FRANK IREY, JR., INC.
OSHRC Docket No. 701
Occupational Safety and Health Review Commission
October 31, 1977
[*1]
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Regional Solicitor, U.S. Department of Labor
Oliver N. Hormell, for the employer
McNeill Stocks, for the employer
OPINION:
DECISION
BY THE COMMISSION: This case is before the Review Commission on an order of remand issued by the United States Court of Appeals for the Third Circuit. n1 Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974). Pursuant to that order, the Commission must determine, in light of the guidelines set forth by the court, whether respondent's failure to properly shore or slope the sides of a trench was a willful violation of the Occupational Safety and Health Act of 1970. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Action on the remand was stayed by the Court during the pendency of the Supreme Court's consideration of the respondent's contention that Review Commission hearings violate the right of employers to a jury trial. The Court rejected this argument holding that the right to a jury trial does not attach in administrative proceedings for the litigation of penalties imposed in the public interest. Frank Irey v. OSHRC, 97 S.Ct. 1261 (1977).
n2 29 U.S.C. § 661, et seq.
[*2]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Previously, the Commission affirmed a Judge's decision which held that the respondent's conduct was willful inasmuch as the respondent was "particularly familiar with the requirements of" the applicable trenching standard yet knowingly failed to comply when the situation required compliance. Frank Irey, Jr., Inc., 73 OSAHRC 32/A, B12, 1 BNA OSHC 1313, 1971-73 CCH OSHD para. 15,310, 1973-74 CCH OSHD para. 16,391 (No. 701, 1973). The Court of Appeals reversed that holding after concluding that the Judge applied an erroneous legal standard in determining that the violation was willful. The court devised an admittedly restrictive definition in defining willfulness as:
. . . defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act.
519 F.2d at 1207. Moreover, the court specifically injected the element of a malicious intent, holding:
Willful means more than merely voluntary action or omission - it involves obstinate refusal to comply.
Id. The Commission must now apply the court's definition to ascertain whether the [*3] violation is willful. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 However, it does so only in this case. The Third Circuit is unique in requiring a showing of malicious intent in order to establish a willful violation. Other circuits have held that, irrespective of motive, a conscious, intentional, deliberate, voluntary failure to comply constitutes willful conduct. Intercounty Construction Co. v. OSHRC, 522 F.2d 777, 779-780 (4th Cir. 1975), cert. denied, 96 S.Ct. 854 (1976); F.X. Messina Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974). The Commission adheres to this view. See Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (No. 9483, 1976), appeal docketed, No. 77-1258, 10th Cir., April 18, 1977; Williams Enterprises, Inc., OSAHRC , 4 BNA OSHC 1663, 1976-77 CCH OSHD para. 21,071 (No. 4533, 1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The respondent was installing underground electrical conduit in Morgantown, West Virginia. A number of trenches were dug to accommodate the lines. One such trench was about 46 feet [*4] long, 7-1/2 feet deep, and 33 inches wide. It was located in soft, unstable soil and was not sloped or shored. On January 11, 1972, one of the respondent's employees was killed while working in that trench when one of its sides collapsed crushing him. Thereafter, an inspection of the worksite resulted in the issuance of a number of citations. The citation now in issue charged the respondent with a willful-serious violation of the Act for failure to comply with 29 C.F.R. § 1926.652(b). n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Section 1926.652(b) provides in pertinent part:
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. See Tables P-1, P-2. . . .
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The record establishes that the respondent actually knew of the protective requirements for trenches dug in soft or unstable soils. On November 23, 1971, a safety inspector from the State of West Virginia halted progress on a similar trench, [*5] 75 to 100 feet away from the one where the fatality subsequently occurred. This action was taken because the respondent had failed to adequately slope or shore the sides of that trench in accordance with state regulations nearly identical to the federal standard. Furthermore, the safety plan submitted by the respondent to the general contractor specifically referred to pertinent federal regulations governing trenching operations.
Nonetheless, under the definition which it must apply in this case, the Commission finds that the violation was not willful. The record reveals that the respondent's job superintendent proceeded upon the assumption that the trench was being dug in shale, a stable substance for which there are generally no sloping or shoring requirements. n5 This misconception was precipitated by the respondent's erroneous interpretation of a test-boring report furnished by the general contractor. A close reading of that report tends to indicate that the trench was located in "Br. silty clay or clayey silt" and that shale would not have been encountered unless the trench was dug one-half foot deeper. However, as the Court of Appeals noted, n6 another test boring tends [*6] to indicate that the level of the shale was rising from the point of the boring relied on by the superintendent to where the fatal accident occurred. It cannot be said that the state inspection put the respondent on actual notice that the superintendent had misinterpreted the report because the respondent might have believed that the state's action was premised on the weakened condition of the trench caused by rainfall. Under these circumstances, the Commission concludes that the respondent's actions were based upon poor judgment rather than a malicious intent to "flaunt" the requirements of the Act. Therefore, characterization of the citation as a willful violation is vacated.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Table P-1 of 29 C.F.R. § 1926.652 indicates that no sloping is required for a trench located in "[s]hale." Table P-2 of that section states that "[s]horing" is not required in . . . hard shale."
n6 519 F.2d at 1206, n. 16.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
However, mere errors of judgment cannot serve to totally excuse the violation. The evidence clearly establishes [*7] that there was a substantial probability that death or serious physical harm could result from a collapse of the trench walls. It is equally apparent that with the exercise of reasonable diligence the respondent could have known of the presence of the violation. In view of the state inspection, a more prudent analysis of the available soil data was warranted. That inspection, the respondent's familiarity with the pertinent standard, and the existence of wet soil should have prompted further investigation and the use of appropriate protective measures. These factors establish that the violation was serious. 29 U.S.C. § 666(j).
Having considered the entire record in light of the factors enumerated in 29 U.S.C. § 666(i), a penalty of $1,000 is deemed appropriate. The respondent employed over 100 employees. As demonstrated by the fatality, the gravity of the violation is high. Although the respondent had been required by the state inspector to slope another trench at the worksite, the respondent failed to take reasonable precautions to insure that its employees were properly protected in the trench that was dug thereafter. These circumstances warrant the assessment of the maximum [*8] penalty authorized for a serious violation.
Accordingly, a serious violation of 29 C.F.R. § 1926.652(b) is affirmed, and a $1,000 penalty is assessed.