Allen Howe & Son, Inc.

Plain-English summary

Two Allen Howe & Son employees worked in a roughly seven-foot-deep sewer trench whose Type B soil walls were steeper than the permitted 45-degree slope. OSHA cited the default sloping option, but the judge found that both parties tried the case under the Type B soil requirements and amended the citation to that provision. The repeat violation was affirmed because the trench walls did not meet the required slope and the foreman knew employees were inside. The judge found the collapse probability low because the upper portion had been cut back and credited the company's good-faith attitude. The proposed $2,000 penalty was reduced to $1,250.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.652(b)(2)
• Outcome: Repeat trench-protection violation affirmed under the amended Type B soil provision; $1,250 assessed.
• Key point: A partially sloped trench still violates the excavation standard when the full wall remains steeper than the slope permitted for the classified soil.

Full text (OSHRC public release)

                                                  United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                     1244 North Speer Boulevard, Room 250
                                         Denver, Colorado 80204-3582

SECRETARY OF LABOR,
Comp lainant,

                         v.                                  OSHRC DOCKET NO. 01-1077

ALLEN HOWE & SON, INC.,
Respon dent.

APPEARANCES:

   For the Co mplainant:
            Helen J. S chuitmaker , Esq., Office o f the Solicitor, U .S. Depa rtment of Lab or, Chicag o, Illinois

   For the Re sponde nt:
            Allen Ho we, pro se, Allen Ho we & So n, Inc., Wa terloo W isconsin

Before: Administrative Law Judge: Benjamin R. Loye

                                          DECISION AND ORDER

   This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Allen Howe & Son (Howe), at all times relevant to this action maintained a place
of business on Robert Street, Fort Atkinson, Wisconsin, where it was engaged in construction of a
sewer main. Because construction is an activity which as a whole affects interstate commerce, see,
Clarence M. Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No.
77-3676, 1983), Respondent is an employer engaged in a business affecting commerce and is subject to
the requirements of the Act.
On May 10, 2001 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Howe’s Robert Street worksite. As a result of that inspection, Howe was issued a citation
alleging a repeat violation of §1926.652 of the Act together with a proposed penalty. By filing a timely
notice of contest Howe brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On October 2, 2001, an E-Z hearing was held in Madison, Wisconsin. No briefs are required in
E-Z proceedings, and this matter is ready for disposition.
 Alleged Violations
Repeat citation 1, item 1 alleges:
Allen Howe & Son Inc., was previously cited for a violation of this Occupational Safety and Health
Standard 29 CFR 1926.651 (a)(1) which was contained in OSHA Inspection Number 300568631,
Citation Number 01, Item Number 02, Issued on 08/03/99.1

29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an
adequate protective system designed in accordance with 29 CFR 1926.652(c). The employer had not
complied with the provisions of 29 CFR 1926.652(a)(1)(i) in that the excavation was sloped at an angle
steeper that (sic) one and one-half horizontal to one vertical (34 degrees measured from the horizontal):

    Employees working in an excavation that was approximately 7 feet in depth did not
    have adequate protection from cave-ins.

Facts
On May 10, 2001, OSHA Compliance Officer (CO) Chad Greenwood observed two Howe
employees in a trench at Howe’s Robert Street work site (Tr. 6-7, 13; Exh. C-1). CO Greenwood
testified that Howe’s foreman, Jerry Nelson, was operating a backhoe in the trench and was aware that
men were working in the trench (Tr. 19).
Greenwood calculated the depth of the trench at about seven feet (Tr. 17). He measured the
walls of the trench with an engineering rod and an angle indicator and found that the trench was
approximately 9.1 feet across; the bottom portion of the east bank was sloped to approximately 76°,
while the top four and a half feet of the east bank was sloped to about 46°; the bottom of the west bank
was sloped to 74°; the top portion of the west bank was sloped to 52° (Tr. 8-15; Exh. C-2 through C-7).
CO Greenwood noted that the trench was dug in previously disturbed soil (Tr. 15). He examined the
soil in the trench visually and manually, and determined that the trench was dug in Type B soil (Tr. 16).
Greenwood testified that Type B soil should be sloped on a ratio of 1:1, or to an angle of repose of 45°
(Tr. 17).
Jerry Nelson testified that he had dug miles of trench with backhoes in the last ten years, and
had never had a trench cave in (Tr. 33-34). Nelson stated that on May 10, 2001, he could feel the pull
of the backhoe against the soil; based on his experience he believed that the trench was adequately
sloped (Tr. 33). Nelson further testified that the weather was dry, and that he did not believe that there

