- no title specified

Before the hearing, the Secretary moved to amend his complaint to allege in alternative noncompliance with 29 C.F.R. Sec. 1926.652(c). This motion was granted by Judge Larkin at the hearing. 1 At the close of the Secretary’s case, the Judge ruled that the citation must be dismissed for lack of proof. This ruling was reiterated in his opinion of April 2, 1975. On May 2, 1975, we granted the Secretary’s petition for discretionary review and invited submissions on the issues raised herein. These include whether the judge erred in determining that a compliance officer was not qualified as an expert in soil mechanics and that the Secretary of Labor failed to prove that the soil involved was unstable or soft. We reverse and remand.

On August 27, 1974, compliance officer Billy Layton conducted an inspection of respondent’s trenching operations in Montgomery, Alabama. He observed two of respondent’s employees working in a trench. The trench was thirty feet long, thirty inches wide and varied in depth from 6 feet to 6.5 feet. The sides were vertical and unshored.

At the hearing, the only issue in serious dispute was the nature of the soil. The respondent was represented by its president. The Secretary’s only witness was compliance officer Layton. Mr. Layton testified that he picked up some of the soil to ascertain its characteristics. At that point the Judge refused to allow the compliance officer to testify to what happened and what he felt when he picked up the soil. The Judge ruled that before Mr. Layton could testify further, his qualifications as an expert in soil textures had to be established. The Secretary thereupon questioned the compliance officer to establish his qualifications. After hearing this evidence, the Judge ruled that the witness was not qualified as an expert in soil textures, and therefore could neither describe the texture of the soil, nor give his opinion of the soil’s stability or instability. The Secretary then was, however, allowed to make the following testimonial proffer:

Q. Would you state-you understand this is not testimony as such, but it’s a proffer if you were permitted to testify what you would testify about the soil.

A. Okay. I walked up ant taken a handful of soil. It was sticky, it was fresh dug and had raid two or three days before. And it was just, would ball up in your hand. It wouldn’t pour through, it was a ball of material. And it was of clay consistency of some tyle, and it was some sand in it. And apparently at that point, it where they was digging was a fill due to the fact that it was red and then all of a sudden jumped into a black layer of material that looked to me like it had been some backfill on that corner right there where they were digging. And in the trench and that is about as much as I can say about the physical condition of the soil at that point.

A. Oh, yes. It was soft. As I say, it had rained two or three days previously to that, and you can take soil and it would gum up and become a ball. It wouldn’t push through your hands, it wasn’t dry.

At the close of the Secretary’s case, the Judge suggested to respondent’s president that a motion for a “directed judgment”2 be made. The respondent’s resulting motion was granted by the Judge because the Secretary’s only evidence of soil conditions was excluded, and the Secretary had accordingly failed to establish a “prima facie” case.

On review, the Secretary does not argue that the compliance officer was an expert in soil mechanics. Instead, he maintains that the compliance officer’s testimony was a mere recitation of sensory perception, and alternatively, that even if the proffered testimony contained opinion, it was nevertheless admissible.

We agree with the Secretary. With some minor but arguable exceptions, the compliance officer merely recited what he perceived when he picked up the soil. To him, it was “sticky,” “soft”; it “would gum up” and “wasn’t very dry.” He observed that it contained sand, and had the consistency of clay. Arguably, even though observations were somewhat conclusory, but, the definition of opinion is not so strict as to render them inadmissible. See Allen v. Matson Navigation Co., 255 F.2d 273, 278 (9th Cir. 1958) (floor was “slippery,” held admissible.

In any event, even the opinion of a layman may be admissible in certain circumstances. The true basis for the opinion rule is to exclude evidence that offers no assistance to the finder of fact. 7 Wigmore Sec. 1918 (3d Ed. 1940). McCormick, Evidence Sec. 11 at 25 (2d ed. 1972). See generally, Allen v. Matson Navigation Co., 255 F.2d 278-280 (dictum). The leading authorities have therefore concluded that even opinion is admissible where it will offer assistance in the search for truth. The product of their studies have been succinctly restates in Rule 701 of the Federal Rules of Evidence:

If the witness is not testifying as an expert, his testimony is in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or determination of a fact in issue.

