UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 5540 |
|
CRAIG
D. LAWRENZ & ASSOCIATES, INC., |
|
|
Respondent. |
|
April
21, 1977
DECISION
Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
This
case is before the Commission pursuant to a sua sponte
order for review. The parties have filed no objections to the Administrative
Law Judge’s decision, either by way of petitions for discretionary review or
response to the order for review. Accordingly, there has been no appeal to the
Commission, and no party has otherwise expressed dissatisfaction with the
Administrative Law Judge’s decision.
In
these circumstances, the Commission declines to pass upon, modify or change the
Judge’s decision in the absence of compelling public interest. Abbott-Sommer,
Inc., 3 BNA OSHC 2032, 1975–78 CCH OSHD para. 20,426 (No. 9507, 1976); Crane
Co., 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see
also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d
Cir. 1976). The order for review in this case describes no compelling public
interest issue.
The
Judge’s decision is accorded the significance of an unreviewed Judge’s
decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para.
20,367 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
DATED: APR 21, 1977
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, Dissenting:
All
charges should be vacated because complainant failed to issue the citation with
reasonable promptness as required by 29 U.S.C. § 658(a). See my dissenting
opinion in the earlier decision in this case dated July 21, 1976. Also see Secretary
v. Jack Conie & Sons Corporation, OSAHRC
Docket No. 6794, June 25, 1976.
Moreover,
vacation of each of the charges is warranted for additional reasons. Vacation
of item 5 is required because 29 C.F.R. § 1926.651(i)(1),
applies exclusively to excavations and respondent’s cavity was a trench. See Secretary
v. Lloyd C. Lockrem, Inc., OSAHRC Docket No.
4553, February 24, 1976 (dissenting opinion); Secretary v. Dobson Brothers
Construction Company, OSAHRC Docket No. 3847, February 18, 1976 (concurring
and dissenting opinion). Item 6 should be vacated on the basis that it was
error to find respondent in violation of an amended charge. Because of the
unique nature of citations under the Act, such amendments, made after the
filing of a notice of contest, are inherently prejudicial and therefore should
be prohibited except in the most extraordinary circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31,
1976 (dissenting opinion). Finally, vacation of item 7 is appropriate because
the evidence establishes that an earthen ramp provided ‘an adequate means of
exit’ from respondent’s trench. Secretary v. Paul Hutchinson & Sons,
OSAHRC Docket No. 3301, June 11, 1976.
Furthermore,
for the reasons expressed in my separate opinion in Secretary v. Schultz
Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, 1 disagree
with the manner in which my colleagues are disposing of this case and with
their views regarding the significance of decisions rendered by Review
Commission Judges. Since my colleagues do not address any of the matters
covered in Judge Brennan’s decision, his decision is attached hereto as
Appendix A so that the law in this case may be known.
APPENDIX A
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 5540 |
|
CRAIG
D. LAWRENZ & ASSOCIATES, INC., |
|
|
Respondent. |
|
September 2, 1976
DECISION
AND ORDER
APPEARANCES:
FOR
THE SECRETARY OF LABOR
Herman
Grant, Regional Solicitor
219
South Bearborn Street Chicago, Illinois 60604
Attn:
James P. White, Esq.
FOR THE
RESPONDENT
John
L. North, Asst. Sec. Craig D. Lawrenz &
Associates, Inc.
1942
Townline Road, Route #3 Beloit, Wisconsin 53511
FOR
THE EMPLOYEES’ REPRESENTATIVE
Laborers’
International Union of North America, Local #931
616
W. Northland Avenue Appleton, Wisconsin 54911
International
Union of Operating Engineers, Local #139
7283
W. Appleton Avenue Milwaukee, Wisconsin 55216
Brennan, W. H.; A. L. J.
This is an action originally arising under the provisions
of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
659(c) (hereinafter the Act), to review three numbered items (5, 6, and 7) of a
Citation for Nonserious Violations (7 Items),[1] and penalties proposed
thereon issued pursuant to Sections 9(a) and 10(a) of the Act (29 U.S.C. 658(a)
and 659(c)), on November 6, 1973, by the Secretary of Labor through the Area
Director of the Occupational Safety and Health Administration for Milwaukee,
Wisconsin (hereinafter Complainant), to Craig D. Lawrenz
& Associates, Inc., of Milwaukee, Wisconsin (hereinafter Respondent).
This Citation alleges that Respondent on October 4, 1973,
at a place of employment located at Highway 29 in Shawano, Wisconsin
(hereinafter worksite), violated Section 5(a)(2) of the Act (29 U.S.C.
654(a)(2)) due to its failure to comply with the Occupational Safety and Health
Standards for trenching set forth at 29 C.F.R. 1926.651(i)(1),
1926.652(a) and 1926.652(h). This Citation set forth the following
‘descriptions’ of the alleged violations.
