Docket No. 949

HAWKINS CONSTRUCTION COMPANY

OSHRC Docket No. 949

Occupational Safety and Health Review Commission

May 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Alan M. Wienman, dated November 27, 1972, is before this Commission for review pursuant to 29 U.S.C. § 661(i) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act). That decision, to the extent that it holds respondent in serious violation of 29 U.S.C. § 654(a)(2) for noncompliance with certain occupational safety and health standards, is hereby reversed.

Respondent, a general contractor engaged at the time of inspection in the construction of an industrial park, had dug an excavation for the installation of sewer facilities. The evidence of record establishes that on the day of inspection, May 8, 1972, the excavation failed to meet the requirements of the standards published at 29 C.F.R. § 1926.651(g) and (i), in that it was neither shored nor dug to an angle of repose, and the excavated material was not stored at least two feet from the edge of the excavation. It is undisputed that no persons directly employed by respondent worked in or near the excavation on May 8, 1972; [*2] the persons observed by the compliance officer were employees of respondent's subcontractor, Indiana Gunite.

The issue presented by this case is whether respondent can be held liable for a violation of 29 U.S.C. § 654(a)(2) when none of its own employees were subjected to the noncompliant conditions. We are compelled to decide that issue in the negative.

In Secretary v. City Wide Tuckpointing Service, No. 247 (May 24, 1973), the Commission held that "only where employees of a cited employer are affected by noncompliance . . . can such employer be in violation of § 5(a)(2) [29 U.S.C. § 654(a)(2)] of this Act." n1 (emphasis supplied). Subsequently, in Secretary v. Gilles and Cotting, No. 504 (October 9, 1973), the Commission took the position that a general contractor could not be held liable for conditions to which none of its employees were exposed. Though distinct from each other with respect to the facts, both cases represent the underlying belief that the intent of the Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered employees, not upon those who may merely own or to some extent control the [*3] location of the place of employment of others.

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n1 The facts of City Wide are not comparable to those of the instant case.

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The purpose of the Act, as enunciated by Congress in 29 U.S.C. § 651(b), is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ." (emphasis supplied). Read together with 29 U.S.C. § 654(a)(2), which states "Each employer shall comply with occupational safety and health standards. . .," they make it clear that the Act is designed to protect employees, and the duties arising from the Act run from the employer to those employees. Absent the employee element, a given fact situation cannot give rise to a finding of liability. Indeed, without the presence of employees the allegedly noncompliant conditions fail to constitute a workplace for the purposes of the Act.

Thus, proof of employee exposure has become necessary for finding a violation of the Act. No departure from this position is warranted by the facts of the [*4] instant case.

Respondent dug a large excavation in which a manhole was to be installed. It completed its task on March 29, 1972, the last day any of its employees were in the excavation. Normally it would have backfilled the hole, but Indiana Gunite requested that it be left open because they required a large area to install equipment in and service the sewer beneath.

The excavation remained open for over a month, during which time a considerable amount of rain had fallen. The condition of the walls of the excavation changed considerably as a result of the weather; part of the shelf had broken off. Indiana Gunnite employees finally entered the excavation on May 8th, one day after a rainfall.

Hawkins was never notified as to exactly when Indiana Gunite would move into the excavation, nor were they requested to correct any defects in the slopes of the excavation. Respondent could not be expected to have known that its subcontractor would be working there on the date of inspection, as it is the general practice in the construction industry not to work in sewers the day after it rains. Hence, it would be extremely unreasonable to find Hawkins liable for the conditions to which [*5] Indiana Gunite subjected its own employees.

Moreover, the record indicates that after receipt of the citation, respondent backfilled the excavation. Indiana Gunite subsequently reopened it, which fact suggests that respondent did not have exclusive control over the excavation and the conditions therein.

For the foregoing reasons, the citation for serious violation is vacated and the complaint dismissed.

With respect to the issue of amendment of the citation, the decision of the Judge is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, dissenting: I dissent.

The Commission has vacated a valid citation because there is no record evidence that respondent's own employees were exposed to the hazard of an unshored excavation. I disagree strongly with this reasoning. As I discussed at length in my dissents to James E. Roberts Co. and Soule Steel Co., (consol. nos. 103 & 118) (April 16, 1947) and Humphreys & Harding, No. 621 (May 9, 1974), the employees of a subcontractor should be considered the employees of the general, or prime contractor, for purposes of the Act, where the prime contractor exercises direction and control over the activities of the subcontractor's [*6] employees. To hold otherwise is to ignore realities of the construction industry and to overlook the express purpose of the Act, which is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions."

