SECRETARY OF LABOR,

Complainant,

CONCRETE CONSTRUCTION COMPANY,

Respondent.

OSHRC Docket No. 89-2019

DECISION

BEFORE: FOULKE                                                                                                                                                       Chairman

WISEMAN and MONTOYA                                                                                                                                   Commissioners                                                                                                                                                 

BY THE COMMISSION:

This case involves a citation issued by the Secretary alleging that Concrete Construction Co. ("Concrete") committed serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the Act"), by failing to comply with provisions of the Secretary's construction standards. We affirm the decision of Administrative Law Judge James D. Burroughs to the extent the judge found that the Secretary's inspection satisfied the procedural requirements of section 8 of the Act, 29 U.S.C. § 657, and to the extent the judge affirmed the citation item alleging that Concrete failed to comply with 29 C.F.R. § 1926.21 (b)(2) because its employees were not given proper safety instructions. We further affirm that portion of the judge's decision finding that Concrete violated the Act by failing to comply with section 1926.652(e), which requires that trenches dug in locations adjacent to backfill be shored or braced.[[1]] However, we find that violation de minimis in nature and assess no penalty.[[2]]

Legality of the Inspection

Compliance Officer Charles B. Perry inspected Concrete's worksite along U.S. Route 62 in Grove City, Ohio, where Concrete was working on a street and utility improvement project. At the time in question here, Concrete's employees were removing sections of an old water line in order to connect fire hydrants on the opposite side of the road to a new line which Concrete had installed approximately five months previously. When Perry arrived at the jobsite he drove the length of the site but saw no one working. He then went back to the construction trailers, found no one in Concrete's trailer, but met the inspectors for the City of Columbus, Ohio in their trailer. After discussing the work area and the locations of employees with the inspectors, he drove back down route 62. Two-way traffic was being maintained on the two lanes adjacent to and about 16 feet from the area where the excavation work was being conducted. From his car he observed employees in an excavation at the intersection with Southwest Boulevard ("Southwest site"). He parked, walked up to the excavation, and photographed two of Concrete's employees, Brenda Baldwin and Rita McNichols, working in the excavation. He then identified himself to the employees and asked where their foreman was. Two or three minutes later, the foreman, David B. Schultz, arrived. Schultz directed the employees to leave the excavation, place a snow fence around it to prevent access, and take some tools and material down to a second excavation at Addison Drive ("Addison site").

Perry showed Schultz his credentials and explained that he was at the worksite to conduct a general-study ( random) inspection. Even though Schultz was aware that Concrete required its foremen to notify the safety officers at the company's main office whenever a compliance officer came to a worksite, Schultz did not request that Perry wait for Concrete's safety officer, nor did Schultz demand a warrant.

Perry stated that Schultz remained with him throughout the entire inspection, during which time Perry took measurements of the excavation at the Southwest site and discussed the nature of the work with Schultz. Perry surmised that the excavation had been dug in recently excavated backfill because Schultz told him that Concrete was in the process of tying sections of the old water line to the new line. Perry also interviewed the employees there regarding the extent of their safety training.

Schultz, on the other hand, denied that he was with Perry during the entire inspection. Schultz explained that the city was scheduled to shut off the water service for the area so that Concrete could cut and plug the old water line at the Addison site in order to transfer service to the new line. Schultz testified that because the city had imposed a deadline for the restoration of water service, he could not stay at the Southwest site but had to return quickly to the Addison site after directing Baldwin and McNichols to take the necessary equipment and material there. He said that he looked at Perry's identification and then left. He further testified that because he was preoccupied with the water shutoff, he did not pay that much attention to Perry, and he did not recall seeing Perry take any measurements. He did not contact a corporate safety officer because he assumed that Perry had already completed his inspection of the Southwest site, and he himself did not see anything wrong with the excavation. However, he did not ask how long Perry had been at the job site. According to Schultz, Perry "followed" him to the Addison site, where he and Perry had further discussions, and Perry took some pictures in Schultz' presence.

Perry conducted a closing inspection with Schultz, during which John Lusignolo, one of Concrete's safety officials, arrived at the site. Lusignolo objected to Perry's conducting an inspection in the absence of a corporate safety officer. Alfred R. Gallucci, Concrete's Safety Officer, disciplined Schultz for not asking Perry to wait for a safety official to arrive.

Concrete contends that on these facts, the Secretary failed to comply with section 8(a) and (e) of the Act, which imposes certain procedural requirements for the conduct of an inspection.[[3]] Judge Burroughs rejected Concrete's contention, and we agree, generally for the reasons the judge assigned

A. Section 8(a)

The Supreme Court has held that the Fourth Amendment requires the Secretary to obtain a warrant in order to conduct a nonconsensual inspection. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). The purpose of section 8(a) is to give compliance officers a right of entry consistent with the Fourth Amendment; thus, section 8(a) must be read in a manner that effectuates the Fourth Amendment. See Accu-Namics, Inc., 1 BNA OSHC 1751, 1973- 74 CCH OSHD ¶17,936 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

Judge Burroughs found that Perry observed employees Baldwin and McNichols in the excavation at the Southwest site and took at least one photograph before he presented his credentials. The judge emphasized, however, that Perry identified himself to Schultz as soon as Schultz arrived, pointing out that prior to Schultz' arrival, Perry was attempting to determine the foreman's whereabouts. Considering that Perry had only been on the site for a few minutes, the judge held that Schultz was responsible for the failure to have a corporate safety official present during the inspection. The judge also concluded that even if Perry had not acted in accordance with section 8(a), Concrete's rights under the Fourth Amendment had not been violated because both excavations were located in plain view along a public road and "[t]here is no evidence that Perry looked where he had no right to look."

As the judge indicated in his decision, the Fourth Amendment only protects against intrusions into areas where an employer has a reasonable expectation of privacy. Therefore, it does not require a warrant for a nonconsensual inspection of a workplace to the extent the workplace is open to the public. Accu-Namics, 1 BNA OSHC at 1754, 1973- 74 CCH OSHD at p. 22,233 (citing See v. City of Seattle, 387 U.S. 541, 545 (1967)). The record plainly supports the judge's conclusion that Concrete could not have had a reasonable expectation of privacy with respect to Perry's observations and photographing of the Southwest site before he identified himself to Schultz. The worksite was alongside and in close proximity to a public road. Furthermore, the record does not show that Perry left the public right-of-way and entered private property when he approached the excavation to photograph it. Even assuming he did, the "open fields" exception to the Fourth Amendment would apply. Under that principle, there is no constitutional violation when an inspector makes observations from areas on commercial premises that are out of doors and not closed off to the public, even if the inspector entered the premises without permission. Ackermann Enterp., 10 BNA OSHC 1709,1982 CCH OSHD ¶ 26,090 (No. 80- 4971,1982).[[4]]

The judge did not explicitly find that Schultz consented to the inspection after Perry identified himself, but such a finding may be implied from the judge's conclusion that Schultz was responsible for the failure of Concrete to have a safety official present, as required by its policy. In any event, the evidence supports such a finding. A waiver of Fourth Amendment rights occur when an employer "freely and voluntarily" consents to an inspection. Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 582 (D.C. Cir. 1985). In this case, while Perry may have arrived at an inopportune time so far as Concrete's work schedule was concerned, there is no indication that he coerced Schultz or misled Schultz in any way. Perry simply explained that he was on the worksite to conduct an inspection, and Schultz made no further inquiry.[[5]] See Lake Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 88 n.14 (5th Cir. 1975) (holding that a consensual inspection exists "where the compliance officer presented himself at the plant in the same manner as might any other government official and the [employer's representative] had the same right of refusal," and distinguishing cases in which the search is not lawful because consent was given only after law enforcement officials made misrepresentations regarding their authority to conduct the search).

Accordingly, we conclude that the judge property rejected Concrete's claim of a violation of its rights under section 8(a) and the Fourth Amendment.

B. Section 8(e)

Section 8(e), unlike section 8(a), does not confer a constitutional right; rather, its purpose is to allow employees and employers to accompany inspectors "in order to effectuate a full and complete investigation." Chicago Bridge & Iron Co., 1 BNA OSHC 1086,1089,1971-73 CCH OSHD ¶ 15,416, p. 20,644 (No. 224,1973), aff'd, 535 F.2d 371 (7th Cir. 1976). The judge found that because Perry and Schultz "were in each other's company during Perry's inspection," Schultz had been "given an opportunity to accompany [Perry] within the meaning of section 8(a)." Reasoning that section 8(e) is "directory" rather than "mandatory," the judge concluded that any lack of actual accompaniment by a representative of Concrete would not justify dismissal of the citations. The judge further concluded that even if Perry had violated section 8(e), Concrete had not shown that its defense had been prejudiced.