Item No. 5—29 CFR 1926.651(i)(1)
Employer failed to
have excavated materials back at least 2 feet from an excavation in which men
worked; i.e., but not limited to; the water pipe trench on highway 29.
Item No. 6—29 CFR
1926.652(a)
Employer failed to
properly shore or lay back to a stable slope the sides of a trench; i.e., but
not limited to; the water pipe trench on highway 29.
Item No. 7—29 CFR
1926.652(h)
Employer failed to
have a ladder in a trench over 5 feet deep in which men were working; i.e., (a)
the trench on Highway 29 for the sewer pipes; (b) the trench on county trunk H
and Anderson Avenue.
Abatement was to be accomplished ‘Immediately upon
receipt of this Citation’ as to each Item and a penalty of $110 was proposed
for each alleged violation.
Pursuant to Section 10(c) of the Act (29 U.S.C. 659(c)),
Respondent by a letter from its Assistant Secretary dated November 20, 1973,
noted its’ contest to the three Items noted supra and the proposed penalties
based thereon.
On December 19, 1973, the Complainant filed his
Complainant herein, followed on January 2, 1974, with the filing of
Respondent’s Answer.
After assignment of this case to the undersigned and
issuance of my usual Prehearing Order, to which both parties responded, the
Complainant on May 6, 1974, filed a Motion for Leave to File an Amended
Complainant by which the wording of paragraph IV(a)(2) of the original
Complaint was to be changed to conform more closely with the wording of Item
No. 6 of the Citation, and the Standard cited in the Citation upon which Item
No. 6 was based was to be corrected from 29 C.F.R. 1926.652(a) to 29 C.F.R.
1926.652(b).
The ‘description’ of the alleged violation for Item No. 6
of the Citation, supra, clearly charged a failure to shore or slope the sides
of a water pipe trench on Highway 29. However, the Standard cited was
inaccurate (29 C.F.R. 1926.652(a)), which by its terms applies to ‘Banks’ and
trenches less than five feet in depth. These inaccuracies were repeated in the
original Complaint (par. IV(a)(2)). Respondent objected to this proposed
amendment.
In order to correct these inaccuracies, and in the
absence of any showing of prejudice to the Respondent, Complainant’s Motion was
granted by Order dated May 14, 1974, with time allowed to May 22, 1974, to file
an Amended Answer if desired, upon the authority of National Realty &
Construction Co. v. OSHRC et al., 489 F.2d 1257 (D.C. Cir., 1973) (R. P.
J–8).
Paragraph IV(a)(2) of the Amended Complaint charged as
follows:
‘Failed to provide
that sides of a trench in unstable or soft material, five feet more in depth,
be shored, sheeted, braced, sloped, or otherwise supported by means of
sufficient strength to protect the employees working within it. (For example:
The water pipe trench at Highway 29 in which men worked.) [29 C.F.R. 1926.652(b)]
(Item 6 of the Citation)’[2]
At the outset of the trial held on May 23, 1974,
Respondent orally moved to amend its Answer to include two affirmative
defenses; that the Citation should be dismissed because an unreasonable length
of time had elapsed between the date of the inspection, October 4, 1973, and
the issuance of the Citation, November 6, 1973, and secondly that the
inspection should be considered void because the Compliance Officer allegedly
failed to follow the mandatory procedures set forth in the Compliance
Operations Manual (TR. 12).
The Complainant objected to this amendment (TR. 13).
Respondent’s motion to amend was granted and because this
was the first point in these proceedings that these issues had been raised,
additional time was granted the Complainant, if desired by counsel, within
which to either present evidence or legal argument tending to rebut these two
affirmative defenses (TR. 16).
No additional time was requested by Complainant, although
argument in Brief was addressed to these affirmative defenses.
On December 3, 1974, the undersigned issued his ‘DECISION
AND ORDER’ in this case, vacating the three contested Items of the Nonserious
Citation under consideration because of Complainant’s failure to issue the
Citation herein with ‘reasonable promptness,’ as required by Section 9(a) of
the Act, 29 U.S.C. 658(a) as interpreted, at that time by the Review Commission
in Secretary of Labor v. Chicago Bridge & Iron Company, 6 OSAHRC 244
(1/23/74).
On January 2, 1975, Review of this DECISION AND ORDER was
directed by the Review Commission (R. p. 12).
