Docket No. 1409

C. N. FLAGG & COMPANY, INC., d/b/a NORTHEASTERN CONTRACTING COMPANY

OSHRC Docket No. 1409

Occupational Safety and Health Review Commission

February 4, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter essentially presents the question whether the administrative law judge committed reversible error by finding Respondent ("Flagg") in both serious and willful violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") for not having sloped or properly shored, braced or sheeted the sidewalls of a trench dug in unstable soil contrary to the requirements of 29 C.F.R. 1926.652(b). He assessed a penalty of $700 for the serious violation and $1,000 for the willful violation. The judge also affirmed in part and vacated in part a citation for alleged non-serious violations. n1 Having reviewed the record, we vacate the willful citation and affirm the judge's disposition of the remaining matters.

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n1 Although Labor initially petitioned for review of the judge's decision to the extent he vacated a non-serious allegation, neither party has briefed the issue on review. Accordingly, we take it that the parties accept the judge's decision on this issue, and will affirm.

[*2]

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The facts are these: Complainant (Labor) first inspected Flagg's worksite on August 18, 1972. At the time Flagg was engaged in installing sewer pipe in West Hartford, Connecticut. To that end, it had dug a 40 feet long, 15 1/2 feet deep trench. The trench was 6-7 feet wide at the bottom and 10 feet wide at the top. A trench box was in the trench, and its bottom was 6 1/2 feet from the bottom of the trench. In addition, the sides of the trench adjacent to the box were sheeted to within 6 1/2 feet of the bottom of the trench. Labor's representative (Barnes), upon observing the trench, believed it to be dug in an unstable "sandy loam" and told Flagg's representative that they were in violation of Labor's trenching standards. Flagg, although believing the soil to be "hardpan," removed its employees from the trench.

Five days later on August 23 Labor cited Flagg for a serious violation of 29 C.F.R. 1926.652(d). n2 On the same day Labor reinspected the worksite. Barnes was accompanied on this occasion by Labor's Area Director, Smith. Two trench boxes, one on top of the other, were located [*3] in the trench. The boxes did not protect the bottom 4 feet of the trench, and no other sidewall protection was provided therein. Smith observed two of Flagg's employees working in the trench and beyond any protection offered by the boxes. Smith believed the soil unstable because it appeared to be moist, sandy loam. In Smith and Barnes' opinions the situation on August 23 appeared to constitute a repeat of the violative situation which had occurred on the 18th. Accordingly, Smith ordered the immediate issuance of an imminent danger n3 citation for a willful violation of 29 C.F.R. 1926.652(d).

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n2 29 C.F.R. 1926.652(d) provides as follows: Materials used for sheeting and sheet piling, bracing, shoring, and underpinning, shall be in good serviceable condition, and timbers used shall be sound and free from large or loose knots, and shall be designed and installed so as to be effective to the bottom of the excavation.

n3 See 29 U.S.C. 662.

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An inspector for the State of Connecticut who had observed the trench described [*4] the soil as being a combination of dirt and clay with stones of varying sizes being mixed in with the clay and dirt. Flagg's superintendent, Battistone, characterized the soil as comprising blacktop with a crushed stone base and gravel for the first foot, a "pretty hard, reddish in color type material that was stable enough if you sloped it a bit" for the next 7 to 8 feet down, and hardpan from that level to the bottom of the trench.

Flagg timely contested the citations and proposed penalties. By its complaint filed herein Labor alleged that Flagg violated the cited standard because it "failed to provide in a trench more than five (5) feet in depth and not sloped to the applicable angle of repose, sheeting, shoring or bracing designed and installed so as to be effective to the bottom of the trench." Judge Worcester thereafter permitted amendment of the pleadings so as to allege a violation of 29 C.F.R. 1926.652(b). n4 In so doing he noted that the issue raised by the pleadings and tried by the parties was whether the soil was unstable such that shoring was required to the bottom of the trench.

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n4 The standard 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.

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On review, submissions were requested on the issue whether the judge erred in granting the amendment. We conclude that his action was proper for the reasons assigned by him. In addition, we note that Flagg's post trial brief posite the issue as being whether under 1926.652(b) it was required to shore the bottom 6 1/2 feet (August 18) and bottom 4 feet (August 23) since in its view the soil was hardpan or cemented sand and gravel. It argued that Table P-1 referenced by the standard permits vertical sidewalls in trenches dug in cemented sand and gravel.