See also, Advisory Committee’s Note to Fed. R. Evid. 701.3 Here it is readily apparent that the compliance officer’s testimony is indeed helpful in the resolution of a material issue and is based on his personal knowledge. Under these circumstances, the compliance officer could have ventured his opinion of both the soil’s textures, and drawn inferences as to its stability. See Fed. R. Evid. 704 and Advisory Committee’s Note.4 We therefore conclude that the Judge erred in excluding the proffered testimony.5

The excluded testimony of the compliance officer clearly establishes that the soil was soft, wet and had the consistency of clay and contained sand and backfill. Chairman Barnako and I find that this evidence is sufficient to establish that the soil was unstable or soft within the meaning of 29 CFR secs. 1926.652(b) and 1926.653(q).6 See Puterbaugh Enterprises, Inc., 9 OSHARC 718. BNA 2 OSHC 1030, CCH1973074 SOHD para 18,158 (No. 1097, July 1, 1974). It is my view that even if the proffered testimony had not established that the soil was soft, it definitely establishes that the trench was not dug in solid rock, hard shale or hard slag. As we noted in Puterbaugh, supra, Table P-2 suggests shoring for all soils except these. Thus, I would find that the evidence of record supports a finding of noncompliance with 29 CFR Sec. 1926.652(c), which was pleaded in the alternative. That provision requires shoring or other means of support in trenches dug in hard or compact soil. Chairman Barnako, however, does not agree that the evidence presently of record shows a failure to comply with section 1926.652(c). In this case, he relies on Old Forge Construction Co. BNA 4 OSHC 1049, CCH 1975-76 OSHD para. 20,545 (No. 3491, March 26, 1976). Because Commissioner Moran would also vacate the section 1926.952(c) matter, we reverse and remand so that respondent may present his evidence bearing on the 1926.952(b) allegations only, and if further evidence is received, for the entry of further findings of fact and conclusions of law. The section 1926.652(c) allegations are vacated.

It should be noted, however, that a remand could have been avoided. When the respondent moved at the close of the Secretary’s case for, in effect, an involuntary dismissal, under Fed. Civ. P. R. 41(b), the Judge immediately granted the motion. The respondent therefore did not present any evidence. This method of disposition should be avoided. In view of the closeness of the evidentiary questions, the preferred practice would have been to reserve a ruling on the Rule 41(b) motion until all the evidence had been presented. The apt comment of the Chief Judge Brown of the Fifth Circuit on this state of affairs is instructive:

From an administrative standpoint, this process of disposition under F.R.Civ.P. 41(b) is patently unsatisfactory. There has been a partial trial, followed by an appeal and reversal. There must now be a second trial, or at least another partial trial,7 and still more appellate consideration may be sought in the future. In this short, uncomplicated case it would have been a simple matter indeed for the District Court to carry the defendant's Rule 41(b) motion with the case, let the defendant put on his evidence, and enter final judgment at the close of the evidence.8 Not much time would have been lost, and if one or both of the parties had sought appellate review, the entire case would have come before this Court at one time rather than in piecemeal fashion.

White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969). Except in unusually short, clear, and uncomplicated cases, (as where the Secretary’s case is clearly inadequate) the Judge should carry the Rule 41(b) motion with the case (or simply deny it, since the effect will be the same), await a renewed motion to dismiss and then enter a final order at the close of all the evidence. Riegel Fiber Corp. Anderson Gin Co., 512 F.2d 784, 793, n. 19 (5th Cir. 1975). And, once a ruling has been reserved, as it should in most of our cases, the Judge must consider the entire record in deciding the case on the merits. A.P. Hopkins v. Studebaker Corp., Onan Div., 496 F. 2d 969, 971 (6th Cir. 1974). See also, Walden Co. V. Schwey, 482 F.2d 550, 552 (5th Cir. 1973).

The case is therefore remanded for further proceedings not inconsistent with this opinion.

