Docket No. 2538

GRAVEN BROTHERS AND COMPANY

OSHRC Docket No. 2538

Occupational Safety and Health Review Commission

March 26, 1976

а [*1] а

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners. а

COUNSEL:

Henry D. Mahlman, Office of the Solicitor, U.S. Dept. of Labor

Jay E. Jensen, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

A January 14, 1974 report of Review Commission Judge John J. Morris is before this Commission for review pursuant to 29 U.S.C. 661(i). а As in CPL Constructors, Docket 2805, BNA 3 OSHC 1865, CCH OSHD para. 20,251 (1975), Judge Morris, upon finding that Respondent was in violation of excavation standards n1 but not in willful violation thereof, vacated because neither a serious nor nonserious violation was alternatively charged. а For the reasons given herein we adopt the Judge's findings and conclusions on the question of willfulness, but modify the citation to nonserious and affirm the citation as modified.

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n1 Respondent in this case was cited for violations of 29 C.F.R. 1926.651(c), 651(i)(1), and 651(q). а The standards require that an excavation dug where there is a hazard from moving ground be adequately sloped or shored, that excavated material be stored at least two feet from the edge of the excavation, and that the sides of an excavation be shored or braced to resist the extra pressure of a superimposed load, caused by, for example, a truck being operated at the excavation site.

а [*2] а

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The facts are these; Respondent had dug an excavation running along a north-south line and measuring 32 feet long, 10 feet wide at the base, 14 feet wide at the top, and 7 feet deep. а The east and west walls were cut back approximately 2 feet and the north wall was cut back approximately 3 feet. The walls were not shored or braced. Soil tests and the compliance officer's observations indicated that the soil was of a sandy clay composition, and a soil expert testified that the walls should have been cut back one foot horizontally for every one vertical foot; Respondent's witnesses testified that the ground was hard and that the excavation was safe. Judge Morris resolved the conflict as to soil composition in favor of the Secretary by finding that the soil was of such type as to constitute moving ground. а We do not disturb that finding. а Northeast Stevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para. 19,001 (1974); Paul L. Heath Contracting Co., 20 OSAHRC 297, BNA 3 OSHC 1550, CCH OSHD para. 20,006 (1975). а A spoil pile which was approximately 5 feet high was located within two [*3] а feet of the east wall of the excavation. A truck weighing approximately 9000 pounds and provided with outriggers was operating adjacent to the west side of the excavation. One employee was observed leaning against the north wall and walking near the east wall in the excavation.

On these facts, the Secretary cited Respondent for a single willful violation of 29 C.F.R. 1926.651(c), 651(i)(1), and 651(q) in that, during a prior inspection, the same supervisor as was in charge in the instant case had been informed of the requirements of the excavation standards. а Further, Respondent had not contested a prior citation which alleged a violation of 1926.651(i)(1), one of the standards involved here.

On this record, the preponderant evidence supports the Judge's finding that Respondent violated the cited standards. а Respondent's employee was exposed to the hazard of moving ground in an excavation which was not shored, braced, or adequately sloped. а The employee was also exposed to the hazard caused by a spoil pile not stored at least two feet from the edge of the excavation as well as to the hazard caused by the failure to take extra precautions in shoring or sloping due to the presence [*4] а of a truck at the side of the excavation.

We further adopt the Judge's conclusion that the violation was not willful. As the Judge found, knowledge of a standard and a subsequent violation of that standard do not in themselves prove that a violation was the result of an act done voluntarily by Respondent which either intentionally disregarded the standards or demonstrated plain indifference to the Act. а F.X. Messina Construction Corp. v. OSAHRC, 505 F. 2d 701 (1st Cir. 1974); Intercounty Construction Co. v. OSAHRC, 522 F. 2d 777 (4th Cir. 1975); U.S. v. Dye Construction Co., 510 F. 2d 78 (10th Cir. 1975).

However, the citation should not have been vacated in the entirety. Subsequent to issuance of the Judge's report in this case, we held that, where a violation has been established but is not of a willful nature as alleged, we will ordinarily find a nonserious violation. а We also said that we may find a serious violation even though it has not been alleged if it has been shown on the record and if there has been trial by consent of the issues presented by such violation. а Toler Excavating Co., 19 OSAHRC 492, BNA 3 OSHC 1420, CCH OSHD para. 19,875 (1975); CPL Constructors, а [*5] аа supra. The question remaining, therefore, is whether a serious violation was tried by consent.

The Secretary in its brief asks us to amend the citation to allege a serious violation as an alternative to finding a willful violation. The Secretary notes that evidence was adduced at the hearing pertaining to the probability of death or serious physical injury in the event of an accident, n2 and that the Judge specifically found that the circumstances would ordinarily support the finding of a serious violation.

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n2 A serious violation is defined in 29 U.S.C. 666(k) as one where "there is a substantial probability that death or serious physical harm could result from a condition which exists. . ."

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Be that as it may, it does not follow that Respondent was on notice that the question of the likelihood of death or serious physical harm was an issue in the case. а Respondent was not advised to this effect by the pleadings nor was it so advised at the hearing. а The most that can be said is that the Secrertary adduced some [*6] а evidence tending to establish that the likely result of the violative conditions would be death or serious physical harm. а We do not find this to be enough to establish that Respondent tried the issue by consent. а On the contrary, it could just as well mean that Respondent was completely ignorant of the possibility of the issue, a meaning that does comport with the citation and pleadings. а In this regard, it is significant that Respondent did not present evidence going to the question of death or serious physical harm. а а We affirm instead a nonserious violation comprised of the three items alleged.

