BY THE COMMISSION:
A decision of Review Commission Judge Foster Furcolo is
before the Commission for review pursuant to section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [‘the Act’]. In his
decision, the Judge affirmed a citation alleging a serious violation of section
5(a)(2) of the Act for failure to comply with the construction safety standard
published at 29 C.F.R. § 1926.652(b) and assessed a $1000
penalty. We affirm the Judge’s
decision to the extent that it is consistent with the following, and reduce the
penalty to $600.
Respondent is engaged in the sale and distribution of
natural gas. It had excavated a trench for the purpose of repairing a leak in a
gas pipe. The trench was in the shape of two overlapping rectangles as depicted
below.
While conducting an inspection of the worksite at a
street intersection in Hartford, Connecticut, two compliance officers observed
one of respondent’s employees in the east trench between sections E and F. The
employee was straddling a six inch diameter pipe that he was repairing. The
depth of section F of the east trench was 6 feet 8 inches and the width at the
bottom of the trench between sections E and F was 2 feet 8 inches. The wall of
section F of the trench was vertically cut below a concrete overhang that
extended over the trench a distance of 2 feet 7 inches. The wall had line
cracks in it. From the top of the wall of section F the concrete overhang
measured 1 foot 2 inches vertically. Beneath the overhang was 1 to 1 ½ feet of
compact processed stone, followed by an 18-20 inch deep by 4 foot long electric
conduit, with compact natural clay silt filled with sand at the bottom. At the
intersection of sections E and G of the trench, there was a conically shaped
manhole 8 feet in diameter at the bottom, tapering to 4 feet in diameter at the
top.
Respondent’s expert witness, Dr. Clarence Welti, and area foreman, Mr.
Vail, testified that the soil in section F of the trench was stable clay silt.
Dr. Welti took and tested soil samples. The only soil sample that he tested
from the east trench was from the middle of section F; the soil sample tested
as stiff, cohesive clay silt.. Dr. Welti testified that
there was sand at the bottom of the trench and that a large portion of the
excavation was sand. Dr. Welti stated that the west wall (section E) of the
trench was backfill and that backfill soil was generally unstable. Both Dr.
Welti and Vail agreed that the trench walls in that area (sections E and F)
were supported by the manhole and electric conduit so that no shoring was
needed.
Both compliance officers and the Area Director testified
that the soil throughout the trench was unstable. The Area Director stated that
he had seen this worksite dug up three to five times previously, the site being
outside his office. He concluded that the soil was backfill sand, which was
unstable due to the disturbed nature of the soil. Compliance officer Hatcher
stated that he determined from his observations that the soil throughout the
trench and walls was sandy, backfill soil. Hatcher stated that he had seen the
site opened by respondent on two previous occasions. Compliance officer Normand
bent over the edge of the trench to observe the soil; he described the soil as
sandy. He stated that the west wall (section E) was composed of sand with loose
material midway down the trench wall.
The Area Director and compliance officer Hatcher claimed
that the concrete overhang posed an additional hazard because of the
possibility of it collapsing on the employee who was working in this area
during the inspection. The maintained that the possibility of collapse was
increased due to the vibrations caused by traffic coming within three feet of
the trench. The Area Director also stated that vibrations from vehicular
traffic increased pressure on the walls. Superintendent Colturi testified that
the overhang was not dangerous because it was newly poured reinforced concrete.
Dr. Welti claimed that the overhang could extend up to four feet without
external support and it would be unlikely that the traffic vibrations would
cause the overhang to break off.
Vail, the area foreman, signed a Trench Excavation Field
Form, stating that the trench was 32 inches wide and 6 feet 8 inches deep where
the employee was observed working. The form also included a statement that the
soil was unstable, sandy, and unshored. Vail testified that it was indicated to
him that he was required to sign the form. Compliance officer Hatcher admitted
that he did not inform Vail that he was not required to sign the form. The Area
Director testified that this form had no official sanction.
Respondent’s safety policy concerning trenches required
that all trenches more than 5 feet deep be shored. After respondent received a
second citation on a different worksite for failure to shore a trench,
respondent hired Dr. Welti to make a general survey of its excavations to
evaluate and correct possible dangers.
In his decision, Judge Furcolo held that respondent had
committed a serious violation of § 1926.652(b). He found that respondent’s
supervisors had knowledge of the standard and the hazardous conditions. He
found that the trench was 6 feet 8 inches deep and 2 feet 8 inches wide.
Although he recognized there was conflicting testimony concerning the stability
of the soil, he found that the soil was unstable, relying on several factors to
reach this conclusion. The Judge was impressed by the ‘emphatic’ testimony of
the compliance officers that the soil was unstable, as well as the
uncontradicted testimony that the soil at the worksite had been excavated on
several occasions. He noted that all witnesses agreed that backfill was less
stable than undisturbed soil. The Judge also noted that the foreman had read
and signed a statement that the soil was unstable. The Judge contrasted the
testimony of respondent’s expert witness that the trench was stable with the
expert’s other statements that some areas of the trench needed shoring, a large
part of the excavation was sand, and one wall of the trench contained backfill.