On July 21, 1976, the Commission issued its DECISION AND
REMAND herein, which reversed the undersigned’s 1974 DECISION AND ORDER, based
upon the Decision of the United States Court of Appeals for the Seventh Circuit
in Secretary of Labor v. Chicago Bridge and Iron Company and OSAHRC, 514
F.2d 1082 (Decided on April 22, 1975), which reversed the Commission’s 72-hour
rule announced in 6 OSAHRC 244 (1974), (R. p. 26) and subsequent Commission
Decisions.[3]
This case was remanded for a determination of the
contested Items (numbers 5, 6, and 7) of the Nonserious Citation.
Having reconsidered the entire record herein, the
testimony and demeanor of the witnesses, the exhibits, stipulations,
representations, admissions and arguments of the parties, it is concluded that
the substantial, reliable and probative evidence of this record considered as a
whole supports the following findings of fact and conclusions of law.
The following relevant matters were stipulated to by the
parties:
Respondent is a Wisconsin corporation with its principal
office located at 1942 Townline Road, Beloit, Wisconsin. It is engaged in the
business of installing water and sewerage systems which affects commerce. No
injuries were associated with this case. Respondent classifies itself as a
medium-sized contractor with sales during 1973 of approximately three million
dollars with about 59 employees on the average. At the time of the inspection
herein, October 4, 1973, it had no known history of prior violations of
employee health and safety laws.
Based upon these stipulated facts it is concluded that
Respondent is an employer engaged in a business affecting commerce who has
employees, within the meaning of Sections 3(3), 3 (5) and 3 (6) of the Act, 29
U.S.C. 652(3), (5), and (6), and that the Act applies to the worksite involved
herein, within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). Upon
the filing of Respondent’s Notice of Contest herein, the Review Commission has
jurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C.
659(c).
The Standards cited
provide as follows:
Item No. 5 29
C.F.R. 1926.651(i)(1)
(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.
Item No. 6—as
amended 29 C.F.R. 1926.652(b)
(b) Sides of trenches instable 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).
Item No. 7 29
C.F.R. 1926.652(h)
(h) 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.
On October 4, 1973, Compliance Officer Krohn, a 1972 graduate of the University of Wisconsin,
conducted an inspection of Respondent’s worksite along the shoulder of Highway
29 outside of Shawano, Wisconsin. At this worksite, Respondent was digging
trenches and installing water pipes on the south side and immediately adjacent
to Highway 29. Items numbered 5 and to involve this trench (hereinafter water
pipe trench). About one quarter of a mile east of this water pipe trench, on
the north side and immediately adjacent to Highway 29, Respondent was also digging
a trench in connection with the installation of a sewer line. Item number 7
involves this trench (hereinafter sewer pipe trench).
Upon his arrival at this worksite, Officer Krohn, pursuant to directions from his superiors under a
then effective ‘special emphasis’ program, conducted an inspection of this
site. He first took photographs of the worksite. This was done, as was the
usual practice, for two reasons. First, the ever-changing nature of trenching
sites, and second, the worksite was immediately adjacent to a public highway,
open to public view. These photographs were admitted as Exhibits C–1, 2, 3, 4,
6, 7, 8, 9, 10, and 11 over Respondent’s objection.[4]
Exhibits 1 through 4 show the spoil pile above the water
pipe trench having a continuous slope with the side of this trench. This spoil
pile was not set back any distance from the lip of this trench nor was this
pile retained in any way. The photographs (Exhibits C–1 through 4) show two
workmen in this trench identified by Respondent as its employees. Exhibits C–1
through 4, together with the testimony of Officer Krohn
conclusively establish the violation alleged in Item number 5 of the Nonserious
Citation herein (TR. 24–37).
After taking his photographs of this worksite, the
Compliance Officer asked a workman for the man in charge of the trenching
activity and was directed to Mr. Vertz, Respondent’s
foreman of the crew working in and on the water pipe trench. The Officer, after
identifying himself and explaining the reason for his inspection, conducted an
opening conference with Mr. Vertz. The Compliance
Officer then conducted a so-called ‘walk around’ inspection of this worksite
with Respondent’s representative Vertz. They were
later on, during the course of this inspection, joined by Respondent’s site
superintendent Zuege. During the opening conference,
the Compliance Officer advised Mr. Vertz that
employee representatives were entitled to join in the inspection. The
Compliance Officer interviewed employees of both the laborers’ union and
equipment union, and a representative of the laborers’ union joined the
inspection party (TR. 60–68).
Photographic Exhibits C–6 and 7 relate to Item number 6
of the Citation herein and depict the left side of the water pipe trench. This
trench was dug in ‘loose sandy soil’ (TR. 39) and was between 7 and 8 feet
deep. This depth was established by the Compliance Officer who asked the job
foreman Vertz its depth, who replied 7 or 8 feet (TR.
