Adrian Construction Company (Commission decision, March 12, 1979)

Plain-English summary

Adrian was cited twice under the same excavation standard at the same job. What it did between the two citations is what made the second one willful.

The first citation. Adrian was installing a sewer line and two prefabricated manholes at a water pollution plant construction site in Newport News, Virginia. The site was inspected on August 6, 1975, and on August 12 the Secretary cited Adrian under 29 C.F.R. § 1926.651(c), which requires that the walls and faces of all excavations in which employees are exposed to danger from moving ground be guarded by a shoring system, sloping of the ground, or some other equivalent means. Adrian did not contest that citation, so it became a final order by operation of law. Compliance Officer James Von Stein testified that he had explained the requirements of the standard to Adrian during that first inspection. Adrian chose how to comply: rather than change the slope or shore the walls, it would use a trench box.

The second. Von Stein reinspected on September 17, 1975, and the trench box was sitting 100 feet from the excavation. An employee was standing on a concrete slab at the bottom, in water, cleaning water and dirt off the slab to prepare for installing manhole 103. At that spot the excavation was eleven and a half feet deep and twenty-three feet wide at the top. Von Stein put the slope of the nearest wall at 75 to 85 degrees; a second compliance officer calculated about

80. Adrian's own field engineer measured three days later and produced a
    cross-section sketch showing walls terraced in places and almost vertical in
    others. There was no shoring. A timber jutted from the east wall and that wall had a crack in it, both visible in the inspection photographs. The citation issued September 22, 1975, and the Secretary proposed a $5,000 penalty.

The soil. Two experts testified for the Secretary. Dr. Roland Dubbe, an
expert in soil analysis, examined samples Von Stein had taken during the first inspection: visually a cohesionless, granular material, a silty sand, and a laboratory sieve analysis confirmed a fine sand. From the photographs he concluded the soil was unstable and that sloughing was what caused the crack. Dr. Owen Thompson, a soils engineer, agreed the soil was silty sand rather than clay, identified it as backfill material, and said the backfill made the excavation more hazardous. He put the necessary sloping angle for sand at 32 to 33 degrees if dense and 28 to 30 if loose, against actual walls at roughly 80, and testified that the weight of the soil would flatten the slope and bring the wall material into the excavation. He also read a ground water problem off the photographs, and the field engineer's own sketch put the bottom of the excavation below the ground water level.

Adrian's witnesses, its project superintendent, project engineer and foreman,
said they saw no cracks, said the timbers were firmly anchored, and said there was no sloughing. The foreman did not think the excavation was hazardous and said that even if there had been a cave-in the employee could have moved in any direction to escape injury.

The judge. Judge David H. Harris found the soil was silty, poorly graded,
very fine sand, found the slope insufficient under Table P-1, and found earth
movement and instability. He wrote that the hazard "must come from soil falling from the steepest part of these walls," and that some faces were "allowed to stand at an angle of appproximately 90 degrees, an angle which, in the fill soil herein described and under the conditions existing in the said excavation, presented a continual danger of moving ground." Adrian had offered no justification for not using the trench box. He found its indifference connoted defiance or a reckless disregard of consequences, held the violation willful, and assessed $1,000 rather than the proposed $5,000, crediting Adrian's reasonably effective safety program and the absence of injuries on the site.

On review. Adrian's exceptions were almost entirely factual, and the
Commission treated them as such. Whether an employer violates § 1926.651(c) is a question of fact, and resolving it "requires assessment of all conditions that exist at the worksite and evaluation of expert testimony about the dangers that may or may not be present." The judge's findings were supported by the record, and the Commission saw no reason to reevaluate the evidence underlying his credibility determinations, since it is the judge "who has lived with the case, heard the witnesses, and observed their demeanor." It also noted that Adrian's arguments on review, though framed as exceptions to conclusions, were essentially the same arguments it had made below, and adopted the judge's conclusions.