We turn now to the assessment of an appropriate penalty. а Respondent is of small size, employing approximately three to four employees at the worksite in question. а A previous citation issued to Respondent alleged trenching and excavation violations and become a final order when Respondent failed to contest it. а [*7] а Regarding good faith, Respondent's representative of the worksite took immediate action to correct the hazards. However, the gravity of the violation was high. а There were three separate hazards present in the excavation and the gravity of each hazard was increased by the presence of the other two hazards. The type of injury which could have resulted from an accident was severe. а On balance, we conclude that a penalty of $1000 is appropriate for the three items combined and will accomplish the purposes of the Act.

Accordingly, the Respondent is found to have been in nonserious violation of 29 C.F.R. 1926.651(c), 651(i)(1), and 651(q) and a penalty of $1000 is assessed. а It is so ORDERED. а

CONCURBY: MORAN; CLEARY (In Part)

CONCUR:

MORAN, Commissioner, Concurring:

I concur with Chairman Barnako, including his reliance on several aspects of Judge Morris' decision. а Because of our adoption of some of Judge Morris' findings, however, I am attaching his decision hereto as Appendix A so that his rationale may be known. а

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur in the lead opinion insofar as it finds that respondent violated the cited standards. а I dissent, а [*8] а however, from the majority's conclusion that these violations are not "serious."

I would hold that respondent willfully violated the standard at 29 CFR з а 1926.651(i)(1) [hereinafter з а 1926.651(i)(1)] and was in "serious" violation of the standards at 29 CFR з а 1926.651(c) and (q) [hereinafter з а 1926.651(c) and (q)].

The standards that respondent was alleged to have willfully violated provide as follows:

з а 1926.651 Specific excavation requirements.

* * *

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

* * *

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

* * *

(q) If it is necessary to place of operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.

The majority affirms Judge Morris' decision [*9] а that, although the evidence showed a violation of the cited standards, it was not shown that respondent consciously disregarded the standards. а Presumably my colleagues are in agreement with the Judge's statement that:

The gravamen of a violation of 29 CFR 1926.651(c) is that 'employees are exposed to danger from moving ground.' On this issue also turn the other two standards. There is no evidence of record to support the proposition that Respondent was conscious that it was exposing its employees to 'danger from moving ground' but nevertheless proceeded. а The activities of Respondent and the experience of its supervisors and independent witnesses all indicate that they considered the pit to be one hundred percent safe (emphasis added).

I do not agree with the Judge's analysis as it relates to the alleged willful violation of з а 1926.651(i)(1) concerning the storage of materials away from the excavation. Respondent's on-site supervisory personnel had a good faith, but erroneous, belief that the walls of the excavation posed no danger of moving ground. а It was error for Judge Morris to consider respondent's good faith belief as to the stability of the excavation's walls as regating [*10] а an intentional disregard of з а 1926.651(i)(1) as well as з а 1926.651(c) and (q).

In order to eliminate the possibility of loose excavated material falling into the excavation, spoils from excavations must be effectively stored and retained in accordance with з а 1926.651(i)(1) regardless of the nature of the earth material composing the excavation walls. n3

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n3 Compare paragraphs (c) and (q) of section 1926.651 in which the qualifying phrases "in which employees are exposed to danger from moving ground" and "as necessary" make their application dependent upon the nature of the soil composing the excavation walls.

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In Intercounty Constr. Co. v. O.S.H.R.C., 522 F.2d 777, 779 (4th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3249 (U.S. October 17, 1975) (No. 75-594), the court stated that:

We agree with the position adopted by the Commission in interpreting the statute that 'willful' means action taken knowledgeably by one subject to the statutory provisions in disregard of the action's legality. а [*11] а No showing of malicious intent is necessary. а A conscious, intentional, deliberate, voluntary decision properly is described as willful, 'regardless of venial motive.' F.X. Messina Construction Corp. v. Occupational Safety and Health Review Commission, 505 F.2d 701, 702 (1st Cir. 1974).

Applying this interpretation to the facts of this case, I would hold that respondent, through its field supervisor, n4 willfully violated з а 1926.651(i)(1) as alleged.

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n4 Respondent is held responsible for the acts and omissions of its authorized agents acting within the scope of their employment. а United States v. Dye Constr. Co., 510 F.2d 78, 82 (10th Cir. 1975) and cases cited therein.

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The evidence clearly shows that there was a five-foot high spoils pile on the edge of the excavation and that the spoils were not shored, braced, or otherwise effectively retained as з а 1926.651(i)(1) requires. а Inasmuch as in this case the excavated material was positioned by employees under the direct control of the on-site field supervisor, а [*12] а it seems clear that the decision to position the spoils pile without appropriate protection reflected a "conscious, intentional, deliberate, voluntary" choice on the part of the field supervisor. Complainant showed that respondent had previously been issued a citation for violation of з а 1926.651(i)(1) which it did not contest. а Moreover, it was shown that the field supervisor who was in charge of the instant worksite was also in charge of the previously cited worksite and that after the earlier inspection he has been informed of the spoils storage requirements by the compliance officer. а Under these facts, and in light of the obvious nature of the violative condition (an unprotected five-foot high spoils spile), it is evident that, while aware of the standard's requirements, respondent's field supervisor intentionally disregarded the requirements of з а 1926.651(i)(1) and therefore respondent should be found in willful violation of the Act.

