stated, "respondent had an opportunity and did present his views to rebut the inspector's opinion," and determined that Respondent had not been prejudiced. n12 We reverse and [*16] remand.
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n12 As authority the judge cited Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), aff'g 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1973-74 CCH OSHD para. 17,936 (No. 477, 1974).
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Subsequent to Judge Morris' decision, a divided Commission held that section 1926.28(a) is limited in applicability to situations in which industry customs or practice, or other extrinsic criteria, indicate that protective equipment should be used. Frank Briscoe Company, 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976); see B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977), petition for review docketed, No. 77-2211 (5th Cir., June 14, 1977). We also said, subsequent to the judge's decision, that section 8(e) of the Act n13 confers a substantive "walkaround" right, and that in appropriate circumstances an employer denied this right is entitled to relief. And in so holding, we distinguished [*17] the Fifth Circuit's decision in Accu-Namics, supra note 12, on which Judge Morris had relied. Environmental Utilities Corporation, 77 OSARHC 40/A2, 5 BNA OSHC 1195, 1977-78 CCH OSHD para. 21,709 (No. 5324, 1977); Western Waterproofing Company, 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976).
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n13 Subject to regulations issued by the Secretary, a representative of the employer . . . shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . . for the purpose of aiding such inspection.
29 U.S.C. 657(e).
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Our decision in the latter case was reversed on appeal; the Eighth Circuit held that an employer seeking relief must demonstrate that the violation of its "walkaround" right prejudiced its defense on the merits. Marshall v. Western Waterproofing Company, No. 76-1703 (8th Cir., Aug. 23, 1977). The court expressed agreement with the rule established by the Fifth Circuit in Accu-Namics. [*18] In the circumstances, we will follow the court's opinion; we hold that an employer claiming a violation of its rights under section 8(e) must show actual prejudice to the preparation or presentation of its defense.
The alleged violation of section 1926.28(a), therefore, cannot be decided without findings and conclusions regarding the particular circumstances of the work situation observed by inspector Wilson and extrinsic factors by which such circumstances would indicate a need for use of the seat belts. n14 The charge also cannot be decided without a determination whether Respondent's defense was prejudiced by Wilson's failure to discuss his observations with Harper.
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n14 See note 11 supra.
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We recognize that Judge Morris heard and decided this case before the issuance of the decisions on which we base the preceding discussion. In accordance with our usual practice in such situations, n15 we will remand for further findings and conclusions as indicated herein with an opportunity to the parties to present additional [*19] argument and evidence on the issues concerning the section 1926.28(a) charge if they so desire.
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n15 E.g., Zwicker Electric Co., 77 OSAHRC 71/B12, 5 BNA OSHC 1338, 1977-78 CCH OSHD para. 21,817 (No. 12271, 1977); Gulf & Western Food Prod. Co., 77 OSAHRC 72/B8, 4 BNA OSHC 1436, 1976-77 CCH OSHD para. 20,886 (Nos. 6804 & 6805, 1976).
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The judge's decision is set aside and the case is remanded for additional proceedings consistent with this opinion. So ORDERED.