UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC DOCKET NO. 8122 |
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ANCHOR CONSTRUCTION CO., |
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Respondent. |
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June 16, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BARNAKO, Chairman:
A report of Review Commission Judge Alan M. Wienman, dated February 27, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). The issues on review are (1) whether the administrative law judge properly granted Complainant’s motion to amend the citation and complaint to allege a violation of 29 C.F.R. 1926.652(b) in lieu of 29 C.F.R. 1926.652(a), and, (2) if so, whether the administrative law judge correctly found that Respondent violated 29 C.F.R. 1926.652(b).[1] Having examined the record in its entirety, the Commission finds that the administrative law judge properly decided the case and his report is therefore adopted as the decision of the Commission.
Respondent received a citation alleging a serious violation of 29 U.S.C. 654(a)(2) in that employees were working in a trench dug in clay soil with water conditions and which was eleven feet deep, five feet wide at the bottom and twenty-two feet three inches wide at the top. The citation and complaint indicated that the trench did not conform to the requirements of 29 C.F.R. 1926.652(a)[2] and 651(h).[3] The matter went to hearing, and Complainant presented his case. After his evidence in chief was in, Complainant moved to amend the 652(a) allegation so as to allege a violation of 29 C.F.R. 1926.652(b).[4] The law judge ordered the motion reduced to writing and afforded Respondent the opportunity to oppose.
Thereafter, the law judge granted the motion to amend in reliance on our decisions in J. L. Mabry Grading, Inc., 9 OSAHRC 108, BNA 1 OSHC 1211, CCH OSHD para. 15,686 (1973); Lovell Clay Products, Inc., 10 OSAHRC 237, BNA 2 OSHC 1121, CCH OSHD para. 18,327 (1974). He determined that a serious violation of 652(b) existed on the basis that Respondent failed to rebut Complainant’s evidence to the effect that the walls of the trench were soft and unstable because they would not support weight placed on them, sloughing was observed in the bottom, one wall was cracked, and water was flowing in the trench. He also determined that Complainant did not prove a violation of 651(h).
On review, Respondent argues that the amendment should not have been allowed saying that the issue between the parties concerned the water conditions and did not include the condition of the soil. The short answer is that the issues cannot be separated since water conditions in a trench necessarily will affect the stability of a trench dug in soil. But we need not rest our decision on this ground.
The fact is that the original citation and standards cited in this case should have put Respondent on notice that the condition of the soil was in fact in issue. Thus 652(a) provides, in part, that banks ‘shall be shored or laid back to a stable slope, or some equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. The citation referred to the specific soil conditions Complainant thought were involved in the case. Respondent does not argue that it was misled. Under these circumstances we must conclude that Respondent was on actual notice that the issue was involved in this case.
Moreover, Respondent’s pleadings and briefs filed herein are consistent with our conclusion. Thus by its answer Respondent avers that it was in compliance with all trenching requirements; it also said that Complainant failed to perform adequate tests to determine the nature of the soil. And in its brief to the law judge it argued that the trench was dug in conformance with 29 C.F.R. 1926.652(c) which requires shoring or sloping above the five foot level for trenches dug in hard or compact soil.
In our view the law judge properly granted the motion to amend. Paragraph 652(b) requires that sides of trenches five feet or more in depth and dug in ‘unstable or soft soil’ be sloped, shored, braced or otherwise supported. Unstable soil is defined at paragraph 653(a) as meaning
Earth material other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.
Clearly, the issues for trial regarding the nature of soil whether it be ‘unstable or soft’ under 652(b) or ‘moving ground or cave-ins’ under 652(a) are not so different that an amendment at trial will result in prejudicial surprise. As we have said recently:
We equate ‘unstable or soft material’ with ‘moving ground’. Functionally, these terms are equivalents; the methods of proof are identical and the inquiry of fact is identical, D. Federico Company, Inc., Dkt.4395, BNA 3 OSHC 1970, CCH OSHD para. 20,422 (February 10, 1976).
On review, Respondent also argues that ‘unstable or soft soil’ are impermissibly vague. We find no merit in this contention. The terms are broad but the Secretary has defined them at 653(q) as precisely as would appear possible given the vast differences in soil conditions that occur across the nation. Moreover, Table P–1 provides a rule of thumb that may be used by employers to determine the proper precautions to be taken in any particular set of circumstances.