This case depends exclusively upon a credibility determination made by the Judge who presided at the trial. The only issue was the stability of the soil in which the trench had been excavated. Complainant offered only one witness-and that witness clearly lacked any qualifications as a soil expert. It was the Judge’s finding that “the Secretary failed to prove that the soil at issue was ‘unstable or soft material” as specified in 29 CFR Sec. 1925.652(b) or was ‘hard or compact’ soils as specified in 29 CFR Sec. 1926.952(c). The Secretary failed to establish a prima facie case under either regulation…”. There is nothing in the record before this Commission which warrants a different conclusion from that reached by the Judge in his decision.7 The reversal of the Judges finding by Messers. Barnako and Cleary I simply another in their series of determinations designed to give the Secretary of Labor a second chance to prove his case whenever he loses before the Judge. Never have these two gentlemen given an employer who has lost before a Judge a similar second chance.

Even if complainant’s offer of proof were accepted as credible testimony, a prima facie case has not been established. In the testimony proffered, the inspector explained that his examination of the soil consisted solely of squeezing one handful. He described his impressions of the soil this derived as “of a clay consistency, of some type” that “would ball up in your hand,” “wouldn’t pour through,” and “wasn’t dry.” He then concluded , with little explanation, that the soil of this description was “soft.”

Such a conclusion is not supported by the witness’ observation. His factual comments support, in fact, a conclusion that the soil was not soft.

As noted by the Judge, assessing the composition of soil by squeezing is a difficult determination. The inspector’s education in soil analysis consisted of attendance at a four hour lecture and by observing slides of soils for 1 ½ to 2 hours during a seminar. To find an opinion founded on such limited background adequate to sustain a violation, particularly in the face of facts indicating a contrary conclusion, strikes me as neither prudent nor fair.

Furthermore, the evidence is also inadequate to establish a violation of 29 C.F.R. Sec. 1926.652(c)8, a standard that pertains to hard or compact soils which respondents charged with violating in the alternative. The standard requires sloping only above the five foot level at a ½ to 1 ratio. The inspector’s measurements of the depth of this trench ranged from 6 feet to 6’6”. This only a 6 to 9 inch widening at the top was necessary to comply with the standard. Although the inspector testified that the sides of the trench appeared to be vertical, there was no indication that a measurement of width of the trench at the five foot level was made. Considering the Small amount of sloping required, an estimate based solely on the naked eye is insufficient to establish a violation. Secretary v. Old Forge Construction Co., Inc. OSAHC Docket No. 3491 [4 BNA OSHC 1049], March 26, 1976.

Detracting still further from complainant’s case is the fact that the upper portion of the trench for a distance of several inches consisted of macadam and paving blocks. Such material is equivalent to rock or cemented lime in which not sloping or shoring is required by two tables appearing in 29 C.F.F. Sec. 1926.652.

It should be noted, in addition, that it appears that Commissioner Clary would find respondent in violation of Sec. 1926.652(c) because respondent did not shore this trench. This position is difficult to comprehend in view of the fact that Sec.1926.652(c) specifies that an employer may elect to slope above the five foot level in hard and compact soil in lieu of shoring. Quite obviously, the specifications for shoring must be met only when shoring is elected as the method of compliance.

1 The respondent did not object to the motion, and the propriety of the Judge’s action in this regard is not before us.

2 We take this to be a motion for an involuntary dismissal under Fed. R.Civ.P. 41(b).

3 Though the instant hearing was held before the Federal Rules of Evidence took effect, we apply the Rule as a subsequent restatement of the best learning and more modern case law. The Rules became effective on July 1, 1975. P.L. 93-595; 88 Stat. 1926.

4 The weight ascribed to this testimony may vary, of course, because a “detailed account carries more conviction than the broad assertion …”Advisory Committee’s Note to Fed. R. Evid, 701.

5 We do not reach the question of whether the compliance officer was qualified as an expert witness. On review, the Secretary no longer pursues this point.

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect employees working within them. See Tables P-1, P-2 … [Emphasis added.]

(q) “Unstable soil” -Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.

Table P-1 states that “clays, silts, loams or non-homogeneous soils require shoring and bracing.”

7 A copy of the Judge’s decision is incorporated herein by reference and attached hereto as Appendix A. [omitted].

Sec. 1929.652(c). slides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench ins more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse but shall not be steeper than a 1-foot rise to each ½ foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 9808
HARRINGTON CONSTRUCTION CORPORATION,
Respondent.