Concrete contends that the judge erred in characterizing section 8(e) as nonmandatory in nature. It asserts that Perry did not formally offer Schultz the opportunity to accompany him during the inspection and that Perry continued his inspection of the Southwest site after Schultz left to go to the other worksite. While we agree that section 8(e) imposes a mandatory obligation on the Secretary, we reject Concrete's contention that the Secretary failed to comply with its requirements in thecircumstances presented here.

As Concrete correctly points out, two courts of appeals have held that section 8(e) is not merely directory in nature. Neither of these decisions, however, holds that failure of an employer's representative to accompany a compliance officer necessarily invalidates the citations. Rather, the courts emphasized that the Secretary is obligated under the Act to afford an opportunity for accompaniment. Marshall v. Western Waterproofing Co., 560 F.2d 947, 952 (8th Cir. 1977) ("accompaniment opportunities"); Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 376 (7th Cir. 1976). aff'g 1 BNA OSHC 1086,1971-73 CCH OSHD ¶ 15,416 (No. 224, 1973) ("substantial compliance" with section 8(e) exists where each employer on a multi-employer worksite is made aware of its right to accompany the inspector).[[6]] The extent of the efforts required on the part of the inspector to satisfy section 8(e) will depend upon the circumstances of the particular case. See Wright- Schuchart-Harbor Contrac., 1 BNA OSHC 1138,1140,1971-73 CCH OSHD ¶ 15,473, p. 20,752 (No. 559,1973) (rejecting contention that section 8(e) imposes a "mandatory jurisdictional requirement" which precludes the Secretary from citing an employer unless the employer's representative was actually present when the inspector observes the violative conditions).

Judge Burroughs did not resolve the dispute in the evidence as to whether or not Schultz remained with Perry at the Southwest site. However, since section 8(e) only requires that the employer be afforded the opportunity to accompany the inspector, and not that the employer's representative actually exercise that opportunity, resolution of this disputed factual matter is not necessary. The judge found that Schultz had been afforded an opportunity for accompaniment because he and Perry were together for at least some period of time. The preponderance of the evidence supports that finding. Clearly, Schultz would have been present during Perry's inspection of the Southwest site had he not voluntarily left to go to the Addison site. As previously noted, Perry took no actions that would have precluded Schultz from requesting that Perry wait for a company safety officer to arrive.[[7]] As the court held in Chicago Bridge, absence of a "formalized offer" of the opportunity to accompany the inspector does not automatically render citations void. 535 F.2d at 376. On the facts here, we conclude that Concrete received an adequate opportunity to accompany inspector Perry.

We further agree with Judge Burroughs that, even assuming Concrete was not afforded an opportunity to accompany inspector Perry, vacation of the citations is not appropriate because Concrete's preparation or presentation of its defense was not prejudiced. See Western Waterproofing Co., 560 F.2d at 591 (no remedy for violation of section 8(e) unless the employer's defense is prejudiced); Pullman Pwr. Prods.,8 BNA OSHC 1930, 1980 CCH OSHD ¶24,692 (No.78- 4989, 1980), aff'd, 655 F.2d 41 (4th Cir.1981) (same). Here, Concrete claims that it was unable to challenge Perry's measurements of the excavation and was deprived of an opportunity to advise Perry that Concrete had a safety training program and that the backfill with which Perry was concerned was compacted and stable. The record, however, demonstrated that Concrete had a full and fair opportunity to present its defense on these matters. Furthermore, the evidence does not establish that the excavations at either the Southwest or Addison sites had been closed by the time safety officer Lusignolo arrived at the closing conference. Therefore, Concrete has failed to show that Lusignolo could not have reviewed the conditions at either excavation with Perry when he arrived at the closing conference. Accordingly, we find no indication that any denial of the right to accompany Perry would have been prejudicial to Concrete.

Alleged Violation of Section 1926.21(b)(2)

At the time of the inspection, employee Baldwin, one of the two employees working in the excavation at the Southwest site, had been employed by Concrete as a laborer for only about two weeks. Not only was this her first job in the construction industry, but the day of the inspection was the first occasion that she had ever been in an excavation. Under Concrete's policy that more experienced laborers would show newer employees how to perform various tasks, employee McNichols, another laborer who had been employed by Concrete off and on for about two years, was with Baldwin in the excavation to train Baldwin in removing a valve, the work assigned for the Southwest site. When hired, Baldwin had been given a safety booklet, which she read but did not "really study." Although backhoe operator Willard stated that Concrete had given him training regarding safety in excavations, it is undisputed that no one had discussed with Baldwin the hazards of working in excavations.

The cited standard, section 1926.21 (b)(2), requires that the employer "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." Judge Burroughs concluded that Concrete had not complied with the requirement to give instruction to "each employee" because Baldwin had not been instructed regarding the hazards in question. The judge rejected Concrete's contention that Baldwin's mere reading of the safety booklet was sufficient to satisfy the standard for two reasons: Baldwin admitted that she had read the rules in only a "cursory" fashion, and the rules themselves were "skeletal." He also rejected Concrete's reliance on McNichols' guidance on the ground that McNichols was only instructing Baldwin in how to perform a work task and was not providing safety training. The judge found the violation to be serious and assessed a penalty of $400.

Although Concrete contends that the judge erred in finding that it had failed to comply with the standard, Concrete does not assert that if a violation existed, the violation was not serious in nature. In addition, neither party takes exception to the judge's penalty assessment.

Concrete essentially repeats the arguments it made before Judge Burroughs but also argues that the judge's decision is inconsistent. According to Concrete, the judge's conclusion that reading a safety manual alone is not enough to provide adequate training requires that the employee actually work in the excavation in order to become properly trained. At the same time, however, the judge faulted Concrete for allowing an untrained employee into the excavation. In Concrete's view, it allowed a new worker to enter the excavation only with an experienced employee, and the judge failed to specify what more Concrete should have done to comply with the standard. Noting that employees Willard and McNichols testified that they considered the excavation safe, Concrete further claims that there was no need to give Baldwin instruction regarding hazards because no hazardous condition existed. We reject these contentions for the following reasons.

An employer complies with section 1926.21(b)(2) when it instructs its employees about the hazards they may encounter on the job and the regulations applicable to those hazards. Archer-Western Contrac., Ltd., 15 BNA OSHC 1013, 1020, 1991 CCH OSHD ¶  29,317, p. 39,381 (No. 87- 1067,1991), petition for review filed, No. 91-1311 (D.C. Cir. July 1, 1991); H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1044,1049,1981 CCH OSHD ¶ 25,712 pp. 32,054, 32,058 (No. 76-4765, 1981). It is undisputed that Concrete did not provide BaIdwin with any training in the avoidance of hazards except to give her a safety booklet. As the Secretary contends and the judge found, that booklet addresses the matter of excavation safety in a cursory fashion which plainly fails to inform employees of the requirements and specifications of the Secretary's trench and excavation standards.[[8]] The evidence plainly supports the judge's finding that Baldwin's brief reading of this booklet is not sufficient to inform her of the hazards and applicable excavation standards within the meaning of section 1926.21(b)(2).

Unlike Concrete, we do not interpret Judge Burroughs' decision to hold that Concrete could only train its employees by actually having them go into the excavation; rather, the judge simply found that reading the safety booklet alone was inadequate. In any event, section 1926.21(b)(2) does not limit the employer in the method by which it may impart the necessary training. An adequate safety program that includes appropriate instructions to employees will satisfy the standard. Archer-Western, 15 BNA OSHC at 1020, 1991 CCH OSHD at p. 39,381; Dravo Engrs. & Constructors, 11 BNA OSHC 2010,1984-85 CCH OSHD ¶ 26,930 (No. 81-748, 1984). Nor does the fact that other employees may have considered the excavation safe excuse Concrete from giving the necessary instructions to Baldwin. See H.H. Hall, 10 BNA OSHC at 1049, 1981 CCH OSHD at p. 32,058 (No. 76- 4765, 1981) (violation for failure to instruct is separate and distinct from the question of whether violations of trench and excavation standards existed).

For these reasons, we conclude that Concrete committed a serious violation of section 1926.21(b)(2), and we affirm the judge's penalty assessment of $400.

