SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORPORATION,
ROCHESTER PRODUCTS DIVISION,
Respondent.

UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, LOCAL 1097,

Authorized Employee
Representative.

OSHRC Docket No. 80-5439

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), 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 of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions 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).

A citation issued by OSHA alleged that General Motors Corporation ("GM") violated an employee instruction standard and two trenching standards.  At issue is whether Administrative Law Judge Foster Furcolo erred in vacating the two trenching items and affirming the employee instruction item.  For the reasons set forth below, we conclude that GM violated one of the trenching standards, but we are divided as to whether the other alleged violations were proven.[[1]]

Item 2:  Unshored Trench
Item 2 of the citation alleged that GM violated 29 C.F.R. § 1926.652(c) by failing to slope or shore the sides of a trench dug in "hard or compact soil."[[2]]  At the time of the alleged violation, a crew of second-shift employees was preparing for the installation of a trough to collect oil from machinery in a large manufacturing building.  Using the company's construction equipment, employees had broken through part of the concrete floor and dug an L-shaped trench.  The leg of the trench running from north to south was about 20 feet long, 7 feet wide, and 10 to 12 feet deep, with a pipe and adjacent ladder at its north end. The leg of the trench running from east to west was 38 feet long, 7 feet wide, and 8 to 10 feet deep.  At the western end of the east-west leg, the soil sloped from the bottom of the trench to the floor level, and a ladder was located along the slope.

GM planned to shore the trench before installing the trough.  Long steel rods called "channels" were lowered with ropes into the trench and placed against the walls every two feet.  After the channels were pounded into the bottom of the trench by the bucket of the backhoe, employees at the top edge of the trench slid plywood sheets down behind the channels.  Employees in the trench then nailed the sheets together.  Millwrights at the top edge then tied back the channels and fastened them to the concrete floor with brackets.

On the evening at issue, employees were shoring the north-south leg, and both walls of the north end of that leg had been shored. The east-west leg was still completely unshored.  Jesse DeVittorio and Al LoMonaco, two of GM's carpenter-masons, were in the trench nailing the plywood sheets together.  LoMonaco told DeVittorio that it was time for a coffee break, and they proceeded to leave the trench by the same route that they had entered it-the slope at the far end of the east-west leg--so as not to bother a pipe fitter and a welder who were working next to the ladder in the shored north end of the north-south leg.  DeVittorio followed LoMonaco around the corner to the east-west leg.  By the time LoMonaco had climbed up the slope, the unshored north wall of the east-west leg near the corner had collapsed on DeVittorio.

Following the accident, the worksite was inspected by an OSHA compliance officer.  The compliance officer did not take any soil samples or perform any test to analyze the soil.  However, he and other witnesses for the Secretary testified that the material in which the trench had been dug was backfill composed of sand, gravel, and loose rocks.  They testified that the backfill was more firm in some walls than in others.  Richard Carpenter, GM's superintendent of plant engineering, testified that the soil was "backfill material" that was "sandy clay."

Judge Furcolo concluded that the Secretary failed to prove a violation of section 1926.652(c).  He determined that "[t]he soil was certainly not the 'hard or compact' type alleged in the citation . . . . " He stated that amending the citation and complaint to allege a violation of section 1926.652(b)[[3]] was not justified by the evidence, which "does not establish that the soil was 'unstable' or 'soft' or any other classification."  He held that because the soil had not been analyzed there was insufficient proof of a violation of any trenching standard.  The judge stated that another reason for vacating the citation item was that GM "was doing the shoring in timely fashion."  The judge noted that GM did not use the trench in its unshored condition or "refuse to recognize" that it was required to shore the trench.

The Secretary argues on review that he made the requisite showing that section 1926.652(c) applies to GM's trench.  He contends that the record shows that the soil was at best hard and compact, and that such a showing is sufficient to establish the applicability of the standard.  The Secretary further asserts that GM violated the standard in that it allowed its employees to be exposed to unshored areas of the trench and to work in the partially shored north end of the trench.  GM argues on review that Judge Furcolo's conclusion that section 1926.652(c) was not violated and his reasons therefor should be affirmed.