As to the two remaining violations, I do not agree with the majority's refusal to find that the violations of з а 1926.651(c) and (q) were "serious" within the meaning of з а 17(k) of the Act. а Based on the rule of law recently reaffirmed in Environmental а [*13] аа Util., Inc., 3 BNA OSHC 1995, 1975-76 CCH OSHD para. 20,400 (No. 3141, February 6, 1976), I would deem the pleadings amended and find a "serious" violation of з а 1926.651(c) and (q).

For reasons that are erroneous in light of our holding in Environmental Util., Inc., supra, the majority concludes that the issue of whether the violation of the standards would likely result in death or serious physical harm was not tried by consent of the parties. а Judge Morris specifically concluded that the violations of з а 1926.651(c) and (q) constituted "a serious violation of the Occupational Safety and Health Act of 1970." The Judge's conclusion of law was based on evidence of record that the failure to comply with з а 1926.651(c) and (q) was likely to result in death or serious physical injury in the event an accident occurred. а Inasmuch as the evidence upon which the Judge's findings and conclusions were based was offered without objection from respondent, I fail to see a basis for the majority's conclusion that the issue of seriousness was not tried by the consent of the parties.

Evidence beyond the scope of the original pleadings was received without objection from respondent. а This [*14] а is the essence of the consensual trial of an unpleaded issue under Rule 15(b) of the Federal Rules of Civil Procedure. а See Niedland v. United States, 338 F.2d 254, 258 (3d Cir. 1964). I am disturbed by the manner in which the majority eschews this evidence. а The majority states that this receipt of evidence ". . . could just as well mean that Respondent was completely ignorant of the possibility of the issue, a meaning that does comport with the citation and pleadings." Obviously, the original pleadings did not inform respondent that a "serious" violation was alleged. а If they did there would be no need to consider whether, under Rule 15(b), there was a trial of an unpleaded issue. а Thus, I fail to comprehend the majority's consideration of the original pleadings on the question of whether respondent was on notice of the unpleaded issue of seriousness. а Respondent was placed on notice of the amendment when the evidence expanding the original pleadings was offered by complainant. а The failure of respondent to object to complainant's proffer of proof evinces its consent to the trial of the originally unpleaded issue. а For these reasons, I would amend the pleadings and а [*15] а find a serious violation of з а 1926.651(c) and (q).

APPENDIX A

January 14, 1974

William J. Kilberg, Solicitor of Labor, T. A. Housh, Jr., Regional Solicitor, Henry C. Mahlman, Associate Regional Solicitor, and Thomas E. Korson, for the Secretary of Labor

Jay E. Jensen, for the respondent.

John J. Morris, Judge

DECISION AND ORDER

STATEMENT OF THE CASE

John J. Morris, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting a certain Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. а The Citation alleges that Complainant inspected a workplace under the ownership, operation or control of the Respondent, located in Pueblo, Colorado. а The workplace was described as involving the placement of pipe under a roadway.

The Citation which was issued March 7, 1973, alleges that the Respondent willfully violated certain regulations set forth and codified at 29 CFR 1926.651(c)(i)(1) and (q); the Citation contained a demand for abatement immediately upon receipt of the Citation.

The inspection а [*16] а of Respondent's worksite occurred on February 26, 1973 (Tr. 19).

The description of the violation in the Citation for willful violation states as follows:

The employer willfully violated 29 CFR 1926.651(c)(i)(1) and (q) in that he failed to provide a shoring system, sloping of the ground, or other equivalent means to protect employees. а The excavated material was not effectively stored and retained at least 2 feet or more from the edge of the excavation. In addition, the Pitman Hydro-Lift Winch Truck was being operated on a level above the excavation. The sides of the excavation were not sheet piled, shored or braced to resist the extra pressure due to such superimposed loads.

The above-cited standards as promulgated by the Secretary provide as follows:

29 CFR 1926.651 Specific excavation requirements. а (c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation. а [*17] а

(q) If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above or near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 7, 1973, from the Area Director for the Occupational Safety and Health Administration, U.S. Department of Labor; said Area Director proposed to assess a penalty for the alleged willful violation in the amount of $9000.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Denver, Colorado, on July 12, 1973. а No parties desired to intervene in the proceedings. а Affected employees were served with notice granting a change of venue of the case from Pueblo, Colorado, to Denver, Colorado, and changing the hearing date (Tr. 5).

STATEMENT OF JURISDICTION

Respondent does construction work in the states of Utah and Colorado (Tr. 5, 6) and has employees (Tr. 12, 35).

From the [*18] а foregoing facts, it is apparent that Respondent is an employer engaged in a business affecting commerce and, accordingly, the Occupational Safety and Health Review Commission has jurisdiction of the subject matter of this litigation.