Alleged Violation of Section 1926.652(e)

There is no dispute that the excavations at both the Southwest and Addison sites were dug in backfilled material resulting from earlier utility work in those areas. Perry testified that he believed that the backfill material he observed at the Southwest site dated from the previous December, about five months before the inspection, when Concrete had first installed the new water line. Both laborer McNichols and foreman Schultz, however, testified that the new water line was to the east of the Southwest site and that they were exposing the old water line. McNichols described the backfill as "settled" and "compacted" and said she was able to walk along the backfill when exiting the excavation without experiencing any movement of the backfill under her feet. Similar testimony was given by Willard, the backhoe operator, who stated that the water line in the Southwest site had been backfilled "years and years ago" and was "hard" and "solid." Schultz was not sure but believed that the original water line exposed in the Southwest site had been installed 20 years previously, and he recognized the backfill shown in the Secretary's photograph, as a limestone and crushed gravel mixture, known as "304," which compacts well. He further stated that the Ohio Department of Transportation requires that material placed under a street be compacted and that the backfill in the Addison site was of similar age and composition. Perry admitted that a photograph he took of the Addison site did not show any new water line and that he did not know how long the backfill in the Addison site had been there.

Concrete also presented the testimony of an expert witness, Daniel G. Longo, a soils engineer. At Longo's direction, a few days after the inspection Concrete re- excavated the areas where the employees had been working. Longo described the original backfill as "pretty well cemented, compacted and stable." According to Longo, the new backfill that Concrete had just used to fill each excavation was readily distinguishable from the old backfill associated with the original water line because it was not cemented or compacted.

Perry took measurements on both excavations. The Southwest site was 7 feet deep except at one end, where its depth was 5 feet, 6 inches. It was 23 feet long, approximately 8 feet wide at each end, and 12 feet wide at its middle. The Addison site was 6 feet deep, 9 feet long, and 8 feet, 9 inches in width. Although Perry did not measure the bottom width of either excavation, he testified without dispute that each excavation was sloped only along the one wall where the backfill was evident; the other walls of both excavations had no sloping.

Section 1926.652(e) requires 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.

An "excavation" is defined at section 1926.653(f) as "[a]ny manmade cavity or depression in the earth's surface." Section 1926.653(n) defines a "trench" as follows: "A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet." The cited standard is part of section 1926.652, which is entitled "Specific trenching requirements."

Judge Burroughs rejected Concrete's contention that section 1926.652(e) is inapplicable because the two excavations in question do not come within the definition of a "trench." The judge stated that there is no "absolute rule"' that a trench must be deeper than its width, and he concluded that the excavations should be characterized as trenches because their width was not substantially greater than their depth and they were being used to lay water lines. The judge also concluded that Concrete violated section 1926.652(e) and that the violation was serious in nature as the Secretary alleged because it was dug in backfill. We agree with the judge that the standard applies to Concrete's worksite and that Concrete failed to comply with its requirements, but we find the violation to be de minimis.

As Judge Burroughs noted, the definition of a trench at section 1926.653(n) by its plain terms does not impose an absolute requirement that a trench must always be deeper than it is wide. Rather, the only limiting factor in the definition is that a trench cannot be greater than 15 feet in width. D. Federico Co. v. OSHRC, 558 F.2d 614,616 (1st Cir. 1977). Accordingly, the Commission has held that a ground opening wider than it is deep may nevertheless still be considered a trench. Trumid Constr. Co., 14 BNA OSHC 1784, 1786, 1987-90 CCH OSHD ¶  29,078, pp. 38,856-57 (No. 86-1139, 1990). Generally speaking, the Commission has considered excavations that have been dug for pipelines to come within the category of "trenches." Id.; Leone Constr. Co., 3 BNA OSHC 1979, 1975- 76 CCH OSHD ¶  20,387 (No. 4090, 1976). While the excavations here, as Concrete contends, may have been dug somewhat wider to allow the employees to remove the valve at the Southwest site and to cut and place a cap on the line at the Addison site, that circumstance alone is not a sufficiently distinguishing factor to preclude application of the general principle that a pipeline excavation can be considered a trench. [[9]] See West Coast Constr. Co., 4 BNA OSHC 1940, 1976-77 CCH OSHD ¶ 21,419 (No. 7454, 1976) (pipeline excavation that was wider than its depth at a point where it had been widened to allow a catch basin to be installed is a trench under the definition). See also Wes Constr. Corp., 4 BNA OSHC 1536, 1538, 1976-77 CCH OSHD¶ 20,996, p. 25,226 (No. 4106,1976) (distinguishing pipeline work from "traditional" excavation activity "such as pouring concrete"). Accordingly, the judge properly found the excavations at the Southwest and Addison sites to be trenches covered by section 1926.652(e).

The Commission has authority to determine that a violation is de minimis in nature where it has "no direct or immediate relationship to employee safety and health." E.g., Super Excavators, Inc., 15 BNA OSHC 1313, 1314-15, 1991 CCH OSHD ¶ 29,498, p. 39,802 (No. 89-2253, 1991). There are several different circumstances which may be taken into consideration in determining whether the necessary relationship with safety or health exists in a particular situation, including the likelihood of an accident occurring. A remote likelihood of an accident is a specific ground on which a violation may be found de minimis. Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1032 (5th Cir. 1989). See Keco Indus., 11 BNA OSHC 1832, 1834-35, 1983-84 CCH OSHD ¶ 26,810, pp. 34,296-97 (No. 81-1976, 1984) (violation de minimis where the chance of an employee contacting live electrical parts was negligible); Daniel Constr. Co., 10 BNA OSHC 1254, 1260, 1982 CCH OSHD ¶ 25,840, p. 32,331 (No. 80-1224, 1981), aff'd, 692 F.2d 818 (1st Cir. 1982) (violation de minimis where possibility that electrical wires, could be damaged, thus exposing employees to the hazard of electric shock, was remote and speculative).

As Commissioner Wiseman's separate opinion notes, the standard at issue here, section 1926.652(e), requires that where trenches are located adjacent to backfill, "additional precautions" (emphasis added), such as shoring and bracing, must be taken beyond the requirements normally applicable to trenches. Because the standard is limited to the particular safety measures needed to account for the existence of backfill ,[[10]] the only issue before us is whether, on the record in this case, the presence of the backfill is a condition having a direct and immediate relationship to the safety of Concrete's employees. The mere fact that Concrete's trenches may also not have been sloped, as the general trench standards
at section 1926.652 (b) and (c) restore, does not preclude a finding of a de minimis violation in this case, where the evidence establishes only a remote or insignificant possibility that the backfill itself might collapse. Similarly, the fact that solid rock is the only material explicitly exempted from the sloping, shoring, or other protection required by those general provisions of section 1926.652, which apply to all soil types, has no bearing on the limited issue here of whether Concrete's trenches were hazardous solely because of the presence of backfill.[[11]]

While the Southwest and Addison sites were dug in a backfilled area as the judge found, the preponderance of the evidence clearly shows that the backfill was compacted and stable. Perry's testimony indicates that he merely assumed that the backfill had recently been placed in the two trenches because he was aware that Concrete had installed a new water line in the area about five months previously. Concrete's employees, on the other hand, testified from their own personal knowledge that the new water line was not exposed in these trenches and that the existing backfill was considerably older. Concrete's witnesses, including its expert, soils engineer Longo, all agreed that the existing backfill not only had been compacted originally but had become hard and stable over time. Longo, furthermore, gave his opinion that the backfill would have no impact on the safety or stability of the trenches.

The uncontroverted evidence plainly establishes that the backfill was solid and compacted and would not, in and of itself, have had any adverse effect on the stability of the walls of the trenches. On these facts ,we find that the likelihood that either of the trenches might have collapsed as a result of the presence of the backfill was remote. We therefore conclude that the violation for failing to shore or brace the trenches because they had been excavated in such material is a de minimis violation[[12]].

Accordingly, item 1 of the citation, alleging a serious violation of 29 C.F.R. § 1926.21(b)(2), is affirmed, and a penalty of $400 is assessed therefor. Item 4, alleging a serious violation of 29 C.F.R. § 1926.652(e), is affirmed as a de minimis violation and no penalty is assessed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya                                                                                                                                                           Commissioner

Dated: May 14, 1992

Concurring and Dissenting Opinion

WISEMAN, Commissioner, concurring in part and dissenting in part:

I agree with my colleagues' affirmance of Judge Burroughs' decision to the extent the judge found that the Secretary's inspection satisfied the procedural requirements of Section 8 of the Act, 29 U.S.C. § 657, and to the extent the judge affirmed the citation item alleging that Concrete failed to comply with 29 C.F.R. § 1926.21(b)(2) because its employees were not given proper safety instructions; however, I dissent from my colleagues' decision to reclassify Concrete's failure to comply with 29 C.F.R. § 1926.652(e) as a de minimis violation.

The standard set forth in 29 C.F.R. § 1926.652(e) informs employees that backfilled trenches are governed by a more restrictive requirement than trenches generally. Whereas paragraph (c) of section 1926.652 allows employees the option of sloping, in lieu of shoring, trenches above five feet when they are dug in hard or compact soil, paragraph (e) of section 1926.652 requires additional precautions such as shoring and bracing to be taken to prevent slides or cave-ins in either of two situations: (1) where excavations or trenches are made in locations adjacent to backfilled excavations; and (2) where excavations are subject to vibrations from railroad or highway traffic, the operation of machinery, or any other source. It is undisputed that the excavations at issue were made in locations adjacent to backfilled excavations, and there is no stated exception to the standard which would forego the additional precautions in the event the backfill is compacted and stable.

