Docket No. 693

FRANK GALEY, JR., d/b/a GALEY CONSTRUCTION COMPANY

OSHRC Docket No. 693

Occupational Safety and Health Review Commission

February 13, 1975

а [*1] а

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

а CLEARY, COMMISSIONER: A decision of Judge Henry C. Winters is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. з а 651 et seq., hereinafter "the Act"). а On February 17, 1973, Judge Winters issued his decision and order vacating item 1 of the citation for non-serious violation and the penalty proposed therefor. а He also modified the citation for serious violation to allege a non-serious violation and reduced the penalty to $150. а On March 7, 1973, the Secretary of Labor filed a petition for discretionary review. а He objected to the Judge's vacation of item 1 of the citation for non-serious violation of the Act for failure to comply with the standard at 29 CFR з а 1926.450(a)(9) because the Secretary and respondent had stipulated at the hearing to this violation.

In response to the Commission's direction for review the Secretary submitted argument on the issue of Judge Winter's vacation of the violation to which the stipulation had been entered, in addition to the issue of the nature of the violation for failure to comply with 29 CFR з аа [*2] а 1926.652(c).

The Commission has considered the entire record. а We affirm the decision of the Judge only to the extent that it is consistent with the following.

Respondent was, at the time of inspection, engaged as a subcontractor in the installation of a drain sewer. а The work performed by respondent consisted of digging a trench, installation of concrete drain pipe in twelve-foot sections, and back filling the trench. The trench, which ran east to west, was approximately 425 feet long. а At ground level at the west end of the а trench was a back hoe used to make the excavation before each section of pipe was lowered into place. а The west end of the trench was 18 to 19 feet deep. а From there to the east end of the trench the floor of the trench rose to ground level.

Four of respondent's employees were working in the western end of the trench around the last sections of pipe. They were engaged in filling in the area immediately adjacent to the lower half of the latter sections to stabilize them. а The men would slough material from the side walls of the trench with shovels thereby creating the necessary sandy fill required to hold the pipe. This material was shoveled [*3] а against the pipe and compacted by machine.

The vertical walls in this area of the trench were in excess of four feet and in at least one place as high as eight feet. Above the five to six foot average vertical height, the side walls of the trench tapered back to a slope approximately that required by 29 CFR з а 1926.652(c), i.e., one-half to one.

Based on the above facts, the Judge modified the citation alleging a serious violation of the Act for failure to comply with 29 CFR з а 1926.652(c) so as to allege a non-serious violation and affirmed the Secretary's citation, as modified. He assessed a penalty of $150 for this violation. n1

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n1 The Judge considered a pending amendment to the standard, saying:

It is interesting to note that at the time the Citation was issued on March 3, 1972 there was pending an amendment to the aforementioned standard, which became effective March 18, 1972. а The amendments . . ., among other things, changed the four-foot rule of 1926.652(c) to a five-foot rule, concerning which the Secretary published the following pertinent comments:

Specific trenching requirements. Generally, the shoring and sloping requirements in 1518.652 were prescribed for trenches four feet or more in depth. The four-foot rule is found to be more stringent than necessary to provide adequate employee protection where ground conditions are stable. а Therefore, the proposal has been changed to permit the shoring and trenching requirements to begin at 5 feet.

The amendment is a circumstance to be taken into consideration with other matters in deciding whether the violation is a serious violation with [in] the meaning of Section 17(k) of the Act and what penalty is appropriate.

а [*4] а

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We affirm Judge Winters' finding of respondent in non-serious violation of the Act for failure to comply with 29 CFR а з а 1926.652(c). а Differences in trenching violations are a matter of degree and not of kind. а The record reveals that the ground was hard and compact. а The trench was sloped very nearly, if not in fact, to the required angle of repose. а We also consider the pending amendment to the standard. а Probability of serious physical harm may be presumed to be something the Secretary would consider in his rulemaking proceedings. а Based on these considerations, we find the violation is non-serious because there is not a substantial probability that death or serious physical harm could have resulted from the existing conditions.

We agree with the Judge's application of the elements of section 17(j) of the Act, and affirm his assessment of the $150 penalty for respondent's non-serious violation by failure to comply with the requirements of 29 CFR з а 1926.652(c).