STATEMENT OF THE EVIDENCE

Complainant's Evidence

On September 26, 1973, a Compliance Officer of the Occupational Safety and Health Administration inspected a worksite of the Respondent near Fountain, Colorado (Tr. 10). а On this occasion, the Compliance Officer discussed sloping and shoring standards with Respondent's employees Murray and Gintner (Tr. 12, 13, 14). а Respondent's employees were further given copies of the standards relating to excavating and trenching (Tr. 14, 199). а The Compliance Officer discussed various aspects of trenching (Tr. 15), and he pointed out that portion of the standard regarding soil removal (Tr. 15). а He further explained the chart and the standards at Section 1926.652 (Tr. 16). а As a result of the "Fountain inspection," a Citation was issued to Respondent on October 19, 1972 (Tr. 75: Compl. Ex. 11). а In connection with the Citation, certain penalties were proposed (Tr. 76; Compl. Ex. 12, 13). а A portion of the Citation [*19] а issued was of an alleged serious nature (Tr. 77, Compl. Ex. 14, 15). а Proposed penalties of $1080 for the Fountain violation were paid by the Respondent on December 11, 1972 (Tr. 79). а Documentation of the Citation of September 26, 1972, was offered and received in evidence.

On February 26, 1973, at a different worksite near Pueblo, Colorado, Respondent was inspected by a different Compliance Officer of the Occupational Safety and Health Administration (Tr. 18, 66). а At this jobsite, the Compliance Officer contacted Respondent's employee Murray (Tr. 20, 62). а The evidence indicates that there was an excavation 32 feet long, 10 feet wide at the base, and seven feet deep (Tr. 20). а Respondent's employee advised him of the dimensions, and the Compliance Officer measured the depth (Tr. 21). а The excavation was not shored, supported or braced or otherwise guarded (Tr. 21, 66); there was also a large spoil pile which was not located back the required two feet (Tr. 21). а The spoil pile was located on the east side of the excavation (Tr. 21; Compl. Ex. 3, 5, 6). а Both sides of the excavation were vertical (Tr. 21). а There was a high-lift truck with outrigger located on the west side of the [*20] а excavation (Tr. 22, 28, 29; Compl. Ex. 2, 4, 5, 8, 9). а One of Respondent's employees was lying against the north wall of the excavation, operating an electric welder (Tr. 22, 54). а The place where the employee was welding was a vertical wall that was not shored, braced, nor cut to the angle of repose; the wall was a sandy clay and gravel composition (Tr. 22, 31, 110). а The Compliance Officer suggested that the employee get out of the excavation, and he did so (Tr. 30). а The north slope and east slope appeared to be nearly vertical (Tr. 119; Compl. Ex. 1, 2). а The described spoil pile was five to five and one-half feet high, and there was no two foot margin. а The spoil pile was not braced or shored (Tr. 22; Compl. Ex. 2, 3). а There was an outrigger sitting on a two-by-four one foot from the excavation (Tr. 24; Compl. Ex. 4).

It was the view of the Compliance Officer that there was a possibility of a cave-in in this excavation without shoring or sloping (Tr. 30); also there was a Possibility of sloughing off from the spoil pile (Tr. 30); the super-imposed weight of the equipment added to the possibility of a cave-in (Tr. 30, 31). а The north wall was not shored, braced, or cut to the [*21] а angle of repose. а The Compliance Officer considered that a cave-in was a serious possibility with possible fatal results (Tr. 32, 33), or critical injury. а There was a closing conference between the Compliance Officer and Respondent's employee Murray (Tr. 31), who took immediate action to remedy the situation (Tr. 31-32).

Complainant offered the testimony of an expert witness qualified is soil engineering (Tr. 101-103). а The expert prepared a report as the result of a field trip and inspection on April 18, 1973 (Tr. 104; Compl. Ex. 18). а The Compliance Officer who made the inspection directed the soil expert to the location (Tr. 108, 130). а The Compliance Officer identified the location from the terrain, a telephone pole, a center line stake, line sight and lack of other excavations (Tr. 140, 141, 142).

The soil expert drilled in four different locations (Tr. 109), using a drill rig with auger to a depth of seven feet (Tr. 109). а Various tests conducted on the material indicated that the soil removed was a sandy clay (Tr. 110-111; Compl. Ex. 18). а In the opinion of the soil expert, there was greater risk of cave-in with a vertical slope than with a flat slope with this type of soil [*22] а (Tr. 112); and with slopes of this type, he recommends shoring, bracing or a one-to-one slope (Tr. 112-113). а A spoil pile generally seeks its own angle of repose (Tr. 114-115), and a spoil pile will slide with vibrations or disturbances (Tr. 115), in that it is generally looser than the surrounding clay (Tr. 116). а In the opinion of Complainant's expert, the possibility of movement of the soil would depend in part on the moisture content (Tr. 120). а He agreed that it was a matter of judgment as to when the problem is great enough to require shoring (Tr. 122). а In his opinion, the shear line in the event of a cave-in would be within a foot of the bottom (Tr. 130). а The soil expert based his opinion mainly upon his experience in working with clay soil (Tr. 131-132). а The amount of the moisture content that the soil expert found was the natural moisture content of the area which formed a basis for part of his opinion (Tr. 132). а However, he did not know how much rain had occurred before he arrived (Tr. 134). а With changes of the moisture content, the stability of the soil material decreases (Tr. 125), and the possibility of movement depends partly on the moisture content (Tr. 120, 121). а [*23] а

The Compliance Officer recommended a proposed penalty of $9000 (Tr. 36), and this penalty was discussed with the Area Director, who in turn discussed it with the Regional Office and the Office of the Solicitor (Tr. 36). а In arriving at this proposed penalty, the calculations started with a maximum of $10,000 (Tr. 35, 67). а There was a 10% credit for size (less than 20 employees at the worksite) (Tr. 35). а No credit was given for history because the Respondent had been cited at another location (Tr. 35); nor was any credit given for good faith because the instant Citation was similar to the previous Citation at Fountain, Colorado (Tr. 35). а The Citation in the case at bar was issued March 7, 1973, and the delay between inspection and issuance was due to the work load on the Administration (Tr. 66).