Section 1926.652(e) is a standard that includes requirements that by its terms must be observed whenever specified conditions are encountered, and is predicated on the existence of a hazard when its terms are not met. The Secretary is not required to prove that noncompliance with this standard creates a hazard in order to establish a violation. See Wright & Lopez, Inc., 10 BNA OSHC 1108, 1111-12, 1981 CCH OSHD ¶  25,728 (No. 76- 256, 1981); Austin Bridge Co., 7 BNA OSHC 1761, 1765-66, 1979 CCH OSHD ¶  23,935 (No. 76-93 1979). This standard presumes the existence of a hazard when its terms are not met. My colleagues, in determining that Concrete need not comply because its noncompliance created no hazard to its employees, are essentially questioning the wisdom of the standard. See Heath & Stich, Inc., 8 BNA OSHC 1640, 1643, 1980 CCH OSHD¶ 24,580 (No. 14188, 1980) (contention that compliance with § 1926.652(c) was unnecessary because soil was stable, was rejected as an "impermissible challenge to the wisdom of the standard").

Furthermore, my colleagues base their de minimis classification on their contention that it was a remote likelihood that either of the trenches might collapse as a result of the presence of the backfill. I have had over 40 years of exposure to numerous trenches through my experience in construction and through inspections as an administrator of safety and health programs. After reviewing the record and closely scrutinizing the exhibited photographs, I am convinced, based on my experience, that Concrete's trench had much more than a remote chance of collapsing.de minimis w

Violations have been classified as de minimis where the items cited are trifling or where no injury would result or any injury would be extremely minor. See Fabricraft, Inc., 7 BNA OSHC 1540, 1979 CCH OSHD ¶ 23,691 (No.76-1410, 1979) (the violation was de minimis where the failure to install needle guards on sewing machines resulted in two minor puncture wounds over a 5 1/2 year time period); J.W. Black Lumber Co., 3 BNA OSHC 1678, 1975-76 CCH OSHD¶ 20, 114 (No. 4734, 1975) (violation was de minimis because it was a minor breach of a toilet partitioning standard); R.H. Bishop Co., 1 BNA OSHC 1767, 1973-74 CCH OSHD ¶ 17,930 (No.637, 1974) (violation was de minimis where employer failed to provide a receptacle for disposable cups). Also, violations have been classified as de minimis where there is no significant difference between the protection provided by the employer and that which would be afforded by technical compliance with the standard. See Phoenix Roofing, Inc. V. Dole, 874 F.2d 1027 (5th Cir. 1989) (although the court found that an injury would be serious or fatal, it reclassified the citation as de minimis because it concluded that the protection which Phoenix employed provided safety equal to or greater than that imposed by regulation); Charles H. Tompkins, 6 BNA OSHC 1045, 1047, 1977-78 CCH OSHD ¶ 22,337, p. 26,918 (No. 15428, 1977) (violation was de minimis because employees' climbing safety was not "appreciably diminished" by additional distance between
rungs on scaffold bucks); Erie Coke Corp., 15 BNA OSHC 1561 (No. 88-611, 1992) (violation was de minimis where employer provided flame resistant gloves to its employees, by making them available to its employees but not actually paying for them).

On the other hand, a serious violation exists where there is a substantial probability that death or serious physical harm could result from a failure to comply with the applicable standard. It is not necessary for the occurrence of the accident itself to be probable. It is sufficient if the accident is possible, and its probable result would be serious injury or death. Brown & Root, Inc., Power Plant Div., 8 BNA OSHC 1055,1060,1980 CCH OSHD ¶ 24,275, p. 29,570 (No. 76-3942, 1980).

In this case, regardless of the compactness and stability of the backfill, there is no guarantee that the excavation would not collapse. Noncompliance with paragraph (e) of section 1926.652 creates a hazard of collapsing trench walls, and the probability of a resulting death or serious physical harm. As long as there is any possibility of a collapse, and such collapse would most likely result in serious injury or death to workers in the excavation, it is clear that the violation of this standard would not only have a direct effect on the safety of Concrete's employees, but that the consequences of Concrete's violation could be extremely serious.

For a violation to be serious, the Secretary also must prove that the employer knew, or with the exercise of reasonable diligence should have known, of the existence of the violation. The knowledge element is directed to the physical conditions which constitute a violation. See Southwestern Acoustics & Specialty, Inc., 5 BNA OSHC 1091, 1092, 1977- 78 CCH OSHD ¶ 21,582 (No. 12174, 1977). Concrete's own safety manual cautions as follows: "Do not enter a trench that is five feet or more in depth unless it is shored, sheeted, boxed, layed-back or in solid rock." By Concrete's own acknowledgement, a trench like the one it was cited for, that is, one that is not shored, sheeted, boxed, laid-back or in solid rock is potentially so dangerous that its employees should not attempt to enter it.

The standard at issue is specific, and based on my experience and my review of the record, I do not believe Concrete sufficiently rebutted the standard's presumption of a hazard. Had the trench in this case been dug in solid rock, perhaps it would present no safety hazard to the two employees working in it at the time of inspection even without being shored or braced. Solid rock is treated as something other than the types of soil covered by section 1926.652. See CCI, Inc., 9 BNA OSHC 1169, 1173, 1981 CCH OSHD¶   25,091 (No. 76-1228, 1980). The trench in this case, however, had not been dug in solid rock; it was adjacent to backfill and it had not even been sloped, much less shored or braced as called for by section 1926.652(e). There was always the possibility of a cave-in and resulting probable serious injury or death to Concrete's employees working in the trench at the time of the inspection. These are not trifling circumstances having no direct relationship to the health and safety of Concrete's employees. Accordingly, I would affirm Judge Burroughs' classification of Concrete's violation of section 1926.652(e) as serious.

DONALD G. WISEMAN                                                                                                                                  COMMISSIONER

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

CONCRETE CONSTRUCTION COMPANY,
Respondent.

OSHRC Docket No. 89-2019

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Roger L. Sabo, Esquire, Millisor and Nobil, Columbus, Ohio, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Respondent, Concrete Construction Company ("Concrete"), contests alleged violations of the following five safety standards: 29 C.F.R. § 1926.21(b)(2) for failure to train employees in the recognition and avoidance of unsafe conditions, 29 C.F.R.§ 1926.28(a) for failure to require an employee operating a backhoe to wear a safety belt, 29 C.F.R.§ 1926.651(i)(1) for failure to maintain a spoil pile at least two feet from the edge of a trench, 29 C.F.R. § 1926.652(e) for failure to take additional precautions to support the walls of two trenches where the trenches were dug adjacent to backfilled excavations, and 29 C.F.R. § 1926.652(h) for failure to provide a ladder as a means of exit in a trench that was more than four feet deep. The alleged violations were set forth in a serious citation issued to Concrete on June 1, 1989. Additional issues raised by Concrete include the validity of the inspection and whether the excavations were trenches within the meaning of §1926.653(n).

FACTS

Concrete is a corporation engaged in highway paving and utility work in various areas of the State of Ohio. At its peak in 1989, it employed approximately 150 employees (Tr. 279). In May 1989, Concrete was working on a contract from the State of Ohio Department of Transportation to reconstruct State Route 62 in Grove City, Ohio. The project involved widening the road, installing storm sewers and relocating a portion of the city water line which would be exposed in the subgrade of the new roadway being constructed (Tr. 284). As a result of the old water line being brittle, Concrete received a change order to its contract to replace substantially more of the water line (Tr. 284-285). The new water line was located outside the pavement on the widened roadway--placing it between the curb and the sidewalk (Tr. 246, 285) and approximately 16 feet from the old water line (Tr. 285).

On February 13, 1989, Compliance Officer Charles Perry was assigned to conduct a general schedule inspection of the Route 62 project. The inspection was selected through the use of the Dodge Reports[[1]] (Tr. 35). Due to the priority of other matters, Perry did not actually undertake the inspection until May 18, 1989.[[2]] On the date of the inspection, the project had two open excavations. The first was located at the corner of Route 62 at Broadway and Southwest Boulevard ("Southwest"). The second was located at the corner of Addison and Broadway ("Addison").

On May 18, 1989, Perry arrived at the Route 62 project at approximately 12:00 p.m. He drove the length of the work site (approximately one and a third miles) and did not see anyone working. He then proceeded to the area where the job trailors were parked. No one was in Concrete's trailor. Perry proceeded to the trailer used by the inspectors for the City of Columbus. He talked with the inspectors for approximately one hour and left to return to the Route 62 work site (Tr. 36-37).