We turn now to the alleged violations. Judge Worcester, as mentioned above, concluded that Flagg was in serious violation and in willful violation on the respective dates. He weighed the conflicting evidence as to the nature of the soil [*6] and concluded that it was unstable. In this regard he noted that Flagg's own witness stated that the soil between the 1 and 9 foot levels required some sloping in order to be stable. He also rejected Flagg's arguments concerning Table P-1. In this regard he accepted the opinion of Labor's trenching expert over that of Flagg's trenching expert. Labor's expert had opined that the term "cemented sand and gravel" as used in Table P-1 means a substance of the same character as rock and shale, i.e., a substance having the same characteristics as the other substances mentioned in connection with cemented sand and gravel. n5 The judge also referred to Table P-2 which sets minimum shoring requirements. He did so because the question presented was whether Flagg had to shore to the bottom of the trench. He noted that according to the Table, shoring was only excused if the trench is in solid rock, hard shale or hard slag.

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n5 In any event, Table P-1 refers to sloping. We are not confronted with a question of whether sloping was required since Flagg's arguments are directed to the system it actually used.

[*7]

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In view of these findings he concluded Flagg had violated 29 C.F.R. 1926.652(b) by not shoring the trench to the bottom since its employees were exposed to the hazard of a cave-in. We affirm this finding and his finding that the violation was serious for the reasons given by him. n6

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n6 In addition, we note that Smith observed employees working in unprotected portions of the trench. In view of the finding that the soil was unstable, this additional observation is sufficient to support the finding of a violation.

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But we do not believe that Flagg was in willful violation. We have said that a willful violation requires intentional, knowing, or voluntary conduct as distinguished from accidental conduct and that it may be characterized as conduct marked by careless disregard. C.N. Flagg & Company, Inc., No. 1734, BNA 2 O.S.H.C. 1195, 1196, CCH E.S.H.G. para. (1974), petition for review filed No. 74-2362 (2d Cir., October 21, 1974). [*8] n7 Judge Worcester concluded that a willful violation existed because Battistone persisted in his opinion that the hardpan need not be shored even though Labor had informed Flagg of the violation. What this amounts to is a difference of opinion between Flagg and Labor as to whether a violation existed on the facts. Certainly an employer is entitled to have a good faith opinion n8 that his conduct conforms to regulatory requirements in a given factual situation. And such conduct should not be construed as constituting a willful violation of the Act merely because Labor holds a contrary opinion on the facts and advises the employer of that opinion. Moreover, had Flagg prevailed on the question of soil stability, 29 C.F.R. 1926.652(c) would have applied rather than 652(b). In such event, we may have concluded that no violation existed. In this regard, we note that because of the language of 652(c) and the facts of this case, arguments for and against a violation of that standard could have been but were not made.

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n7 A three judge panel of the Third Circuit defined a willful infraction as follows: "[w]illfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. Willfulness means more than mere voluntary action or omission -- it involves an element of obstinate refusal to comply." Frank Irey, Jr. Inc., v. OSHRC, et al., No. 73-1765, Slip Op. at 13 (Nov. 4, 1974). Judgment vacated and rehearing en banc ordered (Dec. 20, 1974). We need not reconsider the definition since our reasons for vacating, as discussed infra, apply under both definitions.

n8 Labor does not say that Battistone's opinion was rendered with bad faith. In any event, the evidence would not support such a conclusion. We are not unmindful of the fact that Flagg ordered its people out of the trench when they saw Labor's representatives arrive on the 23rd. Standing by itself this fact could mean any of several things, and we are not inclined to attach any weight to it.

[*9]

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Finally, we could comment on the propriety of the willful citation itself in view of the fact that it issued on the same day as the serious citation and for essentially the same factual circumstances. Flagg argues harassment, and there is merit to the argument. Nevertheless, what has been said is sufficient to dispose of the matter.

Accordingly, the citation for willful violation and notice of penalty therefor are vacated, the judge's decision is modified to be consistent herewith, and is affirmed as modified. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. Ordinarily, the vacating of a willful violation on the ground that the element of willfulness has not been proved would result in finding a lesser violation of some degree. This is predicated upon all elements of such violation being either alleged and proved or tried by consent of the parties and proved. See Environmental Utilities Corp., No. 3141 (September 30, 1974) (Administrative Law Judge); Toler Excavating Co., No. 2637 (January 18, 1974 Administrative Law Judge decision [*10] directed for review February 13, 1974). In this case the similarity of the circumstances giving rise to the serious and willful citations and the occurrence of all alleged violations in close proximity render the citations redundant and unnecessary to effectuating the purpose of the Act. I therefore concur in vacating the citation for willful violation. However, the assertion in the lead opinion that there is merit to respondent's claim of harassment is unfounded and I disassociate myself from such speculation. The majority confuses public spirit with harassment.