The Compliance Officer followed the Compliance Manual and in particular Chapter 11 thereof, which deals with willful violations. а The inspection was made in Pueblo, Colorado, because one of Respondent's employees had been killed in a previous accident (Tr. 39, 41), but the fatality was not the result of any alleged violation of 29 CFR 1926.651 (Tr. 69).

The Area Director for the Denver, а [*24] а Colorado, Area Office testified at length as to the Citation arising from the incident in Fountain, Colorado. а All of the supporting administrative detail was offered in connection therewith (Tr. 74-80; Compl. Ex. 11-17). а In considering the unadjusted $10,000 penalty in the instant case, the Area Director considered consecutive severe incidents; lack of a comprehensive program to eliminate hazards; and gravity (Tr. 90). а The Area Director indicated that absent the Fountain, Colorado, violation from the history viewpoint, the penalty for the incident in Pueblo, Colorado, would have been the same as the penalty for the Fountain incident (Tr. 88).

Respondent's Evidence

Respondent's Field Supervisor Murray was at the Pueblo jobsite; the excavation had been dug by the Swerdfeger Construction Company for Respondent (Tr. 152, 163) at Murray's direction (Tr. 183, 184). а The pit was seven feet deep, 33 feet long, and 10 feet wide at the bottom and 14 feet wide across the top (Tr. 152, 153, 168). а Due to the hardness of the ground, the backhoe on one tractor broke, and the construction company obtained a larger tractor rig (Tr. 153). а The witness out a slope that he considered safe (Tr. а [*25] а 153), having cut ledges (Tr. 171), citing Complainant's Exhibit 1. а There was shoring material available, but it was not felt that it was necessary to use it in this particular pit (Tr. 154). а The Compliance Officer indicated to Murray that he was concerned about the dirt at the side of the excavation (Tr. 155), at which time Murray shut down the job and moved the spoil pile back (Tr. 155-156). а The truck in question alongside the pile had been there two days and had sunk one-half inch to an inch (Tr. 157). а Murray did what the Compliance Officer suggested (Tr. 158, 159), and Murray felt the pit was 100% safe (Tr. 159). а Further, both Murray (12 years experience in excavating work) (Tr. 182), and Gintner (27 years experience) felt the pit was safe (Tr. 182, 187, 188). а In the opinion of Murray, the pit had a natural slope for four feet and then for the next three feet, a one-to-one slope, and then a slight slope (Tr. 160-161; Resp. Ex. 1). а In digging the pit, they had cut a half bucket width, or 15 inches, to make a graduated slope (Tr. 161, 172; Compl. Ex. 3).

At the Fountain job, Murray had moved the dirt away from the pit which the Inspector had requested (Tr. 164-165). а Murray [*26] а acknowledged that he received a copy of the regulations (Tr. 166, Resp. Ex. 4), but he did not recall that anything specific had been pointed out in those regulations (Tr. 166). а At the Pueblo jobsite, Murray took a bar five feet long and attempted to show the Compliance Officer that he could not penetrate the ground (Tr. 169).

The spoil pile itself was sloped on a one-to-one basis (Tr. 173), and the truck by the side of the excavation weighed 9000 pounds with the crane on it (Tr. 174). а At the Fountain job, the Compliance Officer indicated that the spoil pile should be at least two feet back from the edge of the pit (Tr. 174).

Respondent's Supervisor indicated that he has always tried to comply with the occupational safety and health regulations (Tr. 177), and he generally slopes by stair-stepping with ledges and, in effect, they would amount to a one-to-one slope if smoothed out (Tr. 177). а The diameter of the pipe indicated in Complainant's Exhibit 1 is 30 inches, and in between these two jobs, Respondent's Supervisor had shored a number of jobs and also had occasion to fabricate a steel box (on another jobsite) (Tr. 181). а In Murray's judgment, there was no danger of this ground [*27] а moving (Tr. 182), as it was hard as concrete and the bottom two feet was of bedrock (Tr. 182). а The sides were perhaps not shale, but they were not sand or clay (Tr. 183). The contractor used the backhoe and not explosives to get out of bedrock (Tr. 186).

Witness Gintner substantiated Murray's testimony to the effect that there was nothing unsafe about this particular pit (Tr. 188). а During the time they were there, they did not observe the ground shift or move (Tr. 190).

An additional witness was the Chief of Survey Parties for Trico, which company did the engineering and was in charge of the project (Tr. 192, 193). а The witness went by this particular site three times a day and maybe as often as six times a day (Tr. 194). а He indicated Respondent struck rock at the bottom of the excavation, and he considered the pit safe (Tr. 194, 195). а This witness' purpose in being there was to see that the line was installed in accordance with specifications (Tr. 196). а The soil at the bottom of the pit was a rock-like stone, and it was necessary to change the grade of pipe so Respondent could avoid blasting (Tr. 197).