        1
           The citation issu ed May 22, 2001 refers to an A ugust 3, 1999 citation issued under §1 926.651(a)(1). It

is clear from Complainant’s Exhibit C-9, however, that Howe was actually cited for violation of §1926.652(a)(1)
in 199 9.

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was any danger of a cave-in (Tr. 31). Nelson admitted that it would have been possible to slope the
west bank of the trench back further, though he did not feel it was necessary (Tr. 36).
Howe introduced an August 1, 2001 report from Construction Geotechnical Consultants
(CGC) (Tr. 39; Exh. R-1). According to the report, a July 20, 2001 analysis of the soil at the Robert
Street trench near the area of the May 10, 2001 inspection yielded the same results reached by CO
Greenwood. CGC found that the soil in the area was “fine to coarse sand with some silt and scattered
cobbles for the full excavation depth of 7.5 ft. . ..” (Exh. R-1). CGC’s report stated that these soils “are
routinely classified as Type B soils per OSHA standards 29 CFR 1926.652 Subpart P, Appendix A. . ..”
(Exh. R-1).
Discussion
The cited standard provides:
(a) Protection of employees in excavations. (1) Each employee in an excavation shall be
protected from cave-ins by an adequate protective system designed in accordance with
paragraph (b) or (c) of this section. . ..
***
(b) Design of sloping and benching systems. The slopes and configurations of sloping
and benching systems shall be selected and constructed by the employer or his designee
and shall be in accordance with the requirements of paragraph (b)(1); or, in the
alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3); or, in the
alternative, paragraph (b)(4); as follows:
(1) Option (1)–Allowable configurations and slopes. (i) Excavations shall be sloped at
an angle not steeper than one and one-half horizontal to one vertical (34 degrees
measured from the horizontal), unless the employer uses one of the other options listed
below.
(2) Option (2)–Determination of slopes and configurations using Appendices A and B.
Maximum allowable slopes, and allowable configurations for sloping and benching
systems, shall be determined in accordance with the conditions and requirements set
forth in appendices A and B to this subpart.

   In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a

preponderance of the evidence that: (1) the cited standard applies; (2) there was a failure to comply
with the cited standard; (3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable diligence. See, e.g.,
Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-
1359, 1991).
Applicability. Howe was cited under the default option (1) at subparagraph (b)(1). Under
option (1), the employer must treat all unclassified excavations as if they were dug in Type C soils.

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Where sloping rather than shoring is chosen, the banks of the excavation must be cut back to a 34°
angle, or to a ratio of 1-1/2:1.
The Secretary did not set forth the reasons for citing Howe under the default provisions of
subparagraph (b)(1). CO Greenwood did not disclose whether Jerry Nelson was a competent person,2
whether Nelson took into account appendices A and B,3 performing the visual and manual
examinations required thereunder to classify the soil, or whether Nelson determined allowable slopes
based on his classification. In other words the Secretary failed to establish that subparagraph (b)(1)
had become the applicable standard by default.
Admittedly, Howe introduced no evidence suggesting that it did classify the soil and determine
allowable slopes prior to beginning work at the Robert Street work site. However, this matter comes
up as an E-Z proceeding; the employer was not represented by an attorney, and Allen Howe’s
questioning did not reflect any understanding of the subtleties of §1926.652(b). What is clear is that, in
this case, both Howe and the OSHA CO understood the cited trench was cut in Type B soil, and should
have been cut back to a 45 degree slope, or 1:1 ratio, as required under subparagraph (b)(2), Option 2.
Pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, made applicable to Commission
proceedings by 29 CFR §2200.2(b), post-trial amendment of the pleadings is proper “[w]hen issues not
raised by the pleadings are tried by the express or implied consent of the parties.” Peavey Co.,16 BNA
OSHC 2022, 1994 CCH OSHD ¶30,572 (No. 89-2836, 1994). Consent may be implied from the
parties introduction of evidence relevant only to the unpleaded issue. McWilliams Forge Company,
Inc., 11 BNA OSHC 2128, 1984 CCH OSHD ¶26,979 (No. 80-5868, 1984). Because both parties
introduced evidence tending to show that the cited trench should have been cut back according to the
guidelines set forth in appendices A and B, as allowed under §1926.652(b)(2), this judge finds that
§1926.652(b)(2) is the applicable standard. The citation is amended to conform to the evidence.
Violation. The evidence establishes that Howe was in violation of subsection (b)(2), in that the
cited trench walls were not cut back to a 45° angle from the lip to the toe of the trench. The undisputed
testimony of CO Green establishes that the east trench wall’s angle of repose varied between 46° and

        2
           Section 1926 .650(b) defines Competent person as “one cap able of iden tifying existing and p redictable

hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and
who has au thorization to take prom pt correctiv e measure s to eliminate the m.”

        3
            Appendix A states that the employer must base its classification on at least one visual and one manual

analysis, including roll tests, thumb penetration tests, and/or penetrometer tests, conducted by a competent person.

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76° while the west bank ranged from 52° to 74°. Only the top portion of the east bank conformed to
the requirements of the standard. Neither bank conformed to the requirements of the standard in their
entirety. The Secretary has established the violation.
Exposure/Knowledge. Howe does not dispute the CO’s testimony establishing that its
employees were exposed to the cited hazard with the knowledge of its supervisory personnel.
Penalty
A penalty of $2,000 was proposed for this item.
Greenwood testified that he observed two Howe employees working in the cited trench for
approximately 15-20 minutes. Greenwood testified that the employees were in danger of being
engulfed by collapsing soils (Tr. 16-17). Collapsing soils exert extreme pressure on the body and can
cause asphyxiation (Tr. 19). Greenwood believed, however, that the trench was unlikely to collapse,
and stated that the probability of an accident actually occurring was low (Tr. 22). Howe maintains that
though the cited trench may not have been 100% in compliance with OSHA regulations, it was in no
danger of collapse (Tr. 46).
The violation was classified as a repeat violation, because Howe had been cited for violation of
the same standard in 1999 (Tr. 20, 22; Exh. C-9). Howe admits that it was previously cited for
violation of §1926.652 (Tr. 46). CO Greenwood testified that, because the violation was classified as
repeated, the gravity based penalty was doubled. A 60% deduction was taken based on Howe’s size.
However no credit was given for good faith or for history in calculating the penalty, because the
violation was repeated (Tr. 20-22).
The violation was properly cited as repeated. The gravity of the violation was properly
calculated as low. Because the top half of the trench was cut back, there was little probability of an
accident occurring. Though the protective measures taken by Howe did not comply with the
requirements of the cited standard, they did provide some protection for employees in the trench.
This judge believes that Respondent’s second violation of the cited standard does not, in itself,
demonstrate bad faith. Allen Howe’s testimony at the hearing convinces this judge that Howe supports
OSHA’s mission, and attempts to provide safe working conditions for its employees. Howe now
understands the need to conscientiously comply with the exact requirements of the excavation
standards. This judge also believes that the Secretary’s doubling of the gravity based penalty provides
sufficient deterrent effect from future violations, and that denying Howe credit for good faith is
unwarranted.

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An additional 15% credit for good faith shall be deducted from the gravity based penalty, which
this judge calculates to have been $5,000. A final penalty of $1250.00 is deemed appropriate.

                                          ORDER

1. Citation 1, item 1, alleging violation of §1926.652(b)(2) is AFFIRMED, and a penalty of
   $1,250.00 is ASSESSED.

                                                        /s/
                                                 Benjamin R. Loye
                                                 Judge, OSHRC
   

Dated: November 26, 2001

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