39). This statement was confirmed by the testimony of foreman Vertz (TR. 149). The sides of this trench were neither
shored, sheeted, braced nor sloped in conformity to the recommendations
appearing in Table P–1 in the Trenching Standards, as specifically referenced
in 1926.652(b). Compliance Officer Krohn accurately
estimated the width of this trench at its bottom to be about 2 feet. Foreman Vertz measured the top of this trench and told the
Compliance Officer it was 14 feet wide. Table P–1 under ‘Compacted Sharp Sand,’
the type of soil closest to that in which this trench was dug, provides for a
slope of 1 1/2 feet horizontally for every 1 foot of vertical distance. Thus,
in order to comply with the cited Standard, the top of this trench should have
measured 21 feet across (1 1/2 x 7 depth = 10 1/2 per side of trench x 2 = 21).
Exhibits C–1 through 7 clearly show two of Respondent’s employees working in
this water pipe trench. Thus, the photographic exhibits plus the testimony of
the Compliance Officer conclusively establish the violation alleged in Item
number 6 of the Nonserious Citation herein (TR. 37–46).
After completing the inspection of the water pipe trench,
the inspection party next traveled to the sewer pipe trench about a quarter of
a mile down Highway 29. Photographic Exhibits C–8, 9, 10 and 11 depict this
worksite. This sewer pipe trench was over 4 feet deep. One wall of this trench
was about 8 feet, the other side about 12 feet. From two to four of
Respondent’s employees were working in this trench, and there was no ladder or
steps or other adequate means of exit from this trench, the employees climbing
out the lower side of this trench unaided. Exhibit C–10 clearly depicts
fractures in one side of this trench. Thus, the photographic exhibits, plus the
testimony of Officer Krohn, conclusively establish
the violation set forth in Item number 7 of the Nonserious Citations herein
(TR. 48–52).
Upon the conclusion of the ‘walk around’ phase of this
inspection, a closing conference was held by Officer Krohn
with Respondent’s Superintendent Zuege. Each of the
conditions observed were discussed and abatement times, as set forth in the
Citation herein, were agreed to by Superintendent Zuege.
The inspection in its entirety took about three hours.
Based upon the creditable evidence of this record,
Respondent’s second defense, i.e., that the inspection should be considered
void because the Compliance Officer allegedly failed to follow the mandatory
procedures set forth in the Compliance Operations Manual (TR. 12), must fail.
The inspection conducted by Officer Krohn
not only complied with the statutory provisions of Section 8 of the Act, 29
U.S.C. 657, but also substantially complied with the instructions and
procedures set forth in the Compliance Operations Manual to that degree
necessary to assure the effective and uniform implementation of the Act—the
directive contained in the Forward of this Manual (TR. 59–69; 99–101).
Officer Krohn testified at
length concerning how the proposed penalty of $110 for each of the three
Nonserious Violations was computed (TR. 53–55, Exhibit C–12). Maximum allowable
deductions of 20 percent were allowed this Respondent for its good faith and
absence of any history of prior violations, as well as 5 percent for its size.
The Compliance Officer recommended adjusted penalties of $55 per violation,
which were raised by the Area Director to $110 after Officer Krohn consulted with a more experienced Compliance Officer
in the Area Office as well as discussing the matter with the Area Director.
Based upon an independent consideration of the factors mandated
by Section 17(j) of the Act, 29 U.S.C. 666(i), in the
light of the evidence of this record, it is concluded that the penalties as
proposed by the Area Director are appropriate and reasonable.
Based upon the foregoing findings and conclusions and
pursuant to the provisions of Section 10(c) and 12(j) of the Act, 29 U.S.C.
659(c) and 661(i), it is hereby,
ORDERED:
1. That Items numbered 5, 6, and 7 of the Citation for
Nonserious Violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for
failure to comply with the Occupational Safety and Health Standards set forth
at 29 C.F.R. 1926.651(i)(1), 1926.652(b) and
1926.652(h), and the penalties proposed thereon, are AFFIRMED.
2. A total civil penalty of $330 is ASSESSED.
WILLIAM E. BRENNAN
Judge, OSAHRC
Dated: September 2, 1976
Hyattsville, Maryland
[1] Items numbered 1,
2, 3, and 4 of this Citation were not contested and thus have become the Final
Order of the Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a).
[2] At the beginning
of the hearing herein, argument was heard on the propriety of allowing this
amendment. Based upon these arguments and the authorities cited, the ruling
allowing the amendment was confirmed (TR. 2–11).
[3] See Secretary
of Labor v. Couahlan Construction Company, 20 OSAHRC 641 (10/23/75); Secretary
of Labor v. Jack Conie & Sons Corp., —— OSAHRC —— DOCKET NO. 679
—(6/25/76).
[4] See: Accu-Namics,
Inc. v. OSHRC et al, 515 F.2d 828 (CA 5, 1975).