The President of Respondent company acknowledged receiving the Fountain [*28] а job Citation (Tr. 207), which was the first Citation Respondent had received, and he thought it constituted a warning (Tr. 207). а When he received the Citation, he considered it to be the law and thought he would have to pay it, which he did (Tr. 207-208; Compl. Ex. 11). а Respondent's President further assumed that if corrections were made immediately, then later consideration would be given to the fine (Tr. 211).

ISSUES PRESENTED

The following issues are presented in this case:

1. а Whether 29 CFR 1926.651(q) is so vague and indefinite so as to violate the due process provision of the United States Constitution.

2. а Whether Respondent's conduct constitutes a violation of the three cited standards herein.

3. а In the event a violation does exist as to the standards, does the conduct of Respondent constitute a "willful" violation under the Occupational Safety and Health Act of 1970.

4. а Whether mere knowledge of a standard and proof of a subsequent violation constitutes a willful violation under the Act.

5. а Whether (and assuming that Complainant has proved a violation but failed to prove the willfulness thereof) the Review Commission should vacate the entire Citation and а [*29] а proposed penalty or consider under what other terms the violation should be denominated.

Respondent specifically attacks 29 CFR 1926.651(q), asserting that the standard is so vague and indefinite as to violate the due process provisions of the United States Constitution. а Respondent relies on Connally vs. General Construction Company, 269 U.S. 385, 46 S. Ct. 127 (1926); Cramp vs. Board of Public Instruction, 368 U.S. 278, 82 S. Ct. 275; Vallat vs. Radium Dial Company, 360 Ill. 407, 196 N.E. 485 (1935).

It is this Judge's view that the Connally and related cases are not controlling, and the correct rule of law is stated in Hygrade Provision Company, Inc., vs. Sherman, 266 U.S. 497, 502, 45 S. Ct. 141, 69 L. Ed., 402 and in Omaechevarria vs. State of Idaho, 246 U.S. 343, 348, 38 S. Ct., 323, 62 L. Et. 763. а In the latter case, the issue of vagueness and the attack of vagueness and indefiniteness was made that the State of Idaho statute contained no provision as to the boundaries of a "range." The Court held (1.c. 325) that:

"Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it." а [*30] а

Men engaged in the expertise of trenching should likewise have little difficulty in determining what conditions must be established to comply with the cited standard. а This Judge is further of the view that Respondent's reliance and claim of vagueness and indefiniteness is misplaced. а The foregoing cases relied on by Respondent generally refer to such provisions as "reasonable" and "approved." The term, "as necessary," in the standard would seem to refer to the type of equipment involved and the pressure of that equipment on the sides of the excavation. Various mechanical objects located near the excavation will require bracing compatible with the weight of the object. а As indicated, this should be within the expertise of excavators, and under the record in this case, the excavation was not shored, supported, or braced or otherwise guarded (Tr. 21, 66).

For the reasons above stated, Respondent's position of vagueness and indefiniteness is denied.

The next issue presented is whether the Respondent violated the three standards in question. а As to all three cited standards, the probative evidence indicates that Respondent was in violation at the worksite in Pueblo, Colorado. а The [*31] а excavation was 32 feet long, 10 feet wide at the base, and 7 feet deep (Tr. 20), and it was not shored, supported or otherwise guarded. а Complainant's engineering soils expert (Tr. 101-103; Compl. Ex. 18) indicated that with soil of this type he recommends shoring, bracing or a one-to-one slope (Tr. 112-113). а The soil was a sandy clay composition (Tr. 110-111), and in this type of soil, the risk of cave-in is greater with a vertical slope than with a flatter slope (Tr. 112). а Respondent's evidence is specific that there was some slope to the excavation (Tr. 160-161; Resp. Ex. 1) which made a graduated slope (Tr. 161; Comp. Ex. 3), but the general direction of Respondent's evidence is that the pit was "safe" (Tr. 159, 182, 187, 188). а Complainant's evidence and the evidence of its soils engineering expert constitutes probative evidence found by this Judge to establish a violation of 29 CFR 1926.651(c).

The remaining two standards, namely 29 CFR 1926.651(i)(1) and (q), are likewise under the evidence found to have been violated by Respondent. а Respondent does not seriously contest that the spoil pile was not two feet from the edge of the excavation (Tr. 7), and the evidence indicates [*32] а that the spoil pile was not located at least two feet back from the excavation (Tr. 21). а Respondent's evidence indicates and supports a finding that 29 CFR 1926.651(i)(1) was violated (Tr. 155-156).

As to the outrigger sitting on a two-by-four one foot from the excavation (Tr. 24; Compl. Ex. 4), this superimposed weight added to the possibility of a cave-in (Tr. 30, 31); defensively, it was Respondent's position that the truck had been along-side the pile for two days without any movement of the soil and had sunk 1/2 inch to an inch (Tr. 157). а Again, the substantial evidence indicates that Respondent violated the three standards cited herein.

The next issue presented is whether the conduct of the Respondent constitutes a willful violation in terms of the Occupational Safety and Health Act of 1970. а In making this determination, it is necessary to pass on Complainant's position that Respondent had previous knowledge of the standard and therefore that Respondent is guilty of a statutory willful violation (Tr. 6; Compl. Post-Trial Brief, pg. 7). а In support of his position, Complainant cites: Nabob Oil Company vs. United States, 190 F. 2d 478, 480 (10th Cir. 1950), cert. den. а [*33] а 342 U.S. 876; United States v. Klinghoffer Brothers Realty Corporation, 285 F. 2d 487 (2d Cir. 1960); Wilson vs. United States, 250 F. 2d 312, 319, 321 (9th Cir. 1957); Coleman vs. Jiffy June Farms, Inc., 458 F. 2d 1139 (5th Cir. 1971).