I concur in affirming the action of the Administrative Law Judge in vacating the non-serious violation of 29 CFR 1926.652(e). The lead opinion affirms the Judge's holding on the ground that the parties failed to brief the issue on review. I disagree with this holding for the reasons stated in Bouma Post Yards, No. 1318 (October 18, 1974) (Cleary, Commissioner, dissenting).

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: I. This proceeding arises pursuant to a Notice of Contest filed by the Respondent, C.N. Flagg & Company, Inc., dated August 30, 1972, pursuant to the provisions of [*11] Section 10(c) of the Occupational Safety and Health Act of 1970, hereinafter the Act. The case arose as a result of inspections of the Respondent's worksite at Price Boulevard and Richards Street, West Hartford, Connecticut, on August 18 and 23, 1972, by a compliance officer of the Occupational Safety and Health Administration, hereinafter referred to as OSHA, a part of the office of the Secretary of Labor. Such inspections are authorized by Section 8(a) of the Act. A Citation charging the Respondent with two violations other than serious as defined in Section 17(c) and one violation deemed serious under the provisions of Section 17(k) was drafted as a result of the August 18, 1972, inspection. After a second inspection on August 23, 1972, the Respondent was charged with a willful violation, a penalty of $10,000.00 was proposed and an Imminent Danger Citation was served. Notice of Contest was filed on August 30, 1972. The Secretary's Complaint was filed on September 11, 1972. The Respondent's Answer was filed on November 27, 1972, after all motions were disposed of. The case was heard in Bridgeport, Connecticut, on December 19, 20, and 21, 1972.

The Secretary proposed that [*12] the Respondent be assessed penalties of $70.00 and $50.00 on the alleged Items 1 and 2, respectively, of the nonserious violation and $700.00 for the alleged serious violation. Before any evidence was received, the motion of the Secretary to amend Paragraph V(b) of the Complaint by striking the amount of the proposed penalty of $10,000.00 for a willful violation and to insert instead a proposed penalty of $5,000.00 was granted.

Item 2 of the non-serious Citation charged the Respondent with a violation of 29 C.F.R. 1926.652(e). It was alleged that there was:

Failure to take additional precautions by way of extra bracing and shoring to prevent cave-ins where the excavation is subject to vibrations from highway traffic of operation of machinery. Location -- Price Blvd. & Richard Street, West Hartford, Connecticut.

In paragraph III(c) of the Complaint the Secretary modified this charge by omitting the word "extra" and by adding "slides or" so that an additional charge of failure to protect against sliding excavated material on the surface was added to the allegation. However, any question as to the Secretary's authority to add an additional or alternative violation [*13] has become moot.

The Respondent's motion to vacate the Citation and proposed penalty of $50.00 for the alleged violation of 29 C.F.R. 1926.652(e) was granted. This citation charged the Respondent with failure to take special precautions because of the presence of heavy equipment and adjacent highway traffic. This would be an appropriate allegation if the Respondent had properly shored or braced the trench for normal lateral pressure but failed to supply the additional protection made necessary by vibrations from heavy equipment on the nearby surface. The evidence is that, although part of the trench was shored by means of trench boxes, several feet of the trench in which men were working was totally unshored and the unshored area was what the Respondent's witness, Battistone, called hardpan; not solid rock, hard shale or hard slag.

29 C.F.R. 1926.652 attempts to cover every conceivable hazard to trench workers in order to prevent injury or death from cave-ins. The Secretary cannot convent one incident into several violations by alleging that there was a violation of two or more subparagraphs of this section. There is no evidence that the trench boxes were made of poor material [*14] or that they were of inadequate strength to hold against the vibrations and additional weight of the backhoe being used. The Secretary has submitted no proof to show that such was the case, so that the only reasonable conclusion which can be reached is that the Respondent had protective equipment available at the worksite sufficient to meet all the requirements of the standard. The violation, if any, is that it was not used properly if the unshored portion was unstable soil. There remains unresolved only two questions, first was the soil unstable and, second, if it was unstable was the exposure to unshored, unstable soil willful?

III

Paragraph III (a) of the Complaint alleged that on August 18, 1972, there was a serious violation of 29 C.F.R. 1926.652(d). The Respondent was charged with failure to provide protection against cave-in by shoring or bracing a trench. The Secretary's Citation alleged:

Failure to provide sheeting shoring and bracing designed and installed so as to be effective to the bottom of a trench excavation to protect employees required to work in the trench.

Location -- Price Blvd. & Richard St., West Hartford, Connecticut.

Clearly this allegation [*15] charges the Respondent with failure to install shoring. The evidence of the Secretary was related to this allegation but, even if establishing that there was no shoring, there would be no violation of subparagraph (d).

