D. Federico Co., Inc. v. Occupational Safety and Health Review Com'n
| Decision Date | 16 June 1977 |
| Docket Number | No. 76-1084,76-1084 |
| Citation | 558 F.2d 614 |
| Parties | 5 O.S.H. Cas.(BNA) 1528, 1977-1978 O.S.H.D. ( 21,904 D. FEDERICO CO., INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — First Circuit |
Alvin Jack Sims and Sims, Driscoll, Cahalane & Levine, P. C., Brockton, Mass., on brief, for petitioner.
Marc R. Hillson, Atty., U. S. Dept. of Labor, Washington, D. C., with whom William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, Washington, D. C., were on brief, for the Secretary of Labor, respondent.
Before COFFIN, Chief Judge, CLARK, Associate Justice, U. S. Supreme Ct. (Ret.), * CAMPBELL, Circuit Judge.
This is a petition to review an order of the Occupational Safety and Health Review Commission (OSHRC), which found Petitioner D. Federico Co., Inc. (Federico) to be in violation of two regulations promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. 1 The OSHRC found a serious violation of 29 C.F.R. § 1926.652(b), 2 for which Federico was fined $4,500, and a non-serious violation of 29 C.F.R. § 1926.651(i)(1), 3 for which the fine was $80.
Federico is a Massachusetts corporation engaged in construction. On August 8, 1973, OSHA compliance safety and health officer Dino Gigante inspected a Boston worksite, where four Federico employees were cleaning out an area under a pipe. One of these employees was working in an earth cavity 21 feet long, 13 feet wide and of varying depths, but 6.5 feet at the point where the employee was situated.
The vertical walls of the cavity were not sloped, shored, sheeted or braced, and the employee was working some three feet from a large overhang. This overhang created a concavity in the wall. Spoils were piled from 8 to 10 inches from the back wall, and the compliance officer noted that the soil was "soft and unstable," falling in small clumps and balls.
When Gigante told Federico's site superintendent about these conditions, the latter became upset, stating that he was being harassed, that it was the fourth time Federico's projects had been inspected in the Boston area, and that "they were never going to get any work done as long as (OSHA) kept bothering them." 4 He then abruptly ended the discussion, remarking that he "had a lot of work to do." Federico was cited for two violations: (1) a serious violation relating to the failure to shore or brace the sides of the cavity and (2) a non-serious violation for piling the excavated material too close to the edge of the cavity.
When the citations came before an administrative law judge on January 3, 1974, they were heard on the theory that the earth cavity was a "trench," defined by 29 C.F.R. § 1926.653(n) as However, the judge's decision issued on April 11 vacated the serious citations, primarily on the ground that the cavity involved was an "excavation," 5 not a "trench," and the non-serious violation was vacated because the "spoils from the excavation . . . presented no additional hazard" to the lone employee in the cavity during the inspection. 6
The OSHRC reversed the administrative law judge, finding that the parties had agreed the cavity was a trench, thus disposing of the factual issue, but that the evidence clearly reflected a willful violation of the excavation standard as well, and that Federico was not prejudiced in any manner. Further, the non-serious violation under 29 C.F.R. § 1926.651(i)(1) did not require that an employee be subject to the hazard, but only that he be required to enter the trench. Fines of $4,500 for the serious violation and $80 for the non-serious violations were assessed, and Federico filed this petition for review, challenging the sufficiency of the evidence supporting the violations.
We have carefully reviewed the record, as we must, and find no merit in Federico's claims. Therefore, the decision of the Commission is affirmed.
The record clearly reflects that the cavity in question could be either a "trench" or an "excavation." The cavity was 21 feet long, 13 feet wide and of varying depths. The definition of a trench has but one limitation it cannot be more than 15 feet wide. And although the language states that a trench is generally deeper than it is wide, the term "generally" does not foreclose the possibility of a trench being wider than it is deep.
However, the mere fact that the cavity herein is a "trench" is not dispositive of the question. As set out in Note 2, supra, the violation occurs only if sides of trenches in "unstable or soft" soil are unsupported, and Federico challenges the sufficiency of the evidence in this regard. The record reflects that Gigante saw the soil moving spontaneously, that it was "the same material all the way through" and that it was "all loose and running." The area director saw the soil, concluding that it was sandy and very unstable. The Secretary's expert witness, with nearly 40 years' experience in such matters, testified that the sample he examined an hour after it was taken from the trench was found to be soil of a "sandy loose type," adding that the same conclusion could be drawn from photographs of the trench. Federico's evidence was limited to one expert who testified that he could form no opinion from the photographs nor could he make any determination from an examination of the sample unless he was certain the sample was representative. In light of the evidence presented, we believe that the finding of unstable soil is adequately supported and should not be overturned. Olin Construction Co. v. OSHRC and Brennan, 525 F.2d 464 (2d Cir. 1975).
We need not discuss at any length the allegation that the non-serious violation for stacking spoils within two feet of the excavation is unsupported by the evidence. Federico does not seriously dispute this finding, nor could he in view of the facts. There is no question but what the spoils were stacked some 8 -10 from the edge of the trench. This, in and of itself, constitutes a violation of the standard.
While we affirm the findings of the OSHRC, this case is representative of unnecessary appellate litigation created by less-than-adequate handling of the initial steps in OSHRC compliance proceedings. This appeal might never have been brought if,...
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