Adrian's three attacks on the soil evidence all failed, in a footnote worth
reading for how the Commission handles imperfect sampling. The record did not
establish which part of the excavation the samples came from, but even if they came from somewhere other than manhole 103 the reliance was justified: nothing suggested the soil composition varied across the excavation, and the experts' conclusions drawn from photographs of manhole 103 matched their conclusions from the samples, so the samples were properly treated as representative. The four or five month delay before analysis did not matter, because the only conclusions drawn were about composition and Dubbe's unrebutted testimony was that composition is unaffected by elapsed time. And the claim that the sampling was unscientific failed because Adrian never showed the technique was defective. The same reasoning disposed of the complaint about evidence from manhole 102.

Why it was willful. The governing rule is the employer-friendly one from
C. N. Flagg & Co.: a violation cannot be willful if the employer has a good
faith opinion that the violative conditions conformed to the requirements of the cited standard. The Commission applied it and found there was no room for such an opinion here, and the reasoning is tight. Adrian knew the slope of the walls had not changed since the first inspection. It had therefore selected the trench box as its means of compliance, which means that on its own understanding the excavation could only conform to the standard if the trench box was used. The box was not in use and the employees in the trench were protected by nothing at all. On Adrian's own theory of how it was complying, it knew it was not complying. A violation is willful where the evidence shows the employer ignored an obvious and grave danger or was in careless disregard of the standard's requirements.

The $1,000 penalty was affirmed as reasonable and appropriate, the Commission
noting it was substantially less than section 17(a) allows.

A clerical point the Commission refused to inflate. The judge's conclusions of law found Adrian in violation of § 1926.651(e). Adrian argued that this amounted to a unilateral amendment of the pleadings. The Commission rejected that. The only standard at issue at any time in the proceedings, and the only standard the judge discussed, was § 1926.651(c). The reference was a harmless clerical error, and the Commission corrected the decision itself under Federal Rules of Civil Procedure 60(a) and 61.

On the released text. Several typographical defects appear as released and are reproduced here without repair: "water pollution plant constriction site" for construction; "Adriam" in the very footnote correcting the judge's clerical error; "very hazardus"; "cconnotes"; "appproximately"; "Vor Stein" for Von Stein; "three days after the inspection be took measurements" for he; "1977-78 CCI OSHD"; and "(No, 8684, 1977)" with a comma for the period. The opinion cites section 17(i) of the Act, 29 U.S.C. § 666(i), for the assessment of the penalty;
§ 666(i) is the posting-violation penalty provision and the Commission's
authority to assess penalties and the factors governing it are section 17(j),
29 U.S.C. § 666(j).

Decision snapshot

• Cited standard: 29 C.F.R. § 1926.651(c), excavation walls and faces where
  employees are exposed to danger from moving ground must be guarded by shoring, sloping, or some other equivalent means.
• Outcome: Affirmed. The judge's decision is affirmed in full, the violation
  stands as willful, and the $1,000 penalty is assessed.
• The willfulness holding: an employer that elected a particular means of
  compliance after an earlier citation under the same standard, and then did not use it while conditions were otherwise unchanged, cannot have held a good faith opinion that it conformed. C. N. Flagg & Co. supplies the good faith rule; a violation is willful where the employer ignored an obvious and grave danger or was in careless disregard of the standard's requirements.
• Prior citation: a citation under the same standard issued August 12, 1975
  after an August 6 inspection of the same worksite, uncontested and final by
  operation of law under 29 U.S.C. § 659(a). It is used here to establish
  knowledge and the chosen means of compliance, not to support a repeated
  characterization.
• Standard of review on facts: whether § 1926.651(c) is violated is a question
  of fact requiring assessment of all worksite conditions and evaluation of expert testimony. Credibility determinations are left to the judge who lived with the case. Exceptions that merely repeat arguments made below get the judge's conclusions adopted.
• Soil sampling: samples of unestablished origin within the excavation may be
  treated as representative where no evidence shows composition varied and the experts' photograph-based conclusions match the sample analysis. A four to five month delay before analysis does not undermine conclusions limited to composition. An employer attacking sampling technique must show it was defective.
• Penalty: $1,000, down from $5,000 proposed, based on a reasonably effective
  safety program and the absence of injuries. Affirmed.
• Clerical correction: the judge's conclusions of law cited § 1926.651(e); the
  Commission corrected it to § 1926.651(c) under Fed. R. Civ. P. 60(a) and 61 and rejected the argument that this was a unilateral amendment of the pleadings.
• Below: Judge David H. Harris. Affirmed.
• Directed for review by former Commissioner Moran, with no issues specified.
  The exceptions considered came from Adrian's petition and brief.