He also relied on the corroborated testimony that there was substantial amount
of traffic near the site and the traffic came within a few feet of the trench.
Although he did not specifically address respondent’s argument that the walls
adjacent to where the employee was working were supported by a concrete manhole
and conduit, he found that the sides ‘were not shored, sheeted, braced, or
otherwise supported.’ The Judge did not give any reasons for his denial of
respondent’s motion to dismiss on the grounds that the standard is vague.
Respondent contends that the standard does not adequately
inform it of the conditions under which protection is required because of the
uncertainty in the term ‘unstable or soft material,’ because there is no
guidance in the standard how the depth of five feet or more is to be measured
when the composition of the trench walls is not uniform, and because the phrase
‘means of sufficient strength to protect employees’ is unduly vague. Because of
these alleged deficiencies in the standard, respondent urges us to limit the
applicability of the standard to situations in which a reasonably prudent
person familiar with its industry would have protected against the hazard,
citing Cape & Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir.
1975).
We reject the argument. When the various terms of §
1925.652(b) are read in light of the other provisions of the trenching
standards, their meaning is sufficiently precise to put employers on notice of
what the standard requires. First, we note that the phrase
‘unstable or soft material’ as used in § 1926.652(b) is contrasted with ‘hard
or compact soil’ used in § 1926.652(c). Read together, the
standards inform employers that some protection is required in any trench 5
feet or more in depth dug in soil.
The standards provide further guidance to enable
employers to determine whether a particular trench is regulated by §
1926.652(b) or § 1926.652(c). In addition to the definitions of ‘unstable soil’
and ‘hard compact soil’ in § 1926.653, § 1926.652 contains Table P-1, which
illustrates the approximate angle of repose for different types of earth
material. This Table lists an angle of repose of ½ to 1 for compacted angular
gravels, and less steep slopes for average soils, compacted sharp sand, and
well rounded loose sand. Since § 1926.652(c) requires a slope of not steeper
than ½ to 1 for hard or compact soil, it is evident that those materials listed
in Table P-1 as having a less steep angle of repose must be considered soft or
unstable, and are therefore regulated by § 1926.652(b).
Similarly, Table P-2 in § 1926.652, entitled ‘Trench
shoring-minimum requirements’, gives specific guidelines for the shoring
requirements in trenches of different dimensions and soil types. An employer
uncertain of the phrase ‘means of sufficient strength’ can look to Table P-2
for guidance. See Griffin & Brand of McAllen, Inc., 76 OSAHRC
148/A10, 4 BNA OSHC 1900, 1976-77 CCH OSHD para. 21,388 (No. 4415, 1976).
Finally, respondent’s objection to the phrase ‘5 feet or
more in depth’ is not that it is incomprehensible, but that it does not provide
guidance when the material in which a trench is dug is not uniform. Respondent
would therefore have us interpret § 1926.652(b) as applying only when five feet
or more of the depth of the trench is in unstable or soft material. We have
previously rejected this argument, holding that as long as the trench is more
than five feet in depth and the amount of unstable soil is not negligible, all
_____ soil in the trench must be shored or sloped. W. N. Couch Construction
Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD para. 20,574 (No.
7370, 1976). Based on Couch, we reject respondent’s suggested interpretation.
Respondent contends that the Judge erred in concluding
that the soil was unstable. Respondent takes specific exception to the factors
on which the Judge relied: the compliance officers’ testimony that the soil was
unstable; the testimony of the expert, Dr. Welti, that certain areas of the
trench needed shoring and a large part of the trench was sand; the testimony that the
soil was backfilled; the signing of a form by its foreman stating the soil was
unstable; and the traffic near the trench increasing the possibility of
collapse.
Respondent argues that its expert’s testimony that the
soil in section F was stable and his analysis of soil samples where work was
being performed should be given greater weight than the testimony of the
compliance officers. While expert testimony is commonly given greater weight
than lay testimony, expert testimony need not be accepted even if
uncontradicted. U. S. Steel v. OSHRC, 537 F.2d 780, 783 (3rd Cir. 1976).
Indeed, expert testimony is not conclusive; it is up to the trier of fact to
determine what, if any, weight will be given to that testimony. Sartor v.
Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944); see Daniel
Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para.
21,521 (Nos. 7734 & 7672, 1977).
The Judge realized that there was contradictory evidence
with respect to the stability of the soil in various areas of the trench and
chose to accord more weight to the testimony of complainant’s witnesses. Each
of complainant’s witnesses testified from his previous knowledge of the
worksite and his visual and tactile observations that the soil throughout the
trench was unstable, specifically contradicting Dr. Welti’s testimony that the
soil was stable in some parts of the trench.
More importantly, complainant’s witnesses testified that
the soil in the trench was backfilled. Dr. Welti admitted that backfill was
generally unstable. Moreover, Dr. Welti testified that a large part of the
trench was sand, specifically stating that the western wall (section E) near
the bottom of the manhole was sandy. Furthermore, respondent’s exhibits, drawn
by Dr. Welti, show sand in that wall and the two walls adjacent to it (sections
D and G). Dr. Welti also admitted that certain areas of trench needed shoring.