As Perry drove back to the work site, he observed two employees in an excavation at the corner of Route 62 and Southwest Boulevard. The employees were identified as Rita McNichols and Brenda Baldwin. The backhoe operator was also at the excavation sitting in his equipment. Perry stopped and took one photograph of the employees in the excavation (Ex. C-8; Tr. 37). The acronym "OSHA" was on the pocket of Perry's coveralls, and also appeared on the hard hat he was wearing (Tr. 38).

Perry testified that, after taking the photograph, he identified himself to the employees and asked for the foreman. They informed him that the foreman was not at the site. Within a few minutes, the foreman, David Schultz, drove up (Tr. 38). According to Perry, he showed Schultz his credentials and explained to him that he was there to make a general schedule inspection of the site. Schultz did not ask for a warrant, nor did he request that Perry wait until a safety officer of Concrete could be present (Tr. 39). Perry then conducted his walkaround inspection.

Concrete weaves a slightly different scenario. Both parties agree that Perry spotted the two employees in the excavation, parked his car, walked to the area and took at least one photograph (Tr. 37-38, 222). Baldwin and Willard observed Perry's presence but testified that they did not know he was from OSHA. When Schultz arrived at the Southwest excavation, he directed the workers to place a fence around the opening and go to the Addison excavation and "cut and plug" the water line (Tr. 247-248). At the time, McNichols and Baldwin exited the excavation by stepping on a water main and storm sewer pipe (Tr. 20, 22-23, 205). According to Schultz, he noticed Perry standing along side the excavation but did not know he was a compliance officer. Schultz was busy since he was in a rush to cut through a portion of the old line at the Addison excavation. Water service had to be terminated while the cut was made, and Schultz did not want to unduly delay restoring the water service. According to Schultz, as he was leaving the Southwest site, Perry showed his credentials and told him he was there to conduct an inspection. Schultz responded that he had to get to the Addison excavation and get the water back in service as soon as possible (Tr. 250). Perry did not conduct an opening conference (Tr. 266).

THERE IS NO CAUSE TO VACATE                                                                                                                         CITATIONS FOR AN IMPROPER INSPECTION

Concrete asserts that the citation should be vacated, because Perry failed to comply with sections 8(a) and 8(e) of the Occupational Safety and Health Act of 1970 ("Act"), 29 U.S.C. § 657. Section 8(a)[[3]] requires the compliance officer to present his credentials to the appropriate persons at the work site before conducting an inspection. Section 8 (e)[[4]] states that an employer is entitled to have a representative accompany the compliance officer during the physical inspection of the workplace. Concrete contends that the denial of these rights prejudiced the company in defending against the alleged violations. The evidence does not support this contention.

Perry did not present his credentials until after he had observed McNichols and Baldwin in the excavation and had taken at least one photograph (Tr. 105, 109). Within a few minutes after Perry arrived at the site, the foreman, David Schultz, arrived. There is no dispute over the fact that Perry revealed his identity to Schultz (Tr. 205-206, 222, 248). Concrete argues that the compliance officer commenced his inspection from the time he got out of his car and began taking pictures. It further argues that he did not introduce himself to the two employees in the trench until they had exited the trench and the foreman arrived (Tr. 19, 206, 248-249). The dispute evolves over the fact that Perry did not immediately identify himself when he arrived at the Southwest excavation.

It is undisputed that Perry presented his credentials to Schultz upon Schultz's arrival at the site. It is apparent that, prior to Schultz's arrival, Perry was engaged in trying to ascertain the whereabouts of the employees' foreman. Perry estimated that two or three minutes had elapsed between the time he identified himself to the employees and the time Schultz drove up (Tr. 39). The slight delay in identifying himself to the employees in the excavation did not place Concrete at any disadvantage in defending its case. He identified himself to the foreman upon the foreman's arrival at the site and prior to conducting a walkaround of the site.

Under the rationale set forth in AccuNamics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), there is no basis for dismissal even if Perry had not shown his credentials. The Southwest and Addison excavations were in public view. The jobsite was on a public road. There is no evidence that Perry looked where he had no right to look. There has been no violation of Concrete's fourth amendment rights.

Concrete argues that it is company policy that, when an OSHA compliance officer arrives at a work site to conduct an inspection, one of its safety officers is to be notified to accompany the compliance officer on his walkaround (Tr. 283). Schultz stated that he did not notify a Concrete safety officer because, "I assumed he had already inspected whatever he was looking at, you know, and I didn't see anything was wrong" (Tr. 250).

Considering that Perry had been on the site for only a matter of minutes, it would seem that if Concrete had a complaint about lack of notification of a safety officer, it would be with Schultz and not with Perry. Indeed, Alfred Gallucci, the safety officer for Concrete, testified that he had disciplined Schultz for not contacting him (Tr. 308). OSHA cannot be held responsible for a foreman's failure to follow his company's policy.

Shultz stated that he did not accompany Perry on his walkaround (Tr.266-267), but this appears to be a matter of semantics; Schultz claimed Perry followed him over to the Addison excavation (Tr. 250). Either way, Perry and Schultz were in each other's company during Perry's inspection. Concrete was given an opportunity to accompany OSHA's compliance officer within the meaning of section 8(e) of the Act. The fact that no person from Concrete accompanied Perry is not cause for dismissal. The Commission has held the "walkaround" requirement to be directory rather than mandatory. Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD ¶ 16,474 (No. 224, 1973); Wright-Schuchart Harbor Contractors, 73 OSAHRC 4/F13, 1 BNA OSHC 1138, 1971-73 CCH OSHD¶  15,473 (No. 559, 1973).

Even if there was a failure to comply with sections 8(a) and 8(e) of the Act, the facts fail to support Concrete's argument that its defense was prejudiced by the Secretary's action. In Pullman Power Products, Inc., 80 OSAHRC 77/B11, 8 BNA OSHC 1930, 1932, _ CCH OSHD ¶ _ (No. 78- 4989, 1980), the Commission set forth the following rationale for deciding such cases:

[1] In determining that the inspection was not "meaningful" and vacating the citations on that basis, the judge applied an improper legal test. The test to be applied in determining whether to grant relief to an employer because of the Secretary's failure to meet the walkaround requirements of section 8(e) of the Act is whether the employer suffered prejudice in the preparation and presentation of its defense. S & H Riggers & Erectors, Inc., 8 BNA OSHC 1173,1980 CCH OSHD ¶ 24 ,336 (No.76-1104 & 76-1739, 1980), appeal filed, No. 80-7297 (5th Cir. April 21, 1980); Titanium Metals Corp. of America, 7 BNA OSHC 2172, 1980 CCH OSHD ¶ 24,199 (No. 14080, 1980), appeal filed, No. 80-1333 (3d Cir. March 10, 1980).

Concrete's argument that the citation should be vacated because the inspection was conducted improperly is rejected

THE ALLEGATIONS

Item 1

Alleged Violation of 29 C.F.R. § 1926.21(b)(2)

The Secretary alleges that Concrete violated § 1926.21(b)(2) by allowing an employee to work in an excavation without proper instruction to recognize and avoid unsafe conditions. Section 1926.21(b)(2) 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.

Concrete argues that Perry chose to ignore the nature and extent of safety training which Concrete gives to its employees.

Perry observed Brenda Baldwin in the Southwest excavation and took her photograph (Ex. C-8). At the time of the inspection, Baldwin had worked for Concrete for approximately ten days, which is the same amount of time she had spent in the construction industry (Tr. 12-13). Prior to her job with Concrete, Baldwin had been employed as a cashier and as a bartender (Tr. 11).

When Perry interviewed Baldwin, she told him that she had received no training in trench safety (Tr. 13, 50). At the hearing, Baldwin stated that she was mistaken about the safety training: "At the time, I was upset. I had just forgotten that when I did get hired by the company, that Dominic Gallucci had given me a hard hat and a safety booklet and I had read it, but I didn't really study it" (Tr. 13).

Concrete contends that Baldwin's cursory reading of the safety booklet is adequate to fulfill the requirements of § 1926.21(b)(2) that it "instruct each employee in the recognition and avoidance of unsafe conditions." The safety booklet in question is 36 pages long. Approximately one page is devoted to trenching and excavating. The sum of the booklet's "training" regarding excavations is as follows (Ex. R-1, pp. 20-21):

TRENCHING AND EXCAVATING

1. Do not enter a trench that is five feet more in depth unless it is shored, sheeted, boxed, layed-back or in solid rock.

2. A ladder must be IN the trench, near the work area and extended 36 inches above the top of the bank, unless a ramp or steps are provided.