The question of what constitutes a willful violation of a safety regulation or a willful misconduct under safety regulations has been considered by many courts. а The general body of case law seems to be centered in two areas, namely actions involving state workmen's compensation laws and in cases arising under various Illinois safety statutes. а Nashville, C. & St. L. Ry. vs. Wright, 250 S.W. 903, (1923); Park Utah Min. Co. vs. Industrial Commission, 62 Utah 421, 220 P. 389 (1923); Western Clay & Metals Co. vs. Industrial Commission, 70 Utah 279, 259 P. 927 (1927); Wick vs. Gunn, 66 Okl. 316, 169 P. 1087; Hersch vs. Morris & Co., 106 Kan. 800, 189 P. 934. The review of these cases indicates that to be willful, a party must consciously and deliberately proceed with the intention of violating the law.

Complainant's cases do not support Complainant's view that mere knowledge of the law and a subsequent violation constitutes [*34] а willful conduct. а In Nabob Oil Company vs. United States, cited supra, the appellate court upheld an instruction to the jury as to what constitutes "willful." The appellate court upheld this instruction: 1.c. 479 "The word 'wilfully' connotes an intentional violation of the law. а And, you are advised, gentlemen of the jury, that a defendant who actually does violate the provisions of the Fair Labor Standards Act would not be guilty of a criminal offense unless he is either conscious of the fact that what he is doing constitutes a violation of the Act or unless he wholly disregards the law and pursues a course without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law or not."

In this case, it is apparent from the evidence that at the time of the inspection of the jobsite near Fountain, Colorado (Tr. 10), the Compliance Officer discussed sloping and shoring with Respondent's employees (Tr. 12, 13, 14) and gave Respondent's employees copies of the standards (Tr. 14, 199). а Respondent acknowledged receiving a copy of the regulations (Tr. 166; Resp. Ex. 4); however, this record lacks any facts indicating a consciousness [*35] а on the part of Respondent to violate the Act at the time of the second inspection in Pueblo, Colorado. а The gravamen of a violation of 29 CFR 1926.651(c) is that "employees are exposed to danger from moving ground." On this issue also turn the other two standards. а There is no evidence of record to support the proposition that Respondent was conscious that it was exposing its employees to "danger from moving ground" but nevertheless proceeded. а The activities of Respondent and the experience of its supervisors and independent witnessess all indicate that they considered the pit to be one hundred percent safe (Tr. 159, 182, 187, 188, 194, 195). а Supporting their view was the fact that the backhoe of one tractor had been broken in digging (Tr. 153), and the bottom two feet was bedrock (Tr. 182); further, it was necessary for the chief of the survey party for the general contractor to change the grade of the pipe to avoid blasting (Tr. 197). а On other jobsites, Respondent had fabricated steel boxes (Tr. 181), and Respondent had shoring material available but felt it was not necessary to use in connection with this pit (Tr. 154). а Complainant failed to establish a "conscious disregard" а [*36] а of the standards, and the foregoing facts indicate a contrary view of the activities of Respondent.

It is this Judge's view that Claimant's theory of mere knowledge of the standards and a subsequent violation thereof constitute a willful violation would conflict with the statutory scheme of the Occupational Safety and Health Act. Congress in its judgment established in Section 17 of the Act certain categories of violations as being not serious, serious, and willful or repeated. а All perties can be charged by operation of law with "knowledge" of the standards and to sustain Complainant's theory would in fact authorize a willful charge for every violation of the Act. а Each employer could be charged either with knowledge by operation of law, or Complainant could in all likelihood establish actual knowledge in view of the length of time and publicity that has occurred since the passage of the Occupational Safety and Health Act. This Judge does not believe the Congress intended such a result. а The Act itself does not define the term willful, nor does the legislative history of the Act render any assistance in determining the congressional intent. а This Judge believes that the Congress [*37] а intended to adopt the now-existing law as above stated and as applied by Nabob, supra, which theory of law is followed in the hereafter noted Review Commission decisions.

A case not cited by either party to this case is the Commission decision in Secretary of Labor vs. Frank Irey, Jr., Inc., OSAHRC Docket Number 701 (August 1, 1973), wherein the Commission upheld the decision of Judge J. Marker Dern. а Judge Dern stated that:

(1.c. 19) "A willful violation exists under the Act where the evidence shows 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 even though the employer is not consciously violating the Act, he was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition."

A review of the facts in Irey indicate a deliberateness on the part of that Respondent which clearly indicates its willful disregard of the standard and the safety of its employees.

A later Review Commission decision pertinent to this issue is Secretary of Labor vs. Intercounty Construction Corporation, OSAHRC Docket Number [*38] а 919, (December 19, 1973), wherein the Commission stated:

(1.c. 3) "The Commission agrees that, in the context of this Act, a willful violation is properly defined as an act or omission which occurs consciously, intentionally, deliberately, or voluntarily, as distinguished from accidentally."

Complainant has failed to establish a willful violation of the Act.

The final issue for determination is whether the undersigned Judge should vacate the Citation and proposed penalty or should consider other terms in which the violation should be denominated. а Complainant urges that such a view is implied from the Act, in that it is necessary to correct violations wherever they are found.