Finally, he stated that the western wall (section E) of the trench was
backfill, and as noted, he admitted that backfill was unstable soil.
We agree with the Judge’s
assessment of the evidence and the weight that he assigned to the expert’s
testimony. Although the Judge did not fully discuss his reasons for rejecting
Dr. Welti’s conclusions about the stability of the soil in section F, his
rejection was not arbitrary He recognized that there was contradictory evidence
and stated the reasons for his determination. His findings are set forth in his
decision and are supported by the evidence. See C. Kaufman, Inc., 78 OSAHRC
3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978);
Administrative Procedure Act § 8(b), 5 U.S.C. § 557(c) (1966). In addition, it
is uncontroverted that section E of the trench was comprised of backfill and
that backfill is unstable. We agree with the Judge’s
determination that the soil was unstable.
Respondent also contends that the Judge failed to find
that the trench walls were not ‘otherwise supported by means of sufficient
strength to protect the employees working within them.’ The Judge made a
specific finding that the trench walls were not otherwise supported; he did
not, however, specifically address respondent’s arguments that the manhole and
electric conduit supported the walls. While normally a remand would be
necessary for the Judge to elucidate the reasons for his determination, P
& Z Co., Inc., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD
para. 22,413 (No. 76-431, 1977), there is sufficient evidence in the record for
us to address the issue. Accordingly, we will decide whether the manhole and
electric conduit were of sufficient strength to protect employees. Accu-Namics,
Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975).
The electric conduit in section F was four feet long, but
there is no evidence indicating where it was located along the 6 foot long
wall. There is also insufficient evidence showing how a 1 foot 6 inches high
conduit can support a wall that is 6 feet 8 inches high. On the western wall,
the manhole only protected the end of the wall (intersection of sections E and
G). It was not large enough to support the entire wall. A major portion of the
backfilled wall had no support (intersection of sections E and D). We hold the
evidence does not establish that the walls were supported by other means of
sufficient strength. See Wes Construction Corp., 76 OSAHRC 103/A2, 4 BNA
OSHC 1536, 1976-77 CCH OSHD para. 20,996 (No. 4106, 1976). Accordingly, we find
that a violation of § 1926.652(b) was proven as to section E of the trench.
Respondent argues that, if a violation exists, it is not
serious. First, respondent submits that there is no proof that the violation
would result in a substantial probability of death or serious physical injury.
We reject this contention because, as complainant’s witnesses testified, it is
probable that if the trench were to collapse, an employee could be buried or
suffocate. Second, respondent contends that it lacked even constructive
knowledge of the violation because Potvin, the working foreman, made the
decision to excavate deeper than 5 feet without consulting any of his
supervisors. We have held, however, that an employer is responsible for any
violation that its supervisor creates or of which it has actual or constructive
knowledge, unless the employer can show that the supervisor himself was
adequately supervised regarding safety matters. Constructora Maza, Inc.,
78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD para. 22,487 (Nos. 13680
& 14509, 1978). Respondent had adduced no evidence on this point.
We believe, however, that the Judge’s assessment of a
$1000 penalty is too high. Respondent was aware of its safety problems with
trenches. In order to provide additional safety precautions, it retained Dr.
Welti to advise of possible dangers associated with excavations and to
recommend methods of eliminating the dangers. As a result of this evidence of
good faith, we reduce the penalty to $600.
It is ORDERED that the Judge’s decision be affirmed and a
$600 penalty be assessed.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: JUN 30, 1978
Commissioner
COTTINE took no part in the consideration or decision of this case for the
reasons set forth in his separate opinion.
SEPARATE OPINION
As
a new member of the Commission, I must resolve the issue of my participation in
pending cases. It is also necessary for me to set out the principles guiding my
decision on this important issue.
In
this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision
on the merits before I received my commission on May 1, 1978. A decision was
already in preparation when I assumed office. I have concluded that the wisest
exercise of discretion is to decline to participate in this case even though a
new Commission member has authority to participate in pending cases. It should
be emphasized that by declining to participate I express no opinion on the
procedural or substantive issues in this case or on the appropriateness of the
accompanying order.
Discretion of Commission Members
As
a matter of law, it is not necessary for all Commission members to participate
for an agency to take official action. In Drath v. FTC, 239 F.2d 452
(D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal Trade
Commission issued a cease-and-desist order with only three of its five members
participating. The Court of Appeals rejected petitioner’s contention that the
FTC can act in its adjudicatory capacity only when all members participate,
except when there is a vacancy. The court ruled that official action can be
taken by the majority of the requisite quorum. Also Frisher & Co. v.
Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v.
Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f)
of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:
For
the purposes of carrying out its functions under this chapter, two members of
the Commission shall constitute a quorum and official action can be taken only
on the affirmative vote of at least two members.