The work "materials" is the subject of paragraph 29 C.F.R. 1926.652(d). This subparagraph is applicable only to those situations in which shoring is installed but the "materials" used for shoring are of such poor quality that protection against cave-in is inadequate. It is plain that the issue raised by the pleadings was whether the soil in which the trench was dug was unstable. The Secretary and the Respondent both directed their evidence to the quality and composition of the soil. There was no dispute as to whether the trench boxes the Respondent had at the jobsite were strong enough to protect against cave-ins or that the plywood used above the trench boxes was good material. The evidence showed, however, that the Respondent had not shored from top to bottom of a trench over five deep. The Secretary introduced soil samples and a witness to sustain the contention that shoring was necessary. The Respondent offered witnesses to rebut this contention. [*16]

Accordingly, the Secretary's motion to amend the Complaint to conform to the proof under Rule 15(b) of the Federal Rules of Civil Procedure was granted. The Secretary was permitted to strike the reference to subparagraph (d) of 29 C.F.R. 1926.652 in paragraph III (a) of the Complaint and to substitute therefor subparagraph (b).

The Respondent failed to offer any evidence to rebut the evidence of the Secretary showing that there was:

Failure to provide a ladder from the bottom of a trench to at least 3 ft. above the top to provide a means of exist for employees required to be in the trench. Location -- Price Blvd. & Richard Street West Hartford, Connecticut.

The Secretary has sustained the burden proof that there was a violation of 29 C.F.R. 1926.652(h).

The table of minimum requirements for trench shoring, 29 C.F.R. 1926.652, Table P-2, requires some shoring unless the soil in which the excavation is made is solid rock, hard shale or hard slag. The strength and type of shoring varies according to the width and depth of the trench and the type of material in which the excavation is made, but it must be installed if the soil is the type which cannot remain in place [*17] without support. See 29 C.F.R. 1926.653(q). Rock, shale and slag would likely remain in place without shoring. No other soil can be left unshored or braced under the standard.

The Respondent, through the testimony of its general manager, Battistone attempted to rebut the evidence of the Secretary that the soil in which the trench was excavated was unstable which required shoring or bracing by offering Battistone as an expert. Witnesses for the Secretary had described the soil as sandy loam, moist, sandy loam, sand and gravel. Battistone called it hardpan. He described it as soil that is very difficult to dig and, in response to a leading question from counsel, he said:

Hardpan is cemented sand and gravel and other particles glued or held together by clay or some other adhesive thing. This is cemented -- this is a cemented soil. That's what hardpan is.

This opinion is in conflict with the Secretary's witness, MacDonald, who testified that the term "cemented sand and gravel" referred to concrete. It is common knowledge that concrete is as stable as rock, shale or slag. It is a manufactured hard, stable, immovable material having physical characteristics similar [*18] to rock. It will remain in place without shoring. That is not true of the soil which Battistone called hardpan. He said that this material down to an 8 or 9 foot level "was stable if you sloped it a little bit." This is a clear and unambiguous admission by the Respondent's general manager that the soil at the worksite was unstable. In addition, on cross-examination he was asked:

Q. How does the hard pan come out as it is dug?

A. Well, it crumbles. . . .

All of the testimony is consistent with this admission. The overwhelming weight of the evidence is that the soil in which the Respondent's employees were working on August 18th and August 23, 1972, was unstable soil; the kind which would crumble. The Complainant's Exhibit C-5, a photograph of the worksite taken on August 23, 1972, shows evidence of a displacement or sloughing off of soil from the side of the trench and what were described (and appear to be) tooth marks made by the backhoe as it scooped soil.

The Secretary, under the provisions of Section 13 of the Act, caused an imminent danger action to be brought in the United States District Court for the District of Connecticut after the August 23, 1972, inspection. [*19] Except to the extent that this collateral matter throws some light upon the gravity of the alleged violation and attitude of the employer, it is irrelevant to this proceeding. The same may be said of the arrest of Battistone by a State of Connecticut inspector and the subsequent dismissal of the charge, because of prompt compliance according to the Respondent's counsel.

The witness, Petrus, told of his experience with the Respondent over a period of several months beginning in November 1971 while inspecting other jobsites and on the subject jobsite. Petrus testified that, as he understood the State of Connecticut trenching regulation, a trench had to be shored from top to within at least two feet of the bottom. He had observed that the Respondent's employees were working in a 14 foot trench with no trench protection. This was at the West Hartford job site on August 1, 1972.