In 1972 alone, more than 100 workers were suffocated or crushed in trench and excavation caveins. n2 It is thus clear that the achievement of the statutotry goal has yet to be fulfilled in the construction industry. The majority opinion, regrettably, does not assist in that fulfillment. In terms of accident prevention, the only meaningful approach is to determine what employer or employers had the control of the workers and the worksite, and therefore the capacity and the legal obligation to prevent unsafe working conditions. The purpose of the Act is to prevent accidents, not to fix the blame for an accident after it has occurred. Brennan v. O.S.H.R.C. & Manuel Maes Constr. Co., Inc., No. 73-1464 (10th Cir., March 28, 1974). Accordingly, an employer should be considered in violation of the Act when its failure to comply with an occupational safety and health standard exposes to a hazard employees over whom it [*7] exercises control.

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n2 "Employer-Employee Safe Practices for Excavation & Trenching Operations," (U.S.D.O.L., O.S.H.A. pamphlet no. 2085) (1973).

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The underlying question that must be answered in this case, therefore, is whether respondent exercised sufficient control of the workplace and employees of the subcontractor to assume responsibility under section 5(a) of the Act. A review of the record evidence in the case indicates that this question must be answered in the affirmative.

Respondent is a construction general contractor who was excavating in order to install a manhole. Respondent's excavations were completed by March 29, 1972. At the request of a subcontractor, the excavation area was not backfilled so that the subcontractor could work on a sewer line. The excavation was made in unstable soil and the excavation was never adequately sloped as required by the appropriate standard. For several weeks no work was performed in the open excavation, and a series of rains made the excavation even more dangerous. [*8]

Under these facts it is clear that respondent created and failed to correct a hazard to which it knew that the immediate employees of its subcontractor would be exposed. Respondent had contractual control over the subcontractor's activities and direct and total control of the worksite. After receipt of the citation respondent backfilled the excavation and left the job of reopening the area to the subcontractor.

I would affirm the citation and proposed penalty for this violation.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting Citations issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of that Act. The Citations alleged on the basis of an inspection of a workplace under the ownership, operation or control of the Respondent, located at 25th and X Streets, Omaha, Nebraska, that the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health standards promulgated by the Secretary [*9] of Labor pursuant to Section 6 thereof.

Citations issued May 22, 1972, alleged both serious and nonserious violations of the Act.

The Citation for serious violation set forth the alleged violation in the following form:

Standard or Regulation Allegedly Violated -- Description of Alleged Violation -- Date on Which Alleged Violation must be Corrected. Formerly Part 1518.

29 CFR 1926.651(f), Page 7389, Column 1. -- (Excavation for sewer line entrance, near 25th & "X" Streets.) An excavation, irregular in shape (approximately 35 feet by 35 feet and approximately 12 feet deep), does not have the slopes excavated to the angle of repose. Three sides of the excavation appear to be disturbed soil and the fourth side appears to have substantial clay content. -- Immediately.

29 CFR 1926.651(h), page 7389, Column 1. -- (Excavation for sewer line entrance, near 25th & "X" Streets.) An excavation, irregular in shape (approximately 35 feet by 35 feet, and approximately 12 feet deep) does not have the excavated materials stored four feet or more from the edge of the excavation. -- Immediately.

29 CFR 1926.651(h), page 7389, Column 1 -- (Excavation for sewer line entrance near 25th & "X" Streets.) [*10] On the southeast and the southwest sides of the excavation, soil is piled at the edge of the cut and some sizeable pieces of concrete are in the piled soil. -- Immediately.

The alleged serious violations in this citation were cited from the Federal Register, dated April 17, 1971, Volume 36, Number 75, Regulations for Construction.

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 22, 1972, from Warren Wright, Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the alleged serious violation in the amount of $950.

The Complaint filed by the Secretary, however, alleged in Paragraph IV(d) that the serious violation actually related to safety standards codified in 29 CFR 1926.651(g) (said to have been incorrectly cited as 29 CFR 1926.651(f) in the Citation) and 29 CFR 1926.651(i)(1) (said to have been incorrectly cited in the Citation as 29 CFR 1926.651(h)).