Thus,
the unanimous decision already reached in this case satisfies the quorum and
official action requirements of the Act and my participation is not necessary
for the Commission to carry out its adjudicatory functions in this particular
case.
However,
it is also settled that a new member of an administrative agency may
participate in pending cases. For example, a new member of the Civil
Aeronautics Board who had not participated in previous proceedings was entitled
to vote and break an existing tie where he had familiarized himself with the
record. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United
Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). In United the
court indicated that, where a member voting with the majority without hearing
oral argument ‘had the record before him and the benefit of briefs’, there was
no abuse of discretion in his participation, 281 F.2d at 56. There are numerous
other cases supporting this holding. The clearest statement of law is set forth
in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):
The
decisions of numerous courts and administrative agencies establish that, even
without agreement of the parties, a member of an administrative agency who did
not hear oral argument may nevertheless participate in the decision where he
has the benefit of the record before him. [footnotes omitted]
348 F.2d at 802. See Au Yi Lau v. U.S.
Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir.
1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir.
1976). Thus, a new member possesses the necessary authority to participate in
all cases pending before the Commission on assuming office.
Though
a new member may participate in all pending cases, particularly those involving
an impasse, the decision remains a matter of discretion since adjudicatory
decision may be upheld on a majority of a quorum. In FTC v. Flotill prod.,
389 U.S. 179 (1967) rev’g 358 F.2d 224 (9th Cir. 1966), an FTC member
appointed to fill one of two vacancies, declined to participate because he had
not heard the oral argument. Thus, three of the possible four Commissioners
actually participated in the decision. As a result, the FTC issued a
cease-and-desist order based on the affirmative vote of only two members.
Despite its obvious impact on the number of members constituting a majority,
the Court did not review the exercise of discretion by the new member. Instead,
the Court accepted the abstention at face value and upheld the action of the
two members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th
Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).
In addition, administrative decisions involving two or more abstentions have
been upheld by reviewing courts without question or comment on the grounds for
these abstentions. All that was necessary to sustain the agency decision was a
majority of the required quorum. E.G., Greater Boston Television Corp. v.
FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S.
923 (1971).
Decision Not to Participate
I
decline to participate in this case because a majority of the Commission has
reached agreement on the merits and my vote would have no effect on the
outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have
reached a unanimous decision, my participation would delay the issuance of
decisions and conflict with the goal of a prompt and efficient decision-making
process. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97
S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d
960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir.
1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission
enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay
the control of hazardous working conditions in any case where the Commission
has determined that a violation of the Act exists. That result would be
inconsistent with the statutory purpose to assure so far as possible safe and
healthful working conditions for every working man and woman. 29 U.S.C. §
651(b).
I
will, however, participate fully in all cases in which previous Commission
deliberations have resulted in a one-to-one deadlock. Decisions by an equally
divided Commission are without precedential value, e.g., Life Sciences
Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH
OSHD ¶22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir.
Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission’s
administrative law judges. Moreover, these decisions also promote needless
litigation in the U.S. Courts of Appeals to decide issues which should initially
be determined by the Commission, because its members have specialized training,
education, and experience in occupational safety and health. 29 U.S.C. §
661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone
Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of
pending issues also promotes a more uniform application and development of
occupational safety and health law. After reading the record, I will
participate in the consideration and decision of these cases.
Conclusion
My
decision not to participate in pending cases which have reached a unanimous
decision by my colleagues, but to participate in those cases with unresolved
issues, promotes the prompt adjudication of cases. It also assures the parties
and the public of the full benefit of Commission review. Both of these results
are essential in deciding cases affecting the lives, health and safety of
American workers, the operation of American business, and the effective
adjudication of cases by the administrative law judges.
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.
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OSHRC
DOCKET NO. 13964
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CONNECTICUT NATURAL GAS CORP.,
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Respondent.
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June 14, 1976
APPEARANCES
Robert
J. Murphy, Esq.
For
Complainant
Harold
N. Mack, Esq.
For
Respondent
DECISION AND ORDER
Furcolo, Judge:
This
is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. § 651, et seq.), hereinafter called the Act. The Complainant
alleges that the Respondent has violated § 5(a)(2) of the Act (§ 654) by not
complying with occupational safety and health standard 29 C.F.R. 1926.652(b).
The
Respondent is a corporation engaged in the business of the sale and
distribution of natural gas, and its business affects the commerce of the
United States.
The
Respondent’s worksite at the corner of Charter Oak Avenue and Prospect Street,
Hartford, Connecticut, was inspected by the Occupational Safety and Health
Administration (hereinafter called OSHA) on June 20, 1975.
On
June 24, 1975, the following citation, together with notice of proposed
penalty, was issued against the Respondent:
Citation
#1, Item #1: The willful violation of standard 29 C.F.R.
1926.652(b).....$6,000.
On
July 2, 1975, the Respondent filed notice of contest to the citation and the
penalty proposed therefor.
The
pertinent words of the standard involved are:
1926.652(b):
‘Sides of trenches in unstable or soft material, 5 feet or more in depth, shall
be shored, sheeted, braced, sloped, or otherwise supported . . ..’