All of the evidence coming into the record through the witness, Petrus was admitted over the Respondent's objection. In retrospect it is revealed that none of the Respondent's problems in complying with Connecticut job safety standards are relevant to the issues in this proceeding, but this evidence [*20] does show that the Respondent was cognizant of the fact that there was a body of opinion among persons having experience in the enforcement of construction safety rules involving trenches that it was hazardous to expose men to unshored trench sides in the particular soil in which its employees were working on August 18, 1972. It shows that failure to shore was not due to inexperience, innocence or inadequate information. It was more likely due to a sincere, although erroneous, conclusion that "hardpan" is synonymous with "solid rock, hard shale or hard slag" and that the employees in the trench were not subjected to any significant hazard.

Battistone has been engaged in the construction business since 1952. He began with the engineering section of the highway department in the State of Connecticut as an inspector. In 1955 he became assistance chief engineer in charge of all construction activities throughout the State. He progressed through various other supervisory positions until the calendar year 1964. He then left state government service to become an assistance to the vice-president of a private corporation as general superintendent of construction. He joined the Respondent [*21] company in March 1972. Altogether he said, he has had twenty years of experience in construction work involving the excavation and handling of soil in the State of Connecticut.

After so many years of experience in construction there can be no doubt that Battistone knew how to excavate a trench and how to provide protection against cave-ins. He also knew what type of soil they would find when the trench was dug at the West Hartford site. Before a bid on this project was made it was necessary for the Respondent to determine the composition of the sub-surface soil. This is a necessary procedure in making a cost estimate. For that reason, Battistone made inquiries about it. He knew that another contractor who had built a portion of an interstate highway through this particular area had encountered some rock and shale. He talked to other contractors who had worked in the vicinity. He consulted public officials in West Hartford. They told him that he could expect to encounter rock, shale, hardpan and clay. At the time of the inspection by the Occupational Safety and Health Administration the job had been in progress for almost two months. Battistone obviously knew [*22] the composition of the soil from first hand experience by that time. In view of his many years of experience and his pre-bid investigation, Battistone must have known that they would be encountering hardpan which, according to his own testimony, was the type which crumbles and was only stable if sloped a little. Why they did the Respondent fail to slope, shore or brace the trench?

The Secretary has sustained the burden of proof that the Respondent on both the 18th and 23rd days of August 1972, had failed to shore or brace an unsloped trench over five feet deep as required by the standards, but was this violation on August 23, 1972, willful? The word "perverse" is a synonym for willful. It signifies willfully wrong or erring. n1 Antonyms for the word willful include compliant, submissive, yielding. None of those latter terms properly describe the Respondent's actions in the case at bar.

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n1 Standard Handbook of Synonyms, Fernald, 1947.

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The Secretary, in the Compliance Operations Manual, Chapter VIII, [*23] subparagraph B.4(a.)(1) defines a willful violation as follows:

4. Special Types of Violations (a.) Willful. (1) A "willful" violation may exist under the Act where the evidence shows (1) that the employer committed an intentional and knowing violation of the Act and the employer is conscious of the fact that what he is doing constitutes a violation of the Act, or (2) even though the employer was not consciously violating the Act, he was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition. It is not necessary that the violation be committed with a bad purpose, or an evil intent, to be deemed "willful" under the Act. It is sufficient that the act was deliberate, voluntary or intentional as distinguished from those which were inadvertent, accidental or ordinarily negligent.

A guideline does not have the force of law but this statement is consistent with the law. The applicable rule was summarized by Judge Gold in Secretary of Labor v. Intercounty Construction Corporation,

The next issue is whether the violation was willful. The term "willful" has been defined as meaning [*24] an act committed intentionally, knowingly, or voluntarily as distinguished from accidentally, but is susceptible to varying interpretations. It may mean one thing in civil matters and quite another in criminal prosecutions. When used in the latter, generally it has been construed to mean an act done with evil motive, bad purpose, or corrupt design. United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223 (1933). Wilson v. United States, 250 F. 2d 312, 319 (9 Cir. 1957). When used in a statute calling for a civil penalty, it was interpreted as meaning purposely or obstinately, and as describing the attitude of a doer who, having a free will or choice, either disregards the statute or is plainly indifferent to its requirements. United States v. Illinois Central R. Co., 303 U.S. 239, 53 S. Ct. 533 (1938). In Levy v. United States, 140 F.Supp. 834, 836 (D.C. W.D. La. 1956), which involved a suit to recover from the Government the amount of a civil penalty assessed against plaintiff for failure to pay social security and withholding taxes, the Court noted that the term has been interpreted to mean consciously, intentionally, deliberately, or voluntarily [*25] as distinguished from accidentally.

