Docket No. 853

HARTWELL EXCAVATING COMPANY

OSHRC Docket No. 853

Occupational Safety and Health Review Commission

September 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Thomas J. Donegan, dated November 15, 1972, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

The charge in Citation 1 should have been laid under paragraph (b) rather than paragraph (a) of 29 C.F.R. § 1926.652 because the alleged violation involved the sides of a trench and not a bank. Since, the entire case was tried by both parties as a trench violation, we will amend the Judge's findings by affirming a violation of paragraph (b). See Secretary v. Gerstner Electric, Inc.,

The violation charged in Citation 2 is a nonserious, rather than a serious violation, because the evidence is insufficient to establish that there was "a substantial probability that death or serious physical harm could [have] resulted from" the storing of excavated materials beside the trench. 29 U.S.C. § 666(j).

Considering the entire record and giving due consideration to the factors enumerated in 29 U.S.C. § 666(I), a penalty of $75.00 is appropriate for each of the violations charged in Citation 2 and items 1 [*2] and 2 of Citation 3.

The Judge's decision is modified to show that the charge in Citation 1 is a violation of 29 C.F.R. § 1926.652(b) and that the charge in Citation 2 is a nonserious violation. The penalties assessed by the Judge for the violations charged in Citation 2 and items 1 and 2 of Citation 3 are mitigated to a total amount of $225.00. The remaining findings of the Judge are affirmed.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER, dissenting in part: I dissent from that portion of the majority opinion that concludes that the violation charged in citation 2 is not serious within the meaning of section 17(j) of the Act, 29 U.S.C. § 666(i).

Citation 2 alleged a violation of 29 CFR 1926.651(i)(1) in that three workmen were observed working in the trench and material that came out of the trench was stored to the edge of the excavation.

Section 1926.651(i)(1) reads as follows:

§ 1926.651 Specific excavation requirements.

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

Here, the stored material was along the edge of [*3] the trench, and was estimated to be from two feet to five or six feet with a maximum depth of ten to twelve feet. I would accept the credibility findings of the Judge that there were employees in the trench, and thus within the zone of danger from falling material. Moreover, respondent concedes among other things on page 6 of his brief that there was a violation of the storage standard. This is significant because the standard's text suggests that it can be violated only when employees may be required to enter the excavation. There is also testimony that the situation was one presenting a substantial probability of death of serious bodily harm.

I also dissent from the majority's penalty assessments. Their decision does not contain subordinate findings showing how the statutory factors under section 17(j) of the Act have been applied in the assessment of penalties. For my part, I would affirm the assessments made by the Administrative Law Judge as to the serious violations. To the extent that his assessments are less than the maximum amounts that would be warranted because of the gravity of the serious violations, the Judge's reducations are appropriate because there [*4] is no history of previous violations, and respondent exhibited considerable good faith in the immediate removal of employees from the trench when the hazards were pointed out, and took other prompt steps for the abatement of the hazards involved.

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting three Citations, two for alleged serious violations and a third for alleged non-serious violations, issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of that Act. The Citations allege that the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations, which were issued on April 11, 1972, allege that the violations result from the failure to comply with the Regulations or Standards issued and promulgated by the Secretary of Labor, 29 CFR 1926 (formerly Part 1518), and adopted under the Act at [*5] 29 CFR 1910.12.

On the basis of an inspection on March 29, 1972, of the workplace under the ownership, operation, or control of the Respondent located at Moore, Idaho, and described as "Sewer construction job. Moore Sewer Dist.," it is alleged in the Citation that the Respondent violated the Act in the following respects:

Citation for Serious Violation Number 1:

29 CFR 1926.652(a) The trench depth is from '4 to 12' & the walls of the trench are vertical. The composition of the soil is part gravel & part sand. Employees working in the trench. Alleged violation must be corrected "immediately."

Citation For Serious Violation Number 2:

29 CFR 1926.651(i)(1) Three workmen were observed working in the trench & the material that came out of the trench is stored against the edge of the excavation. Alleged violation must be corrected "immediately."

Citation For Non-Serious Violation Number 3:

Item Number 1:

29 CFR 1926.652(h) The trench depth is from 4' to 12', 3 workmen were observed in the trench. One west & 2 east of Hwy. 93 Alt. The trench did not have any ladders, for workmen to use as an exit. Alleged violation must be corrected "immediately."

Item Number 2:

29 CFR [*6] 1926.650(h) I workman was observed in the trench, working on the front side of backhoe bucket, when bucket was returning to trench workman was under part of bucket. Alleged violation must be corrected "immediately."

Item Number 3:

29 CFR 1926.50(d)(2) The 1st aid kit in the supt. truck does not have individual sealed packages for each type of item. Some of the items were missing from 1st aid kit. Alleged violation must be corrected by "April 21, 1972."