The standard codified as 29 CFR 1926.651(g) provides that all excavation slopes shall be excavated to at least the angle of repose except for areas where solid rock [*11] allows for line drilling or presplitting.

The standard codified as 29 CFR 1926.651(i)(1) provides that in excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least two feet from the edge of the excavation.

The May 22, 1972, Citation for non-serious violations alleges that the Respondent violated the following standards (cited as codified in the Code of Federal Regulations):

(1) 29 CFR 1926.652(h) which states that while employees are required to be in trenches three feet deep or more, ladders, extending from the floor of the trench excavation to at least three 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;

(2) 29 CFR 1926.350(a)(9) which requires that compressed gas cylinders be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried;

(3) 29 CFR 1926.152(d)(4) which requires at least one portable fire extinguisher having a rating of not less than 20-B:C units shall be provided on all tank trucks or other vehicles [*12] used for transporting and/or dispensing flammable or combustible liquids; and

(4) 29 CFR 1926.16(a) which states that the prime contractors and subcontractors may make their own arrangements with respect to health and safety obligations which might be more appropriately treated on a job site basis rather than individually. (This alleged violation was omitted from the Complaint, and is deemed to have been dismissed by Complainant.)

Warren Wright, OSHA Area Director, in his letter dated May 22, 1972, indicated that he proposed to assess penalties for the non-serious violations alleged in the following amounts:

Item No. 1, $120; Item No. 2, $105; Item No. 3, $105; and Item No. 4, $105.

Respondent contested the enforcement action, and a Complaint was timely filed. In its Answer, Respondent denied each and every alleged safety violation and affirmatively pleaded that the Occupational Safety and Health Act of 1970 was unconstitutional for multiple reasons. The case came on for hearing at Omaha, Nebraska, on August 8, 1972, at which time Respondent filed a motion to strike Complaint Paragraph IV(d) relating to the alleged serious violations on the grounds that the Complainant [*13] had substituted safety regulations codified in 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1) for 29 CFR 1926.651(f) and 29 CFR 1926.651(h) which had been cited in the Citation as the standards alleged to have been violated. This substitution of standards was challenged as a failure to conform with the requirements of proper initial notification to the employer as specified by Section 9(a) of the Act.

THE ISSUES

The primary issues for resolution are whether the Respondent violated certain safety and health standards as alleged in the Citation and Complaint, and, if so, what penalty or penalties are appropriate. In addition, the Respondent has also raised issues relative to the constitutionality of the Act and the question of whether Complainant complied with the notice requirements of Section 9(a) of the Act.

This decision will contain no ruling with respect to any of the constitutional issues. The undersigned Judge is persuaded that neither the Occupational Safety and Health Review Commission nor any of its several judges are vested with jurisdiction to pass on the constitutionality of the statute from which the Commission derives its authority. The Respondent is entitled to [*14] have the constitutional questions determined by a court, but this decision is limited to the issues related to (1) the notice procedures employed by the Complainant, and (2) Respondent's compliance with safety standards.

DISCUSSION

The Motion to Strike Paragraph IV(d) of the Complaint

The Citation for serious violation issued to Respondent May 22, 1972, gave notice that a sewer line excavation at 25th and "X" Streets, Omaha, allegedly violated the Act in two respects. First, the slopes were not excavated to the angle of repose; and second, excavated material was stored within four feet of the edge of the excavation. On the Citation failure to excavate to the angle of repose was referenced to a safety standard codified as 29 CFR 1926.651(f) and the improper storage of excavated material was referenced to 29 CFR 1926.651(b).

The Citation alleged with particularity at least one condition which, if supported by sufficient proof, would constitute a violation of a then existing safety standard. The references, however, were inaccurate for a reason which was evident on the face of the Citation. The Area Director stated he was citing the Regulations for Construction as published [*15] in the Federal Register, April 17, 1971, Volume 36, Number 75. Overlooked was the fact that amendments to the Regulations for Construction published in Federal Register, Volume 37, Number 33, on February 17, 1972, had become effective prior to the May 8, 1972, inspection of respondent's worksite.

Among the regulations amended was Section 1926.651 which related to excavation requirements. The amendement did not relieve employers from the requirement that excavation slopes be excavated to the angle of repose. This requirement was retained in haec verba but the numbering was changed from Section 1926.651(f) to 1926.651(g).