Section
17 of the Act (§ 666) has the following pertinent words:
(a)
Any employer who willfully or repeatedly violates . . . section 5 of this Act .
. . may be assessed a civil penalty of not more than $10,000 . . ..
(b)
Any employer who has received a citation for a serious violation . . . of
section 5 of this Act . . . shall be assessed a civil penalty of up to $1,000 .
. ..
(k) .
. . a serious violation shall be deemed to exist . . . if there is a
substantial probability that death or serious physical harm could result from a
condition which exists . . . unless the employer did not, and could not with
the exercise of reasonable diligence, know of the presence of the violation.
Correction of Transcript
Transcript
Vol. II, page 92, line 4, is corrected by changing the word ‘bearing’ to
‘burying.’
Transcript
Vol. III, page 121 line 20, is corrected by changing the letters ‘F-F’ to
‘E-F.’
Motions
1.
At the hearing the Respondent moved to amend its answer to allege that standard
1926.652(b) is vague and does not apply to the Respondent’s obligation. No
objection having been interposed to the motion to amend the answer, it was
allowed. Insofar as interpreted to quash the citation, the motion was denied .
. . Tr. Vol. I, pages 7–8.
2.
The Complainant’s motion to sequester witnesses was granted with regard to all
witnesses . . . Tr. Vol. I, pages 5–7.
3.
The Complainant’s motion to amend the complaint to alternatively allege a
violation of standard 652(c) was denied for the reasons stated herein. The
hearing was begun on October 3, 1975; and the witnesses, Smith (direct
examination only), Collins, and Vail, testified on that day. On October 6 the
witnesses, Hatcher and Normand, testified; and the Complainant then rested
(because of illness, the witness, Smith, was to be cross-examined at a later
date). The hearing was continued until February 10, 1976. On that date, near
the conclusion of the cross-examination of the witness, Smith, the Complainant
moved to amend the complaint to charge, in the alternative, a violation of
standard 652(c). The Respondent objected on the grounds of late notice and
prejudice. The Complainant’s motion was denied for the reasons that the
Respondent had prepared and tried its case on standard 652(b) and would be
prejudiced by the allowance of the motion . . . Tr. Vol. III, pages 76–79.
Evidence
It
was stipulated that the total sales in business done by the Respondent for the
fiscal year of 1974 was $48 million and that the Respondent employed 575
persons in Connecticut . . . Tr. Vol. I, pages 3–4.
The
Respondent admitted that its employees regularly received, handled and worked
with goods that have been moved across state lines and that it is an employer
engaged in a business affecting commerce within the meaning of the Act . . .
Answer, paragraphs 1 and 2.
Joseph
Colturi, called by the Complainant, testified that he is the Distribution
Superintendent for the Respondent and that he had discussed trenching standards
with Respondent’s supervisors and foremen (including Robert Vail, foreman of
the worksite in question) before June 20, 1975 . . . Tr. Vol. I, pages 22 and
23. He does not recall saying to the Compliance Officer: ‘There is no excuse
that it (the trench) is not shored’ . . . Tr. Vol. I, pages 25, 26 and 28.
Robert
Vail, called by the Complainant, testified that he is the Respondent’s area
foreman. He said that the trench was 6 feet 8 inches deep and 2 feet 8 inches
wide . . . Tr. Vol. I, pages 37, 38 and 54 . . . had sandy soil in sections,
Tr. Vol. I, page 40 . . . but had stable soil, such as clay, where the work was
being done . . . Tr. Vol. I, page 62. He testified that he had read and signed
a statement saying the soil was unstable and trench was not shored . . . Tr.
Vol. I, pages 45 and 46. He also testified that the trench had shoring from
structures in it, such as a manhole and an electric light duct . . . Tr. Vol.
I, page 57. He said that, before June 20, 1975, he was aware of the standard
requiring shoring in unstable soil over 5 feet in depth . . . Tr. Vol. I, page
51.
Harold
R. Smith, called by the Complainant, testified that he has been the OSHA Area
Director for four years; has supervised over 150 trenching inspections, and
himself conducted over 40; took a four-week course in soil mechanics in the
United States Department of Labor Training Institute; and had extensive
trenching experience in private industry. He has worked in trenches and is very
familiar with trenches and soil stability . . . Tr. Vol. I, pages 91, 99 and
102; Vol. III, page 74. The Respondent was familiar with trenching standards,
including standard 652(b) . . . Tr. Vol. I, pages 68, 73, 75 and 77; Vol. III,
pages 16–18, 21 and 30. The Respondent had been cited for a violation of
standard 652(c) in Wethersfield, Connecticut, Docket No. 10537 . . . Tr. Vol.