Item Number 4:

29 CFR 1903.2(a) Failure to post Official Poster to inform employees of protections and obligations. Alleged violation must be corrected "immediately."

Item Number 5:

29 CFR 1904.2 Failure to maintain a log of occupational injuries and illnesses on Form OSHA No. 100. Alleged violation must be corrected "immediately."

Item Number 6:

29 CFR 1904.4. Failure to maintain a supplementary record of occupational injuries and illnesses on Form OSHA 101 or acceptable alternative record. Alleged violation must be corrected "immediately."

The standards or regulations, allegedly violated by the Respondent, as promulgated by the Secretary provide as follows:

29 CFR 1926.652(a):

Banks more than 5 feet high [*7] shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as a guide in sloping of banks. Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected.

29 CFR 1926.651(i)(1):

In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

29 CFR 1926.652(h):

Where employees are required to be in trenches 3 feet deep or more, ladders, extending from the floor of the trench excavation to at least 3 feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.

29 CFR 1926.650(h):

No person shall be permitted under loads handled by power shovels, derricks, or hoists. To avoid any spillage, employees shall be required to stand away from any vehicle being loaded.

29 CFR 1926.50(d)(2):

The first-aid kit shall consist of materials approved by the consulting [*8] physican in a weather-proof container with individual sealed packages for each type of item. The contents of the first-aid kit shall be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced.

29 CFR 1903.2(a):

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

29 CFR 1904.2(a)

Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances [*9] described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances: (1) There is available at the place where the log is maintained sufficient information to complete the log to [*10] a date within 6 working days after receiving information that a recordable case has occurred, as required by garagraph (a) of this section. (2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

29 CFR 1904.4:

In addition to the log of occupational injuries and illnesses provided for under 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

Pursuant to the [*11] enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated April 11, 1972, from Eugene Harrower, Area Director of the Portland, Oregon area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess penalties for the violations alleged in the Citations as follows:

Serious Violations:

Citation Number -- Proposed Penalty

1 -- $500.00

2 -- $500.00

Non-Serious Violations:

Citation Number -- Item Number -- Proposed Penalty

3 -- 1 -- $75.00

3 -- 2 -- $75.00

3 -- 3 -- 0

3 -- 4 -- $50.00

3 -- 5 -- $100.00

3 -- 6 -- $100.00

The Respondent filed a Notice of Contest dated April 26, 1972, contesting the alleged violations and proposed penalties. The Respondent's employees do not have a representative, and none sought to participate in the proceedings.

In a letter dated April 26, 1972, addressed to Eugene Harrower, Area Director of the Portland, Oregon area, the Respondent stated he abated the alleged violations set forth in Citations numbered 1, 2 and 3 as follows:

Citation No. 1 Abated 3-29-72 Trench backfilled and redug to angle of repose for average soils.

Citation No. 2 Abated [*12] 3-29-72 When trench was redug, soil was placed a minimum of four feet from edge of excavation.

Citation No. 3 (1) Abated 3-29-72 Ladders furnished as needed. (2) Abated 3-29-72 Workman repreimanded and instructed in proper procedure. (3) Abated 3-30-72 Supt. furnished new first aid kit. (4) Abated 3-30-72 Poster posted on job site bulletin board. (5) & (6) Supt. refurnished with O.S.H.A. forms Nos. 100 & 101.

We don't know if this abates the alleged violations or not as they are still blank, because we have no recordable injuries or illnesses.

The Secretary's Complaint and Respondent's Answer were filed on May 10, 1972, and May 22, 1972, respectively.

DISCUSSION

At the hearing, following the announcement by Mr. Kates that the Secretary rested, Mr. Smith, the attorney for the Respondent, moved to dismiss and vacate the citations. The motion was denied at that time with the right reserved for the Respondent to again submit his Motion to Dismiss after the hearing with a supporting memorandum.

The Respondent, on October 2, 1972, filed a motion for an order dismissing and vacating the violations alleged in the Secretary's Complaint and a Memorandum in Support of Respondent's [*13] Motion to Dismiss.

It is first necessary to consider and to rule on the Respondent's Motion to Dismiss, which contends that the inspection by the Occupational Safety and Health Compliance Officer, Richard C. Jackson, was not authorized under Section 8 of the Act.

It is also asserted by the Respondent that the inspection of the work site was made by an unauthorized agent of the Secretary in violation of Sections 8(a) and (e) of the Act. (See Appendix for Section 8 of the Act.)