The requirements with respect to the storage of excavated material were modified, and the rationale for the change was stated in the background material published in the Federal Register on February 17, 1972:

Amendments were proposed in S. 1518.651(h) in order to allow more flexibility in storing and retaining excavated materials adjacent to an excavation, while at the same time insuring the safety of those employees working in the excavation site. Comments indicated that the proposals were still too rigid to allow employers digging shallow trenches [*16] (less than 5 feet in depth) with narrow rights-of-way to meet such material were suggested which would provide equivalent employee protection. As a result, the language of the proposals has been altered to permit all appropriate alternative methods which will protect employees working in excavations from the hazards of falling materials.

The new standard with respect to storage of excavated material now required that such material be stored or retained at least two feet or more from the edge of the excavation (s. 1926.651(i)(1)) but authorized as an alternative to the two-foot clearance, the use of barriers or other retaining devices to prevent the material from falling into the excavation (s. 1926.651(i)(2)).

In view of the alternate means by which an employer can comply with the standard regulating storage of excavated material, it would appear that the Citation did not describe with sufficient particularity a violation of 29 CFR 1926.651(i)(1-2). A timely objection to the portion of the Complaint charging this violation would have been favorably received. However, as well be developed in some details in subsequent paragraphs, the motion herein was tardy, placing the entire [*17] procedure in a different context.

The Respondent suggests that the issue raised by its Motion to Strike is essentially the same as that decided by Judge Larkin in J.L. Mabry Grading, Inc. We note, however, some essential differences. Foremost is the fact that one standard cited herein -- the angle of repose requirement -- remained in effect without any change in language before and after amendment. The rationale for Judge Larkin's ruling was that substitution of standards would be unfair to the employer. But we fail to perceive how the Respondent in the instant case could be surprised or prejudiced by notice procedures which charged him unmistakably with violating a regulation in no way affected by amendment other than a mere change in numbering.

A second difference between Mabry and the instant case is the manner in which the notice issue was raised. In Mabry the Secretary filed a Motion to Amend the Complaint which was resisted by Respondent. [*18] In the instant case, the Secretary filed a Complaint which directed Respondent's attention to the incorrect standard citations, and in their stead alleged violations of 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2) in Paragraph IV(d). Respondent filed an Answer denying the allegations of Paragraph IV(d). Not until the day of the hearings -- more than a month later -- did Respondent move to strike this paragraph of the Complaint -- a paragraph it had already controverted with a denial. The undersigned Judge took the motion under advisement. Thereupon, both parties presented testimony relative to the allegations set forth in Paragraph IV(d) of the Complaint.

We do not find that the notice requirements of Section 9(a) of the Act impose such an inflexible burden on the Secretary that a Citation which gives fair notice of the nature and basis of the charge cannot be amended by substitution of regulation section numbers in the Complaint. Such a holding would be contrary to the spirit of modern legal justice as enunciated by the Supreme Court:

The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome [*19] and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.

Conley v. Gibson, 355 U.S. 41, 48

Moreover, it would be anomalous to rule subsequent to a hearing that a party was surprised by a charge it had controverted and defended with vigor. The courts do not favor such results:

It is now generally accepted that there may be no subsequent challenge of issues actually litigated, if there has been actual notice and adequate opportunity to cure surprise.

Kuhn v. CAB, 87 U.S. App. DC 130; 183 F2D 839,841-2

Based on the instant facts and pleading procedures, we find that the notice requirements of Section 9(a) of the Act have been satisfied, and the Motion to Strike paragraph IV(d) of the Complaint is therefore denied.

The Sewer Line Excavation

Three witnesses -- one for Complainant and two for Respondent -- testified relative to the condition of the banks of the large sewer line excavation which was the basis for the Citation for serious violation. OSHA compliance Officer Uldis Sid Levalds described an irregularly shaped excavation, possibly 35 by 35 feet in area and 12 feet deep, which was used by a subcontractor to gain access [*20] to a sewer where certain work was being performed. It was acknowledged by Respondent's representatives that Respondent had opened the excavation. The inspection in May 1972, was performed because of an unrelated condition, i.e., an accident inside the sewer which resulted in a fatality. On the day of the inspection no persons were working in the excavation.