We hold that the judge did err in vacating this item because it was not proved whether the soil was governed by section 1926.652(b) or by section 1926.652(c).   The trenching standards divide earth materials into categories, with trenches dug in each category requiring a different degree of protection.  The greatest degree of protection by way of sloping or shoring is required for "unstable or soft" soil.   Trenches dug in such soil are governed by section 1926.652(b).  At the other extreme, trenches in "Solid Rock, Shale or Cemented Sand and Gravels" need not be sloped or shored at all.  See Table P-1, appended to section 1926.652.   Between these types are trenches dug in "hard or compact" soil, which are governed by section 1926.652(c).  Such trenches, if more than five feet deep, must be sloped above the five-foot level or shored.  E.g., CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ¶ 25,091 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982).  Although the shoring requirements for trenches dug in hard, compact soil are less demanding than for trenches dug in soft, sandy, or filled soil, both sections require unsloped trenches to be shored.  See Table P-2, appended to section 1926.652.  It is not the subject of dispute that the trench in this case was substantially more than five feet deep and that most of its walls were not sloped.  It is clear from the record that GM knew that it was required to shore or slope the walls of the trench and that it had elected to shore the trench walls due to the worksite conditions.

GM's argument that the Secretary failed to prove the applicability of section 1926.652(c) therefore reduces to the argument that it should have been cited under the more stringent provision of section 1926.652(b) instead.  However, under the circumstances of this case, there is no difference in the requirement of the two standards:  both require that the trench walls be shored.  As the Secretary points out, he gave GM the benefit of the doubt by citing under subsection (c) rather than subsection (b) because subsection (c) requires less protection.  Thus, if there was a defect in the citation, it tended to benefit GM and does not constitute grounds to vacate the citation.  We conclude therefore that the judge erred in vacating the citation for that reason.

GM also argues that, even if the standard applies, it was not in violation because the employees in the trench were there for the purpose of installing the shoring required to comply with the standard.  The company contends that a violation of the standard only occurs if there is "needless exposure" of employees to the unshored trench walls.

We agree with GM's argument that an employer cannot be found in violation of the standard based merely on the presence in the trench of employees installing the shoring required by the standard.  As GM correctly states, the question is whether employee presence in the trench is needless.  In this case, four employees were in the north-south leg immediately before the accident.  A pipe fitter and a welder were working in the shored portion at the north end of the leg.  The other two employees were nailing together the plywood sheets that formed part of the shoring system.   Inasmuch as the employees in the north-south leg were either working in a part of the trench that had already been shored or were engaged in installing the shoring in that leg, GM did not violate the standard in the north-south leg.

The east-west leg, however, was completely unshored, and GM did not take any steps to keep the employees out of that leg. Moreover, at the west end of that leg was a dirt slope along which ran a ladder that employees used to enter and leave the trench. The presence of the slope and ladder made it reasonably predictable that employees would use the east-west leg to gain access to their work area in the north-south leg, and in doing so they would be exposed to the unshored walls of the east-west leg.  Because GM did not limit employee access to the trench so as to eliminate the unnecessary exposure of employees to the unshored walls, GM did violate the standard with respect to the east-west leg.  Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD ¶ 21,584 (No. 12398, 1977), aff'd, 576 F.2d 72 (5th Cir. 1978).