A brief recitation of some of the circumstances concerning this inspection might be helpful in clarifying the following discussion. Mr. Jackson testified that on March 28, 1972, about 6 p.m., he was traveling north in an automobile on Alternate Highway 93 (hereafter referred to as Highway 93-A) at Moore, Idaho, with Eldon Ryals, of the Idaho Department of Labor Safety, when he noticed the Respondent's work site, involving the excavating of a trench in an east-west direction on both sides of Highway 93-A (Tr. 47). Mr. Jackson decided to change his schedule of making an inspection in the vicinity of Arco, Idaho, for the purpose of making an inspection of the Respondent's work site the next morning. [*14] He stated that he had no idea who was doing the excavating, but because of his observation of the sides of the trenches and the material, he thought it should be looked over.

There was nobody in the area of the work site and they stayed in the vicinity for a period of a half hour to forty-five minutes. Mr. Jackson testified that he did not make measurements or take notes and he and Mr. Ryals did not walk around the work site; all they did was stop on the highway and look at the work site. Mr. Jackson stated he made mental notes (Tr. 48). In reply to a question as to whether he remained in the car for forty-five minutes at the work site, Mr. Jackson replied that he and Mr. Ryals drove around town to see if there were more excavations (Tr. 49).

The next morning, March 29, 1972, at about 8:30 a.m., Mr. Jackson arrived at the Respondent's work site for the purpose of making an inspection. He was accompanied by Mr. Ryals. Mr. Jackson testified that after arriving at the work site, he endeavored to find out who was in charge and to identify the firm doing the work (Tr. 51). The closest workmen he could see were working in the trench between Highway 93-A and the railroad tracks. [*15] He introduced himself to these workmen, identified as Douglas De Roche and Jerry Boulter, showed them his credentials and inquired if either one was the foreman on the job site or if they could tell him where the foreman was located (Tr. 52). The workmen informed him that the superintendent was somewhere on the west side of the highway. Mr. Boulter did not testify at the hearing, and Mr. De Roche in his testimony stated that he was positively certain that Mr. Jackson never talked to him while he was standing in the trench (Tr. 169). Mr. De Roche further testified that Mr. Jackson first talked to him when he and Mr. Boulter followed the Superintendent, Mr. Louk, up on the main highway. Mr. Jackson introduced himself and asked their names which he wrote down. Mr. De Roche testified that on March 29, 1972, the day of the inspection, he did not work in the trench in the area between Highway 93-A and the railroad tracks (Tr. 176). Mr. Jackson testified that after speaking to Mr. De Roche and Mr. Boulter he returned to the Highway 93-A. Before he met Mr. Louk he took a picture of the trench looking west (Secretary's Exhibit 1) and a second picture a minute or two after, [*16] facing west, standing on the south side of the trench about 70 feet west of the highway (Secretary's Exhibit 2) (Tr. 58). Mr. Jackson stated that he took the third photograph (Secretary's Exhibit 3) from the highway facing east towards the railroad track after he had a conference with the Superintendent, Mr. Louk. Mr. Jackson testified he believed Mr. Ryals had a camera and took a photograph. Mr. Ryals did not testify at the hearing.

Careful consideration has been given to the Respondent's contentions, including the cases cited in Mr. Smith's memorandum in support of the allegation that the OSHA Compliance Officer did not conduct the inspection of the Respondent's work site at Moore, Idaho, in accordance with Section 8 of the Act and the procedures prescribed in the Compliance Operations Manual issued by the Secretary of Labor. The Secretary's reply brief, in opposition to the Respondent's Motion to Dismiss, was also evaluated as to the requirements and application of Section 8 of the Act; particularly, in relation to the credible evidence of record of the manner in which Mr. Jackson conducted the inspection of the Respondent's work site.

Without reviewing in this [*17] decision the cases cited by the Respondent in support of the Motion to Dismiss, it can be fairly asserted, after an examination of these cases, that they can be distinguished from the facts in this case, and do not support a conclusion that Mr. Jackson failed to comply with Section 8 of the Act to a degree that the inspection in this case was invalid.

The credible evidence of record in this case is clear and substantial that the compliance officer, on the morning of March 29, 1972, sought out the Respondent's Superintendent, Thomas Louk, with the help of Mr. Ryals (Tr. 61). He identified himself to Mr. Louk, showed him his credentials and explained the purpose of his inspection under the Act. He discussed his observations of alleged violations with Mr. Louk stating there was a serious situation and recommending to Mr. Louk that he remove the workmen from the trench; which was done. The compliance officer also discussed employee representations with Mr. Louk and talked with the employees at the work site (Tr. 64, 65, 66, 67, 68, 69).

Mr. Jackson inquired about and examined the first aid equipment and the backhoe in the presence of Mr. Louk. He took the third photograph (Secretary's [*18] Exhibit 3) after talking with Mr. Louk (Tr. 70). There is a conflict in the testimony of Mr. Jackson and Mr. De Roche as to whether Mr. Jackson talked to Mr. De Roche and Mr. Boulter before his meeting with Mr. Louk and the taking of the two photographs (Secretary's Exhibits 1 and 2).