Mr. Levalds testified that the banks of the excavation were not sloped to an angle of repose and that excavated material was piled on the edge of the sides of the excavation. He defined the angle of repose as an angle of any given soil where the soil will not slide. This would change with the conditions of the soil depending on weather conditions (Tr. 23). He observed evidence of soil slides in areas where the banks were caving in. He stated this indicated that the soil had not been excavated to the angle of repose (Tr. 23). He took a number of photographs of the area which were introduced in evidence. In his opinion, Exhibit G-9 showed excavated material stacked at the edge of the excavation and a caved-in area beside an access ladder. Exhibit G-11 revealed a caved-in area at an undermined bank. The hazard, [*21] in his opinion, was that an employee entering the excavation might be caught by sliding soil (Tr. 24). He thought a slope of about 30 degrees or approximately 1-1/2 to 1 would achieve proper angle of repose.

Rubert M. Cone, the General Superintendent for Hawkins Construction in the South Omaha Industrial Park project, testified that he supervised the digging of the excavation on March 28 and that Respondent's employees were last in the excavation on March 29. Employees of the subcontractor, Indiana Gunite, had to work inside the sewer below the manhole and they required a large area to install equipment and materials in the sewer (Tr. 83).

Mr. Cone testified that the soil was of an unstable type and had the appearance of fill. The excavation was about 12 or 13 feet deep and had been dug at a 1 to 1 slope. There had been a large amount of rain after the excavation was opened. Mr. Cone did not believe there would be more caving in, since by May 8th "what was to be done was done" (Tr. 90). On cross-examination, he stated that the Respondent had employees working in the excavation on March 28 and March 29; that the Respondent had done no back filling before May 8, and [*22] that the Respondent was the prime contractor on the job being performed at the sewer line on May 8th.

Mr. Ronald D. Olsen testified that he was employed by Respondent as safety project and job sponsor; he accompanied the OSHA compliance officers on the May 8 inspection. He took measurements and made a diagram of the excavation (Exhibit R-1). It portrayed a trench measuring 42 feet by 37 feet with an eight-foot square work area in the center. The actual existing slope was "1/2 to 1," but a theoretical slope from the top of the excavation to the work surface showed a theoretical angle of repose of 1-1/2 to 1.

Mr. Olsen also testified that the Respondent erected barricaded fencing so that people could not accidently stumble into the excavation, and the material from the original excavation was placed back four feet from the edge. On cross-examination, he admitted that the actual slope of the trench was only 1/2 to 1 or 60 degrees at best; that employees entered and left the excavation by means of a ladder placed against the sides of the trench. He also acknowledged that Exhibit G-9 showed excavated material piled on the edge of the excavation and stated this was due to the fact [*23] that 20 days of rain "had the shelf busted off." He stated the soil was very unstable and for this reason the Respondent over-excavated the hole away from the work area. Respondent felt the actual sides of the trench were adequate at a 1/2 to 1 slope because of the over-excavation. He further admitted that over-excavation did not prevent slides and cave-ins at the banks and that the employees coming in and out of the trench were exposed to soil banks that were excavation. The resort to over-excavation materially reduced the probability that a slide or cave-in would affect any employees working in the central manhole area, but would not lessen the danger to an individual while entering or leaving the trench by means of the ladder located at the bank. The Government offered no evidence relative to the number of employees working in the trench, nor the number of trips to and from the excavation work area during any given time period. It was established that some employees of the subcontractor, Indiana Gunite, had been working in the excavation and exposed to the danger. The hazards to which an individual would be exposed while climbing in and out of the trench are [*24] evident, but absent a more detailed record there is no basis for finding that "there is a substantial probability that death or serious physical harm could result" from the unsafe condition. A serious violation within the meaning of Section 17(k) was not established, and we are persuaded that the excavation violation is properly classified as non-serious.

In finding that the Respondent was guilty of a non-serious violation of the safety standards codified in 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2), the undersigned Judge expressly rejects the contention that the Respondent as a general contractor was not responsible for an unsafe condition affecting the employees of the subcontractor. We believe the rules enunciated by Judge Leon J. Moran in Gilles and Cotting, Inc. A general contractor has the responsibility for overall safety and accident prevention even though subcontractors are used. For a general contractor to plead ignorance of unsafe conditions relating to an excavation of this magnitude, dug by its own men and machines, is unacceptable. After giving due consideration of the size of [*25] the business of the Respondent, the gravity of the matter, the good faith of the employer as demonstrated by the safety program, and the employer's history of previous violation, a penalty of $300 appears appropriate for the violations charged in paragraph IV(d) of the Complaint.