I, pages 70, 77 and 78; Vol. III, pages 38, 39 and 45. He has seen this general
worksite dug up three to five times, and most of the soil there was backfill
sand, including the exact locus of the instant citation . . . Tr. Vol. I, pages
80, 81, 84 and 90; Vol. III, page 59. Backfill or nonvirgin soil cannot be relied
on for stability because it is not cohesive due to foreign objects, air pockets
and basic looseness . . . Tr. Vol. I, pages 92 and 93; Vol. III, page 60. There
is nothing to support the soil in the undercut area (the ‘overhang’), and it is
very probable that it will come down because of that plus vibration from
traffic . . . Tr. Vol. I, pages 84 and 88; Vol. III, page 67. There is
substantial traffic in that area . . . Tr. Vol. III, page 60. The probability
of an accident is great and death could result. . . Tr. Vol. I, page 83; Vol.
III, page 62. At the worksite here, according to the Compliance Officers’
report to him, the Respondent’s supervisors told the Complainant’s Compliance
Officers that the trench should have been shored . . . Tr. Vol. I, page 81. He
gave copies of the Federal Register containing this standard to the Respondent
at a seminar in 1971 . . . Vol. III, page 16. The soils here are mostly sand
and backfill from other areas. He is familiar with the specific site and has
seen trucks dump sand there. Backfill is very unreliable for stability and is
basically loose. There have been seven citations to contractors at that site or
within a distance of 50–60 feet. The whole corner has been torn up curb to
curb; that whole street has been torn up on quite a few occasions . . . Tr.
Vol. III, pages 58 and 60.
Joseph
F. Hatcher, called by the Complainant, testified that he has been an OSHA
Compliance Officer for almost two years and had a construction course that
included four days in shoring. Beyond that, as a staff sergeant with the Army
Engineers for six years, he had had extensive experience in bridge building
where there had to be a firm foundation that would not be on loose or unstable
soil. This work did not include shoring of trenches . . . Tr. Vol. II, pages 24
and 26. The Respondent’s employee, Carmine Arcari, was 6 feet 8 inches down in
the trench . . . Tr. Vol. II, page 7. The trench had no support system whatever
. . . Tr. Vol. II, page 9. The soil throughout the trench and walls was sandy,
backfill material . . . Tr. Vol. II, pages 10 and 11. The trench had a 90° wall
with an undercut or overhang of about 2 feet 7 inches . . . Tr. Vol. II, pages
16 and 21. Traffic, including work trucks and cars, were passing within 3 to 4
feet of the trench . . . Tr. Vol. II, page 13. The Respondent’s Foreman, Vail,
agreed the soil was sand and unstable and the trench unshored . . . Tr. Vol.
II, page 20. The Respondent’s employee, Potvin, said the Respondent had opened
this particular spot before, and he (Hatcher) has seen the Respondent open it
on two other occasions . . . Tr. Vol. II, pages 23, 53 and 61. The Respondent’s
Foreman, Vail, signed and understood the trenching form, Exh. C–12 . . . Tr.
Vol. II, pages 18, 19 and 46. He heard the conversation between the
Respondent’s Foreman, Vail, and the Distribution Superintendent, Colturi, in
which Colturi asked why the trench was not shored, and Vail said he had not
realized he was down to a depth of 5 feet 8 inches; and Colturi told the
Compliance Officers that there was no reason for the trench not being shored .
. . Tr. Vol. II, page 17. The site was on a main street in Hartford, and the
traffic vibrations would cause movement of earth and be unsafe . . . Tr. Vol.
II, pages 16, 54 and 55.
Joseph
P. Normand, called by the Complainant, testified that he has a Master’s Degree
in Mechanical Engineering and has been an OSHA Compliance Officer since March
1975. He took a month’s course in OSHA procedures which did not include shoring
or soil mechanics, and he had inspected two trenches . . . Tr. Vol. II, pages
94 and 97. The soil in the trench and walls was sandy backfill and appeared to
be unstable, and there were small cracks in the walls of the trench . . . Tr.
Vol. II, pages 75 and 76. Traffic came within 3 feet of the trench . . . Tr.
Vol. II, page 71. Where the Respondent’s employee, Arcari, was working was 2
feet 8 inches wide. . . Tr. Vol. II, page 88. The sloping of the trench did not
conform to OSHA regulations . . . Tr. Vol. II, pages 87 and 88. The Respondent’s
Foreman, Vail, signed the trenching form after Compliance Officer Hatcher went
over the items with him. Vail said he did not know they were going that deep .
. . Tr. Vol. II, page 84. The Respondent’s Distribution Superintendent,
Colturi, said there was no excuse for not shoring the trench . . . Tr. Vol. II,
page 84. There were no supports in the trench . . . Tr. Vol. II, page 85. The
hazard was that the trench would collapse, burying the employee in it, the
cause being the soil’s unstable condition and vibrations from the traffic . . .
Tr. Vol. II, pages 79, 92 and 106.
Romeo
Potvin, called by the Respondent, testified that he has been a chief street man
for the Respondent for seven years, a member of the street crew for 12 years
before that, is familiar with sloping of trenches, has participated in training
sessions on shoring and safety of excavations, and over his 19 years of
employment has been involved in work assignments that included shoring . . .