We reject GM's argument that the citation should be vacated because the accident resulted from employee disobedience to instructions to remain out of the unshored parts of the trench.  The proper inquiry is not the cause of the accident, but whether GM violated the standard as alleged.  See Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 642 (5th Cir. 1979) (Act is designed to achieve abatement of hazardous conditions, not fix blame for particular injury).  The finding of a violation is not based on the occurrence of the accident but on the foreseeable exposure of GM's employees to the unshored east-west leg of the trench. [[4]]

The Commission therefore affirms the citation item alleging a violation of section 1926.652(c).  The parties stipulated that DeVittorio's injuries were "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(i).   Based on that stipulation and on the obvious danger presented by the unprotected walls of a trench 8 to 10 feet deep, the Commission finds a substantial probability that death or serious harm could have resulted from the violation.  We therefore conclude that the violation was "serious."  Having considered the penalty criteria set forth in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a penalty of $50 for the serious violation of section 1926.652(c).

Item 3:  Additional Precautions
Item 3 of the citation alleges that GM violated section 1926.652(e), which requires additional precautions in trenches adjacent to backfilled excavations or subject to vibrations from the operation of machinery.[[5]]  Witnesses for both parties testified that the area in which the trench was dug consisted of backfill.

There was also some testimony at the hearing that the trench was subjected to vibrations.  Two of GM's employees--John Boushie, a second-shift pipe fitter, and Anthony Davide, a first-shift millwright--testified that both the backhoe, which was located near the edge of the trench on a concrete slab, and another piece of equipment called the "in-line transfer machine," which was situated about 10 to 12 feet away from the trench, vibrated when they were in operation.  The employees did not say, however, how much the machines vibrated.  James Conlon, the Secretary's expert witness, testified that when the backhoe pounded the steel channels it transmitted vibrations into the soil that could extend for 5 feet from the channel.  The backhoe had been driving channels just before the accident.  When asked if there would be vibrations in the soil when the in-line transfer machine was in operation, Conlon testified that it was possible.  He stated, however, that "[v]ibrations are difficult to predict," and he could not be sure whether the in- line transfer machine produced vibrations in the soil because he had not been at the worksite.  Conlon further acknowledged that any opinion as to vibrations without having felt them is "highly theoretical" and "into the realm of speculation."

The compliance officer testified that he did not measure nor did he know how much the machines vibrated.  According to Carpenter, GM's superintendent of plant engineering, the in-line transfer machine was designed not to vibrate, and, even if it did, the vibrations would be negligible.  He also testified that any vibrations from the in-line transfer machine or the backhoe had "no bearing" on the collapse of the walls of the east-west leg, for the vibrations were "in the manner of thousandths of an inch."

Judge Furcolo vacated this item.  Although he found that the soil in the area was backfill,[[6]] he went on to conclude that a violation of the standard was not proven because the Secretary did not establish that the trench was "subjected to vibrations from . . . the operation of machinery."  Judge Furcolo determined that the word "vibrations" means "vibrations sufficient to have some effect that might contribute to a slide or cave-in of any nearby excavation or trench."   After reviewing the testimony and noting the lack of evidence as to the degree of the vibration, he concluded that, even considering the evidence most favorable to the Secretary, there was no proof that the trench was subjected to the alleged vibrations.   He therefore vacated the citation item.

The Secretary argues on review that the judge misinterpreted section 1926.652(e).  He contends that the word "or" in the standard signifies that it applies in two distinct situations:  where a trench is adjacent to backfilled soil, or where the trench is subjected to vibrations from the operation of machinery.   According to the Secretary, he met his burden of proof under the standard by establishing that the unshored trench was dug in backfill, regardless of whether the trench was also subject to vibrations.  The Secretary also argues that, in any event, the trench was subjected to vibrations from the operation of machinery.  GM contends on review that it was in the process of shoring the trench, and the Secretary failed to show what additional precautions were required.