We have reviewed the evidentiary record concerning the question whether Respondent violated .652(b) on the facts, and we conclude that Judge Wienman properly found the violation on the grounds set forth by him in his report. We therefore adopt his report to the extent it is consistent herewith. So ORDERED.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretar
DATE: JUN 16, 1976
MORAN, Commissioner, Dissenting:
Complainant’s motion to amend the complaint in this case to allege noncompliance with 29 C.F.R. § 1926.652(b), in lieu of the originally cited standard, 29 C.F.R. § 1926.652(a), is improper and should be denied. Furthermore, even if the amendment were procedurally proper in this case, the evidence is insufficient to establish that respondent violated § 1926.652(b).
The amendment in this case is improper for two reasons. First, Rule 15(b) of the Federal Rules of Civil Procedure does not apply to the amendment of a job safety citation because it is a unique creature of statute to which strict requirements for particularity, pursuant to 29 U.S.C. § 658(a), have been attached. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). Second, there was no trial by consent of issues pertinent to the § 1926.652(b) charge which is a necessary prerequisite for an amendment under Rule 15(b).
The type of soil in the subject trench was not a legal or factual issue under the original charge which related to the water conditions present in the trench. Furthermore, when respondent attempted to elicit testimony from the inspecting officer regarding whether or not soil samples were taken to determine the nature or consistency of the soil involved, complainant objected to the question as being irrelevant! Therefore, it is obvious that even complainant did not believe the nature of the soil was in issue. A finding of ‘unstable or soft material’ is, however, an essential element of a § 1926.652(b) violation. Respondent did not, therefore, receive fair warning of the issues against which it was required to defend and cannot be said to have consented to a trial on the amended charge.[5]
A review of the record further convinces me that there is insufficient evidence to support an affirmance of the § 1926.652(b) charge. There is no dispute that water was present in the bottom of the trench. There is considerable question, however, as to the nature of the soil in which the trench was dug. The inspecting officer testified as follows at page 40 of the hearing transcript:
‘Q. Now the softness of the soil, is that the inherent softness of the soil or is this because of the water?
A. I would say it would have to be because of the water.’
Inasmuch as the water was located at the bottom of the trench,[6] how then can it be said that the trench was dug in ‘soft or unstable material’? No soil samples or borings were taken, and the inspecting officer admitted that he was not a soil expert. Under these circumstances, the citation should be vacated because the evidence is clearly inadequate to support the alleged violation.
Finally, I am constrained to comment on my colleagues’ ridiculous effort in footnote 1 to add some consistency to their otherwise inconsistent action in addressing sua sponte directions for review. Our recent decision in Secretary v. Rob’t. W. Setterlin & Sons Company, OSAHRC Docket No. 7377, May 11, 1976, is completely dispositive of the issue regarding the timeliness of my direction for review. Rather than disposing of the issue on the basis of that precedent, however, they do so because of complainant’s disinterest. I cannot join in such folly and rely on the Setterlin decision in concluding that the direction for review was timely.
Since this opinion does not cover all the matters discussed in Judge Wienman’s decision, the same is attached hereto as Appendix A.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC DOCKET NO. 8122 |
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ANCHOR CONSTRUCTION CO., |
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Respondent. |
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FINAL ORDER DATE: March 31, 1975
APPEARANCES:
EUGENE F. DeSHAZO, Esq., United States Department of Labor, Office of the Solicitor, Kansas City, Missouri, for the Secretary of Labor
THOMAS J. MONAGHAN, Esq., 1500 City National Bank Building, Omaha, Nebraska, for the Respondent
Wienman, Judge, OSAHRC:
STATEMENT
OF THE CASE
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 a citation issued by the complainant against the respondent April 30, 1974, under the authority vested in complainant by section 9(a) of that Act. The citation alleged on the basis of an inspection of a workplace at Wood Hollow Sarpy District 75, Papillion, Nebraska, on April 24, 1974, that the respondent violated the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor and codified as 29 CFR 1926.652(a) and 29 CFR 1926.651(h). The alleged violation was described as follows:
‘(Between Manhole #28 and 29) Employees were working in a trench approximately 11 feet deep. The bottom of the trench was 5 feet wide and the width at the top measured 223‘wide. (The sloping was not uniform.) The trench was in a clay soil, the walls of the trench contained water and water was coming in the trench from the north and south sides.’
Pursuant to enforcement procedures set forth in section 10(a) of the Act, respondent was notified by letter dated April 30, 1974, from Warren Wright, Area Director, Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty of $650 for the alleged serious violation. Respondent gave due notice of its intention to contest the citation and proposed penalty. After complaint and answer were filed by the parties, a hearing was held on November 21, 1974, at which time both complainant and respondent appeared and presented evidence.