3. Install cross-braces against solid ground, not voids.

4. Before entering a trench at the beginning of a new work day, inspect for evidence of cracks, slides or wall failures.

5. Know the location of utilities before digging. If in doubt call the utility or OUPS at 1-800-363-2764, 48 hours before digging.

6. Excavated or other materials should not be stored closer than two feet from the excavated edge.

7. Be alert to possible contact with overhead power lines.

8. Never enter a manhole until it has been checked for gases.

The fact that Baldwin gave these skeletal rules a quick read does not inspire confidence in her ability to recognize and avoid unsafe conditions. Baldwin stated that no one had discussed with her the hazards associated with working in trenches. She had never entered a trench before that day (Tr. 14). The standard is explicit that the employer shall instruct each employee. The fact that other employees may have received such instructions did not obviate the requirement that instruction be given to Baldwin.

Concrete argues that, as a new employee, Baldwin could not be expected to have the same training as other, more experienced employees. This may be true, but it is not an excuse to allow her to enter into an excavation without some training or instruction as to the hazards of the job. Concrete contends that the other employee in the excavation, Rita McNichols, was a trained employee who was looking out for Baldwin. McNichols stated that she allowed Baldwin in the excavation because, "I wanted to get her some experience" (Tr. 204). The experience that Baldwin was getting at this particular point was to help McNichols "get ready to take the bolts out and take the valve off" (Tr. 204). While this may have given Baldwin some work experience, it does not address experience in safety training. Concrete assigns McNichols the role of being Baldwin's protector, but nowhere in the record does it indicate that McNichols was giving any kind of safety instructions to Baldwin. When McNichols was asked if it was part of her duties to train other employees, she stated, "Well, it's not really that you would train them. I mean, you just kind of help them -- you know, show them -- it's just kind of like common sense. You just show them how to do other things" (Tr. 208).

The foreman, David Schultz, was not present when McNichols and Baldwin were in the excavation. He had assigned them the job of cleaning out around the valves in the excavation and obviously knew they had to go into the excavation to accomplish the assignment (Tr. 270). He was unaware if Baldwin had ever been in a trench prior to that occasion and conceded that he had never talked with her regarding the hazards associated with trenches (Tr. 271).

The fact that other employees may have received some instruction in the recognition and avoidance of unsafe conditions does not satisfy the requirements of the standard. Section 1926.21(b)(2) requires that each employee must receive such instruction. It is clear that Ms. Baldwin did not receive any such instruction. The fact that others may have received instruction is a mitigating factor that can be taken into account in the assessment of an appropriate penalty.

The Southwest excavation ran east to west and was 23 feet long, 12 feet wide in the middle, and approximately 8 feet wide at the east and west ends. The south wall was 6 1/2 feet deep. The trench had been previously backfilled (Ex. C-10). Baldwin was working in the excavation even though she had not been trained in the recognition and avoidance of a potential cave-in. The likely results of such a cave-in would be death or serious physical injury. Concrete was in serious violation of § 1926.21(b)(2).

Item 2

Alleged Violation of 29 C.F.R.§ 1926.28(a)

It is alleged that the backhoe operator was operating a backhoe equipped with rollover protective structures without wearing a seat belt in violation of section 1926.28(a), which states:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

In order to establish a violation of § 1926.28(a), "the Secretary must prove (1) exposure to a hazardous condition; (2) that some other section of Part 1926 indicates a need for the use of particular protective equipment in the circumstances presented; and that (3) the employer failed to require the use of the equipment." L.E. Myers Co., High Voltage Systems Division, 86 OSAHRC 52/A2, 12 BNA OSHC 1609, 1986 CCH OSHD ¶ 27,476, p. 35,604 (No. 82-1137, 1986).

Perry observed the backhoe operator, Robert Willard, moving a backhoe away from the edge of the excavation. He came around behind Perry and Schultz, to whom Perry was talking. Willard was not wearing a seat belt at the time. Perry told Willard that he should be wearing the seat belt because the backhoe had a roll-over protective structure ("ROPS"). Willard told Perry that he "didn't feel he needed to wear a seat belt because he was in a flat location" (Tr. 126). According to Perry, in the event the vehicle turns over, the operator is generally thrown from the seat and can be crushed by the ROPS. The seat belt is worn to keep the operator inside the vehicle (Tr. 54).

Perry stated that his conversation with Willard took place in front of Schultz, that Schultz did not discipline Willard for not wearing the belt, and that Willard then drove away into traffic on Southwest Boulevard without fastening his seat belt (Tr. 55). Willard testified that, as soon as he spoke to Perry, he put on his seat belt (Tr. 229). The unfastened safety belt is visible in Exhibits C-2 and C-3. It is hanging off the back of the operator's seat. Perry testified that he took the photographs after his discussion with Willard (Tr. 43, 57). This is inconsistent with his testimony on cross-examination where he stated that the photographs were taken before he talked to Willard (Tr. 124-125). The inconsistency is not material to the finding of a violation.

Willard and Schultz testified that Schultz was not present when Perry spoke to Willard about the seat belt (Tr. 227, 231, 272). Willard also stated that, as soon as he finished speaking with Perry, he fastened his seat belt to satisfy Perry (Tr. 224). Schultz stated that, after Perry spoke with Willard, he saw that Willard put the seat belt on (Tr. 271-272). Exhibits C-2 and C-3 support the testimony of Perry that Willard was not wearing a seat belt. The dispute over whether he fastened the belt after Perry spoke to him does not alter the undisputed fact that Willard was operating the backhoe without wearing a safety belt. Willard's lack of use of the seat belt was easily detected. If Concrete had an effective enforcement procedure, it knew of the violation or should have known of it since the violation was in plain view.

The Secretary has established that Willard was exposed to a hazardous condition. Concrete claims that, because the backhoe was operated on solid, level ground, a seat belt was not needed (Tr. 224). Perry, however, observed Willard operating the backhoe within a few feet of the excavation and on a heavily traveled street (Ex. C-8). The backhoe could have rolled into the excavation or been hit by oncoming traffic. Turning to the second element under L. E. Myers, that some other section of Part 1926 indicate a need for the use this particular protective equipment,§ 1926.602 provides:

(1) These rules apply to the following types of earthmoving equipment: scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.

(2) Seat belts. (i) Seat belts shall be provided on all equipment covered by this section...

(iii) Seat belts need not be provided for equipment which does not have roll-over protective structure (ROPS) or adequate canopy protection.

The Secretary has established that seat belts were required by Part 1926 since the backhoe had ROPS.

The third element of L. E. Myers requires proof that the employer failed to require the use of the protective equipment. Concrete's safety booklet has a section entitled "Motor Vehicles and Mechanized Equipment," which contains this rule: "Buckle your seat belt before operating" (Ex. R-1, p.22). It was apparent from the testimony that this rule was neither enforced nor obeyed.

When asked if he'd used the safety belt while operating the backhoe on other occasions, Willard replied "Not too often" (Tr. 231). Alfred Gallucci, who is in charge of safety for Concrete, stated: "The employees are supposed to wear seat belts on their equipment, especially in rough terrain, and with rocks in" (Tr. 306). This is not in compliance with the standards. Section 1926.602(a) requires that safety belts be worn while the vehicle is in operation, regardless of the terrain.

The Secretary has established that Concrete was in violation of § 1926.28(a). There was always the possibility that the vehicle could turn over, throwing the operator out and crushing him beneath the ROPS. The likely result of this occurrence would be death or serious injury. Concrete's violation was serious.

Item 3

Alleged Violation of 29 C.F.R. § 1926.651(i)(1)

The Secretary alleges that the spoil removal from the Southwest excavation was stored within two feet of the edge of the excavation. Section 1926.651(i)(1) provides:

(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.

Concrete argues that the allegation must be vacated "since the Secretary has not shown the existence of a safety hazard." It also asserts that the Secretary has failed to establish any substantial employee exposure.

The spoil pile from the Southwest excavation was stored at the edge of the north wall of the excavation (Exs. C-5, C-6, C-8; Tr. 57-58). The weight of the spoil pile created a superimposed load on the wall of the excavation (Tr. 61).

Concrete concedes that part of the spoil pile was at the edge of the excavation but argues that the bulk of it was more than two feet away from the edge and was resting on asphalt (Tr. 221, 254). Concrete's argument is contradicted by the photographic evidence. Exhibit C-8 shows the spoil pile directly at the edge of the excavation, looming over the two employees.

Concrete's argument that the allegation must be vacated because the Secretary has not shown the existence of a safety hazard is without merit. Section 1926.651(i)(1) does not require that employees be subjected to a hazard by virtue of violative conditions. The standard requires only that "employees may be required to enter" an excavation. D. Federico Co., 17 OSAHRC 13/A2, 3 BNA OSHC 1970, 1974, 1975-76 CCH OSHD¶ 20,422 (No. 4395, 1976). McNichols and Baldwin were instructed by the foreman to clean out around the valves in the excavation (Tr. 270). They were required to enter the excavation to carry out the assignment. The violation has been established.