In the case of Secretary of Labor vs. Wetmore & Parman, Inc., OSAHRC Docket Number 121 (January 18, 1973), the Review Commission indicated that the Commission and its Judges serve in an adjudicatory rather than a regulatory function. а To like effect, see Secretary of Labor vs. Milton W. Priest, d/b/a Wasatch Roofing Company, OSAHRC Docket Number 2459 (November 19, 1973). а Complainant has failed to seek relief in the alternative (Complaint), and under Federal Rules of Civil Procedure, a party may plead [*39] а in the alternative (F.R.C.P. Rule 8(e)(2)). а To support Complainant's view and enter a violation of the standard against Respondent for something less than a willful violation would at this point deviate from the original cause of action sought by Complainant and cast the Review Commission in the role of enforcer of the standards rather than as an adjudicatory body. а It would be basically unfair to decide this case and enter a finding on a legal theory not presented at the hearing. а Bendix Corp. vs. F.T.C., 6 Cir. 450 F 2d 534, 542 (1971); Rodale Press, Inc., vs. F.T.C., 132 U.S. App. D.C., 317, 407 F 2d 1252 (1968). In the event Complainant seeks alternative relief, he should plead in the alternative, thereby appraising Respondent of that fact and providing Respondent an opportunity to meet such issue.

In view of the foregoing, it follows that the Citation and proposed penalty of $9,000 therefor should be vacated.

FINDINGS OF FACT

1. а The Respondent, Graven Brothers and Company, is a corporation doing construction in the states of Utah and Colorado and having employees (Complaint; Answer; Tr. 5, 6, 12, 35).

2. а In September 1973, Respondent's supervisory employees [*40] а were given copies of the standards relating to excavating and trenching, and the Compliance Officer discussed sloping and shoring standards with such employees (Tr. 12, 13, 14, 15, 199).

3. а As a result of the inspection on September 26, 1973, at Fountain, Colorado, a Citation was issued against Respondent together with certain proposed penalties which were paid by Respondent (Tr. 75, 76, 207-208; Compl. Ex. 10, 11, 12, 13).

4. а On February 26, 1973, at a worksite near Pueblo, Colorado, Respondent directed the digging of an excavation 32 feet long, 10 feet wide at the base, and 7 feet deep (Tr. 20); the excavation was not shored, supported, braced or otherwise guarded (Tr. 21, 66).

5. а One of Respondent's employees was exposed when lying against the north wall of the excavation (Tr. 22, 54), and the vertical wall adjacent thereto was not shored, braced or cut to an angle of repose, and the wall was a sandy clay and gravel composition (Tr. 22, 31, 110).

6. а There was a possibility of a cave-in without shoring or sloping (Tr. 30).

7. а Soil samples indicated the soil was a sandy clay, and as a result, there was a greater risk of cave-in with the vertical slope than with a flat slope [*41] а (Tr. 110-111, 112; Compl. Ex. 18)

8. а Adjacent to the excavation described in paragraph 4, there was a spoil pile approximately 5 to 5 1/2 feet high which was not located back the required two feet (Tr. 21, 22; Compl. Ex. 2, 3).

9. а There was a high lift with outrigger located on the west side of the excavation (Tr. 22, 28, 29; Compl. Ex. 2, 4, 5, 8, 9).

10. а The outrigger described in the preceding paragraph weighed approximately 9000 pounds, and it was sitting on a two-by-four one foot from the excavation (Tr. 24, 174; Compl. Ex. 4).

11. а The Complaint filed herein sought to establish a willful violtion with a proposed civil penalty of $9,000, and the Complainant failed to seek relief in the alternative (Complaint).

CONCLUSIONS OF LAN

1. а Respondent is and was at all times relevant to the issues, herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (Facts, Para. 1).

2. а Respondent is and was at all times herein mentioned, an employer within the meaning of Section 35 of the Act and subject to its provisions under Section 4(a) and 5(a) of the Act and the standards promulgated under Section 5 thereof [*42] а (Facts, Para. 1).

3. а Respondent violated 29 CFR 1926.651(c) (Facts, Para. 4, 5, 6, 7).

4. а Respondent violated 29 CFR 1926.651(i)(1) (Facts, Para. 4, 5, 6, 8).

5. а Respondent violated 29 CFR 1926.651(q) (Facts, Para. 4, 5, 9, 10).

6. а The violations set forth in preceding paragraphs 3, 4, and 5 constitute a serious violation of the Occupational Safety and Health Act of 1970.

7. а The Complaint filed herein sought to impose a proposed civil penalty of $9,000 for an alleged willful violation of the Occupational Safety and Health Act of 1970 (Facts, Para. 11).

8. а Complainant having failed to plead in the alternative, no Citation for serious violation should be issued against Respondent.

9. а The Citation for alleged willful violation of the Occupational Safety and Health Act of 1970 and the standards herein should be vacated as Complainant failed to establish facts indicating a "conscious disregard" of the standard by Respondent.

10. а The proposed civil penalty of $9,000 sought herein should be vacated.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED AND ADJUDGED:

1. а Citation Number 4 for the alleged willful violation of 29 CFR [*43] а 1926.651(c)(i)(1)(q) is vacated.

2. а The proposed civil penalty of $9,000 for the violation alleged in the preceding paragraph is vacated.

So ORDERED in the City and County of Denver, Colorado.

John J. Morris Judge, OSAHRC