Chairman Buckley would affirm the judge's disposition, although he would do so for reasons different than those stated by the judge.  He notes that section 1926.652(e) requires shoring or bracing in addition to precautions taken to comply with sections 1926.652(b) or 1926.652(c).  In this case, GM had already shored part of the trench and was in the process of shoring the remainder.  There is no evidence that GM's shoring either was or would be, when completed, insufficient to protect employees in the trench.  On the contrary, Conlon, the Secretary's own expert, testified that the shoring GM had been installing would have been adequate when completed.   The Secretary's allegation is based on the same conditions that allegedly constitute a violation of section 1926.652(c):

the absence of any protection at all for portions of the trench walls.   To establish a violation of section 1926.652(e), the Secretary would have to prove that the shoring the employer was installing was inadequate to protect against cave-ins from vibrating machinery or the presence of backfill.  The employer's failure here to prevent exposure of employees to the hazard of a cave-in prior to completion of its shoring does not establish that it also failed to take precautions in addition to those required by section 1926.652(b) or (c).  The Chairman therefore concludes that the Secretary failed to prove that GM violated section 1926.652(e).

Commissioner Cleary would affirm the citation item.  He agrees with the Secretary's argument that the plain language of section 1926.652(e) requires additional shoring or bracing under two alternative conditions--where trenches are dug adjacent to backfilled areas or where trenches are subject to vibrations.  Cedar Construction Co., 77 OSAHRC 63/A2, 5 BNA OSHC 1311, 1977-78 CCH OSHD ¶ 21,772 (No. 10929, 1977), aff'd 587 F.2d 1303 (D.C. Cir. 1978).  He also finds it irrelevant that the required additional precautions would have been taken some time in the future.  Just as GM violated section 1926.652(c) because the required shoring was not in place when employees were unnecessarily in unshored parts of the trench, GM violated section 1926.652(e) because the trench was dug in backfill and lacked additional precautions.  An employer's failure to take any precautions to protect employees against the walls of a trench collapsing violates the employer's duty to take the additional precautions required by section 1926.652(e) as well as the precautions required by section 1926.652(c).  Although the requirements of sections 1926.652(c) and 1926.652(e) are closely related, an employer is not unfairly burdened when the same or similar conditions are the subject of more than one citation item, for a single action on the employer's part may be all that is necessary to achieve compliance with the cited standards.  H.H. Hall Construction Co., 81 OSAHRC 91/D12 10 BNA OSHC 1042, 1981 CCH OSHD ¶ 25,712 (No. 76-4765, 1981).  Moreover, to the extent that the same or similar conduct may violate more than one standard, the Commission has the discretion to assess a single, combined penalty for the violations.  Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108 ,1981 CCH OSHD ¶ 25,728 (No. 76-256, 1981); H.H. Hall, 10 BNA OSHC at 1049, 1981 CCH OSHD at p. 32,059.  Because the violation of section 1926.652(e) involves conduct similar to that of section 1926.652(c), Commissioner Cleary would assess a combined penalty for the violations of sections 1926.652(c) and (e).

Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken by the Commission with the affirmative vote of two members.  The two Commission members disagree whether the judge erred in his disposition of this citation item.  To resolve this impasse and to permit this case to proceed to a final resolution, the members have agreed to affirm the judge's decision vacating this item but accord it the precedential value of an unreviewed judge's decision.  See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).

Item 1:  Instruction of Employees
Item 1 of the citation alleged that GM violated section 1926.21(b)(2), which requires employers to instruct employees in the recognition and avoidance of unsafe conditions.[[7]]  Judge Furcolo affirmed the item.  He stated that the standard requires an employer to issue instructions regardless of the knowledge or experience of its employees.  The judge found that "[t]he witnesses who testified in substance that there were no instructions were positive and definite in their testimony to that effect while those who indicated the contrary were comparatively vague and indefinite."  For that reason, he concluded that GM did not give its employees instructions on trenching hazards and therefore failed to comply with the standard.   Judge Furcolo determined that the violation was serious.  He assessed a penalty of only $50 because "it was not unreasonable for [GM] to believe its employees were familiar with trenching hazards..."