The argument that the Secretary has failed to establish any substantial exposure is not considered to be a serious argument on Concrete's part for vacating the allegation. McNichols and Baldwin were in the excavation. This fact is undisputed. A cave-in is not caused by the length of time one remains in an excavation or trench. Such a catastrophe can occur at anytime.

A superimposed load on the walls of a trench that has been previously backfilled exacerbates the potential for a cave-in. In the event of a cave-in, employees in the excavation would likely incur death or serious physical injury. Concrete was in serious violation of 1926.651(i)(1).

Item 4

Alleged Violation of 29 C.F.R.§ 1926.652(e)

The Secretary alleges that the Southwest and Addison excavations were trenches that were not shored, sheeted, braced, sloped or otherwise supported as required by section 1926.652(e), which states:

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.

Concrete argues that § 1926.652(e) is inapplicable because the excavations are not trenches and that § 1926.652(e) applies only to trenches, citing Rick Koterzina Construction Co., 85 OSAHRC 22/B1O, 12 BNA OSHC 1334, 1336, 1985 CCH OSHD ¶ 27,269 (No. 84-839, 1985). It further contends that the standard under which Concrete has been cited is confusing and that the measurements made by Perry were inaccurate.

Three measurements were taken across the top of the Southwest excavation. The excavation was wider in the middle, which was 12 feet. The ends were approximately 8 feet in width (Ex. C-10; Tr. 121). No measurements were made of the width at the bottom of the excavation (Tr. 122-123). The excavation was 23 feet in length (Tr. 123). The depth measurement was made by dropping the measuring tape over the side of the excavation (Tr. 81, 123). Perry was approximately one foot from the trench wall when making the depth measurement (Tr. 81). Perry measured the depth to be 6 feet, 6 inches (Ex. C-10). He conceded that he did not take into account the sloping of the walls (Tr. 81-82). He stated: "When I took the measurements, they were approximate because they were not accurate" (Tr. 82). The Addison excavation was measured in the same manner as the Southwest excavation. The Addison excavation was 6 feet deep, 9 feet long, and 8-3/4 feet wide (Ex. C- 11; Tr. 86-88). Perry did not measure or feel any vibrations at the excavations (Tr. 127). Both excavations were in previously backfilled areas (Tr. 61-63, 211, 347). Each excavation was approximately 16 feet from a heavily trafficked highway (Tr. 89). Concrete took no additional precautions to support the walls. The walls were almost vertical.

Concrete argues that the excavations in question were not trenches as defined by § 1926.653(n). This section provides:

"Trench"--A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

Since the excavations in question were wider than they were deep, Concrete contends they are not subject to the requirements of §1926.652(e).

Section 1926.653(n) defines trenches as being "in general" deeper than they are wide. The Commission has held that this does not create an absolute rule that trenches are always deeper than they are wide. Such a rule would lead to the undesirable situation where an employer would need only ensure that its excavations were always a foot wider than they were deep, thus circumventing the intent of the trenching standard.

In West Coast Construction Co., 76 OSAHRC 149/F1, 4 BNA OSHC 1940, 1976-77 CCH OSHD ¶ 21,419 (No. 7454, 1976),[[5]] the Commission stated (4 BNA OSHC at 1941):

[1] We have held that, even though a ground opening is wider than it is deep, it may still be properly classified as a trench. Leone Const. Co., Docket No. 4090, BNA 3 OSHRC 1979, CCH OSHD para. 20,387 (Feb. 10, 1976); D. Federico Co., Docket No. 4395, BNA 3 OSHC 1970, CCH OSHD para. 20,422 (Feb. 10, 1976). Indeed, as Respondent points out, an opening dug for the purpose of laying pipe is generally classified as a trench. Leone Const. Co., supra.

Like West Coast, this case involves the laying of pipe. The Commission also pointed out that the cited excavation standard was functionally equivalent to the trench standard under similar facts. The Commission, after finding the standards to be functionally equivalent, concluded (4 BNA OSHC at 1941):

Since the issue to be resolved is the same under both standards, whether or not the more appropriate standard was cited is unimportant. If it should be determined that the wrong standard was cited, the proper course is to amend the pleadings to allege the proper standard. D. Federico Co., supra. Since the ultimate issue is the same under both standards, any possibility of prejudice from such an amendment is precluded.

The Secretary cited §1926.652(e), because both excavations were made in locations adjacent to backfilled excavations. Section 1926.651(m) is labeled "specific excavation requirements." Subsection (m) requires special sloping or shoring shall be taken when an excavation is dug adjacent to a backfilled excavation. [[6]] Both sections are directed toward preventing a cave-in in such situations. The depth measurements are less than the width measurements but not to any great degree. Since the excavation was being used to lay a water line, it would generally be thought of as a trench as suggested by the Commission in West Coast Construction Co., supra.

Sections 1926.652(e) and 1926.651(m) are functionally equivalent in terms of protecting against a cave-in of excavations or trenches made adjacent to backfilled excavations; therefore, it is unimportant whether the appropriate standard was cited. The end result is that Concrete did not comply with either standard. An amendment under Fed. R. Civ. P. 15(b) would be proper if it was determined that the excavation could not be classified as a trench. Since the excavations were dug to lay a water line, it is plausible to also refer to them as trenches.

Concrete also takes issue with the accuracy of Perry's measurements. He took measurements with a steel tape and contemporaneously recorded these measurements in his notes (Exs. C-10, C-11; Tr. 58). Concrete's attack on the measurements centers on Perry's unfortunate choice of words, "When I took the measurements, they were approximate because they were not accurate" (Tr. 82). Concrete also states that the reliability of Perry's measurements is impugned because he could not testify from memory as to the measurements. This argument ignores the fact that the inspection took place on May 18, 1989, and the hearing took place on January 8 and 9, 1990. Perry's job is to inspect work sites and record measurements. Since it was obvious Perry had not reviewed his file before testifying, it would be unrealistic to expect him to testify from memory as to measurements taken eight months before. He would have been better prepared to testify if he had reviewed his case file carefully before being called as a witness.

While Concrete elicited testimony from several of its employees to the effect that the trenches were not as deep as Perry states (Tr. 18, 207, 220, 236), none of these employees took measurements of the trenches. An approximation made by a measuring tape is considered more realistic than guesses by employees who might tend to favor their employer.

Concrete also presented the testimony of Daniel Longo, a professional soils engineer. Longo attempted to re-create the excavation sites by digging down to the water line. He then took measurements which he purported proved that the Southwest and Addison trenches were only 4.9 feet and 4.8 feet deep, respectively (Tr. 358-360). Longo conducted his experiment in "late summer of '89" (Tr. 319). Perry conducted his inspection in the middle of May. The photographs Concrete introduced in support of Longo's testimony show that the grade of the road had been cut down several feet (Exs. R-16, R-18, R-19, R-22; Tr. 323). These photographs should be compared with Exhibit C- 5 which shows the site at the time of inspection. Reference to C-8, taken on the day of the inspection, shows the trench walls to be well above the heads of the two employees. Concrete contends that the angle of the photograph makes the trench look deeper than it is, but the photograph does not appear to be greatly distorted. The Secretary's photographic evidence and Perry's recorded measurements are accepted as factual representations of the trenches.

The standard requires additional precautions to be taken in locations adjacent to backfilled excavations or where excavations are subjected to vibrations. Perry did not take measurements for vibrations and he did not feel any vibrations at the trenches (Tr. 126- 127). This is insufficient to prove that the trenches were subjected to vibrations. It was undisputed, however, that the areas around the trenches were backfilled. Employees were working inside both trenches. Concrete was in violation of §1916.652(e). The violation was serious since a cave-in could have occurred at either of the locations.

Item 5

Alleged Violation of 29 C.F.R.§1926.652(h)

The Secretary alleges that a ladder or other safe means of exit from the Addison and Southwest trenches was not provided for employees working in the trenches. Section 1926.652(h) provides:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

A ladder was present lying on the ground above one of the trench walls (Tr. 257). It was undisputed that neither trench had a ladder in it (Tr. 95).

Concrete argues that the cited standard "deals only with trenches, not excavations." For this reason, it considered § 1926.652(h) to be inapplicable. The argument is without merit in view of the ruling that the excavations can be classified as trenches.

Concrete argues that there is no violation even if the standard if applicable. It submits that employees were afforded a safe and effective exit without a ladder. Concrete correctly points out that the standard "does not require a ladder, but instead requires only the 'adequate' means of exit." The Secretary concedes, the absence of a ladder is not per se a violation of the standard. All that is required is an "adequate means of exit." Perry stated that he observed employees entering and exiting the trench "using one of the walls of the trench, and with the gravel and material and backfill in the trench, they had to labor extra because the material kept moving under their feet as they exited and entered the trench" (Tr. 93-94).