THE
ISSUES
Despite an express denial in the answer that ‘Juris-diction of this proceeding is conferred upon the Commission by Section 10 C of the Act’, the parties nevertheless pleaded facts sufficient to establish that the respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter. As a result, no jurisdictional questions are in dispute.
At the close of complainant’s evidence, complainant moved to amend the complaint to allege a violation of safety regulation 29 CFR 1926.652(b) in lieu of 29 CFR 1926.652(a). Respondent resisted the motion to amend, and the initial issue for resolution is whether the citation and complaint may be amended to allege a violation of 29 CFR 1926.652(b). The central issue in the case, whether amendment is permitted or not, is whether the respondent violated safety standards as may have been properly alleged, and, if so, what penalty is appropriate.
An additional issue was raised in paragraph IX of the answer wherein the respondent averred that the Occupational Safety and Health Act of 1970 violated various provisions of the Fourth, Fifth and Sixth Amendments of the United States Constitution. The undersigned Judge is persuaded that neither the Commission nor its several judges have jurisdiction to pass on the constitutionality of the statute from which the Commission derives its authority. The respondent is entitled to have the constitutional questions determined by a court, but this decision and order will be limited to issues relating to compliance with occupational safety and health regulations.
THE
AMENDMENT ISSUE
The citation issued April 30, 1974, charged respondent with violating two occupational safety regulations codified under Subpart P of the construction standards relating to excavation, trenching and shoring. In paragraph V of its answer respondent specifically alleged that it was in compliance with the excavation, trenching and shoring regulations, Subpart P of the construction safety regulations, promulgated by the Secretary of Labor. At the hearing testimony was admitted without objection relative to the dimensions of an excavation at respondent’s worksite in Papillion, Nebraska, and the nature of the soil conditions existing at the time of the April 24, 1974, inspection.
Complainant seeks to amend the citation and complaint by alleging a violation of regulation 29 CFR 1926.652(b). This regulation provides:
‘(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect employees working within them. See Tables P–1, P–2 (following paragraph (g) of this section).’
In seeking amendment complainant represents that regulation 29 CFR 1926.652(a) is inapplicable but urges that amendment be permitted because the instant case was actually tried on issues ‘relating to the failure to shore or slope the sidewalls of the trench dug in unstable soil.’
The Commission Rule with respect to amendment of citations was enunciated in the case of Secretary of Labor v. J.L. Mabry Grading, Inc., 1 OSAHRC 1211 (Docket No. 285) and reiterated in Secretary of Labor v. Lovell Clay Products, Inc., 10 OSAHRC 237 (Docket No. 683), wherein it was stated:
‘In Mabry the Commission held that a defective citation may be cured by a subsequent pleading. Where a sought amendment would not mislead or otherwise prejudice the opposing party, leave to amend will be freely given when justice so requires.’
The citation in the instant case described a trench with sufficient particularity to provide notice of the conditions which complainant alleged to be unsafe. Respondent itself affirmatively alleged that it was in compliance with all excavation, trenching and shoring regulations, and the record reveals no basis for concluding that respondent has been mislead or otherwise prejudiced. The Mabry rule, posited upon the direction in Rule 15 of the Federal Rules of Civil Procedure that leave to amend shall be freely given when justice so requires, is controlling, and complainant’s motion to amend is granted.
SUMMARY
OF THE EVIDENCE AND DISCUSSION
OSHA Compliance Officer, Uldis Sid Levalds, inspected respondent’s worksite April 24, 1974, accompanied by Rodney Lechtenberg, the job foreman. Respondent was installing a storm sewer on the south side of Highway 370 in Sharp County, Nebraska (T. 18). Levalds took photographs (T. 9) and measured the trench with the help of Lechtenberg (T. 18–20). The trench was 11.4 feet in depth with a width of 5 feet at the bottom expanding to 22 feet, 3 inches, at the top. Intermediate widths were 12 feet wide at a 6 foot height and 15–1/2 feet at 8 feet from the bottom (T. 18). Levalds computed the slope for the entire depth at approximately .8 to 1 (T. 21).
Levalds observed a pump being carried away from the trench as he arrived (T. 31) and stated that springs were flowing about 15 inches from the bottom of the trench. There was some force behind the flow, the water carrying horizontally for about an inch and a half before it dipped (T. 34). Levalds also observed some sloughing at the bottom of the trench and one crack in the 40 foot long excavation (T. 37–38).
Levalds testified the earth material was so soft (T. 29). Standing on a section of installed pipe he attempted to place a leg on the slope and found it would not support his weight (T. 38). The hazard, according to Levalds, related to the water conditions and the softness of the soil (T. 40). He was of the opinion that conditions indicated a failure was almost imminent in which event every man in the trench could be killed (T. 29).