The Commissioners disagree on the disposition of this item.  Commissioner Cleary would adopt the judge's decision and affirm the citation item.   He notes that employees Boushie, LoMonaco, Davide, and Thomas Martin, a second-shift welder, testified that no GM supervisor told them not to go into an unshored trench or gave them oral or written instructions about the specific safety hazards involved in working in and around trenches. Those four employees also testified that they had not attended any safety meetings at GM during which trenching or shoring had been discussed.  Boushie, Martin, and Davide stated that they were never told by any supervisor about OSHA's trenching standards.  Boushie, Martin, and LoMonaco testified that no supervisor, including their group leader, instructed them to stay out of the east-west leg of the trench.  Boushie testified that this was the first trench that he had worked in at GM.  Martin stated that when he began work at GM in 1973 he was not given any safety booklets.  When he was shown a booklet entitled "Safety Procedures and Instructions, Rochester Products" at the hearing, he declared that he had never seen it before.

Gary Murphy, GM's supervisor for the second shift, and Nick Bianchi, the crew's "group leader" who directed the work, testified that there were no formal safety meetings at GM regarding trenching hazards.  Rather, informal discussions were held at which employees told their ideas about improving working conditions.  Murphy testified that he specifically instructed Bianchi, LoMonaco, and DeVittorio to remain out of the unprotected areas of the trench, and he never observed employees in such areas when he visited the trench.

In C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978), the Commission stated that it will usually accept an administrative law judge's evaluation of witnesses' credibility because the judge was the one who "lived with the case, heard the witnesses, and observed their demeanor."  In this case, the judge based his finding that GM had not instructed employees in hazards associated with trenches on his conclusion that the employee who testified that no such instructions were given were more credible than GM's supervisors, whose testimony he stated was vague and indefinite. Commissioner Cleary accepts Judge Furcolo's credibility determination and finds that GM did not instruct its employees regarding trenching hazards.

Moreover, even crediting the testimony of GM's supervisors, what little action GM took to instruct its employees about trench hazards was insufficient under the standard.  GM distributed its safety booklet to some employees, but at least one employee, Martin, had never seen it before the hearing in this case.  In any event, the booklet contained no instructions on hazards involved in construction work in general, and trenches in particular.  The standard is not satisfied by instructions that fail to deal entirely with major hazards that employees face.  See National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978) (section 1926.21(b)(2) requires more than a general safety program).  Whatever safety meetings were held were informal and unstructured. Even if the testimony of Murphy that he gave on-the-job warnings to remain out of the unshored areas of the trench was to be credited, such warnings alone do not satisfy the cited standard.  Sawnee Electric Membership Corp., 77 OSAHRC 24/C10, 5 BNA OSHC 1059, 1061, 1977-78 CCH OSHD ¶ 21,560, p. 25,873 (No. 10277, 1977)(Cleary, Commissioner, dissenting).  Moreover, GM's failure to give the instructions required by the standard cannot be excused on the basis that the employees were experienced. See Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir. 1976).  All employees, both experienced and inexperienced, are entitled to the Act's protection.

Chairman Buckley would vacate the citation item.  The standard requires that employers instruct employees, but it does not specify the nature and extent of the required instructions.  A violation of such a standard cannot be predicated upon a finding that an employer's safety program could have been improved.  Rather, there must be a showing that the employer breached a duty to give reasonable instructions.  H.C. Nutting Co. v. OSHRC, 8 BNA OSHC 1241, 1242, 1980 CCH OSHD ¶ 24,548, p. 30,030 (6th Cir. 1980); Dravo Engineers and Constructors, 84 OSAHRC __/_, 11 BNA OSHC 2010, 2011-12, 1984 CCH OSHD ¶ 26,930, p. 34,507 (No. 81-748, 1984).  In determining whether the instructions that an employer gave were reasonable, the substance of the employer's safety program is more important than its form.  Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD ¶ 26,128, p. 32,887 (No. 76-2636, 1982); Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1026, 1980 CCH OSHD ¶ 24,954, p. 30,788 (No. 76-5307, 1980).  The standard should not be interpreted to require employers to tell their employees what is obvious.  Butler Lime and Cement Co. v. OSHRC, 658 F.2d 544 (7th Cir. 1981). Employers can permissibly rely on the judgment of experienced employees to perform their work in a safe and proper manner.  See Davey Tree Expert Co., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1900, 1983-84 CCH OSHD ¶ 26,852, p. 34,400 (No. 77-2350, 1984); Jones & Laughlin Steel Corp., 10 BNA OSHC at 1783, 1982 CCH OSHD at p. 32,888.   Thus, section 1926.21(b)(2) requires a level of instruction appropriate to the circumstances.