Taking into consideration the nature of the work site which was being inspected -- a trench digging operation, running east and west under Highway 93-A -- it would be unrealistic and unreasonably obstructive to the purposes of the Act to hold that the compliance officer was estopped by Section 8 of the Act from observing alleged violations at the work site and taking two photographs of alleged violations during the short period of time which lapsed while continuing efforts were being made to locate the employer's representative, Mr. Louk. In this case the evidence shows that the compliance officer made a reasonable effort to locate the employer's representatives and did so within a short period of time. Under the circumstances it must be concluded there was a compliance with the requirements of Section 8. The compliance officer discussed the alleged violations with Mr. Louk, and Mr. Louk [*19] had the opportunity to examine the nature of the alleged violations in all instances with Mr. Jackson before the completion of the inspection of the work site on March 29, 1972, if he desired to do so. It must be concluded from the evidence of record that there was a compliance with Section 8 of the Act.

The evidence of record does not sustain the contention of the Respondent that the inspection of the Respondent's work site at Moore, Idaho, was made by an unauthorized agent of the Secretary. Eldon Ryals, accompanied and on occasions assisted Mr. Jackson in making the inspection. His assistance consisted of locating and advising Mr. Louk and Mr. Jackson was looking for him and in assisting Mr. Jackson in making measurements in some instances (Tr. 61, 75). The presence and limited assistance of Mr. Ryals cannot be construed to mean that he was making the inspection rather than Mr. Jackson. Mr. Ryals had been with Mr. Jackson over a period of three days and his continued presence during the course of the inspection was in keeping with a normal practice of safety officers. There is no evidence in the record that Mr. Ryals directed, supervised or suggested findings as [*20] to any of the alleged violations in the citation. In no way can the contention be sustained that the inspection was made by Mr. Ryals rather than by the authorized agent of the Secretary, Mr. Jackson. There is no expressed or implied prohibition in Section 8(a) of the Act which would apply to Mr. Ryals presence during this inspection.

It is found, from the credible and substantial evidence of record, that the Respondent's Motion to Dismiss cannot be sustained and must be denied. Accordingly, since the Secretary presented a prima facie case which was not nullified by the failure of the Secretary to comply with Section 8 of the Act, this decision will now be concerned with the issues concerning the alleged violations and the proposed penalties.

In discussing the evidence concerning the alleged violations and the proposed penalties, it will not be possible to avoid repeating some of the circumstances already referred to in the discussion concerning the Respondent's Motion to Dismiss.

Citation Number 1 and Citation Number 2 allege serious violations in the construction of the trench, the exposure of employees to moving ground or cave-ins and the storing of excavated material at [*21] the edge of the trench in violation of Regulation 29 CFR 1926.652(a) and Regulation 29 CFR 1926.651(i)(1). These are classified as "Serious Violations" in accordance with Section 17(k) of the Act which states that a serious violation:

shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

As to Citation Number 1 for an alleged serious violation; the credible evidence of record is substantial that the trench, in which the Respondent's employees were working at the job site, was 3 or 4 feet at the east end (Tr. 143) (Respondent's Exhibit 2) becoming deeper with the engineering grade lines for the laying of pipe (Tr. 143, 144).

Mr. Jackson testified that the maximum depth of the trench was approximately 12 feet (Tr. 73) (Respondent's Exhibit 2). Mr. Louk testified that the maximum depth was approximately [*22] 10 feet 3 inches (Tr. 141). Since Mr. Louk's estimate as to the maximum depth of the trench is related to the grade line for the laying of pipe, it is likely to be a more accurate measurement. There is no conflict in the evidence that the depth of the trench was more than 5 feet for the greater part of its length (Tr. 29, 30, 139) (Secretary's Exhibits 1, 2, 3). The trench varied in width at the grade line between 3 and 4 feet (Tr. 19, 29, 137, 138). Mr. Louk testified the trench differed in distance from lip to lip at various places because the deeper the trench the wider it gets (Tr. 143). He also testified that the trench was approximately 10 feet wide at its widest point (Tr. 138).

Mr. Jackson, the OSHA Compliance Officer, testified that the walls of the trench were sheer and at a 90 degree angle to the bottom of the trench and the composition of the soil of the trench was an unstable mixture of sand and gravel (Tr. 19). No tests of the composition of the soil were made. Mr. Louk, the Superintendent on the job site, testified in answer to a question as to whether the material was tightly compacted: "I would say medium. It wasn't real tight, but it wasn't real [*23] loose." The attorney for the Respondent asked Mr. Louk whether, in his judgment, it was of a tight enough nature that it was not necessary to provide shoring or slopes on the trenches. Mr. Louk replied in the affirmative (Tr. 136). Mr. Jackson testified that he observed evidence where the sides of the trench sloughed in and there was very definitely a place where it had caved in (Tr. 19). Mr. Louk testified that there had been no cave-in and that there had been a "little bit of stuff slough in but it was just the stuff that had come off the walls over the period of the winter time" (Tr. 136).