Levalds computed the proposed penalty, commencing with an adjusted penalty of $1,000 and reducing the penalty with a 20 percent credit for good faith, 5 percent for size and 10 percent for history. He stated that respondent had a prior history of violations and was therefore was accorded a 10 percent reduction for history (T. 30).
Victor Lechtenberg, president of respondent company, testified he had been engaged in sewer construction for 25 years (T. 55). He had been on the site about an hour before the inspection and had stopped to talk to the foreman who is his son. He told his employees he thought it was ‘a good ditch’ (T. 56).
Mr. Lechtenberg recalled seeing a pump on each visit to the site and that there was water at the bottom of the ditch, but at no time did he observe water coming out of the sides (T. 58). The sides of the trench were moist and the spoil pile was damp. Water was removed with the pump which operated at a rate of about 80 gallons per minute. The pump would probably be moved every hour, but on many occasions it ran dry because there was not enough water for it to pump (T. 63).
Rodney Lechtenberg, the construction foreman, recalled seeing a spring (T. 65), but contradicted the compliance officer as to the rate of the flow. He stated there was not much water, just trickling down the wall (T. 66). The banks, he stated, were wet from water that spilled out of the backhoe bucket during excavation (T. 66).
The construction foreman recalled that they had been digging through springs throughout the project and would widen the excavation to lessen the chances of a cave-in when they encountered a spring (T. 66–67). He recalled the respondent used a water pump throughout the excavation (T. 73).
The foregoing testimony reveals no dispute with respect to the dimensions of the trench, the slope of the sides, or the presence of moisture in the excavation. The compliance officer’s testimony that the excavation was dug in soft soil material was not rebutted, and we conclude that the provisions of 29 CFR 1926.652(c) are applicable as they relate to sides of trenches in unstable or soft material 5 feet or more in depth. This regulation contains a reference to Table P–1 which recommends that the sloping of the sides of excavations in average soil at a 1 to 1 ratio to produce a 45 degree angle. The table also has an appended note which states:
‘Clays, Silts, Loams or Non-Homogenous Soils Require Shoring and Bracing. The Presence of Ground Water Requires Special Treatment.’
As depicted in the photographic exhibits (G–2, G–3, R–1, R–2) the sides of the trench were not shored, sheeted, or braced, and the undisputed testimony establishes sloping at less than the recommended angle with ground water adding to the possibility of a cave-in. Complainant’s proof documents a clear violation of regulation 29 CFR 1926.652(b), and the salient facts were confirmed by the foreman who testified that respondent was constantly digging through springs and using a pump to remove water from the excavation.
We are mindful of the testimony that Victor Lechtenberg, respondent’s president, who had 25 years experience in excavation work, had inspected the worksite and concluded it was a ‘good ditch’ (T. 56). This testimony is entitled to considerable weight in view of the fact that respondent’s own son was an employee whose safety might be imperiled by a cave-in. The trench was sloped to a substantial degree, although it failed to meet OSHA standards given the dimensions, soil material and moisture conditions. We conclude there was a moderate probability of a failure which would have threatened the lives of respondent’s workmen laboring in the trench. Had an accident occurred, however, the consequences would have been serious within the meaning of the statute since death or serious injury would have been a likely result. We therefore find a serious violation established and that a penalty in the sum of $400 is appropriate under the total circumstances.
We do not find that the record supports a violation of regulation 29 CFR 1926.651(h) for reasons which relate more to the state of regulations than the compliance officer’s description of the worksite. Regulation 29 CFR 1926.651(h) directs, in pertinent part, that ‘the angle of repose shall be flattened when an excavation has water conditions . . .’. Although the regulation appears to be drafted in commonplace language, we are at a loss to determine what the regulation mandates, i.e., what an employer must do in order to excavate an approved trench. The first problem is the evident use of the word ‘flattened’ as a term of art without any guidelines, mathematical or otherwise, to indicate its precise meaning. Second, the definition of ‘angle of repose’ appearing in regulation 1926.653(b) raises questions about the entire regulatory scheme. As defined by the Secretary, the angle of repose is ‘the greatest angle above the horizontal plane at which a material will lie without sliding.’ If an employer has sloped an excavation to the point where material will lie without sliding, what additional purpose is accomplished by ‘flattening’?