The Respondent agrees:

A willful act has been defined as an intentional, knowing or voluntary Act as distinguished from accidental, and it may be characterized as conduct marked by careless disregard. United States v. Illinois Central R. co., 303 U.S. 239, 243, 58 S. Ct. 533, 535, 82 L. Ed. 773 (1938); Hodgson v. Hyalt, 318 F. Supp. 390, 392 (N.D. Fla. 1970). (Respondent's brief, p. 24).

Neither the efforts of the Secretary to show that Battistone defied Petrus when he was told to shore a trench nor the evidence of the Respondent designed to show a compliant attitude settle the question of willfulness. The same might be said of the mass of testimony and documents pertaining to the Respondent's disagreement with the State of Connecticut about the proper method of shoring, the imminent danger action in the District Court, the Respondent's installation of a warning bell on movable equipment, or the Respondent's publication of a safety manual. The company policy according to this manual was to make each supervisor and department head responsible for the safety of each worker under his supervision (Ex. R-6). The evidence [*26] shows that this was not donc. An employer is not an insurer of the safety of his employees, but when he knows what is required of him and he fails, either personally or through his supervisory personnel, to see to it that employees exposed to recognized hazards be protected from them, he violates the Act. There was a recognized hazard here. Both Battistone and Sousa were supervisory agents of the Respondent on the 18th and 23rd days of August 1972. Their acts were its acts and if, as a result of a willful act by either or both of them, a violation of the standards occurred, the Respondent committed a willful violation of the Act.

In that connection, neither side called Sousa as a witness. Neither Sousa nor the two men who were observed to be with him in the trench on August 18, 1972, testified. These two men might have known what Barnes of the Occupational Safety and Health Administration told Sousa. Sousa would know what Barnes said to him and he could have been asked why the trench was not shored. Why wasn't that done? On the other hand, if Sousa had been cooperative and agreeable, why didn't the Respondent call him as a witness? It is reasonable to assume that both parties [*27] had so little faith in Sousa's reliability under cross-examination that they chose to rely upon the liberal rules of evidence prevailing in non-jury administrative trials. Failure to present a material witness where there is no showing that the witness is unavailable is sufficient ground for regarding any hearsay substitute with caution. It is of little probative value.

The best evidence in the record here is that which reveals through the testimony of witnesses testifying under oath what really happened. It is not disputed that the trench was not shored to the bottom on August 18, 1972, or on August 23, 1972. The Respondent has not denied that Sousa and Battistone knew that the Occupational Safety and Health Administration considered them to be in violation of the standards for failure to shore. If that were not true there would have been no reason for Sousa to order the laborers to get out of the ditch on August 23rd when he saw the Occupational Safety and Health Administration officials approaching, or for Battistone to tell Smith later the same day that he had instructed his men to shore as the Occupational Safety and Health Administration inspectors had told them [*28] to. It is clear from these facts that it was their intention to continue as they had before with no more than a token, half-hearted effort to comply by putting in one additional trench box.

In United States v. Illinois Central R. Co., (supra) the issue, similar to the issue in the case at bar, was whether there was a willful violation of regulations. There was a statutory provision for civil penalties for knowingly and willfully failing to comply.

The Court quoted with approval the opinion of then Circuit Judge Van Devanter in St. Louis and S.F.R. Co. v. United States, 169 F. 69, (later a member of the Supreme Court) in which he said that evidence of an intentional disregard of the statute or indifference to its requirements shows willfulness. The conduct of the Respondent in the instant case fits this description.

Battistone was not ignorant of the requirements. Sousa knew that he should not have gone into the trench with his two laborers without first shoring it to the bottom. Battistone was, at least indifferent. His supervision of Sousa was not firm enough to accomplish compliance. Battistone was so convinced that shoring was unnecessary in what he called [*29] hardpan that there is no doubt that his attitude went beyond indifference. After making a very thorough investigation of soil conditions, observing them after the project was started, and after having been advised on August 18, 1972, that compliance with the standards required shoring when there was hardpan he still had not seen that this was done.

The Respondent argued that since there were no cave-ins and no injuries at the West Hartford project during a period of three months involving 5,600 man hours of work in laying 2,200 feet of pipe that stability of the soil has been established. This is an erroneous assumption. It is derived from the dogged and intractible feelings of Battistone, as shown by his testimony, that hardpan is so much like rock that it is not necessary to shore it. It shows that the failure to shore the trench to the bottom after August 18th was not inadvertent or accidental. It was an exemplification of the Respondent's unyielding opinion that this type of soil did not need to be shored. It was a deliberate and willful act in the sense that the Respondent's stubborn refusal to admit that this particular soil might cave-in resulted in a conscious [*30] continuation of pipe laying in a fourteen or fifteen foot deep trench without proper shoring of the almost perpendicular sides.