Mr. Jackson testified that he discussed soil conditions with Mr. De Roche and Mr. Boulter and his field notes reflect that they stated they were very happy to see somebody come and do something because some soil had fallen in and they had some problems (Tr. 78). The attorney for the Secretary stipulated that; if Mr. De Roche had been asked a question as to whether he ever complained to Mr. Jackson, as expressed in the words of Mr. Jackson (Tr. 78), the answer of Mr. De Roche would be no (Tr. 201).

Mr. Jackson, discussing the conditions of the trench with Mr. Louk, recommended that he get [*24] his workmen out of the trench because of the serious situation bearing upon the health and safety of the workmen (Tr. 65). Mr. Louk removed the men (Tr. 66), and had the trench backfilled and dug over again (Tr. 154).

The position of the workman wearing the hardhat in the photograph (Tr. 26) (Secretary's Exhibit 2) clearly shows that the lip of the trench, where this workman was standing, was above his head and that the material excavated was not stored and retained at least 2 feet or more from the edge of the excavation. The two other photographs in evidence, (Secretary's Exhibits 1, 2 and 3) particularly Secretary's Exhibit 2, show that the trench is considerably over 5 feet in depth and the storing of the excavated material on the lip of the trench is in violation of the standards in Regulations 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(a).

Mr. Jackson first testified that the excavated material was stored on both edges of the excavation (Tr. 20); but, since the photographs, particularly Secretary's Exhibits 1 and 2, show the excavated material was only piled on one side of the excavation, he corrected his testimony to conform to the photographs and testified that [*25] the excavated material was only stored on the north side of the trench (Tr. 105).

Mr. Jackson testified that he observed two workmen in the trench between Highway 93-A and the railroad track (Tr. 15), and another workman fairly close to the west end of the trench (Tr. 20). The workmen were identified as Douglas Ray De Roche, and Jerry Boulter. Mr. De Roche denied in his testimony that he ever spoke to Mr. Jackson while standing in the trench (Tr. 69). He testified that he and Mr. Boulter first talked to Mr. Jackson in the presence of Mr. Louk on Highway 93-A. As stated previously, Mr. Boulter did not testify at the hearing. Mr. De Roche testified that he did not have any occasion to work in the trench, in the area between Highway 93-A and the railroad tracks, on the day of the inspection, March 29, 1972 (Tr. 176). Mr. Jackson testified that he observed the same two workmen, who were in the middle part of the trench prior to his conversation with Mr. Louk, in the trench after he spoke with Mr. Louk (Tr. 93).

Citation Number 3 lists the alleged non-serious violations. There are six Items in this Citation.

As to Item Number 1, of Citation Number 3, there is no dispute [*26] that exit ladders were not provided in the trench which was 5 feet deep or more for a lateral length of more than 25 feet (Respondent's Exhibit 2 and Secretary's Exhibits 1, 2 and 3). This was in violation of Regulation 29 CFR 1926.652(h).

Item Number 2, of Citation Number 3, alleges violation of Regulation 29 CFR 1926.650(h). Without objection, the attorney for the Secretary amended subparagraph two of paragraph five of the Complaint, as well as Item Number 2 on Citation Number 3 to add additional words so that the paragraph would read: "One workman was observed in the trench, working on the front side of backhoe bucket; when bucket was moving from and returning to trench, workman was under part of bucket, contrary to 29 CFR 1926.650(h)" (Tr. 127). Mr. Jackson testified, concerning this alleged violation, that a backhoe was located at the western end of the trench, which was excavating the trench and piling the material up on the sides. He further testified that a workman was shoveling the dirt forward, which had not been picked up by the backhoe, so that on the next pass the backhoe could pick up the dirt, and that the bucket of the backhoe was passing over the workman's [*27] head when it was lifting the material up and out of the trench (Tr. 31, 32) (Secretary's Exhibit 2). On cross-examination, Mr. Jackson said that in some instances the workman wasn't under the bucket all the time, or he wasn't under all of the bucket. This witness testified that he observed the workman in the trench under the bucket when there was a load or partial load in the bucket. Mr. Jackson said that Item Number 2 in the Citation was directed to the workman's position in the trench as the bucket was returning for another scoop of material (Tr. 89, 90, 91, 92).