We cannot help but harbor a suspicion that the complainant shares our ignorance with respect to the thrust of 29 CFR 1926.651(h). Not one word of complainant’s testimony was devoted to an explanation of the regulation, and the briefs submitted by counsel are similarly silent. A search of the cases decided by the Review Commission reveals that the regulation has been little employed although OSAHRC reports abound with trenching and excavation disputes. With no hint of a rationale for the standard, much less respondent’s deficiencies in fulfilling the regulation, we are compelled to vacate that portion of the citation relating to 29 CFR 1926.651(h).
FINDINGS
OF FACT
Having held a hearing and considered the entire record herein, it is concluded that the substantial evidence in the record as a whole supports the following findings of fact:
1. Respondent, Anchor Construction Company, is a corporation with an office and principal place of business located at 14925 Industrial Road, Omaha, Nebraska, where it is engaged in the business of sewer and water line contracting. On April 24, 1974, respondent had a worksite at the Wood Hollow Sarpy District 75, Papillion, Nebraska, where it was engaged in construction of a storm sewer.
2. On April 24, 1974, OSHA Compliance Officer Uldis Sid Levalds conducted an inspection at the aforesaid worksite and observed two of respondent’s employees working in a trench approximately 11 feet deep. The bottom of the trench was 5 feet wide and the width at the top measured 22 feet, 3 inches. The trench was excavated in soft soil materials and the presence of springs necessitated the frequent use of a pump to remove water from the bottom of the trench.
3. On April 24, 1974, at the aforementioned worksite respondent failed to adequately slope, shore, sheet, brace or otherwise support the sides of the trench by means of sufficient strength to protect employees working within the excavation.
4. The conditions and practices in use by the respondent at the aforesaid worksite created the substantial probability that death or serious physical harm could result to employees working within the excavation, and respondent did know, or could, with the exercise of reasonable diligence, have known said fact.
CONCLUSIONS
OF LAW
1. Respondent is and at all times material was an employer within the meaning of section 5(a) of the Act.
2. Jurisdiction of the parties and the subject matter is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.
3. Respondent violated occupational safety and health regulation 29 CFR 1926.652(b) by allowing employees to work in an inadequately sloped, unbraced, unshored, unsheeted trench more than 5 feet deep in soft or unstable soil. The aforesaid violation occurred with the knowledge of the employer and constituted a serious violation within the meaning of section 17(k) of the Act. Due consideration having been given to the evidence of record, it is concluded that a penalty in the amount of $400 is appropriate for said violation.
4. On April 24, 1974, respondent was not in violation of the safety regulation codified as 29 CFR 1926.651(h).
ORDERS
Based on the above findings of facts and conclusions of law, it is ORDERED that:
1. The citation for serious violation issued to respondent April 30, 1974, is hereby amended to reflect a violation of the safety regulation codified as 29 CFR 1926.652(b) and the portions of the citation alleging violations of safety regulations 29 CFR 1926.652(a) and 29 CFR 1926.651(h) are hereby vacated.
2. The citation as amended herein is affirmed, and a penalty in the sum of $400 is assessed for violation of safety regulation 29 CFR 1926.652(b).
Alan M. Wienman,
Judge, OSAHRC
Dated: February 27, 1975
[1] Review was also directed by former Commissioner Van Namee on the question whether Commissioner Moran’s order was untimely within the meaning of 29 U.S.C. § 661(i). We recently decided this issue and determined that orders issued within the period involved in this case are timely. Robert W. Setterlin and Sons, Co., No. 7377 (OSHRC, May 11, 1976). However, we need not dispose of this issue on this basis. Complainant has not addressed the issue, and Respondent argues that review was timely ordered. Since the parties are in apparent agreement that review was timely ordered we will assume that review was properly ordered and not examine the issue on our own motion.
[2] 29 C.F.R. 1926.652(a) provides:
Banks more than 5 feet high 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.
[3] 29 C.F.R. 1926.651(h) provides:
The angle of repose shall be flattened
when an excavation has water conditions, silty materials, loose boulders, and
areas where erosion, deep frost action and slide planes appear.
[4] 29 C.F.R. 1926.652(b) provides:
Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P–1, P–2 (following paragraph (g) of this section).
[5] It is interesting to note that Messrs. Barnako and Cleary have not even extended to respondent the basic fairness of a remand for a hearing on the new issues raised by the amended charge as respondent requested in its Petition for Discretionary Review which asserts that:
‘To allow an amendment . . . operates a grave hardship on the Respondent and at the very least the matter should be remanded for rehearing.’
Respondent also contends that had the type of soil been in issue, testimony would have revealed that it was, in fact, hard and compact.
[6] Any water present on the sides of the trench was explained as having resulted from water dripping from the backhoe bucket when swung upward to dump excavated dirt.