The Occupational Safety and Health Act of 1970 directed the Secretary of promulgate, as an occupational safety and health standard, any national concensus standard or any established Federal standard. See Section 6(a). A national organization of builders and construction specialists have recognized the hazard to employees where a ditch is unshored. They have concluded that, regardless of the type of soil, unless it is solid rock or the banks are sloped, the trench must be shored. See what The Associated General Contractors of America, Inc., in their Manual of Accident Prevention in Construction say about trenching in Section 24-7 of the Manual:

Trenching operations are common to many types of construction and maintenance projects and are inherently dangerous. Due to the great exposure, numerous accidents in connection with trenching occur every year. A few simple precautions, if observed, can serve to take most of the risk out of trench construction.

1. Shoring and/or bracing should be placed in every trench over four feet in depth, regardless of [*31] soil type, except solid rock, unless banks are sloped to the angle of repose recommended under paragraph 24-4.

2. Shoring and bracing should be carried down with the trench.

3. Shoring and bracing should be placed in every trench regardless of length of time the trench will be open.

4. All excavated materials should be placed a minimum of two feet back from the edge of the trench.

5. No man should be allowed to work in the area of operation of any excavating machine.

Men working in trenches should be separated to avoid being struck by fellow workmen's tools; 12 foot spacing is recommended. All men should wear safety shoes, and should wear hard hats in trenches. Ladders should be provided at a minimum of 50 foot intervals in trenches for safe egress.

Supervisors as experienced in trenching as Battistone and Sousa knew the risks involved and that all trenches are inherently dangerous. Their persistent failure to shore properly must have been intentional.

VII

The Secretary proposed a penalty of $70.00 for failure to provide the trench workers with a ladder. This is a very modest penalty for this violation. A proposed penalty of $700.00 for failure to shore [*32] the trench to the bottom on August 18, 1972, is also an appropriate penalty. The consequences of a cave-in of a ditch in which men are working more than 10 feet below the surface are so obvious that further comment is unnecessary. A substantial probability of serious injury or death exists.

For the willful violation the Secretary first proposed that the maximum penalty of $10,000.00 be assessed. At the opening of the trial and before any evidence was offered, the Secretary moved to amend paragraph III(d) of the Complaint so as to recommend a penalty of $5,000.00. The method utilized by the Secretary to determine that this sum was reasonable is not clear. The record contains the following:

Q. Mr. Smith, upon consideration and reconsideration and consultation in the Labor Department, do you now feel some other figure appropriate to be assessed in this case?

A. Yes, sir. We have figured that a more equitable amount would be $5,000 versus the original $10,000.

Q. Mr. Smith, how did you arrive at that $5,000 figure?

A. I took this and figured that if this were the original instead of the second inspection and if we had found the same situation, it wasn't as grave, it was [*33] grave but not as grave as the original because there was less exposure at the bottom than on the first inspection. We figured if we were to go under the serious and if he had abated right away and brought the men right out, it probably would have been $700 or probably $500, and ten times the factor of the original which means from $500 to $5,000 assessed penalty.

Apparently it was concluded that because an additional trench box was put in that the gravity of the violation was less than on August 18th so that an appropriate penalty would be $500.00 instead of $700.00. This does not explain how multiplying $500.00 by 10 is an appropriate formula to determine the appropriate amount for a willful violation. Why not a multiple of 5 or 15?

The gravity of the violation on August 23rd was greater than on August 18th, not less. The addition of one trench box did not diminish the danger to the men at the bottom of the trench. Moreover, this was only five days after the Respondent's foreman, Sousa, had been told that it was a violation of the standards to leave the bottom or four or five feet of the trench exposed. An appropriate penalty for such a violation would be the maximum [*34] penalty for a serious violation, $1,000.00. If the same acts contain all the elements of willful violation, a penalty up to $10,000.00 is authorized. When the record is devoid of substantial evidence showing that there is good cause for assessing a penalty in excess of $1,000.00, there is no basis upon which a proposed penalty of $5,000.00 can be approved, particularly when the Secretary acknowledged his uncertainty as to what the proposed penalty should be by having it before the case was heard. Accordingly, an appropriate penalty for the willful violation would be $1,000.00.

FINDINGS OF FACT

1. The Respondent, C.N. Flagg and Company, Inc., doing business as Northeastern Construction Company is now, and was at all times relevant to the issues in the instant case, a Connecticut corporation with its principal office in the City of Meriden, Connecticut.