Tr. Vol. II, pages 157 and 158. One of his responsibilities is determining
safety of trenches . . . Tr. Vol. II, page 137. The east side wall of the
trench in question had an 18-inch electric conduit encased in concrete and the
west side had a concrete manhole in it. From the surface of the road there were
14 inches of concrete reinforced with steel, then a foot or foot and a half of
packed gravel below that, and then the 18-inch electric conduit . . . Tr. Vol.
II, pages 137–139. It was his opinion that, because of these items, the trench
had its own natural shoring, was sufficiently shored, and was safe . . . Tr.
Vol. II, page 159. Steel plates that weighed about a ton each were put over the
excavation Friday and were removed on Monday without any change in the
excavation . . . Tr. Vol. II, page 157. On June 26, the condition of the trench
and soil was the same as June 20 . . . Tr. Vol. II, page 160. The trench
measured 5 feet 6 inches at its deepest point and 4 feet 6 inches at all other
points . . . Tr. Vol. II, page 153. He and the employee, Arcari, were the only
two who had been in the trench . . . Tr. Vol. II, pages 165 and 166. The
Respondent had told him trenches over 5 feet will be shored . . . Tr. Vol. II,
page 170. As chief street man, he is not a supervisor; but he is the working
foreman. He did not bring shoring equipment because he would not know if it was
necessary until the trench was open. The decision not to shore was made by him
without consulting the Respondent’s management. It was his responsibility . . .
Tr. Vol. III, pages 4–7. He did not consider the ‘overhang’ to be hazardous . .
. Tr. Vol. II, page 169. Before June 20, he was familiar with trenching
standards. Before April of 1974, he had attended OSHA briefings on standards.
In April 1974, at another of the Respondent’s worksites, he was in a trench
that was 6 feet 2 inches at one point but was not shored. At the time, he was
responsible for safety of employees. The Respondent did not contest that
citation . . . Tr. Vol. III, pages 4 and 7.
Frank
H. Livingston, called by the Respondent, testified that he is a vice president
for the Respondent, in charge of employee relations. The discussion about OSHA
regulations referred to by the witness, Smith, had very little to do with
standard 652(b); were mostly on posting, and so forth; and there was very
little on shoring. He wrote the letter (Exh. C–14) which says in part: ‘A
meeting was held for all Distribution Division employees on April 30, 1974, and
shoring of ditches . . . were covered.’ . .. Tr. Vol. III, pages 93–99.
Clarence
Welti, called by the Respondent (the Complainant agreed that he qualified as a
soils expert), testified that he was retained by the Respondent to investigate
the worksite after the OSHA inspection. He had previously been retained by the
Respondent sometime before to make a survey in general of the Respondent’s
excavations to evaluate possible dangers . . . Tr. Vol. III, pages 100–102. He
went to the instant worksite on June 26, 1975, and drew a cross section of the
excavation (Exh. R–4) from it. On Exh. R–4, in the F-F area, from the top of
the excavation, going down, was 1 foot 2 inches of concrete; then compact
processed stone; then 18 to 20 inches of duct; and then compact clay silt
filled with sand. From the bottom of the processed stone to the bottom of the
trench was 3 feet to 3 feet 6 inches; and from the bottom of the concrete to
the bottom of the trench was about 5 feet or a little less . . . Tr. Vol. III,
pages 113 and 114. He took samples and they tested out as follows: Sample No.
1, from the area marked A-A on Exh. R–4, was noncohesive sand; No. 2, from the
same area but deeper, was coarser material, with some gravel, but was
noncohesive; No. 3, between the areas marked C-C and F-F, was stiff, cohesive
clay silt. The F-F slope was stable . . . Tr. Vol. III, pages 118–120. The
manhold and the electric duct also helped stabilize the trench wall. . . Tr.
Vol. III, pages 122 and 123. The clay silt would retain stability of the trench
up to 10 feet, independent of the manhole and duct . . . Tr. Vol. III, pages
133 and 134. The A-A area would have to be shored . . . Tr. Vol. III, page 134.
The soil beneath the duct was natural or nonplaced soil . . . Tr. Vol. III,
page 141. The soil in the trench bottom was sandy; a large part of the
excavation was sand . . . Tr. Vol. III, pages 152 and 154. Sandy soil or soil
which has been backfilled is very unstable and requires sheeting . . . Tr. Vol.
III, pages 154 and 155. One wall of the trench contained backfill; the other
wall was totally different . .. Tr. Vol. III, page. 154.
Various
photographs were introduced, showing the worksite, and various exhibits,
including C–11 and C–12. Exh. C–11 was the March, 1974, instructions of the
Respondent to its employees. Section 5M of that document states in part:
‘While working in any area where the
trench is 5 (60‘) or deeper, or other conditions are such that the trench is
subject to cave-in, the side walls of the excavation shall be adequately shored
. . ..’
Exh.
C–12, a form used by the Compliance Officer in excavation cases, described the
soil as ‘unstable’ and ‘sandy.’ It was signed by the Respondent’s Foreman,
Vail, under the typed words: ‘I hereby verify the above to be true and
accurate.’