II.

The violation to which the parties had stipulated was respondent's non-compliance with the standard at 29 CFR з а 1926.450(a)(9). а [*5] а n2 At the hearing it was stipulated that 16 foot ladder was in place against the south wall of the southwest corner of the trench and that "[t]he ladder did not extend above the surface of the trench, as required by 29 CFR з а 1926.450(a)(9)." The parties also stipulated to the reasonableness of the abatement date and the appropriateness of the amount of the proposed penalty, considering all of the factors required by section 17(j) of the Act.

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n2 The standard reads:

Ladders, General Requirements. The side rails shall extend not less than 36 inches above the landing. а When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access shall be installed.

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Although the Judge allowed the stipulation at the hearing, in his decision, he rejected the stipulation as to the non-compliance with 29 CFR з а 1926.450(a)(9). а We find that the stipulation constituted an admission by respondent of its failure to comply with the cited standard. а This finding is supported by respondent's [*6] а proposed Findings of Fact IX and X and Conclusions of Law I а and II that were submitted to the Judge, as well as photographs introduced without objection to establish the trenching violation. а In these circumstances, we conclude that the Judge had no evidence before him sufficient to support his rejection of the stipulation.

Accordingly, it is ORDERED that the Judge's decision modifying the citation for serious violation to allege a non-serious violation of section 5(a)(2) of the Act for failure to comply with 29 CFR з а 1926.652(c), affirming the citation as modified, and assessing a penalty of $150 therefor is affirmed. а The Judge's decision vacating respondent's violation of section 5(a)(2) of the Act for non-compliance with 29 CFR з а 1926.450(a)(9) is reversed and that item together with the $150 proposed penalty are affirmed. а In all other respects the Judge's decision is affirmed. а

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

а MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree with the affirmance of Judge Winter's disposition of the з а 1926.652(c) charge but I do not believe that any monetary penalty for this violation is warranted.

There is conflicting evidence [*7] а in the record as to the height of the vertical walls of the trench and the degree to which the walls were sloped above the vertical. The Judge, after noting that he was taking into account the demeanor of witnesses, concluded that the vertical portions of the sidewalls were approximately five to five and one half feet and that the slope above that level met the requirements of the standard. n3 He noted that while the evidence was clear that the vertical walls of the trench were higher than four feet, it was not clear that they were generally higher than five feet. Because of this uncertainty, he stated that "There is a serious question whether a violation would have been proved by clear and convincing evidence had the amendment [changing the four foot rule of з а 1626.652(c) to five foot rule] preceded the inspection on February 3, 1972" (see footnote 1).

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n3 While there was testimony from the government safety inspector that the height of the walls in one place was eight feet, there were numerous other conflicting estimates of that height and of other dimensions of the trench by other witnessess.

а [*8] а

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а The Commission has modified the Judge's fact finding with respect to the height of the vertical walls of the trench so that a violation would be established even after the amendment of the standard. а I believe, however, that we should refrain from disturbing the Judge's fact finding in the light of the lack of clarity in the record since he had the opportunity to see and hear the testimony and questions of credibility are involved. n4

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n4 See Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-497 where the Court discusses the significance of the findings of hearing examiners, particularly where those findings involve questions of credibility, and quotes with approval the recommendations of the Attorney General's Committee on Administrative Procedure:

"In general, the relationship upon appeal between the Hearing Commissioner and the agency ought to a considerable extent be that of trial court to appellate court. а Conclusions, interpretations, law, and policy should, of course, be open to full review. а On the other hand, on matters which the Hearing Commissioner, having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown." (Final Report, 51)

а [*9] а

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With these findings of fact, we have the peculiar state of affairs that a condition that is now thought to merit a penalty of $150 would not have been a violation at all if the inspection had taken place a month later. а The unfairness is compounded in view of complainant's published reason for the amendment that the "four-foot rule is found to be more stringent than necessary to provide adequate employee protection." From the record before me, I can only conclude that the trench was sloped from the five foot level and provided adequate employee protection. а Thus, the violation was merely technical, was not a hazard to anyone, and warrants no monetary saction.