Mr. Brian Miller, the buckhoe operator in the trench on the day of the inspection, testified that Bruce Garriott was the workman in the trench with the backhoe (Tr. 179) (Secretary's Exhibit 2). He stated there were no workmen in the portion of the trench, identified by Mr. Jackson as the location where he first met Mr. De Roche and Mr. Boulter. Mr. Miller said he didn't have a clear view of the location described by Mr. Jackson, but he could see three men working on the other end; so there couldn't possibly have been anyone in the trench at the location described by Mr. Jackson (Tr. 183). Mr. Miller testified that [*28] while he was operating the backhoe he was not able to observe the activities of Mr. Louk, Mr. Jackson and Mr. Ryals more than 50 per cent of the time (Tr. 189). Mr. Miller stated that the soil he was working in with the backhoe was "hard gravel, sand, mixed." He said he did not experience any cave-in problems while working in the trench. He further testified that, where he was working, the trench was 4 to 6 feet at the top and the depth was approximately 7-1/2 feet at the point where he was digging (Tr. 185). He stated the width of the trench, in front of the backhoe, was between 3 and 3-1/2 feet at the bottom (Tr. 186). Mr. Miller testified that Mr. Garriott would be under the boom of the backhoe at times, but not under the bucket (Tr. 191). He stated that Mr. Garriott would leave the trench by climbing on the back of the bucket and the bucket would be raised so Mr. Garriott could jump on the south side of the trench (Tr. 192). On cross-examination, Mr. Miller testified that the soil was harder about half-way down, when digging the trench, and the hardest point was approximately under the layer of dirt when the gravel was first hit (Tr. 200). Mr. Garriott, who was [*29] the workman in the trench working with the backhoe, did not tesfity.

Item Number 3, of Citation Number 3, alleges violation of Regulation 29 CFR 1926.50(d)(2). Mr. Jackson testified that Mr. Louk produced the first aid kit for him to examine and compress bandages were missing from the kit (Tr. 32). On cross-examination, Mr. Jackson stated it was a standard first aid kit and would have been adequate if it had been resupplied (Tr. 87). Mr. Louk testified that Mr. Jackson told him the first aid kit was inadequate and too small. Mr. Louk stated that, to his knowledge, it was new and nothing was ever taken out of it and Mr. Jackson did not identify any of the missing items to him (Tr. 151, 152).

Items Number 4, 5, and 6, of Citation Number 3, concern record keeping and posting at the Respondent's work site in Moore, Idaho, and involve Regulations 29 CFR 1903.2(a), 29 CFR 1904.2 and 29 CFR 1904.4. Mr. Jackson inquired of Mr. Louk whether he had any records on the job site, and Mr. Louk informed him all the records were maintained at the Idaho Falls office of the Respondent (Tr. 33). Mr. Jackson did not make any inquiry at the Idaho Falls office of the Respondent as to [*30] a compliance with the Regulations concerning recordkeeping or posting. The Citation and Complaint does not allege that the Respondent failed to comply with the Regulations on recordkeeping and posting at the Idaho Falls office of the Respondent.

The allegations of the violations contained in Items Number 4, 5 and 6 of Citation Number 3 and the proposed penalties for the violations are restricted to the work site in Moore, Idaho, adjacent to Highway 93-A. Mr. Jackson testified that, when he inquired of Mr. Louk concerning the Respondent's recordkeeping and posting, he did not inquire whether the employees regularly reported at some other place before coming to work at Moore, Idaho (Tr. 80). He stated that Mr. Louk mentioned that the records and everything were kept in Idaho Falls, and this was an assumption that they kept all of the posters and recordkeeping at the home office, because there was a general discussion on this (Tr. 81). Mr. Jackson testified that his recommendation for the Citation was not based upon the keeping of incomplete or inaccurate records, but was based on the fact that records were not kept at the job site, at Moore, Idaho (Tr. 85, 86). Mr. Louk testified [*31] that all the employees, on the job site, at Moore, Idaho, seven in all including himself, were from Idaho Falls, and met in the shop of the Hartwell Company each morning and traded rides. He further testified that each morning they would have an opportunity to see the bulletin board (Tr. 158). Mr. De Roche testified that his procedure, and the procedure for the other employees, he believed, for commuting out to the work project was to meet in Hartwell's yard every morning and take turns driving to the job site at Moore, Idaho. He stated that the bulletin board is in the time shack in the office, and it is in plain sight every time a person walks in (Tr. 175, 176). Mr. Miller testified that four employees would meet at the Hartwell office in Idaho Falls and take turns driving their cars to Moore, Idaho, and that the employee bulletin board is located at the Hartwell office in Idaho Falls, where they make out their time cards (Tr. 197). It appears, from the weight of the evidence, that all of the employees of the Respondent reported each day to the Hartwell office at Idaho Falls, before proceeding to the work site at Moore, Idaho. Since the employee bulletin board and [*32] the required posting and recordkeeping was at the Hartwell office at Idaho Falls, it is concluded that part of Regulation 29 CFR 1903.2(b) applies, which provides:

. . . . Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this section shall be posted at the location to which employees report each day. . . .