2. The Respondent had control and dominion over a construction project in the vicinity of Price Boulevard, West Hartford, Connecticut, in which storm sewer pipe was being installed in August 1972.

3. The Respondent maintains offices outside the State of Connecticut and does business of construction contracting under [*35] the name of Northeastern Contracting Company.

4. In August 1972 Northeastern Contracting Company employed approximately nine persons in the vicinity of Price Boulevard, West Hartford, Connecticut.

5. It was stipulated at the trial that C.N. Flagg and Company in the calendar year 1971 had a net worth of $2,400,000, that the annual dollar volume of business done in 1971 was $20,000,000 and that C.N. Flagg and Company in that year employed an average of 550 employees on a daily basis.

6. There is no history of previous violations of the Occupational Safety and Health Act of 1970 by this Respondent.

7. On August 18, 1972, the Respondent's foreman, Mario Sousa, and two laborers were engaged in the act of installing a sewer pipe at a level approximately fifteen feet below the surface at the bottom of a trench in West Hartford, Connecticut.

8. On August 18, 1972, at the jobsite on Price Boulevard in West Hartford, Connecticut, the Respondent's foreman and laborers, while engaged in work at the bottom of a trench more than five feet deep, did not have access to a ladder.

9. The trench where the Respondent's employees were working at West Hartford location on August 18, 1972, was [*36] more than five feet deep.

10. The soil at this jobsite was unstable. It was not composed of solid rock, shale, slag or concrete.

11. On August 18, 1972, the Respondent's employees were working at a depth of approximately fifteen feet. The bottom four or five feet of the trench was not shored or braced so that, because of the instability of the soil and the use of heavy equipment adjacent to the trench, these employees were exposed to the hazard of a cave-in which could cause serious injury or death.

12. A national association of general contractors recognizes trenching as inherently dangerous. It is their conclusion that every trench more than four feet deep, regardless of soil type unless it is solid rock, should be shored or braced from the surface to the bottom.

13. On August 23, 1972, although having been advised by the Occupational Safety and Health Administration inspectors on August 18, 1972, that at the depth the Respondent's employees were working and considering the type of soil, Occupational Safety and Health Administration standards required shoring or bracing, the Respondent through its agent and foreman, Sousa, continued to expose its employees to [*37] the hazards of an unshored trench with full knowledge that such conduct was contrary to the standards.

CONCLUSIONS OF LAW

1. The Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970; and is and was at all times material to the issues in this proceeding an employer under the provisions of Section 3(5) of the Act and, as such, subject to its provisions under Sections 4(a) and 5(a) of the Act and the standards promulgated under the authority of Section 6, thus giving this Commission jurisdiction of the Respondent and the subject matter.

2. The Secretary has sustained the burden of proof of the allegation of a violation of 29 CFR 1926.652(h) in failing to provide a ladder from the bottom of the trench at Price Boulevard, West Hartford, Connecticut on August 18, 1972; and the proposed penalty of $70.00 for said violation is an appropriate penalty.

3. The Secretary has sustained the burden of proof that the Respondent violated the standard set forth in 29 CFR 1926.652(b) on August 18, 1972, in that the evidence has established that the Respondent [*38] failed to shore or brace unsloped sides of a trench in unstable material while employees were engaged in work at depths of more than 14 feet, and that a proposed penalty of $700.00 for this violation is appropriate.

4. The Secretary has sustained the burden of proof that on August 23, 1972, in the vicinity of Price Boulevard, West Hartford, Connecticut, the Respondent through its agent and supervisor, Mario Sousa, willfully violated the standards set forth at 29 CFR 1926.652(b) by failing to provide shoring or bracing in a more than 14 foot unsloped trench in unstable soil. Upon consideration of the Respondent's previous history, size, the gravity of the violation and other factors revealed by the evidence and required to be considered under the provisions of Section 17(j) of the Act a penalty of $1,000 for the willful violation is appropriate.

ORDER

Upon consideration of the above set forth findings and conclusions and the record as a whole, it is hereby ORDERED that:

1. Item 1, non-serious citation number one, alleging a violation of 29 CFR 1926.652(h) and the proposed penalty of $70.00 thereon be affirmed.

2. Item 2, non-serious citation number one, alleging [*39] violation of 29 CFR 1926.652(e) and the proposed penalty thereon are vacated.

3. The Citation for a serious violation of 29 CFR 1926.652(b) and the proposed penalty of $700.00 thereon be affirmed.

4. The Citation for willful violation of 29 CFR 1926.652(b) be affirmed, the proposed penalty of $10,000.00 amended at bar to $5,000.00 be disapproved, and that the Respondent be assessed a penalty of $1,000.00 for the willful violation.