The Non-Serious Violations

Respondent was initially charged with four alleged non-serious violations, but Item No. 4 was omitted from the Complaint and is deemed dismissed. The remaining items relate to failure to provide a ladder in a five-foot deep trench; failure to secure acetylene and oxygen cylinders; and failure to equip a truck carrying a 50-gallon gasoline dispensing tank with a fire extinguisher. A factual controversy exists relative to only Item No. 1, the charge that Respondent violated 29 CFR 1926.652(h) by not providing a ladder in a five-foot trench.

Mr. Levalds, the OSHA Compliance Officer, testified that he observed a trench approximately five feet deep on two occasions during the course of the inspection. Initially, there was no employee exposure, although there was no access ladder in the trench. Later he observed two employees in the trench and took a photograph of the condition [*26] (Exhibit G-5). It was his opinion that the absence of an access ladder required employees to enter or leave the excavation by unsuitable means which might result in slippage and falls.

Mr. James E. Perez testified that he was Respondent's superintendent in charge of sewers, and that he had constructed the trench in queston from blueprints supplied to him. He stated that the trench was sloped "from nothing" to a depth of four feet, ten inches. At the manhole end the trench was four feet, ten inches deep but at the end of 25 feet "it runs out to nothing." He stated the trench was opened a total of about three or four hours. It was dug and filled by means of machines. In his opinion an employee could walk out of the trench within a distance of about eight to ten feet at most. The two employees portrayed in the photographic exhibit had been told to enter the trench within a distance of about eight to ten feet at most. The two employees portrayed in the photographic exhibit had been told to enter the trench to pick up a piece of plywood which had blown off the manhole cover.

Complainant offered no testimony to rebutt Mr. Perez's statement that the trench rose to level [*27] ground within a distance of 25 feet, and this testimony must be accepted as establishing the fact that an employee would have a means of exit without 25 feet of lateral travel. In view of the ready means of exit, Safety Regulation 29 CFR 1926.652(h) would not require the employment of any ladders in the excavation. Item No. 1 of the Citation for non-serious violation therefore must be vacated.

No factual controversy exists with respect to the second item charged on the Citation for non-serious violation, namely the failure to secure acetylene and oxygen cylinders in violation of 29 CFR 1926.350(a)(9). The condition was portrayed in a picture taken by a compliance officer and introduced in evidence as Exhibit G-6. Mr. Cone testified that the not set at the angle of repose.

The testimony of Respondent's own witnesses clearly established that the banks of the trench were not excavated to the angle of repose as defined in Section 1518.653 -- "The greatest angle above the horizontal plane at which a material will lie without sliding." Photographs, particularly Exhibit G-9, also established that the excavated material was not effectively stored or retained at least two feet [*28] or more from the edge of the excavation. The Complainant met its burden of establishing a prima facie violation of the safety regulations codified in 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2). It is alleged in the Citation and the Complaint, however, that the violations relating to the large sewer line excavation are serious in nature, and the undersigned Judge is not persuaded that the Complainant has met its burden in this regard.

As pointed out by Commissioner Burch in a recent opinion ( W.C. Sivers Co., Rather a mere showing of non-compliance establishes only a prima facie violation to which an employer may have affirmative defenses.

In the instant case the Respondent chose to over-excavate a trench rather than slope the banks to the angle of repose. It is not totally clear from the record why the Respondent made this choice, but it was urged that over-excavation was sufficient to protect employees of a subcontractor performing sewer work in the center eight feet of the employee responsible for the condition had been [*29] reprimanded since the Respondent furnished carts to hold gas cylinders and there was a cart available nearby which the employee failed to use.

The Respondent urges that the situation is analogous to the "hard hat" situation described in the case of Standard Glass Co., Inc., The Reiview Commission held that a brief infraction by an employee which was unknown to the employer and contrary to both the employer's instructions and Company work rule did not necessarily constitute a violation of the Act.