Full text (OSHRC public release)

Docket No. 15414

ADRIAN CONSTRUCTION COMPANY

OSHRC Docket No. 15414

Occupational Safety and Health Review Commission

March 12, 1979

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Before: CLEARY, Chairman; BARNAKO AND COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Richard A. DuRose, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: A decision of Administrative Law Judge David H. Harris is before the Commission for review under �
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12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. ("the Act").
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The judge found that the Respondent, Adrian Construction Company ("Adrian"), was in violation of the construction safety standard published at 29 CFR �
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1926.651(c) n1 for failing to adequately shore or slope an excavation. n2 He concluded that the violation was willful and assessed a $1,000 penalty.
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The direction for review issued by former Commissioner Moran failed to specify issues to be considered by the Commission.
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However, in its petition for review and its brief, Adrian has filed several exceptions to the judge's decision.

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n1 �
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1926.651 Specific excavation requirements.

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

n2 In the judge's conclusions of law he found that Adrian "violated the standard at 29 CFR �
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1926.651(e)" [emphasis supplied].
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Adrian contends that the judge's finding constitutes a unilateral amendment of the pleadings.
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We reject that contention.
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The finding was obviously the result of a clerical error.
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The only standard at issue at any time in the proceedings and the only standard discussed by the judge was �
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1926.651(c).
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We find the judge's reference to �
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1926.651(e) to be a harmless clerical error and correct his decision to find that Adriam was in violation of �
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1926.651(c).
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See Fed. R. Civ. P. 60(a) and 61.

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Adrian was engaged in installing a sewer line and two prefabricated manholes at a water pollution plant constriction site in Newport News, Virginia.
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As a result of an inspection conducted by authorized representatives of the Secretary on September 17, 1975, the Respondent was issued a citation on September 22, 1975 alleging noncompliance with 29 C.F.R. �
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1926.651(c).
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The citation states:

Employees at the Jefferson Avenue pumping station were exposed to the hazard of moving ground while working in an excavation that was 23 feet wide by 10 feet deep, the sides of which were not sloped, shored, or guarded by some other equivalent means.

Abatement was ordered, and a penalty of $5,000 was proposed.

On August 6, 1975, the same worksite had been inspected and on August 12, 1975, the Secretary had issued Adrian a citation alleging noncompliance with 29 C.F.R. �
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1926.651(c).
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This earlier citation was not contested and thus it became a final order by operation of law.
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29 U.S.C. �
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659(a).
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According to the testimony of James Von Stein, the compliance officer who conducted both inspections, Adrian was informed [*3]
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of the requirements of �
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1926.651(c) during the first inspection. Adrian chose to abate the earlier violation by using a trench box in the excavation instead of changing the slope or shoring the walls of the excavation. At the time of the later inspection, the trench box was not in use -- it was located 100 feet from the excavation.

Compliance Officer Von Stein testified that at the time of the reinspection he observed an employee standing on a concrete slab at the bottom of the excavation. The employee was cleaning water and dirt from the slab in preparation for installation of one of the manholes, number 103. n3 The excavation was approximately 100 feet long.
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In the location where the employee was working, the excavation was 11-1/2 feet deep and 23 feet wide at the top.
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Von Stein stated that the slope of the wall nearest the employee was between 75 and 85 degrees.
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A second compliance officer who accompanied Von Stein during the inspection testified that according to his calculations the slope of the excavation walls was about 80 degrees.
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Adrian's field engineer on the project testified that three days after the inspection be took measurements of the excavation at manhole [*4]
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103 and made a cross-section field sketch which was introduced into evidence.
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The sketch shows that in some areas of the excavation the walls formed terraces and parts of the walls almost vertical.

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n3 There was conflicting testimony on how long the employee was working in the excavation. However, the parties agree that the employee had been directed to perform work in the trench. Moreover, evidence supports the judge's finding that a second employee had also been working in the trench shortly before the inspectors arrived.

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Von Stein also testified that there was no shoring of the walls, that a section of timber jutted out from the east wall of the excavation, and that there was a crack in that wall.
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Photographs taken by Von Stein during the inspection were entered into evidence.
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They depict both the crack and the timber. Adrian's witnesses -- its project superintendent, project engineer, and foreman -- testified that they did not observe cracks in the walls of the excavation at the time of the inspection. The [*5]
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project engineer and the foreman testified that the timbers were firmly anchored.
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Furthermore, two of Adrian's witnesses testified that there was no sloughing in the excavation. The foreman also testified that he did not believe the excavation was hazardous.
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He indicated that even if there had been a cave-in, the employee could have moved in any direction to escape injury.

According to Von Stein, the employee observed in the excavation was standing in water. Dr. Owen Thompson, a soils engineer who was qualified as an expert in soil mechanics, examined Von Stein's photographs and testified that they indicated the ground water level in the excavation. In his opinion there was a ground water problem in the excavation. In addition, the field engineer's sketch indicates that the bottom of the excavation was below the ground water level.

During the first inspection, Von Stein took soil samples from the wall and the bottom of the excavation. However, he did not further indicate from what part of the excavation he gathered the samples.
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He sent the samples for analysis about 4 or 5 months after they had been gathered. Dr. Roland Dubbe, who was qualified as an expert in soil analysis,
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examined the samples.
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He stated that the classification properties of a sample are not affected by its being several months old.
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He testified that from his visual analysis of the soil he determined that the soil was a cohesionless, granular material, and that it was a silty sand. His laboratory sieve analysis further showed that the sample was a fine material, specifically a sand. He also examined Von Stein's photographs and testified that they corroborate his conclusion that the soil was unstable.
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In addition, he testified that the photographs show movement of the soil because he could see that sloughing was causing the crack.

Dr. Dubbe's testimony was corroborated by Thompson, who was of the opinion that the worksite was very hazardus.
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Thompson examined the photographs and stated that they support a conclusion that the soil was silty sand, and that it was not clay.
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He further concluded from his examination of the photographs that the soil was composed of backfill material.
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According to Thompson, the backfill contributed to the hazardous nature of the excavation. He stated that the necessary angle of sloping for excavation walls composed of sand is 32-33 degrees if the
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sand is dense and 28-30 degrees if the sand is loose.
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It was his opinion that the weight of the soil would cause the slope to flatten and the material of the excavation walls would fall into the excavation.

The judge found the soil was "silty, poorly graded, very fine sand," and concluded that the slope of the excavation walls was insufficient under Table P-1, which describes the approximate angle of repose for sloping of sides of excavations. n4 He also considered the evidence showing that the walls were irregular, steeply sloped in places, and almost vertical in certain places on the east side.
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The judge stated, "It seems to me that the hazards of moving ground to employees working on or around the concrete slab must come from soil falling from the steepest part of these walls." He also found there was evidence of "earth movement and instability." He concluded,

I am satisfied from the foregoing that the Adrian employee shown cleaning the slab for manhole number 103 in [one of Von Stein's photographs] as well as his partner, had been exposed to danger from moving ground.
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As is evident from the exhibits and the testimony, the walls and faces of the excavation herein were not laid [*8]
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back evenly at a constant angle of slope. Instead, some of the faces of the walls were cut back in terrace form and there existed some faces which were allowed to stand at an angle of appproximately 90 degrees, an angle which, in the fill soil herein described and under the conditions existing in the said excavation, presented a continual danger of moving ground.
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No additional sloping was resorted to on the walls of manhole number 103 at the point shown in the cross-section . . ., nor was any other equivalent means taken by Adrian to protect employees who were required to work in that immediate area.

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n4 See 29 C.F.R. �
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1926.652.

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The judge noted that Adrian had not given any justification for its failure to use the trench box. He found that Adrian's indifference to the conditions of the excavation cconnotes defiance of or . . . a reckless disregard of consequences." The judge found the violation to be willful and assessed a penalty of $1,000 based on Adrian's "reasonably effective safety program" and the absence [*9]
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of injuries to employees on the site.

On review, Adrian takes exception to the judge's conclusion that the employees working in manhole 103 were exposed to a danger of moving ground.
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Adrian argues that "there is no basis in the record, in the standard, or in Table P-1 for such a conclusion." It asserts that the judge erroneously relied upon the analysis of soil taken during the first inspection and upon evidence of soil instability at manhole 102.
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Adrian maintains that the excavation was properly sloped. Assuming that a violation exists, Adrian contends that the judge erred in finding it willful and in assessing a $1,000 penalty.

The determination of whether an employer is in violation of �
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1926.651(c) is a question of fact.
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"The resolution of this question requires assessment of all conditions that exist at the worksite and evaluation of expert testimony about the dangers that may or may not be present." Seaward Const. Co., Inc., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD P21,803 (No, 8684, 1977).
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Adrian's exceptions to the judge's factual findings are unmeritorious.
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The judge's findings are supported by the evidence of record.
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Furthermore, we have no reason
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in this case to reevaluate the evidence underlying the judge's credibility determinations.
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It is the judge "who has lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCI OSHD P22,481 (No. 14249, 1978); CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD P21,957 (No. 13008, 1977).
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In addition, although Adrian's contentions on review are in the form of exceptions to the judge's conclusions, they are essentially the same contentions made before the judge.
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Inasmuch as the judge correctly decided the issues before him, we adopt the judge's conclusions. n5 See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n5 We are not convinced by Adrian's argument that the judge erred in considering the experts' testimony regarding the soil samples.
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The evidence did not establish from what part of the excavation the samples were taken.
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However, even if they were taken from a part of the excavation other than manhole 103, the judge's reliance on the testimony about the samples was justified.
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There is no evidence indicating that the composition of the soil varied throughout the excavation. Furthermore, the experts' conclusions regarding the composition of the soil based on their examination of Von Stein's photographs of manhole 103 were consistent with their conclusions drawn from analysis of the soil samples.
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Therefore, it is proper to find that the soil samples were representative of the soil at manhole 103.

Adrian's contention that the samples were unreliable because they were not analyzed until several months after being collected by Vor Stein is also without merit.
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The experts' only conclusions were with respect to the composition of the soil, and Dr. Dubbe testified that the composition of the soil was not affected by the elapsed time before the analysis.
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In addition, his testimony was unrebutted.
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Adrian also argues that the samples were not gathered in a scientific manner.
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However, Adrian has not shown that Von Stein's sampling techniques were defective.

Finally, we are not persuaded by Adrian's contention that the judge erred in relying on evidence of soil instability at manhole 102.
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As stated, the record supports a conclusion that the soil conditions were constant throughout the excavation. Moreover, the judge's conclusion that the soil was unstable is also based on other evidence.

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Adrian also argues on review that the violation was not willful because of its good faith efforts to comply.
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In C.N. Flagg & Co., Inc. d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975), the Commission held that a violation cannot be found to be willful if the employer has a good faith opinion that the violative conditions conformed to the requirements of the cited standard.
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Accord, National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978).
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We conclude that Adrian could not have had a good faith belief that the conditions of the excavation conformed with the requirements of �
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1926.651(c).
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Adrian knew that the slope of the excavation walls was unchanged since the time of the first inspection. Therefore, the excavation could only conform with the requirements of the standard if the trench box was used.
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However, the employees working within the trench were not protected by any means.
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The excavation was clearly unsafe and the conditions of the excavation should have alerted [*12]
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Adrian to the need for protecting its employees.
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A violation is willful if the evidence shows that the employer ignored an obvious and grave danger or was in careless disregard of the standard's requirements.
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See D. Federico Co., Inc., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD P20,422 (No. 4395, 1976); Cedar Const. Co. v. Marshall & OSHRC, No. 77-1538 (D.C. Cir., October 20, 1978); National Steel & Shipbuilding Co., supra. The violation at issue is properly denominated as willful.

Finally, we conclude that the judge's assessment of a $1,000 penalty is reasonable under section 17(i) of the Act, 29 U.S.C. �
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666(i), and appropriate under the circumstances of this case.
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We note that the penalty assessed by the judge is substantially less than that allowed by section 17(a) of the Act, 29 U.S.C. �
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666(a).

Accordingly, it is ORDERED that the judge's decision is affirmed and a $1,000 penalty is assessed.
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