With respect to the з а 1926.450(a)(9) charge, I agree that it was improper for the Judge to disallow the stipulation of the parties which sought to remove this matter from adjudication for two reasons: (a) it was contrary to law, and (b) it was prejudicial to complainant's case.

The authority of this Commission is limited to deciding issues in dispute between the parties. а Once the stipulation was accepted there no longer was any disputed issue [*10] а between the parties as to the cited charge.

а Hearings before the Commission must be conducted in accordance with the Administrative Procedure Act. n5 The APA sensibly limits the agency to the resolution of only those issues upon which the parties are unable to agree. а Section 554(c)(1) of the APA requires that an agency give all interested parties the opportunity for "the submission and consideration of . . . offers of settlement, or proposals of adjustments when time, the nature of the proceeding, and the public interest permit." Section 554(c)(2) requires that there be an opportunity for a hearing in accordance with з з а 556 and 557 "to the extent that parties are unable . . . to determine a controversy by consent." The framers of these provisions made clear that it was their intent that these sections would operate to promote settlement and to limit an agency to consideration of controverted issues:

Sec. 5 Adjudications. а (b) Procedure -- the agency is required first to afford parties an opportunity for the settlement of issues, followed, to the extent that issues are not so settled, by hearing and decision under Sections 7 and 8. а The preliminary settlement-by-consent [*11] а provision of this subsection is of greatest importance. а Such adjustments may go to the whole or any part of any case. n6

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n5 29 U.S.C. з а 659(c) requires that Review Commission hearings be conducted in accordance with з а 554 of Title 5, United States Code.

n6 Senate Report on Administrative Procedure Act, 79th Congress, 1st Sess., S. Rep. No. 752 (1945). а Also, see generally my dissenting opinion to the order of remand in Secretary of Labor v. Thorlief Larsen and Son, Inc., 12 OSAHRC 313, 324-329 (1974).

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The wisdom of the policy embodied in these provisions is illustrated by this case. а The preface to the standard involved in the stipulation provides:

Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations. а [emphasis supplied]

In the course of the hearing, testimony relevant to other charges incidentally disclosed that the floor of the trench sloped upward to ground level and that [*12] а the inspector and others walked into the а trench by this means. n7 The Judge construed the trench floor to be a suitable "ramp" to give access to the ground. а Because of this "ramp," the Judge found that a violation of the cited standard could not have been established.

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n7 It should be noted that the only issue of fact admitted by respondent is that the ladder did not extend above the trench. The fact on which the Judge based his decision, the existence of a ramp, is not dealt with in the stipulation or proposed findings. а Respondent's statement in the stipulation that it was in violation of the standard is a conclusion of law which we, like other tribunals, are not bound to accept. а Because of this, I feel that the "admission" theory that is the basis of Commission's decision is deficient.

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The Judge observed, however, that a violation would have been established if complainant had made the charge under a different standard, з а 1926.652(h) which does not have the ramp exception and requires no more than 25 [*13] а feet of lateral travel to a means of exit. а While this indicates that respondent was probably not in compliance with another standard dealing with the same condition, the only beneficial purpose for making this point is to indicate what the regulations require in order to achieve a safe workplace. а The purpose of an enforcement action is not punishment.

The foregoing discussion does raise a basis for concluding that the Judge's action was prejudicial to complainant, however, for he might have moved to amend the citation to the proper standard if he had thought the stipulation would be rejected and that the issue of noncompliance would be considered by the Court.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq. ), hereinafter called the Act, contesting two citations, one alleging a serious violation and the other alleging four non-serious violations, issued by the Complainant, hereinafter called the Secretary, against the Respondent under the authority vested by Section 9(a) of the Act.

The citations, Citation Number 1 and Citation for Serious [*14] а Violation Number 1, both issued March 3, 1972 by the Secretary's Area Director at San Francisco, California, allege that as a а result of the inspection on February 3, 1972 of a workplace under the ownership, operation or control of the Respondent, at a location described as East of Montello between 7th and 8th, Reno, Nevada, the Respondent violated the Act by failing to comply with certain safety and health standards and regulations promulgated by the Secretary. а By Notification of Proposed Penalty, issued March 3, 1972, the same Area Director notified Respondent of penalties proposed for each such violation.