We do not deem the two situations analogous. Employees have a known propensity for doffing uncomfortable items of protective equipment. It would be unreasonable to charge an employer on the violation of the Act and assess a penalty in each and every instance where an employer briefly removed an article of protective clothing or equipment. However, securing of gas cylinders is not a matter so subject to the whims of employees that proper supervision cannot be expected to result in proper [*30] observance of safety and health regulations. Item 2 of the Citation is therefore affirmed.

Although the evidence establishes a non-serious violation of the Act as charged in Item 2 of the Citation for non-serious violation and paragraph IV(b) of the Complaint, the undersigned Judge is not persuaded that the proposed penalty of $105 is appropriate. Oscar F. DiSilvestro, OSHA Acting Area Director, testified as to the methodology employed in computing the proposed penalty. Consideration is to be given to the gravity of the violation, and also the good faith, size, and history of the employer. However, Respondent was given no percentage reduction for either good faith or history since it was Mr. DiSilvestro's opinion that the Respondent's safety program was not effective and this was the third investigation of a Hawkins jobsite at which violations were found. We cannot agree with Mr. DiSilvestro's judgment in this regard. The mere fact that a compliance officer reports alleged safety violations on each of three inspections does not per se indicate that a general contractor's safety program is "ineffective." There was positive, unrebutted testimony relative to the Respondent's safety [*31] program, and it appears that Complainant should have applied a 10% reduction factor for good faith. We therefore find that a penalty of $95 is appropriate for the violation.

The evidence also established that on the occasion of Mr. Levald's inspection on May 8, 1972, a Ford truck equipped with a 50-gallon dispensing tank did not have a fire extinguisher at the time of the inspection. This condition was portrayed in a photographic Exhibit, G-7.

Respondent's superintendent, Rubert M. Cone, testified that the truck in question was equipped with a suitable fire extinguisher, but that the extinguisher had recently been used to extinguish a small fire in a tar pot and the employee then placed te extinguisher beside the tar pot.

Mr. Cone's testimony in this regard was unrebutted in the record. Under the Circumstances, the proof establishes a technical violation of 29 CFR 1926.152(d)(4), but the penalty for such violation should be reduced to zero. It is not a proper affirmative defense to misplace a fire extinguisher, but the purposes of the Act will not be served by imposing a monetary penalty for minor transgressions of this nature.

FINDINGS OF FACT

(1) Respondent Hawkins [*32] Construction Company is a corporation with its principal office and place of business at 2512 Deer Park Boulevard, Omaha, Nebraska. Respondent is engaged in the heavy construction projects. On May 8, 1972, it was engaged in a project at the South Omaha Industrial Park in Omaha, Nebraska.

(2) On May 8, 1972, an authorized representative of the Secretary of Labor inspected the South Omaha Industrial Park project, and as a result the Secretary issued to Respondent one Citation for serious violation and one Citation for other than serious violations pursuant to Section 9(a) of the Act.

(3) By letter dated May 26, 1972, addressed to Warren Wright, Area Director, OSHA, Respondent by its Attorney Thomas Monaghan, gave notice of its intention to contest the citations issued and the proposed penalties.

(4) A Complaint was filed by the Secretary on June 5, 1972. In the Complaint, the Secretary made no reference to either Item No. 4 of the Citation for other than serious violation or the penalty of $105 proposed thereon. Items 1, 2 and 3 of the Citation for other than serious violation were referenced to paragraphs IV(a), IV(b), and IV(c) of the Complaint respectively. In paragraph [*33] IV(d) of the Complaint the Secretary claimed to have amended the Citation for serious violation by alleging that the Respondent violated the safety regulation codified in 29 CFR 1926.651(g), rather than 29 CFR 1926.651(f) (as cited in the Citation) and 29 CFR 1926.651(i)(1-2), rather than 29 CFR 1926.651(h) (as cited in the Citation).

(5) In answering the Complaint, Respondent admitted that it is an employer subject to the Act, but denied the allegations of paragraphs IV(a), IV(b), IV(c) and IV(d) of the Complaint.

(6) By stipulation made at the hearing on August 8, 1972, Respondent agreed that an employer representative accompanied the Secretary's representative on his inspection of Respondent's construction site on May 8, 1972.

(7) Prior to the hearing on August 8, 1972, Respondent moved to strike paragraph IV(d) of the Complaint on the ground that said paragraph substituted different standards from those standards alleged to have been violated in the Citation for serious violation. The undersigned Judge took said motion under advisement, but after due consideration of the matter, denied the motion.