All of the employees who testified regarding the exiting of the trenches stated that they had no trouble doing so in a
safe manner. Baldwin stated that she did not exit on the backfill: "There was a water main there, a pipe, and you could climb on it. And, there was an old storm sewer down there, too, that you could climb down" (Tr. 22-23). McNichols stated she had no trouble getting in and out of the trench (Tr. 205). She stated that she exited the trench by stepping up on the old water line, and that the backfill did not move beneath her feet (Tr. 212). When told that Perry had asserted that the backfill moved when people tried to get out, McNichols replied, "It never happened to me" (Tr. 212). Donald Stevens, a pipelayer's helper, testified that he had no trouble exiting the trench and did not "labor" to get out (Tr. 238). Schultz observed employees entering and exiting the trench and stated that they had no trouble getting out (Tr. 257).

The Secretary has failed to establish that the trenches were not provided with adequate means of exit. Concrete was not in violation of § 1926.652(h).

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).

Concrete had approximately 150 employees. There was no evidence presented of a prior history of violations. Concrete exhibited good faith in dealing with OSHA. It was cooperative during the inspection. The gravity of the four violations is severe. Items one, three and four present the potential for a cave-in, a life-threatening occurrence. Item two presented the hazard of the backhoe operator being crushed under the ROPS of an overturned backhoe. The fact that Concrete has a safety manual, holds weekly safety meetings (Tr. 281) and the fact that McNichols (Tr. 201), Willard (Tr. 216), Stevens (Tr. 234), and Schultz (Tr. 261) testified regarding Concrete's safety training are considered mitigating factors in assessing a penalty for item one.

After due consideration of the relevant factors, it is determined that the following are appropriate penalties:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing and good cause appearing in support of the determinations, it is

ORDERED: That the allegations and proposed penalties set forth in the serious citation issued to Concrete on June 1, 1989, are vacated, modified and affirmed as follows:

Dated this 10th day of December, 1990.

JAMES D. BURROUGHS
Judge


FOOTNOTES:
[[1]] Subsequent to the inspection here, the Secretary extensively amended Subpart P of Part 1926, which governs trenches and excavations. 54 Fed. Reg. 45894 (1989). All references to Subpart P in this decision are to the standards as they existed at the time of the inspection at issue.

[[2]] The judge also affirmed citation items alleging that a backhoe operator was not wearing a seatbelt as required by section 1926.28(a) and that excavated material was not stored at least 2 feet from the edge of one trench, contrary to section 1926.651 (i). The judge vacated an allegation that Concrete failed to comply with section 1926.652(h) by not providing an adequate means of exit from both trenches. Neither party takes exception to the judge's disposition of these items, and these portions of the judge's decision are now a final order of the Commission.

[[3]] Section 8(a) provides:

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...and

(2) to inspect and to 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 employer.

Section 8(e) requires:

Subject to regulations issued by the Secretary, a representative of the employer...shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.

The Secretary's regulation at 29 C.F.R.§ 1903.8, "Representatives of employers and employees," essentially repeats the statutory language.

[[4]] We reject Concrete's contention in its brief before us that the Southwest site itself was "inaccessible" to the public. The judge made no such finding, and there is no evidence to support the contention.

[[5]] Concrete also asserts that the judge found that Schultz was justified in concluding, when be arrived at the site, that Perry had already completed his inspection. The judge's decision, however, does not contain any such finding, and there is no evidence of any basis on which Schultz could have reasonably determined that Perry had concluded his inspection.

[[6]] In characterizing section 8(e) as "directory," Judge Burroughs cited the Commission's decision in Chicago Bridge, where the Commission stated the following reason for its conclusion that section 8(e) is "nonmandatory".
[[T]]here is not one scintilla of evidence that section 8(e) was intended to establish an absolute right in the employer and employees, the denial of which deprives the Secretary of jurisdiction. On the contrary, the legislative history establishes that section 8(e) was intended to direct the Secretary to afford employees and employers the opportunity to accompany investigators ....
1 BNA OSHC at 1089,1971-73 CCH OSHD at p. 20,644. Considering the context in which the Commission used the term "nonmandatory," it is clear that there is no material difference between the Commission's analysis of the substance of section 8(e) and that of the court opinions on which Concrete relies.

[[7]] Concrete does not argue that Perry's taking a photograph of the excavation before Schultz arrived violates section 8(e). In any event, the Commission has held that where the representative of the employer is temporarily absent from the site, section 8(e) does not preclude a compliance officer from taking steps to preserve evidence of a transitory violation to which employees are exposed. Environmental Utils. Corp., 5 BNA OSHC 1195, 1198, 1977-78 CCH OSHD ¶ 21,709, p. 26,074 (No. 5324, 1977).

[[8]] For example, while the booklet informs employees "not [to] enter a trench that is five feet [or] more in depth unless it is shored, sheeted, boxed, layed- back or in solid rock," the booklet does not advise employees that the amount of sloping necessary will vary according to the type of soil, nor does it give employees any guidance in determining soil type. The booklet also does not inform employees that shoring is required in trenches that are dug in backfilled areas or are subject to vibration, which is one of the requirements of Subpart P that is at issue in this case.

[[9]]Concrete's witness, soils engineer Longo, also measured the excavations when Concrete reopened them after the inspection. The judge discredited Longo's measurements as not representative of the conditions existing at the time of the inspection. Concrete does not argue that the judge erred in accepting Perry's measurements rather than those made by Longo. In any event, Longo did not measure a width in excess of 15 feet at either site. Therefore, his testimony does not alter our conclusion that these excavations can be considered trenches under the definition.

[[10]]The cited standard also requires shoring or bracing where trenches or excavation are subjected to vibration. The judge found that no vibration was present, and the Secretary does not take exception to this finding.

[[11]] CCI, Inc., 9 BNA OSHC 1169,1981 CCH OSHD  ¶25,091 (No. 76-1228,1980), aff'd. 688 F.2d 88 (10th Cir. 1982), on which the separate opinion relies, involves a violation of section 1926.652(c). Since that standard is a general trench provision, requiring protective measures dug in all types of soils, not merely backfill, it is inapposite here.

[[12]] Concrete relies on a prior decision of the Commission holding that the stability or compactness of backfill may be taken into consideration in determining whether a violation of 29 C.F.R.§ 1926.652(e) exists in the first instance. Shane, Inc., 5 BNA OSHC 1217, 1977-78 CCH OSHD ¶21,694 (No. 13136, 1977). Because we have relied on the evidence of the compactness and stability of the backfill to determine that the violation
(continued ... )

was de minimis and therefore requires no abatement and involves no penalty, we need not reach Concrete's argument.

[[1]].
Dodge Reports are provided as a private service created for construction contractors to use in bidding and scheduling construction projects. The report lists jobsites by location, dollar amount, and project description (Tr. 173). OSHA contracted with the University of Tennessee to assist in the general scheduling of inspections for the construction industry. Every month, the University of Tennessee sends 20 Dodge Reports to each area office for OSHA (Tr. 172, 187). Each office uses the reports to make their general schedule construction inspection list (Ex. R-2, p. 115). James Vaughn, the Area Director for OSHA's Columbus, Ohio, office, testified that a new list is not started until the previous list's 20 inspections were completed (Tr. 189).

[[2]]
A compliance officer's time is utilized on a priority system. Catastrophic inspections receive first priority and are followed by complaints and referrals. General schedule inspections receive last priority Tr. 34-35).


[[3]]
Section 8(a) states:
(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.

[[4]]
Section 8(e) states:
(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 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.

[[5]] See also: Health & Stich, Inc., 80 OSAHRC 65/E12, 8 BNA OSHC 1640, 1980 CCH OSHD¶  24,580 (No. 14188, 1980) (trench 12 feet wide and 10 to 11 feet deep). Accord, D. Federico Co. v. OSHRC, 558 F.2d 614 (5 OSHC 1528) (1st Cir. 1977), aff'd, 3 BNA OSHC 1970, 1975-1976 CCH OSHD ¶ 20,422 (No. 4395, 1976) (trench 12 feet wide and 6 1/2 feet deep). Trumid Construction Co., OSAHRC , 14 BNA OSHC 1784, 1786, 1990 CCH OSHD ¶ 28,013 (No. 86-1139, 1990).

[[6]] Section 1926.651(m) provides:
Special precautions shall be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or a fill, particularly when the separation is less than the depth of the excavation. Particular attention also shall be paid to joints and seams of material comprising a face and the slope of such seams and joints.