Bancker Const. Corp. v. Reich, 1547
| Decision Date | 20 May 1994 |
| Docket Number | D,No. 1547,1547 |
| Citation | 31 F.3d 32 |
| Parties | 16 O.S.H. Cas. (BNA) 1761, 1994 O.S.H.D. (CCH) P 30,430 BANCKER CONSTRUCTION CORP., Petitioner, v. Robert REICH, Secretary of Labor, Occupational Safety and Health Review Commission, United States Department of Labor, Respondents. ocket 93-4268. |
| Court | U.S. Court of Appeals — Second Circuit |
James M. McGahan, Great Neck, NY (Martin, Van De Walle, Guarino & Donohue, of counsel), for petitioner.
Jennifer U. Toth, Attorney, U.S. Dept. of Labor, Washington, DC (Thomas S. Williamson, Jr., Sol. of Labor, Joseph M. Woodward, Associate Sol. for Occupational Safety and Health, and Ann Rosenthal, Counsel for Appellate Litigation, U.S. Dept. of Labor, of counsel), for respondent.
Before: MESKILL, MINER and MAHONEY, Circuit Judges.
Petitioner Bancker Construction Corporation petitions for review of an October 18, 1993 final order of the Occupational Safety and Health Review Commission ("Commission") affirming a citation against Bancker for failing properly to protect employees from cave-ins during installation of a trench support system, in serious violation of 29 C.F.R. Sec. 1926.652(e)(1)(ii), and imposing a $1000 penalty.
Bancker was engaged by New York Telephone to install an underground utility vault in Bethpage, New York. The vault was to be installed in a trench 11 feet wide, 32 feet long and 14 feet deep. Excavation began in August of 1991.
In order to protect workers during the construction of trenches, 29 C.F.R. Sec. 1929.652, promulgated by the Occupational Safety and Health Administration ("OSHA"), requires that employees working in trenches be protected by an adequate protection system such as a "sloping" or "benching" system, unless the excavation is made "entirely of stable rock" or is "less than 5 feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in." Pursuant to 29 C.F.R. Sec. 1962.652(e)(1)(ii), "Support systems shall be installed and removed in a manner that protects employees from cave-ins, structural collapses, or from being struck by members of the support system."
Bancker stipulated that the trench in this case was excavated in Type C, or granular, soil. Bancker planned to utilize a shoring system to protect workers in the trench from cave-ins. In constructing the shoring system, Bancker planned to excavate a "pilot" cut or trench approximately 36 feet long, 18 feet wide and not more than five feet deep. The shoring system, consisting of a steel framework and wood sheeting, then was to be assembled in the pilot cut.
On August 5, 1991, after the pilot cut was made and while Bancker employees were installing the steel framework in the unprotected trench, an OSHA compliance officer arrived at the worksite to inspect the trench. The compliance officer took several photographs and measured the trench with a "trench stick" at seven different locations. These measurements indicated that the trench was more than five feet deep. On October 29, 1991, at a closing conference, the compliance officer notified Bancker that OSHA intended to issue a citation because Bancker had allowed workers to enter the unprotected trench. The citation was issued on November 25, 1991, after the vault had been sealed in the trench.
After a hearing, an Administrative Law Judge ("ALJ") for the Commission issued a decision on August 19, 1993 affirming the citation and assessing a $1000 penalty against Bancker. Bancker timely filed for discretionary review of the ALJ's decision with the Commission. By notice of final order, the Commission denied review. Bancker petitions this Court for review of the Commission's final order.
In reviewing a decision of the Commission, this Court must uphold findings of fact if they are supported by substantial evidence in the record. 29 U.S.C. Sec. 660(a); Olin Constr. Co. v. Occupational Safety & Health Rev. Comm'n, 525 F.2d 464, 466-67 (2d Cir.1975). The Commission's orders may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A).
Bancker argues that there was insufficient evidence in the record for the ALJ to conclude that it had violated section 1926.652(e). Bancker contends that the Secretary of Labor was required to show that the sides of the trenches were subject to collapse or cave-ins or were otherwise unstable, and failed to do so. However, the cases cited by Bancker for the proposition that soil instability is an element of the violation all were decided under a former version of the OSHA trenching standards. See, e.g., CTM, Inc. v. Occupational Safety & Health Rev. Comm'n, 572 F.2d 262, 263 (10th Cir.1978). The former regulation required that "[s]ides of trenches in unstable or soft material, 5 feet or more in depth, ... be shored, sheeted, braced, sloped, or otherwise supported" to protect against cave-ins. 29 C.F.R. Sec. 1926.652(b) (1988) (emphasis added). This rule was interpreted as requiring proof that the soil was soft or likely to collapse. C...
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