(8) The evidence with respect to the alleged serious violation revealed [*34] that on the date of the inspection at Respondent's job site near 25th and X Street, Omaha, Nebraska, a sewer line excavation (approximately 37 feet by 42 feet and approximately 11 feet, six inches deep) dug in unstable soil did not have slopes excavated to at least to the angle of repose; that excavated matrials were stored and retained within two feet of the edges of the excavation; and there were no barriers or other effective retaining devices employed at the excavation site in order to prevent excavated or other materials from falling into the excavation.

(9) The evidence established violations of the safety regulations codified as 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2), but the evidence failed to establish that there was substantial probability that death or serious physical harm could result from the conditions giving rise to said violations within the meaning of Section 17(k) of the Act.

(10) The evidence failed to establish a violation of the Safety Regulation 29 CFR 1926.652(h) as alleged in Item No. 1 of the Citation for non-serious violations and paragraph IV(a) of the Complaint. The evidence established a trench approximately 26 feet long and sloped to ground [*35] level from a depth of four feet, ten inches, at the deepest end, thereby enabling an employee to walk out of the trench within a distance of eight to ten feet from the deepest end.

(11) On May 8, 1972, at the job site in the South Omaha Industrial Park, Respondent had two acetylene cylinders and one oxygen cylinder not secured in an upright position in violation of 29 CFR 1926.350(a)(9). One welder was affected by said violation.

(12) The evidence established that on May 8, 1972, at the job site at the South Omaha Industrial Park, Respondent had a truck fitted with a gasoline dispensing tank from which truck a fire extinguisher had been removed in violation of 29 CFR 1926.152(d)(4). The evidence further established that the violation was brief in nature resulting from the inadvertent act of an employee.

(13) The evidence established that the Respondent had been engaged in an on-going safety program and was entitled to a 10% reduction credit for good faith in computation of all proposed penalties.

CONCLUSIONS OF LAW

(1) At all times involved in this matter, the Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section [*36] 3(5) of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein pursuant to Section 10(c) of the Act.

(2) Section 5(a)(2) of the Act (29 USC 654(a)(2)) imposed a duty on Respondent to comply with the safety and health regulations promulgated by the Secretary of Labor pursuant to Section 6(a)(2) of the Act.

(3) Respondent violated Section 5(a)(2) of the Act on May 8, 1972, by its non-compliance with the Occupational Safety and Health regulations codified as 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2). Said acts constituted a non-serious violation of the Act, and, under the circumstances, a proposed penalty of $300 is reasonable and appropriate giving due consideration of the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous safety history, and its prompt efforts to abate the condition.

(4) On May 8, 1972, Respondent also [*37] violated Section 5(a)(2) of the Act by its non-compliance with the following Occupational Safety and Health regulations:

(a) 29 CFR 1926.350(a)(9) as described in Item 2 of the Citation for non-serious violations. A penalty of $95 is appropriate for said violation.

(b) 29 CFR 1926.152(d)(4) as described in Item No. 3 of the Citation for non-serious violations. It is appropriate that no monetary penalty be imposed for said violation.

(5) On May 8, 1972, Respondent was not in violation of the safety regulations codified as 29 CFR 1926.652(h) and 29 CFR 1926.16(a) as alleged in Item Nos. 1 and 4, respectively, of the Citation for non-serious violation issued May 22, 1972.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is ordered that:

(1) A Citation for serious violation issued to Respondent on May 22, 1972, and amended by paragraph IV(d) of the Complaint, to allege violations of standards codified in 29 CFR 1926.651(g) and 29 CFR 1926.651(i)(1-2), is hereby modified to constitute a non-serious violation of the Act and a penalty of $300 is hereby assessed for said violation;

(2) Items 1 and 4 of the Citation for non-serious violation issued Respondent [*38] on March 22, 1972, and the penalty proposed for said alleged violations, are hereby vacated;

(3) Item 2 of the Citation for serious violation of Safety Regulation 29 CFR 1926.350(a)(9) is hereby affirmed, and a penalty of $95 is assessed for said violation; and

(4) Item 3 of the Citation for non-serious violation issued to Respondent May 22, 1972, is hereby affirmed, but the penalty proposed for said violation is reduced to zero.