The specific violations described in Citation Number 1 and the penalties proposed therefor are as follows:

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation -- Proposed Penalty

1 -- 29 CFR 1926.450(a)(9) as adopted by 29 CFR 1910.12 -- Employer failed to provide portable ladder of adequate length for access to and from trench west end south side. а Existing ladder 16 feet, trench depth 18 feet plus. а Standards require ladder to extend 3 feet above surface. -- $150.00

2 -- 29 CFR 1904.2(a) -- Employer fails to comply with accident [*15] а log requirements. а Log not being kept at job site. -- None

3 -- 29 CFR 1903.2(a) -- Employer does not comply with posting requirement. а Job not posted. -- None

4 -- 29 CFR 1904.5(a) -- Employer does not comply with posting of annual summary. а Not posted at job site. -- None

The cited standard and regulations read as follows:

29 CFR 1926.450(a)(9). а Ladders (a) General Requirements (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

(9) The side rails shall extend not less than 36 inches above the landing. а When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

29 CFR 1904.2(a) Log of occupational injuries and illnesses. (a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each [*16] а employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. а For this purpose, а Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. а OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. а If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both under the following circumstances: (1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occured, as required by paragraph (a) of this section. а (2) At each of the employer's [*17] а establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

29 CFR 1903.2 Posting of notice; availability of Act, regulations and applicable standards (a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. а Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

29 CFR 1904.5(a) Annual summary (a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on the information [*18] а contained in the log of occupational injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose, and shall be completed in the form and detail as provided in the instructions contained therein.

The specific violation described in the Citation for Serious Violation Number 1 and the penalty proposed therefor are as follows:

Standard or regulation allegedly violated -- Description of alleged violation -- Proposed Penalty

29 CFR 1926.652(c) as adopted by 29 CFR 1910.12 -- Employer failed to provide shoring or sloping of banks at acceptable angle of repose on trench 425 feet long, 18 feet plus in depth, 12 feet at base and 17 feet wide at surface. Material composition sand and river run stone. а Standards require that shoring а will be used on trenches more than 4 feet deep, or sloping will be provided to preclude collapse, sloping shall not be steeper than 1 foot rise to each 1/2 foot run of horizontal. -- $600.00

The cited standard reads as follows:

29 CFR 1926.652(c) General Trenching requirements. а (c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench [*19] а is more than 4 feet in depth and 8 feet or more in length. а In lieu of shoring, the sides of the trench above the 4-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2 foot horizontal. а When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

All of the above described violations were required to be abated immediately.

In his Notice of Contest and Answer, Respondent contests each of the alleged violations and proposed penalties.

This case was heard by the undersigned Judge at Reno, Nevada on July 27, 1972.

At the opening of the hearing the parties stipulated, among other things, that with respect to Item No. 1 of Citation Number 1 the ladder in question did not extend above the surface of the landing at least 36 inches as required by the provisions of 29 CFR 1926.450(a)(9); that the abatement requirement was reasonable; and that the proposed penalty of $150.00 was reasonable giving due consideration to the statutory criteria of Section 17(j) of the Act. а Although this stipulation was allowed at the hearing, this Judge, for reasons which are explained [*20] а below, reverses this ruling and disallows the stipulation. а It was further stipulated that in the event Respondent is found to have violated 29 CFR 1926.652(c) as alleged in Citation for Serious Violation No. 1, then the proposed penalty is reasonable, giving due consideration to the statutory criteria of Section 17(j) of the Act.

The parties further stipulated that the following issues remain to be decided in this case: (1) whether the Respondent violated the safety standard of 29 CFR 1926.652(c); (2) if Respondent violated such standard, whether such violation constituted a serious violation within the meaning of Section 17(k) of the Act; and (3) whether Respondent violated the posting and recordkeeping а regulations referred to in Items 2 to 4, inclusive, of Citation No. 1.

DISCUSSION

The first matter requiring discussion is the alleged serious violation.

Respondent, Frank Galey, Jr., acting in his individual capacity under the name and style of Galey Construction Company, n1 was engaged as a subcontractor in the installation of a drain sewer at the Reno, Nevada construction site. а The construction was being performed under the supervision of the Nevada State Highway [*21] а Department. а As here pertinent, the activity of Respondent consisted of the digging of a trench, the installation of concrete drain pipe in 12 foot sections, and the filling in of the trench. At the time of the inspection there was a trench running generally east and west, approximately 425 feet long, into which pipe had been laid and partially covered. а At ground level at the west end of the trench was a back hoe used to make the excavation before each section of pipe was lowered into place. а In the trench below the back hoe was the open end of the drain pipe to which another section would be attached as soon as additional excavation was performed. а The trench was deepest at the west end where there was the open end of the pipe; and from there to the east end of the trench the floor of the trench gradually, though unevenly, sloped upward to ground level. The pipe, which had an outside diameter of 63 inches, was for at least 100 feet eastward from the open end, mostly uncovered. а Four employees of Respondent were working in the trench in the general area of the open end of the pipe near the west end, and were engaged in filling in on both sides of the pipe and in compacting the а [*22] а filled areas. а There was no shoring at any place in the trench.

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n1 Despite the persistance of counsel for both parties in referring to the Respondent as a corporation, it was definitely settled at the hearing that Respondent was acting in his individual capacity and that the caption of the proceeding should be changed accordingly.

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It is that portion of the trench where the four employees were working that is the subject of the alleged serious violation. The а critical factual issues are the nature of the soil and the dimensions of the trench in this particular area.

Despite testimony by the Secretary's inspector that the soil in the trench appeared to be "river run sand and loose stone" or "loose sand and river run stone" and "wasn't hard compacted," it is agreed by the parties that the trench is in hard or compact soil. The Secretary alleges that fact in his Complaint. а The Citation, by alleging 29 CFR 1926.652 (c) as the standard violated, indirectly avers that the trench is in hard or compact soil а [*23] а because that standard applies only in that kind of soil. At the deepest part of the trench, the soil was composed of sand from the bottom upward about four to five feet, then a layer of sand and rock up to within three or four feet of the surface, then a three to four foot layer of clay and rock to the surface of the ground.

It is the north side of the trench which the Secretary contends was not properly shored or sloped. However, the implication of the evidence is that in the critical area both the north side and the south side are substantially symmetrical, so that if one side does not conform, neither does the other side.

At the time of the inspection, the depth of the trench in the critical area was approximately 18 feet and the width at the bottom of the trench was approximately 12 feet. From bottom to top each side wall of the trench rose vertically for several feet and then sloped rather gradually to ground level.

There is conflicting evidence as to the dimensions of the side walls and as to the width of the trench at ground level. The undersigned Judge, having heard all of the oral testimony, having observed the witnesses, having noted their demeanor and manner of testifying, а [*24] а and having viewed the photographic exhibits (Exhibits 1 to 4, inclusive), giving full consideration to distortions inherent in this type of photography, concludes that height of the vertical portion of the side wall is approximately five to five and a half feet and that the width of the trench at ground level is thirty feet or more. а Based upon the evidence of record, this Judge also concludes that the walls of the trench above the five to five and one half foot level were sloped to preclude collapse and the slope of each of such upper walls was not steeper than a one foot rise to each half-foot horizontal.

а Since the sides were not properly sloped above the four-foot level (as distinguished from a five to five and one half foot level) there was a violation of the standard at 29 CFR 1926.652(c). а It is interesting to note that at the time the Citation was issued on March 3, 1972 there was pending an amendment to the aforementioned standard, which became effective March 18, 1972. а The amendments published in the Federal Register of February 17, 1972 effective 30 days thereafter, among other things, changed the four-foot rule of 1926.652(c) to a five-foot rule, concerning а [*25] а which the Secretary published the following pertinent comments: (p 3, Federal Register, Vol. 37, No. 33)

There is a serious question whether a violation would have been proved by clear and convincing evidence had the amendment preceeded the inspection on February 3, 1972. а The evidence is clear that the vertical portion of the sides extend up more than four feet but not so clear that it extended generally above 5 feet. The amendment is a circumstance to be taken into consideration with other matters in deciding whether the violation is a serious violation with the meaning of Section 17(k) of the Act and what penalty is appropriate.

During part of the time the inspection was taking place, at least one of the employees in the trench was operating a gasoline powered compactor for а [*26] а the purpose of compacting the soil filled in on the side of the pipe. Also at one time during the inspection a small bulldozer was being operated at ground level near the trench for the purpose of cleaning up the area. а Also, at one time during the inspection, the back hoe trenching machine was being operated but the employees were some distance from it at the time.

The Secretary's inspector is of the opinion that considering the nature of the soil, the dimensions of the trench, and the operation of the bulldozer there was substantial probability that а serious physical harm or death could occur to the employees working within the trench. A safety consultant with the Nevada Industrial Commission, who accompanied the Federal inspector and who exercised his authority to stop the progress of the work in the trench, testified that based upon the conditions he observed, it was his opinion that "possible injury and/or death could occur." On the other hand, Assistant Engineer of the Nevada Highway Department who was supervising the engineering details of the project in question and who observed the same conditions expressed the opinion that the trench was not unsafe and the Construction [*27] а Inspector of the Nevada Highway Department, who also observed the same conditions, expressed the opinion that there was nothing dangerous about the operation. а Weighing all factors, this Judge concludes that the evidence does not justify a finding that there is a substantial probability that death or serious physical harm could result from the condition existing at the trench here involved. а The violation was not a serious violation within the meaning of Section 17(k) of the Act. а The violation is a non-serious violation. а In the opinion of the Judge, the Respondent has displayed a certain amount of indifference to the strict requirements of the standard as it existed at the time of the violation and therefor, some penalty should be imposed. а Giving due consideration to the appropriateness of the penalty with respect to the size of the business of the Respondent, the gravaity of the violation, the good faith of the Respondent, and the history of previous violations this Judge concludes that a penalty of $150.00 is appropriate.

The next matter for discussion is the alleged failure of the ladder in the trench to extend 3 feet above ground level, in violation of 29 CFR 1926.450(a)(9) а [*28] а as charged in Item No. 1 of Citation No. 1. а The Respondent at the opening of the hearing offered to stipulate that he had violated the cited standard, and this Judge allowed the stipulation. а The subsequent evidence disclosed, however, that there was no violation of the standard relied upon by the Secretary. а There was no violation because there was a suitable ramp to give safe access to the surface of the ground. а The ladder was not needed and was not used. а The Secretary's Inspector and others walked into and out of the deepest а part of the trench by walking along the bottom of the trench which sloped upward to ground level. The Secretary relied upon an inapplicable standard. а In all probability the general ladder standard at Section 1926.450(a) was never intended to apply to a situation existing in an excavated trench. The standard cited applies to construction work generally. а There is another standard, namely, that set forth at 29 CFR 1926.652(h) which applies specifically to ladders in trenches and which reads as follows:

29 CFR 1926.652(h) -- General trenching requirements (h) Where employees are required to be in trenches 3 feet deep or more, ladders, extending [*29] а from the floor of the trench excavation to at least 3 feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.

Had the foregoing standard been the one alleged to have been violated, there would have been ample justification for a holding that a violation occurred for which a penalty should be imposed. а A ladder was required by the Section 652(c) standard because a person could not walk out of the trench without more than 25 feet of lateral travel. а Under the circumstances, however, Item 1 of Citation Number 1, and the penalty proposed therefor, should be vacated. а The Secretary has not been prejudiced by having relied upon the allowance of the stipulation, because the Secretary obviously could not offer evidence to contradict the plain fact that a person could walk in and out of the trench without use of a ladder.

Item No. 2 of Citation Number 1 must be vacated for lack of sufficient allegation of a violation of 29 CFR 1904.2 and for lack of proof of a violation of such regulation. The charge in the Citation is that the Respondent failed to "comply with accident log requirements." The involved [*30] а regulation relates to a log of occupational injuries and illnesses, not to a log of accidents. а The Complaint uses the correct terminology in the Complaint at Paragraph VIII but the Complaint does not authomatically amend the Citation. а There has been no specific request to amend Item No. 2 of Citation Number 1 nor was there any compliance with Rule 2200.33(3) of the Commissions Rules of Procedure, а pertaining to such an amendment. n2 Even if one assumes that the loose language of Item 2 together with the reference to the particular regulation was sufficient to advise Respondent of what he was accused, the item must nevertheless be vacated because there is no proof whatsoever in this record that Respondent did not either keep the log at the job site as required by Section 1904.2 (a) or keep such a log or approved alternative records at some other place in compliance with Section 1904.2 (b).

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n2 The allegation at Paragraph XVI of the Complaint that "to the extent that the violations of the Act charged in this Complaint differs from the Citation for Serious Violation and Citation No. 1 issued on March 3, 1972, said Citation is hereby amended," does not comply with the Rules of Procedure and is ineffective.

а [*31] а

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While the language of Item 3 of Citation Number 1 is unnecessarily vague in that it did not mention what the Respondent was required to have posted, it was sufficient to apprise Respondent of the specific charge against him. а The language of the regulation at 29 CFR 1903.2(a), called to the attention of Respondent in the Citation, is sufficiently clear to advise Respondent of what he had allegedly failed to post. а Respondent's job superintendent had the prescribed notice in his pickup truck at the time of the inspection but it was not posted. At the time of the inspection the employees of Respondent reported for work directly at the job site. There was then no structure of any kind at the trench site or nearby, occupied by Respondent. а The Secretary's inspector did not talk to the Respondent's superintendent but dealt only with the Respondent's foreman, who stated that the notices to employees required to be posted by employers, were posted in a nearby office of another employer, Nevada Rock and Sand, the prime contractor of the job. а It is clear that there was a technical violation in that the notice [*32] а required by 29 CFR 1903.2(a) was not posted by the Respondent. Taking into account the low gravity of the violation, the relatively small size of the business of the Respondent, as well as his good faith and lack of previous violation, this Judge believes that a penalty of $10.00 should be imposed. а Section 17(i) of the Act makes the imposition of a penalty mandatory for a violation of a posting requirement.

а Item 4 of the Citation Number 1 has several defects. а First of all, the charge in the Citation is too vague and indefinite. а Respondent is charged with failure to post at the job site an "annual summary." An annual summary of what? а And covering what year? а One has to read the regulation at 29 CFR 1904.5(a) to realize that the charge relates to an annual summary of occupational injuries and illnesses. Secondly, the charge is defective in that the regulation at 29 CFR 1904.5 (a), which is the regulation cited as having been violated, requires the compliation of an annual summary but does not mention posting. It is another regulation, namely, that at 29 CFR 1904.5(d)(1), which requires the posting of the annual summary. а The Complaint at Paragraph X alleges: а [*33] а

Respondent has violated the standard promulgated pursuant to Sections 8 and 24(e) at 29 CFR 1904.5(a) in that at a job site located east of Montebello, between 7th and 8th streets, Reno, respondent failed to compile an annual summary of occupational injuries and illnesses for each of its establishments containing information required by 29 CFR 1904.2(a). а (Citation No. 1, Item 4) [Emphasis supplied]

Thus there has been an attempt to change the charge from failure to post to failure to compile. Here again, there has been no specific request to amend the Citation nor has there been a compliance with Rule 2200.33(3) of the Commission's Rules of Procedure. а There is an essential difference between a charge of failure to post as compared to a charge of failure to compile. If the violation is failure to post, the imposition of a mandatory penalty is required under Section 17(i) of the Act; whereas if the violation is failure to compile, the imposition of a penalty is discretionary under the provisions of Section 17(c) of the Act. а But even if it were to be conceded that the amendment is effective, the charge fails. а The Complaint makes no reference to a particular year. а It is [*34] а assumed that the charge relates to an annual summary covering the year 1971. n3 There is no evidence that the Respondent was subject to the Act during 1971. а There is no evidence that if Respondent were subject to the Act during 1971 he а did not compile such a summary. а Whether the charge is failure to compile or failure to post, there is no requirement in either paragraph (a) or paragraph (d) of Section 1904.5 that a copy be kept or posted at a temporary job site such as that here involved. а Item 4 should be vacated.

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n3 The annual summary covering the occupational injuries and illnesses occuring in 1972 at the involved job site, if it has to be compiled at all, would not have to be compiled until some time during January, 1973.

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In consideration of the entire record and of the proposed findings and briefs submitted by the parties, the Judge makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. а On February 3, 1972 and thereafter at all times relevant hereto, the Respondent, Frank [*35] а Galey, Jr. was engaged in business in his individual capacity under the name and style of Galey Construction Company and maintained his principal place of business at Boise, Idaho.

2. а On February 3, 1972 and thereafter at all times relevant hereto, the Respondent was engaged in the use of materials equipment, supplies and other goods which were produced outside the State of Idaho and in the transmission of goods, communications, documents and materials into and out of the State of Idaho.

3. а On February 3, 1972 Respondent maintained a work place at Reno, Nevada, where he was engaged in construction work and where he employed six employees.

4. а On March 3, 1972 the Secretary's Area Director issued Citation Number 1 charging Respondent with four nonserious violations of the Act as described above and issued Citation for Serious Violation charging Respondent with one serious violation of the Act, and notified the Respondent of the penalties proposed for each such violation. а A description of each alleged violation and proposed penalty is set forth above in Statement of the Case.

5. а The Respondent has contested all alleged nonserious violations and the serious violation, and the [*36] а penalties proposed for the alleged serious violation and for the violation alleged at Number 1 of Citation Number 1.

6. а On February 3, 1972 at the Reno, Nevada work site, the Respondent did fail to comply with a standard promulgated by а the Secretary in that he failed to shore or otherwise support the sides of a trench in hard or compact soil when the trench was more than 4 feet in depth and 8 feet or more in length; or did fail, in lieu of shoring, to slope the walls above the 4 foot level to preclude collapse, as required by 29 CFR 1926.652(c).

7. а There was not a substantial probability that death or serious physical harm could result from the conditions existing as a result of the noncompliance described in Paragraph 6 of these findings, nor from the practices, means, methods, operations or processes which were adopted or in use at such job site in connection with the noncompliance as described in Paragraph 6 of these Findings.

8. а On February 3, 1972 at the Reno, Nevada, work site the Respondent failed to comply with a regulation promulgated by the Secretary in that he failed to post and keep posted at such work site in conspicuous place or places where notices to [*37] а employees are customarily posted, a notice or notices furnished by the Occupational Safety and Health Administration U.S. Department of Labor, informing employees of the protection and obligations provided for in the Act, and that for assistance and information including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor, as required by 29 CFR 1903.2.

9. а The instance of noncompliance had a direct and immediate relationship to safety and health, but were not of serious nature.

10. а The instances of noncompliance herein found to have existed have been corrected.

11. а At all times herein pertinent, Respondent has acted in good faith.

12. а Respondent has no history of past violations.

CONCLUSIONS OF LAW

1. а On February 2, 1972 and at all times herein pertinent, the Respondent was and is engaged in a business affecting commerce and subject to the provisions of the Act.

2. а This Commission had jurisdiction of the parties and of all the subject matter of this case.

а 3. а The violation alleged in Citation for Serious Violation issued March 3, 1972, is not a serious violation [*38] а within the meaning of Section 17(k) of the Act.

4. а With respect to Item Numbers 2 and 4 of the Citation Number 1, issued March 3, 1972, the Secretary has failed to prove a violation of the Act and these items should be vacated.

5. а With respect to Item Number 3 of Citation Number 1, issued March 3, 1972, the noncompliance proved by the Secretary constitutes a violation of the Act and subjects the Respondent to the mandatory penalty provisions of Section 17(i) of the Act.

6. а Considering the statutory criteria of Section 17(j) of the Act, the Respondent should be assessed a penalty of $150.00 for the violation of 29 CFR 1926.652(c) and a penalty of $10.00 for the violation of 29 CFR 1903.2.

ORDER

In view of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

(1) Item Numbers 1, 2 and 4 of Citation Number 1, issued March 3, 1972, and the penalties proposed therefor be and they are hereby, vacated;

(2) Item Number 3 of Citation Number 1, issued March 3, 1972, be and it is hereby, affirmed, and a penalty in the amount of $10.00 be, and it is hereby, assessed against the Respondent for such violation;

(3) Citation for Serious Violation Number 1, issued March а [*39] а 3, 1972, be, and it is hereby, modified so as to constitute a non-serious violation subject to the penalty provisions of Section 17(c) of the Act, and a penalty in the amount of $150.00 be, and it is hereby, assessed against the Respondent for such violation. а