It follows that the alleged violations set forth in Items 4, 5 and 6 of Citation Number 3 cannot be sustained by the evidence of record; and consequently no penalties may be imposed on the Respondent for these alleged violations.

Mr. Jackson testified concerning his computation of the proposed penalties for the serious violations alleged in Citation Numbers 1 and 2 and the nonserious violations alleged in Citation Number 3. He followed the procedures of the Compliance Manual and allowed maximum credit for good faith (immediate abatement); size of the operation at the work site (seven employees); and past history (no history on the Hartwell Excavating Company in the Portland Office of the Occupational [*33] Safety and Health Administration) (Tr. 34 to 42; and 107 to 119) (Respondent's Exhibit 2).

FINDINGS OF FACT

After considering the entire record in this case, including the pleadings, transcript of the hearing, testimony of the witnesses, exhibits, and memoranda filed by the attorneys for the parties; it is concluded that the following "Findings of Fact" and "Conclusions of Law" are prescribed and sustained by the credible and substantial evidence of record.

1. On March 29, 1972, the Respondent had seven employees working at a work site in Moore, Idaho, all engaged in construction work involving the digging of a trench and the installation of a sewer line in this trench, which passed under and extended from the east and west side of Highway 93-A.

2. The Respondent's construction work site at Moore, Idaho, was inspected on March 29, 1972, by Richard C. Jackson, in the employ of the Occupational Safety and Health Administration, U.S. Department of Labor.

3. The trench, in use at the work site described above, was more than 5 feet in depth for the greater part of its length and reached a maximum depth of at least 10 feet 3 inches.

4. The composition of the soil of the sides of [*34] the trench was a mixture of sand and gravel which was not tightly compacted so that there was a danger of collapse of the sides of the trench.

5. The sides of the trench were not shored, sloped to the angle of repose, or otherwise supported to protect against the hazard of falling soil or collapse of the sides of the trench.

6. The employees of the Respondent, in the course of laying pipe in the trench, had occasion to work in the trench. Employees were observed working in the trench during the course of the inspection on March 29, 1972.

7. There was a substantial probability that death or serious physical harm could result to the employees of the Respondent, while working in the trench, from the condition of the sides of the trench.

8. Excavated material from the trench was stored at and within two feet of the north edge of the trench, at various places and various heights up to four feet.

9. There was a substantial probability that death or serious physical harm could result to employees of the Respondent from the collapse of the sides of the trench because of the added weight of this stored excavated soil at and within two feet of the north edge of the trench [*35] or from the stored excavated soil falling into the trench.

10. An employee was observed working within the area where the excavated material from the trench was stored at and within two feet of the north edge of the trench.

11. There was exposure of the other employees to this hazard when they would have had occasion to work in the trench for the purpose of laying pipe.

12. The Respondent was aware of the storing of excavated material from the trench at and within two feet of the north side of the trench and the condition of the trench at the Moore, Idaho, work site.

13. The trench did not have any ladders in it for the workmen to use as a means of access and of exit.

14. The workman, working on the front side of the backhoe bucket, was under part of the bucket when the bucket was moving from and returning to the trench.

15. The compress bandages were missing from the first aid kit.

16. The Respondent's employees, working at the Moore, Idaho, construction work site, reported daily at the office of the Hartwell Excavating Company in Idaho Falls and had access to a bulletin board on which it is alleged by the Respondent that the official Occupational Safety and [*36] Health Act was posted. It is also alleged by the Respondent that all other required recordkeeping was maintained at the Respondent's office in Idaho Falls, Idaho. There is no allegation or proof offered by the Complainant to the contrary.

17. There was an immediate abatement by the Respondent of the two alleged serious violations and of the non-serious violations with the exception of Items 3 and 4 of Citation Number 3 which were abated the day after the inspection, March 30, 1972.

18. The penalties proposed for assessment against the Respondent were determined, by the Occupational Safety and Health Compliance Officer who made the inspection, in accordance with the administrative guidelines of the Secretary; which involve an evaluation of the Respondent's good faith, size, past history and the gravity of the alleged violations.

19. Item Number 1 and Item Number 2 of Citation Number 3 are considered non-serious violations in the Citation. The fact that the trench did not have any ladders and that part of the backhoe bucket passed over the workman in the trench are of a higher level of seriousness involving the safety of the employees than the posting and availability [*37] of required records at the job site for which a larger proposed penalty is assessed than for the violations in Items 1 and 2 of Citation Number 3. It is found that a proper and reasonable penalty considering the gravity of the violations alleged in Items 1 and 2 of Citation Number 3 should be $150 for each of these Items rather than the proposed penalty of $75 for each.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding.

2. The Respondent, Hartwell Excavating Company is, at all times material to this proceeding, an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act.