Discussion
There
is little doubt that Respondent specifically knew about standard 652(b). The
Complainant’s witnesses were very positive about discussions with the
Respondent’s personnel concerning it, and the Respondent’s witnesses remembered
the discussions but in a less detailed way. In addition, the Respondent’s
Foreman, Vail, testified that he was aware of standard 652(b) before June 20,
1975 (the date of the inspection). The Respondent’s knowledge is also
corroborated by Exh. C–14 (the Livingston letter) and by Exh. C–11.
There
is virtually no controversy about the measurements of the trench: The
Respondent’s Foreman, Vail, testified it was 6 feet 8 inches deep and 2 feet 8
inches wide; and I so find.
There
was contradictory testimony on the question of stability. However, in addition
to the emphatic testimony of the OSHA Compliance Officers that the soil was
unstable, there was the uncontradicted testimony that the general site had been
torn up on several occasions by various contractors. Every witness who
testified on ‘backfill’ agreed that it is less stable than ‘virgin soil.’ In
addition, although he had an explanation as to why he had done so, the fact
remains that Respondent’s Foreman, Vail, had read and signed a statement (Exh.
C–12) saying the soil was unstable. Although the Respondent’s expert witness,
Welti, said the trench was stable, he also testified that certain areas needed
shoring, a large part of the excavation was sand, and one wall of the trench
was very different from the other in that it contained backfill. The
photographs (C–9, c–10 and R–1) of the worksite corroborated the testimony that
there was substantial traffic there, some of it coming within a few feet of the
excavation. The evidence was quite conclusive that the soil was unstable, and I
so find.
I
found no need to refer to Exh. C–16 in coming to this conclusion, and it played
no part in my decision.
Was
the violation willful? The evidence is clear that the Respondent had actual and
specific knowledge of standard 652(b) and did not comply with the standard.
However, while it is not necessary for the Complainant to show malice,
‘willful’ does require a conscious and deliberate decision, an intentional and
knowing violation of the Act, or action taken knowledgeably in disregard of the
action’s legality. Here, the Respondent had instructed its foreman to shore
trenches over 5 feet or wherever the soil was such that it was necessary. It
had also issued the instructions spelled out in Exh. C–11. In addition, some
weeks before the inspection in the instant case, the Respondent had retained a
soils expert to investigate possibly dangerous excavations (apparently so
Respondent could take preventive measures in such places).
The
evidence here falls short of establishing willful misconduct, and I find there
was no willful misconduct on the part of the Respondent.
The
parties have fully tried the case on the major issue of whether there was a
serious violation where the hazard was death or serious injury because of
unstable soil; and the Respondent has always been aware that that is the major
issue . . . Tr. Vol. I, pages 83, 84 and 93; Tr. Vol. II, pages 16, 34, 49, 54,
62, 67, 79, 92, 98, 106 and 125–132; Tr. Vol. III, pages 20, 27, 29, 34, 37,
38, 41, 42, 43, 57, 58, 62, 69 and 70. I find that the Complainant has
sustained the burden of proving such a serious violation of standard 652(b).
Findings of Fact
Having
heard the testimony, observed the witnesses, and examined the exhibits, the
following Findings of Fact are made:
1.
At all times concerned, the Respondent regularly received, handled or worked
with goods which had moved across state lines.
2.
As concerns Item #1 of Citation #1, the trench in question was over 5 feet in
depth; its sides were in unstable or soft material; and they were not shored,
sheeted, braced, sloped, or otherwise supported.
3.
The conditions described in Item #1 of Citation #1 exposed the Respondent’s
employees to sustaining serious or fatal harm because of the hazard of collapse
of the trench.
4.
One or more officers or supervisory personnel of the Respondent was aware of
the hazardous conditions described herein and knew that employees were exposed
to such hazard.
5.
The Respondent’s conduct was not willful or deliberate or intentional.
Conclusions of Law
1.
At all times concerned, the Respondent was an employer engaged in a business
affecting commerce within the meaning of the Act; and the Occupational Safety
and Health Review Commission has jurisdiction over the subject matter and the
parties.
2.
At all times concerned, the Respondent knew, or with the exercise of due diligence
should have known, of the alleged violation.
3.
On the date in question, the Respondent was not in compliance with 29 C.F.R.
1926.652(b); and the Complainant has sustained the burden of proving the
Respondent violated § 5(a)(2) of the Act (§ 654).
4.
The Complainant has not sustained the burden of proving the Respondent
willfully violated 29 C.F.R. 1926.652(b) but has sustained the burden of
proving the Respondent committed a serious violation of 29 C.F.R. 1926.652(b).
Order
The
whole record having been considered, and due consideration having been given to
29 U.S.C. § 666(j), it is ORDERED:
Citation
#1 is affirmed insofar as a serious violation is alleged, and a penalty of
$1,000 assessed therefor.
So ORDERED.
FOSTER FURCOLO
Judge, OSHRC
Dated: June 14, 1976
Boston, Massachusetts