In Chairman Buckley's view, the record shows that GM did give adequate instructions in light of the experience and knowledge of the employees doing the work.  Judge Furcolo found that it was reasonable for GM to believe that its employees were familiar with trenching hazards, and that finding is supported by the record.  Gary Murphy, the supervisor for the second shift, testified that the crew was composed of skilled tradesmen, not general laborers, who had shored many trenches and knew what they were doing. The testimony of the employees shows that they knew the hazards presented by unshored trenches.  Boushie acknowledged that he was aware of the hazards of unshored trenches because he had prior experience on construction jobs.  Davide admitted that while he had been an apprentice at GM his leader had instructed him to stay out of unshored trenches.  LoMonaco was asked if he knew not to go into an unshored portion of a trench, and replied that he never went down into such an area.

The record also shows that GM had an ongoing safety program.  Safety booklets were distributed to employees when first hired. The instructions in those booklets were supplemented by oral on-the-job instructions and informal safety meetings.  Both Murphy and Bianchi testified that trenching hazards had been addressed during informal safety meetings.  Murphy and Bianchi also stated that they had instructed employees to stay out of the unshored portions of the trench involved in this case.   Considering the experience of the employees and their awareness of the hazards associated with trenches, Chairman Buckley concludes that the instructions GM gave its employees concerning such hazards were reasonable and met the general requirement of section 1926.21(b)(2).

As noted above, section 12(f) of the Act, 29. U.S.C. § 661(e), states that official action can be taken by the Commission with the affirmative votes of two members.   To resolve their impasse on this issue and to permit this case to proceed to a final resolution, the members have agreed to affirm the judge's decision on this citation item but accord it the precedential value of an unreviewed judge's decision.

In sum, the Commission affirms citation item 2 and assesses a $50 penalty for the serious violation of section 1926.652(c).  The members have also agreed to affirm Judge Furcolo's disposition of citation items 1 and 3, alleging violations of sections 1926.21(b)(2) and 1926.652(e), but accord their decision on those two items no precedential value.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 26 1985

FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.  Section 12(a), 29 U.S.C. § 661(a).  Currently, the Commission has two members as a result of a vacancy.

[[2]] Section 1926.652(c) states:

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....

[[3]] The standard provides:

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 (following paragraph (g) of this section).

Appended to section 1926.652, and referred to by it, is Table P-1, which provides that trenches dug in solid rock, shale, or cemented sand and gravels need not be sloped.

[[4]] The parties also dispute whether there was needless employee exposure to ground collapse during the process of shoring.  The parties put on conflicting evidence as to whether workmen stood in the north-south leg of the trench to guide steel channels being pounded into the trench floor by the backhoe.  If employees did enter the unshored leg for that purpose, that would constitute another basis for a violation of this standard because GM conceded that this work could have been accomplished without employees in the trench.  Inasmuch as employee use of the east-west leg for exiting clearly establishes a violation of the standard, we will not reach the close credibility questions raised by this secondary dispute.

[[5]] Section 1926.652(e) reads as follows:

Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

[[6]] GM argues that Judge Furcolo erroneously found that the trench was "adjacent to" a backfilled area because it was within 10 to 30 feet of such an area.  Any such error was harmless.  Statements earlier in the judge's decision to the effect that the area in which the trench was dug was backfill are sufficient to establish that the trench was "adjacent to" backfill under section 1926.652(e).  J.D. Blum Construction Co., 76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD ¶ 20,735 (No. 3543, 1976).

[[7]] The standard provides:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.