3. On March 29, 1972, an inspection was made of the Respondent's construction work site in Moore, Idaho, by an authorized employee of the Secretary of Labor in accordance with the requirements of Section 8 of the Act.

4. On March 29, 1972, at the construction work site in Moore, Idaho, the Respondent violated Section 5(a)(2) of the Act as a result of violations of the following regulations or standards promulgated by the Secretary of Labor pursuant to Section [*38] 6 of the Act:

29 CFR 1926.652(a) -- (Citation Number 1)

29 CFR 1926.651(i)(1) -- (Citation Number 2)

29 CFR 1926.652(h) -- (Citation Number 3; Item Number 1)

29 CFR 1926.50(h) -- (Citation Number 3; Item Number 2)

29 CFR 1926.50(d)(2) -- (Citation Number 3; Item Number 3)

5. The violations of 29 CFR 1926.652(a) and 29 CFR 1926.651(i)(1) were serious violations of the Act within the meaning of Section 17(k) of the Act.

6. On March 29, 1972, at the construction work site in Moore, Idaho, the Respondent did not violate the following regulations or standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act:

29 CFR 1903.2(a) -- (Citation Number 3; Item Number 4)

29 CFR 1904.2 -- (Citation Number 3; Item Number 5)

29 CFR 1904.4 -- (Citation Number 3; Item Number 6)

7. In accordance with Section 17(j) of the Act Civil Penalties for the violations are assessed as follows:

Citation Number 1: violation of 29 CFR 1926.652(a) (Serious violation) Civil Penalty $500

Citation Number 2: violation of 29 CFR 1926.651(i)(1) (Serious violation) Civil Penalty $500

Citation Number 3: (non-serious violations) Item Number 1 -- violation of 29 CFR 1926.652(h) Civil Penalty [*39] $150; Item Number 2 -- violation of 29 CFR 1926.650(h) Civil Penalty $150; Item Number 3 -- violation of 29 CFR 1926.50(d)(2) No Civil Penalty; Item Number 4 -- no violation of 29 CFR 1903.2(a) No Civil Penalty; Item Number 5 -- no violation of 29 CFR 1904.2 No Civil Penalty; Item Number 6 -- no violation of 29 CFR 1904.4 No Civil Penalty

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED,

1. The Respondent's Motion to Dismiss and for an Order vacating the violations alleged in the Secretary's Complaint, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is DENIED.

2. Citations Numbers 1 and 2, for serious violations, issued April 11, 1972, are hereby AFFIRMED.

3. Items Numbers 1, 2 and 3 of Citation Number 3, issued April 11, 1972, for non-serious violations, are hereby AFFIRMED.

4. Items Numbers 4, 5 and 6 of Citation Number 3, and the proposed penalties based thereon, are hereby VACATED.

5. Civil penalties of $500 for Citation Number 1; $500 for Citation Number 2; $150 for Item Number 1 of Citation Number 3; $150 for Item Number 2 of Citation Number 3; and no penalty for Item Number 3 of Citation Number [*40] 3, are hereby ASSESSED.

APPENDIX

December 29, 1970

Pub. Law 91-596, 84 STAT. 1598

INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

SEC. 8.(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

(b) In making his inspections and investigations under this Act the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of a contumacy, [*41] failure, or refusal of any person to obey such an order, any district court of the United States or the United States courts of any territory or possession, within the jurisdiction of which such person is found, or resides or transacts business, upon the application by the Secretary, shall have jurisdiction to issue to such person an order requiring such person to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof.

(c)(1) Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health, Education, and Welfare, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health, Education, and Welfare, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this paragraph such regulations may include provisions requiring [*42] employers to conduct period inspections. The Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act, including the provisions of applicable standards.

(2) The Secretary, in cooperation with the Secretary of Health, Education, and Welfare, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

(3) The Secretary, in cooperation with the Secretary of Health, Education, and Welfare, shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records [*43] thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 6, and shall inform any employee who is being thus exposed of the corrective action being taken.

(d) Any information obtained by the Secretary, the Secretary of Health, Education, and Welfare, or a State agency under this Act shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace [*44] under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines [*45] there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

(2) Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Secretary or any representative of the Secretary responsible for conducting the inspection, in writing, of any violation of this Act which they have reason to believe exists in such workplace. The Secretary shall, by regulation, establish procedures for informal review of any refusal by a representative of the Secretary to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Secretary's final disposition of the case.

(g)(1) The Secretary and Secretary of Health, Education, [*46] and Welfare are authorized to compile, analyze, and publish, either in summary or detailed form, all reports or information obtained under this section.

(2) The Secretary and the Secretary of Health, Education, and Welfare shall each prescribe such rules and regulations as he may deem necessary to carry out their responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment.