Docket No. 701

FRANK IREY, JR., INC.

OSHRC Docket No. 701

Occupational Safety and Health Review Commission

August 1, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On November 14, 1972, Judge J. Marker Dern issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651 et seq., by failing to comply with seven safety and health standards duly promulgated by the Secretary of Labor. He found one violation to be willful as charged and six others to be nonserious violations of the Act. He assessed penalties in the total amount of $5,335. Thereafter, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651 et seq., that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The record in this case not only does not establish a willful violation of the Act but clearly shows a misconception on the part of the Judge as to the kind and extent of the knowledge which must be shown to be in the possession of respondent in such cases.

Complainant cited respondent in this case for allegedly committing a willful violation of section 5(a)(2) of the Act because of its failure to comply with an occupational safety and health standard covering trench excavation. The citation resulted from investigation of the death of one of respondent's employees when a trench cave-in occurred on January 11, 1972.

The occupational safety and health standard at issue is published as 29 CFR 1926.652(b) and states as follows:

Sides of trenches in unstable or soft material, five feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2.

Table P-1: Approximate angle of repose for sloping of sides of excavations: solid rock, shale or cemented sand and gravels -- 90 Degrees. Compacted angular gravels -- 1/2 to 1. Average soils -- 1 to 1.

The evidence reveals that on November 23, 1971, nearly two months prior to the cave-in which is at issue in this case, respondent had employees engaged in digging a trench for the laying of an electrical conduit at the Evansdale Campus of West Virginia University. The trench wall had not been sloped or shored. Respondent's superintendent thought the material in which they were digging was composed of shale, a material requiring no sloping or support under the occupational safety and health standard quoted above. He reached this conclusion after reading the results of a soil analysis which had been undertaken at the direction of the prime contractor for this particular job. However, unbeknown to respondent, its superintendent had misread the chart, and the shale actually started one-half foot below the trench bottom. The trench walls were weathered shaley limestone of silty clay.

On the same day, an inspector from the State of West Virginia Labor Department visited respondent's worksite and advised that due to rainy weather and snow conditions, the ground was thoroughly wet and dangerous and ordered that the trench walls be sloped. This was accomplished. Subsequently, however, weather conditions improved and respondent returned to the digging of vertical trenches.

On January 11, 1972, respondent was still engaged in trenching operations at the University site. There had been a rainfall the previous night, and the collected rainwater had been pumped from the trench in the morning. A cave-in occurred that day while one of respondent's employees was in the trench, causing his death. This citation for willful violation followed.

Since this is the first case of willful violation to come before this Commission for a decision on the merits, I believe it appropriate to set forth fully my understanding of the law on this subject. I regret that the other members of the Commission have not also done so.

At the outset, it is noted that the word "willful" is not defined in the Act. In fact, it is used only twice, once each in sections 17(a) and (e). Section 17(a) provides that an employer:

. . . who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of the Act, or regulations prescribed pursuant to the Act, may be assessed a civil penalty of not more than $10,000 for each violation.

Since the Act itself and the legislative history give no reference as to the meaning of the term, the common law background of the word must be examined to discover its usual meaning.

An examination of the case law reveals that the factors which distinguish a willful from a nonwillful act are knowledge and intent to commit a violation. See Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (5th Cir. 1971); cf. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F. 2d 532, 537 (2d Cir. 1965); Goss v. Baltimore & O.R. Co., 355 F. 2d 649, 651 (3d Cir. 1966). In the Coleman case, the issue was civil liability under the Fair Labor Standards Act. The Fifth Circuit Court of Appeals held that "a willful act . . . [is] one deliberate, voluntary and intentional as distinguished from one committed through inadvertence, accidentally, or by ordinary negligence." Id., citing Nabab Oil Co. v. United States, 190 F. 2d 478, 480 (10th Cir. 1951); Browder v. United States, 312 U.S. 335, 341 (1941). The employer's actions in Coleman were held to be willful because there was substantial evidence in the record to support a finding that he knew or suspected that his actions might violate the Act (485 F. 2d at 1142).

The Judge's decision in the case under review is based upon the assumption that knowledge that one's conduct violates the Act is unimportant. He holds that as long as respondent dug the trench deliberately, he may be held liable for a willful violation of the Act. Although this is true in many fields of law, and especially so in criminal law, e.g., United States v. Carter, 311 F. 2d 934, 943 (6th Cir. 1963), it is not always the case.

Whether knowledge of the illegality of an action is an ingredient of a statutory offense depends upon the legislative intent, Cohen v. United States, 373 F. 2d 751 (9th Cir. 1967). In passing the Occupational Safety and Health Act, Congress intended that an employer would not be found liable for willful violation thereof unless he had actual knowledge that the conduct complained of constituted a violation. This is evident from the fact that willful violation was made a separate offense with an authorized civil penalty ten times greater than allowed for any other infraction.

The Act recognizes three categories of civil offenses of section 5:

(1) Willful or repeated (section 17(a)),

(2) Serious (sections 17(b) and (k)),

(3) Not serious (section 17(c)).

To establish a violation of section 5 there need be proof only of a violation of the Act. No actual knowledge either of the Act's requirements or those of the standards promulgated pursuant thereto is necessary. Once this has been done, the penalty limitations contained in section 17(c) must be observed in the assessment of a penalty for the offense.

To establish that such a violation is serious, however, section 17(k) requires proof of a substantial probability that death or serious physical harm could result from a condition, practice, means, method, operation or process, and also that the employer knew or should have known, through the exercise of reasonable diligence, of the presence of the violation. For purposes of this section, the employer need not have actual knowledge that a violation is taking place. Constructive knowledge that a violation has occurred is sufficient. Once such proof has been established, the penalty limitations contained in section 17(b) must be observed in the assessment of a penalty for the offense.

Willfulness, on the other hand, obviously implies something more, particularly since the authorized penalty can be ten times greater than that allowed for a "serious" violation.

It seems clear to me that in order for a violation to be willful, respondent must have actual knowledge of the fact that he is violating the requirements of the Act and, in a case such as this, the requirements of the occupational safety and health standard promulgated pursuant thereto with which he has allegedly failed to comply. In the absence of proof of such knowledge, the intent and purpose required by the ordinary definition of willfulness cannot be inferred. Only after such actual knowledge has been established may the penalty limits contained in section 17(a) be resorted to in the assessment of a penalty for such an offense.

Thus, an employer is not in willful violation of the Act unless he knows the requirements of the standards and knows he is not complying therewith. This is the only logical interpretation consistent with the provisions of the Act set forth above. If the sole requirement for a willful violation were that respondent intended to do the action complained of, then practically all violations of the Act would be willful and the penalty limitations so carefully and logically arranged in the Act would be virtually meaningless.

In this case, it is undisputed that respondent knew of the trenching requirements. A reproduction of the text of the standard published as 29 CFR 1926.652 had been included in safety plans submitted by respondent to the prime contractor. Substantial evidence that respondent knowingly violated the requirements of that standard, however, is not present in this record.

In his attempt to prove a willful violation in this case, complaint points to the fact that respondent had been inspected by personnel from the West Virginia Department of Labor in November 1971 and had been warned at that time that the unsupported trench was hazardous. He claims that this indicates that respondent had knowledge of the hazardousness of the trench at the time it collapsed in January 1972. Respondent, on the other hand, argues that it relied on soil core samples analyzed for the prime contractor, which respondent's supervisor interpreted as showing a soil composition of shale, a soil type which, according to the requirements of the occupational safety and health standard at issue, needs no shoring or other supports.

Since there is no evidence thereof, and it is impossible to assume that the conditions which motivated the West Virginia inspector on November 23, 1971 also existed at the time of the accident on January 11, 1972 in a different area of the trenching operation, complainant's contention that the State inspector's action is adequate proof that respondent knew it was not complying with the requirements of the standard at the time of the trench cave-in is not substantiated. When the November inspection took place, the sides of the trench were wet throughout and in danger of collapsing. The order issued by the State as the result of this inspection merely states that the " Present condition of excavations . . . necessitates that immediate action be taken to correct trench hazards, which are extremely dangerous in their present condition . . ." [emphasis added].

The State order admonished respondent to support trench sides where they were in unstable or soft material, and to inspect the trench after every rainstorm or snowfall so that necessary precautions could be taken. These State procedures are the same as the requirements of the Federal occupational safety and health standard at issue in this case. However, the State citation was not such as to put respondent on notice that he had misinterpreted the results of the soil core boring samples. It merely said that the amount of rain which had recently fallen had left the trench walls weakened.

Although there was also some rain on the night before the January cave-in, there was no evidence that an inspection of the trench on the morning of the accident would have disclosed soil softened to the same degree as that found by the State inspector the previous November. Respondent's employees had pumped the rainwater out of the trench before beginning work. There was no evidence which disclosed a need for further precautionary measures. The note to Table P-1 of the trenching standards warns only that rain may change the composition of soil. It does not state that all trenches must be shored after a rainfall. Thus, there is no evidence to support the contention that respondent knew it had not complied with the standard.

It cannot be inferred simply from the fact of the cave-in, either that respondent's superintendent should have realized that his interpretation of the soil report was incorrect and that his conduct therefore exhibited a willful violation of the Act, or that his conduct constituted reckless disregard of whether he was in compliance. The misreading of the soil test report may have been deficient, but the fact that the superintendent could have ascertained the necessity for a greater angle of repose had he read the log correctly does not permit this Commission to impute actual knowledge and willfulness to his actions. Furthermore, since respondent's soil expert testified that the weathered shaley limestone which actually formed the walls of the trench was indistinguishable from shale, reckless disregard of danger cannot be imputed to the superintendent. He operated under a mistake of fact, rather than intentionally. He knew the requirements of the Act, but did not possess the requisite intent to violate them. Under the circumstances, willfulness by respondent in not complying with the occupational safety and health standard at issue in this case has not been established.

All of the factors which complainant advances to prove willfulness prove only that a serious violation existed. If respondent's supervisor had read the core sample chart correctly, he would have known that he was digging in clay or silt containing only some shale, and that shoring or bracing was necessary. Respondent could, therefore, with the exercise of reasonable diligence, have known of the presence of the violation.

The evidence establishes all the requirements set forth in section 17(k) for proving a serious violation but not enough to prove a willful violation. The findings below should have been modified accordingly.

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter referred to as the Act), to review citations of violations, willful, serious and non-serious, issued by the Secretary of Labor (hereinafter referred to as complainant), pursuant to section 9(a) of the Act, and proposed assessment of penalties in the amount of $8,535.00 upon such alleged violations pursuant to section 10(a) of the Act.

A citation for willful serious violation and a citation for serious violation were issued to respondent on March 22, 1972, the former alleging violation of 29 CFR 652(b), formerly section 1518.652(d) and the latter alleging violation of 29 CFR 1926.651(h) and 29 CFR 1926.652(h), formerly 29 CFR 1518.651(h) and 29 CFR 1518.652(h), respectively. A notification of proposed penalty was also issued on the same date proposing a penalty of $7,500 for the alleged violation of 29 CFR 652(b) and $800 for violation 29 CFR 1926.651(h). In the complaint, issued April 7, 1972, reference was made to alleged violations of 29 CFR 1926.651(h) and 29 CFR 1926.652(h) with combined proposed penalties for both violations of $800. A non-serious violation was also issued to respondent on March 22, 1972, alleging that it was in violation of five separate safety standards, namely 29 CFR 1926.401(f), 29 CFR 1926.150(c)(1)(vii), 29 CFR 1926.350(a)(1), 29 CFR 1926.51(c) and 29 CFR 1926.51(a)(1). The notification of proposed penalty issued March 22, 1972, proposed additional penalties of $235 on four of the five non-serious alleged violations.

On March 28, 1972, the respondent notified the complainant that it wished to contest the citations and proposed penalties. The complainant advised the Occupational Safety and Health Review Commission of the notice of contest. The case was assigned and opportunity for hearing pursuant to section 10(c) of the Act was afforded the respondent. The hearing was held June 27, 1972, in Morgantown, West Virginia. No additional parties desired to intervene in the proceedings. The respective parties were represented by counsel who filed briefs subsequent to the hearing.

ISSUES

The primary issue for consideration is whether there has been violations of the heretofore mentioned safety standards. If a violation of one or more standards occurred, a question arises as to whether there was a willful serious violation, or a serious violation within the criteria of section 17(a), (b), and (k) of the Act. In addition, to the alleged serious violations, a determination must be made as to whether respondent committed non-serious violations of the cited standards. If respondent is adjudged to have been in violation of any of the standards as alleged, then a determination must be made as to whether the penalties proposed by complainant for each of the violations is appropriate.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.

1. Respondent, Frank Irey, Jr., Inc., is a Pennsylvania corporation having a principal office at R.D. #2, Park Avenue Extension, Monongahela, Pennsylvania, and a worksite and place of employment at R.D. #2, Evansdale Campus, West Virginia University, Morgantown, West Virginia, where it is engaged in the business of general contracting (Ans. to Complaint; Stip., Tr. 10-11).

2. Respondent is engaged in various construction activities in Pennsylvania and West Virginia (Ans. to Complaint; Stip., Tr. 10-11).

3. Respondent regularly employs 160 employees in its said business (Stip., Tr. 10-11).

4. Respondent has a gross income of eight million dollars (Stip., Tr. 10-11).

5. On November 23, 1971, the respondent's worksite at the West Virginia University, Morgantown. West Virginia, was inspected by R. J. Jorishie, a field supervisor of the West Virginia Department of Labor, Division of Safety (Tr. 13-15). The respondent was at the time excavating a trench in which to lay an electric conduit (Tr. 143). The trench was approximately 15 feet deep, the sides of which were composed of a soft material (Tr. 16). There was an employee in the trench (Tr. 16). The sides of the trench were wet throughout and in danger of collapsing (Tr. 16, 17). Mr. Harley T. Six, respondent's project superintendent, was advised by Mr. Jorishie of the danger and instructed to either slope or shore the trench (Tr. 16, 17). Mr. Jorishie remained on the site while Mr. Six had the sides of the trench reduced and stepped back on an angle of repose (Tr. 17, 18). The reduction and sloping of the trench walls was accomplished by the use of a back hoe (Tr. 18, 63). Mr. Six believed the trench to have been dug in shale, but was told by Mr. Jorishie that it was hazardous (Tr. 141).

6. As a result of the November 23, 1971, inspection, Mr. Jorishie made and filed with the West Virginia Department of Labor, a Report on Safety Inspection (Ex. P-1, Tr. 19), a copy of which was sent to the respondent (Tr. 19). That report states that "Present condition of excavations at time of this inspection, necessitates that immediate action be taken to correct trench hazards, which are extremely dangerous in their present condition, and which threaten the safety of the men working in the trenches." (Ex. P-1, P. 1). Page 2 of that report recommends to the respondent, "Sides of trenches in unstable or soft material (where applicable) shall be shored, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working within them. . . . In lieu of shoring, the sides of the trench may be sloped to an angle of repose, to preclude possible collapse, . . ." (Ex. P-1).

7. Special Condition 16 to Boeing Contract #1, Morgantown Project, West Virginia University, Morgantown, West Virginia, (Ex. P-11) provides in part that contractors shall comply with the Safety and Health Regulations for construction (Title 29 CFR, Part 1518) and state and local codes and regulations. It also provides that "In the event of an apparent conflict or discrepancy between safety standards or requirements, the contractor shall comply with the more restrictive. Any such instance shall be reported to the Boeing Company." And, finally, it provides that "The Contractor shall prepare a Safety Plan describing how hazards to personnel will be controlled and how the Contractor's safety program will be implemented. The Contractor's Safety Plan must be submitted for approval to the Boeing Company within 10 calendar days following contract award" (Ex. P-11, S.C.-16.1, S.C.-16.1.2, S.C.-16.1.3, S.C.-16.1.5, S.C.-16.2, P. 11).

8. On October 19, 1971, respondent submitted to the Boeing Company (hereinafter Boeing) pursuant to Special Condition 16, a safety plan "outlining the company's safety policy as per the 'Code of Federal Regulations,' Title 19, Part 1518 . . ." (Ex. P-8). The plan provides under the heading "Excavations, Trenching and Shoring" that "All slopes will be excavated to angle of repose," and that "All precautions necessary action will be taken in excavation, trenching and shoring" (Ex. P-8, p. 5-6).

9. On December 3, 1971, respondent submitted to Boeing another Safety Plan, also pursuant to Special Condition 16 (Ex. P-9). The "Company Safety Rules" set out in this safety plan provide in part:

26. Excavation, trenching and ditches must be sloped to the angle of repose, and flattened with varying soil conditions, except where solid rock allows for line drilling and presplitting.

28. Excavated or other material shall not be stored nearer than 4 feet from the edge of any excavation.

29. Banks more than 4 feet in height shall be shored or sloped to the angle of repose.

30. When employees are required to be in trenches 3 feet or more in depth, a ladder will be provided every 50' (laterally).

The plan also contains a reproduction from the Federal Register, Vol. 36, No. 75 -- Saturday, April 17, 1971, which sets out the "Approximate Angle of Repose for Sloping of Sides of Excavations."

Under the heading "Jobsite Safety Checklist," the plan contains the following at the heading "Excavations:"

1. Are trench banks layed back to a 3 to 1 slope?

5. Is a ladder in the trench?

10. On January 5, 1972, respondent submitted a third safety plan to Boeing, again pursuant to Special Condition 16 (Ex. P-10). That plan contained the same "company safety rules," reproduction of the "Approximate Angle of Repose" from the Federal Register and "Jobsite Safety Checklist" contained in the safety plan of December 3, 1971, as set out in paragraph 9 above.

11. On January 11, 1972, the respondent was thoroughly familiar with the requirements of the Act and the Standards with respect to the sloping and shoring of trenches and excavations.

12. On January 11, 1972, Fred Deal, an employee of respondent, died when the side of a trench being dug by respondent caved in and crushed him (Tr. 62, 63). The trench was approximately 7 1/2 feet deep and 33 inches wide (Tr. 62, 63, 27, 29, 53, 72, 133, 147). The sides of the trench were not sloped or shored, but were vertical (Tr. 56, 62, 73, 74, 133). The trench was 46 feet in length (Tr. 71). The trench had no ladder in it (Tr. 63, 77), the only means of ingress and egress provided being a ramp of back-fill material located at one end (Tr. 64, 65, 67, 134). The material used to backfill the trench was limestone chips (Tr. 154). Although it appears that the material which had been excavated from the trench prior to the accident had been carried away in tandem trucks (Tr. 66, 67), it also appears that there was material stored within 4 feet of the edge of the trench and along its entire length (Tr. 32, 33, 52, 55), and along both sides (Tr. 75). The material shown along side of the trench was material dug out to free the imprisoned employee (Tr. 66).

13. The trench in which Mr. Deal was killed on January 11, 1972, was located 75 to 100 feet from the trench being excavated on November 23, 1971, which Mr. Jorishie observed (Tr. 30). The trench of November 23, 1971, was described by Mr. Jorishie as being in soft material (Tr. 16, 17).

14. Mr. Six, who was in charge of the excavations of both November 23, 1971, and January 11, 1972 (Tr. 140, 141), testified as follows:

Q. On November 23, 1971, Mr. Six you said safety men visited your worksite and these men worked with the Department of Labor of the State of West Virginia?

A. That is correct.

Q. And you were digging a trench at that time?

A. For an electric conduit, yes, sir.

Q. Now the trench on November 23, 1971, was the same type of trench as what you were digging on January 11, 1972? (Tr. 143)

A. Do you mean the depth and width or similar?

Q. The same in general?

A. I would say yes.

Q. And you testified that the safety men told you on November 23, 1971, that the ditch was dangerous?

A. That is what they said. They said the rock would fall off on the top and fall down and hit a man, and I said: "That's no problem." I just put the hoe in there and pulled the top back and they stood there and watched me.

Q. On January 11, 1972, you were digging, then, the same type of ditch?

A. Similarly the same type of material.

Q. And you say that the type of material, or the type of earth, on January 11, 1972, was composed of shale?

A. That's what I thought, yes, sir. (Tr. 144).

15. In arriving at his conclusion that the trench of January 11, 1972, was dug in shale, Mr. Six stated that he relied on "Subsurface Exploration Logs" prepared by Frederic R. Harris, Inc. (Ex. R-A; Tr. 142, 144).

16. Dr. Javaie M. Alvi prepared a geologic section of the trench location of January 11, 1972, which purported to correlate the test borings reported in respondent's Exhibit A with Dr. Alvi's own test borings (Tr. 149-154; Ex. R-B).

17. Respondent's Exhibit B locates the bottom of the January 11, 1972, trench at an elevation of 1054.0 feet. When this elevation of the trench bottom is compared with the results of test boring number 107 (Ex. R-A, p. 2), upon which Mr. Six allegedly relied, it appears that the entire 7 1/2 feet depth of the trench would be in soil described by Frederic R. Harris, Inc., as "Br. SILTY CLAY or CLAYEY SILT; Some weathered shale fragments; trace of fine sand and gravel or boulders. Boulder" (Emphasis that of Frederic R. Harris, Inc.). The portion of the report (Ex. R-A) interpreted by Mr. Six as indicating "Brown to dark brown weathered shale with silty clay seams," (Tr. 144) begins at an elevation of 1053.5 feet and extends downward 10 feet to elevation 1043.5. This description is that of an area which begins at a depth of 0.5 feet below the bottom of the trench excavated on January 11, 1972, and is in no way descriptive or indicative of the composition of the walls of the trench.

18. On January 10, 1972, the day prior to the accident resulting in the death of Mr. Deal, the trench had been excavated through solid rock, the excavation being accomplished by means of blasting. On January 11, 1972, the trenching was being accomplished by means of a backhoe, without the necessity of blasting (Tr. 137, 146, 147). It therefore appears that the material through which the trench was being excavated on January 11, 1972, was composed of substantially softer material than solid rock.

19. The material through which the trench was being excavated on January 11, 1972, was neither solid rock nor shale (Tr. 146, 154, 155, 160, 161).

20. Dr. Alvi described the material which he tested as "shaley limestone" (Tr. 154), "weathered limestone which contains humerus (humus) clay seams" (Tr. 155), and "weathered shaley limestone" (Tr. 161).

21. With respect to the cause of the slide, Dr. Alvi testified as follows:

Q. Now what is your conclusion as to what caused the slide?

A. In weathered limestone, it contains humerus (humus) clay seams and when it gets wet it decreases the span -- shear strength -- and the slides will take place. To make it a little more clear, during my experience of various jobs, I have noticed that a slide could have taken place, and it didn't take place on a half of one slope, a quarter of one slope . . .

Q. In other words, you are saying that it is almost impossible to guard against this type of thing?

A. No. You could guard against it by providing certain means but for trench purposes, which is a temporary excavation and not a permanent excavation, you are not going to do it. When you say 'guard against,' you have to think whether it is going to be of a long duration or of a short duration (Tr. 155).

22. The ground was wet around the excavations of both November 23, 1971, and January 11, 1972, due to rain (Tr. 16, 17, 70, 146, 147).

23. On January 11, 1972, the ground water which was then present wet the humus clay seams thereby weakening the shear strength of the material through which the trench had been dug, possibly producing the cave-in.

24. The respondent had been cautioned about the presence of ground water affecting its trenching operations by Mr. Jorishie, (Tr. 16, 17; Ex. P-1), and incorporated in two of its safety plans (Exc. P-9, P-10) The Note contained in the Table, "Approximate Angle of Repose," "Clay, Silts, Loams or Nonhomogenous Soils Require Shoring and Bracing. The presence of Ground Water Requires Special Treatment."

25. The cave-in of the trench establishes the fact that the material in which the trench was being excavated was unstable.

26. When the sides of a trench are vertical, there is no angle of repose (Tr. 161).

27. There was no ladder in the trench (Tr. 63).

28. On January 13, 1972, respondent was using a two-wire connector extension cord lying on wet ground, which was used with a fuel pump (Tr. 44, 78).

29. On January 13, 1972, respondent, in the area of its storage trailer, had a fire extinguisher which had not been charged and had no record or tag showing it had been serviced (Tr. 79).

30. On January 13, 1972, at or near its storage trailer, respondent stored gas cylinders without valve protection caps on them (Tr. 82).

31. On January 13, 1972, respondent had provided only one toilet at its worksite (Tr. 82).

32. Respondent's maximum number of employees at its worksite was 37.

33. On January 13, 1972, respondent had not provided potable water for the employees at its worksite (Tr. 85).

LAW AND OPINION

The respondent contends that the Occupational Safety and Health Act of 1970, is unconstitutional in that it violates 4th, 5th, 6th and 7th Amendments of the United States Constitution. An administrative agency does not have jurisdiction to determine the constitutionality of a law. Certainly, the respondent who has raised the question of constitutionality of the Occupational Safety and Health Act is entitled to have that question resolved but only by a court of competent jurisdiction, not by the Review Commission. A Review Commission Judge's concern is whether there has been an adequate compliance with issued safety standards. It is understood the case is presently pending before the United States Supreme Court.

The Occupational Safety and Health Act was enacted by Congress on December 29, 1970, becoming effective as of April 28, 1971. Section 5(a)(2) of the Act provides:

Section 5(a) Each employer . . . shall comply with Occupational Safety and Health Standards promulgated under this Act.

ALLEGED VIOLATION OF 29 CFR 1926.652(b)

Section 1926.652(b), in pertinent part, provides as follows:

(b) Sides of trenches in unstable or soft material, five feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

Table P-2 contains the following statement:

Shoring is not required in solid rock, hard shell, or hard slag.

The facts are undisputed that respondent, on January 11, 1972, was engaging in digging a trench which was approximately 7 1/2 feet deep and 33 inches wide and that the sides of the trench were neither sloped nor shored but were vertical. The question presented is whether the soil in which the trench was being dug was of such composition that it would support the sides of the trench without shoring or bracing.

The trench in question is in excess of five feet, being 7 1/2 feet in depth. Voluminous testimony was adduced regarding composition of the soil at the trench site. Mr. Jorishie, an inspector of the West Virginia Department of Labor, in November 1971, inspected the then worksite of respondent who was then engaging in digging a trench which was located approximately 75 to 100 feet from the trench in question, that is the one dug in January 1972, and although admitting he was not a soil expert, described the condition of the soil as soft material so that he concluded it was dangerous for anyone to be in the trench. He then stopped the work operation until a proper angle of repose was accomplished. On January 11, 1972, respondent was engaging in preparing the trench of the dimensions previously mentioned. Respondent's superintendent testified that he was of the opinion, relying on information contained in subsurface exploration logs prepared by Frederic R. Harris, Inc. (Exhibit R-A) that the ground in which the trench was being dug was composed of shale. Therefore, he offered the opinion with such soil composition the angle of repose would be 90 degrees as set forth in the standard. It would appear that respondent's superintendent either misconstrued or misunderstood the subsurface exploration logs since it is obvious that the information contained therein clearly indicates that the soil in which the trench was being dug, depth of 7 1/2 feet, was described as "Br. SILTY CLAY, or CLAYEY SILT; Some weathered shale fragments; traces of fine sand and gravel or boulder" (Emphasis that of Frederic R. Harris, Inc.). The portion of the report (Exhibit R-A) interpreted by the superintendent as indicating "brown to dark brown weathered shale with silty clay seams" begins at an elevation of 1055.5 feet and extends downward 10 feet to elevation 1040.5. It appears that this description is that of an area which begins at a depth of 0.5 feet below the bottom of the trench excavated on January 11, 1972. This would not be indicative or descriptive of the composition of the walls of the trench.

Respondent's expert, Dr. Alvi, who made soil testings within the area where the trench was being excavated on January 10, 1972, accomplishing this testing June 14 and 15, 1972, described the soil he tested as "shaley limestone, weathered limestone which contains humus (clay seams)" and "weathered shaley limestone." Furthermore, Dr. Alvi stated that "in weathered limestone, it contains humus (clay seams) and when it gets wet it decreases and the spand -- here strength -- and slides will take place." The record further discloses that the ground was wet around the excavation January 10, 1972, on which date an employee of respondent was fatally injured, being crushed to death when the side of the trench caved in.

The respondent attributes the fatality to an "Act of God." This classification should not be accepted as an excuse for not taking proper precautions, i.e., shoring, sheeting, bracing or other means, to reduce the severity of a so-called "Act of God" occurrence.

The inescapable conclusion must be reached that respondent permitted an employee to work in a trench of a depth in excess of five feet with the sides of the trench composed of unstable material which sides were not supported by shoring, bracing, sheeting or sloping.

ALLEGED VIOLATIONS OF 29 CFR 1926.651(h) AND 1926.652(h)

Section 1926.651(h) provides that:

(h) Excavated or other material shall not be stored nearer than 4 feet from the edge of any excavation and shall be so stored and retained as to prevent its falling or sliding back into the excavation.

There is some conflict in the testimony regarding violation of this particular standard. It does appear, however, by the proponderance of the evidence that the excavated material was being moved from the vicinity of the trench as it was being excavated and that the material found stored on the side of the trench was excavated after the fatality and in order to free the imprisoned employee. Therefore, there is no violation of this standard.

Section 29 CFR 1926.652(h) provides:

(h) Where employees are required to be in trenches 3 feet deep or more, ladders, extending 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.

The evidence is clear that no ladder was in the trench (Tr. 63) and that the trench was approximately 46 feet in length (Tr. 73). Therefore, it is perfectly obvious that there was a violation of the standard.

The complainant contends that there was a willful, serious violation as contemplated within section 17(a) and (k) of the Act in reference to violation of 29 CFR 652(b). What is "willful" as set forth in section 17(a)? The Act does not define the word. The complainant, in his belief, sets forth several cases determined by the Federal Courts and the Supreme Court of the United States with reference to the definition of the term "willful." The rule of broad or liberal construction to be given effect to the purposes of safety or remedial legislation has been applied by court's seeking to define the term "willful." U.S. v. Illinois Central R. Company, 303 U.S. 239 (1938); Boston & M.R.R. v. U.S., 117 S. 2d 248 (C.A. 1, 1941); Binkley Mining Co. v. Wheeler, 133 F. 2d 863 (C.A. 3, 1943). the U.S. Circuit Court of Appeals, Fifth Circuit, May 17, 1972, 458 F. 2d, in the case of Coleman v. Jiffy June Farms, Inc., James D. Hodgson, Secretary of Labor, v. Jiffy June Farms, Inc., pg. 1139, at page 1142 stated:

Even under the criminal provisions of the Act (referring to the Fair Labor Standards Act) Section 216(a), a 'willful' act has been interpreted to mean no more than one 'deliberate, voluntary and intentional as distinguished from one committed through inadvertence, accidentally, or by ordinary negligence.'

Therefore, it would appear that a "willful" violation may exist 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 was not consciously violating the Act, he was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition. Section 5 of the Act provides at subsection (a)(2) thereof:

(a) Each employer . . . (2) Shall comply with the Occupational Safety and Health Standards promulgated under this Act.

Concomitant with duty, is the duty that the employer accurately inform himself before acting. In view of the nature of the act of trenching, and the likelihood of disasterous consequences, if such act is performed without informing oneself of the nature of the material through which the trenching is being performed, the respondent should have made itself fully aware of what it was doing before it proceeded with the trenching. Respondent, in effect, admits that he did not ascertain before hand the true nature of the soil which it was excavating, or that it failed to either comprehend from the information it had what was the true composition of the material it was excavating. That failing constitutes a violation of section 5(a)(2). Furthermore, the respondent had been in November 1971, given a violation for trenching in approximately the same general area of the trenching of January 1972, when a fatality occurred, following a cavein of the trench. With this knowledge and failure to acquaint itself with the full facts, a willful violation under section 17(a) of the Act must be concluded. Also, the evidence clearly shows that the respondent either had actual knowledge that the material in which it was excavating was unstable or had knowledge of facts indicating that it had not accurately informed itself of the nature of the soil. In the latter case, such knowledge, created a duty to investigate further. The respondent knew, or could have known with the exercise of only slight care and diligence that the material in which it was trenching was soft or unstable and its failure to slope or shore in face of such knowledge was willful.

Was there a serious violation of 29 CFR 1926.652(h)? This is a difficult question for definitely there was a violation of the standard for no ladder was in the trench on January 10, 1972. The Act, section 17(k) provides that a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists. The fatality was caused by the cave-in of the sides of the trench and the fatality, in all probability, would have occurred whether there was a ladder in the trench or not. Therefore, it can only be concluded from the facts that while there was no ladder in the trench, which constituted a violation, it is a non-serious violation of the standard rather than a serious violation.

The record supports the contentions of the complaint that the respondent was in violation of Items 1 through 5 of the citation, that is, violations of standards 29 CFR 1926.401(f), 1926.150(c)(1)(vii), 1926.350(a)(1), 1926.51(c) and 1926.51(a)(1). All of these alleged violations, while affecting safety and health, were not of a serious nature. The abatement dates as specified by the complaint, appear to be reasonable and proper.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act is charged with affirming, modifying or vacating citations issued by the Secretary under section 9(a) and penalties proposed by the Secretary under section 10(a) and 10(b). The Commission, by section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, gravity of the violation, the good faith of the employer and history of previous violations in determining the assessment of an appropriate penalty.

The Acting Area Director testified regarding the methodology used in arriving at the proposed penalties stating that no credit was given respondent for size of its business in as much as respondent employed over 100 employees; that no credit was given for good faith because of failure to demonstrate an effective safety program, and apparently, more or less arbitrarily, assessed a penalty of $7500 for willful serious violation and penalty of $800 for serious violation. Consideration of 20 per cent for history was accorded respondent in assessing penalties for the non-serious violations. In Nacirema Operating Co., Inc.,

In the instant case, a death occurred apparently because of failure of respondent to comply with standard 29 CFR 1926.652(b) for if the trench had been shored, braced or appropriately sloped, the cave-in would not have occurred. The gravity of the offense is severe and with the additional factor that respondent, even though not consciously violated the Act, was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition, the further conclusion must be reached that there was a willful violation of the Act. Section 17(a) of the Act provides for an assessment of a civil penalty of not more than $10,000 for each willful violation. After due consideration of the four criteria provided by section 17(j) of the Act, it is concluded that a penalty of $5,000 for violation of 29 CFR 1926.652(b) is appropriate. The violation of 29 CFR 1926.652(h) is considered to be other than serious as defined in section 17(k), therefore a penalty of $100 is deemed reasonable and appropriate. Penalties of $80, $45, $55 and $55 and $55 for violations of 29 CFR 1926.401(f), 1926.350(a)(1), 1926.51(c) and 1926.51(a)(1), respectively, are reasonable and appropriate.

CONCLUSIONS OF LAW

1. At all times mentioned herein respondent was and is an employer engaged in a business affecting commerce within the meaning of section 3 of the Act and the Commission has jurisdiction of the parties and the subject matter herein.

2. Pursuant to section 6(a) of the Act, the Secretary of Labor, on April 27, 1971, adopted 29 CFR 1926 (formerly 29 CFR 1518) to become effective generally on August 27, 1971. The standards alleged to be violated in complainant's complaint and citation were, therefore, in full force and effect as regards respondent and its employees on November 23, 1971, and January 11, 1972.

3. Respondent was, on November 23, 1971, and January 11 and 13, 197 2, and at all other times mentioned herein, an employer subject to the aforesaid safety and health standards promulgated as 29 CFR 1926 (formerly 29 CFR 1518), by the Secretary of Labor.

4. Complainant's complaint alleges a willful violation of section 5(a)(2) of the Act and the standard at 29 CFR 1926.652(b).

5. Section 652(b) of 29 CFR provides:

(b) Sides of trenches in unstable or soft material, five feet or more in depth, shall be shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working within them. See tables P-1, P-2 [following paragraph (9) of this section].

6. On January 11, 1972, respondent violated section 1926.652(b) of 29 CFR in that it failed to shore, sheet, brace, slope or otherwise support by means of sufficient strength the sides of a trench 7 1/2 feet deep which had been dug in soft or unstable material.

7. The violation of section 5(a)(2) of the Act and the standard at 29 CFR 1926.652(b) was a willful violation of the Act within the meaning of section 17(a) of the Act, inasmuch as the respondent was aware of the Act and the standards applicable to it, was particularly familiar with the requirements of 29 CFR 1926.651(b), was or should have been aware that the material in which it was trenching was soft or unstable and knew that the presence of ground water would render excavation without sloping or shoring more hazardous.

8. The complainant's complaint alleges a serious violation of section 5(a)(2) of the Act and the standards at 29 CFR 1926.651(h) and 1926.652(h).

9. Section 29 CFR 1926.651(h) provides that:

10. On January 11, 1972, the respondent was not in violation of the standard 29 CFR 1926.651(h), since the stored material within 4 feet of the edge of its trench was placed after the fatality.

11. Section 29 CFR 1926.652(h) provides:

(h) Where employees are required to be in trenches 3 feet deep or more, ladders, extending 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.

12. On January 11, 1972, the respondent was in violation of the standard at 29 CFR 1926.652(h) in that it required an employee to be in a trench 7 1/2 feet deep and 46 feet long without providing a ladder in said trench.

13. Section 17(k) of the Act provides:

(k) For purposes of this section, a serious violation hall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

14. The violation found in paragraph 6 was serious within the meaning of section 17(k) in that there was a substantial probability that death or serious physical harm could result from the condition existing in and around respondent's trench and respondent knew of the presence of the violations.

15. The violation found in paragraph 12 was other than serious as defined by section 17(k) of the Act, but did affect safety and health as defined within the Act.

16. The complainant's complaint, as amended, alleges that on January 13, 1972, the respondent violated section 5(a)(2) of the Act and the Standards at 29 CFR 1926.401(f), 29 CFR 1926.150(c)(1)(vii), 29 CFR 1926.350(a)(1), 29 CFR 1926.51(c) and 29 CFR 1926.51(a)(1).

17. The standards set out in paragraph 15 above provide as follows:

(a) 29 CFR 1926.401(f): Extension cords. Extension cords used with portable electric tools and appliances shall be of three-wire type.

(b) 29 CFR 1926.150(c)(1)(vii): Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire extinguishers, NFPA No. 10A-1970.

(c) 29 CFR 1926.350(a)(1): Transportation, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured.

(d) 29 CFR 1926.51(c): Toilets at construction job sites. (1) Toilets shall be provided for employees according to the following table:

TABLE D-1

	Minimum number of facilities
20 or less	1
20 or more	1 toilet seat and 1 urinal per
	40 workers.
200 or more	1 toilet seat and 1 urinal per
	50 workers

(e) 29 CFR 1926.51(a)(1): An adequate supply of potable water shall be provided in all places of employment.

18. On January 13, 1972, the respondent violated the following standards:

(a) 29 CFR 1926.401(f), in that it used an extension cord of the two-connector type with a fuel pump.

(b) 29 CFR 1926.150(c)(1)(vii), in that it had a fire extinguisher which had no inspection tag or record on it.

(d) 29 CFR 1926.51(c), in that it provided only one toilet for 37 employees.

(e) 29 CFR 1926.51(a)(1), in that it failed to provide a supply of potable drinking water for its employees.

19. The violations found in paragraph 18 above were other than serious as defined by section 17(k) of the Act.

20. Section 17(a) of the Act provides:

(a) Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule or other promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

20. Section 17(b) of the Act provides:

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1000 for each such violation.

21. Section 17(c) of the Act provides:

(c) Any employer who has received a citation for a violation of the equirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1000 for each such violation.

22. Authority to assess civil penalties is exclusively vested in the Commission, ( Hodgson v. Nacirema Operating Company,

24. The penalty of $5,335 is, under the circumstances herein presented, appropriate and reasonable.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record, it is

ORDERED:

1. That the respondent was in violation of 29 CFR 1926.652(b); that the violation was a willful serious violation and is liable for a penalty of $5,000.

2. That the respondent was in violation of 29 CFR 1926.652(h), the violation being of a nonserious nature, and is liable for a penalty of $100.00.

3. That the respondent was in violation of 29 CFR 1926.401(f), 1926.150(c)(1)(vii), 1926.350(a)(1), 1926.51(c) and 1926.51(a)(1), and the violations are of a non-serious nature as alleged.

4. That the respondent is liable for penalties of $80 for violation of 29 CFR 1926.401(f), for $45 for violation of 29 CFR 1926.350(a)(1), for $55 for violation of 29 CFR 1926.51(c) and for $55 for violation of 29 CFR 1926.51(a)(1).

5. The respondent was not in violation of 29 CFR 1926.651(h). Therefore, the charge in Citation No. 2 and the proposed penalty are vacated.