Floyd S. Pike Elec. Contractor, Inc. v. Occupational Safety and Health Review Com'n, 77-1659

Citation576 F.2d 72
Decision Date10 July 1978
Docket NumberNo. 77-1659,77-1659
Parties6 O.S.H. Cas.(BNA) 1781, 1978 O.S.H.D. (CCH) P 22,855 FLOYD S. PIKE ELECTRICAL CONTRACTOR, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and United States Department of Labor, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William H. McElwee, III, North Wilkesboro, N. C., for petitioner.

Karen E. S. Bray, Atty., Dept. of Labor, Carin Ann Clauss, Sol. of Labor, Benjamin W. Mintz, Assoc. Sol., U. S. Dept. of Labor, Ray H. Darling, Jr., Executive Secy., OSHRC, Washington, D. C., Michael H. Levin, App. Sect. Litigation, Allen H. Feldman, Asst. Counsel, Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, GODBOLD and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

Petitioner Floyd S. Pike Electrical Contractor, Inc. (Pike) seeks review of a decision of the Occupational Safety and Health Review Commission (Commission) reversing the decision of the administrative law judge and holding that Pike had violated § 5(a)(2) of the Occupational Safety and Health Act (OSHA) of 1970, 29 U.S.C. § 654(a)(2), by failing to comply with an OSHA standard governing the shoring of trenches.

Petitioner is a large electrical contracting company. During the latter part of 1974 and the first part of 1975, Pike was involved in a construction project in Augusta, Georgia which required it to open a trench in soft ground. The trench was from ten to twelve feet deep.

On January 20, 1975, an unshored portion of the trench caved in, killing Frank Riddle Sr., working foreman of the five-man crew then engaged in shoring the trench. Frank Riddle Jr., also in the unshored portion of the trench at the time of the cave-in, escaped injury. So far as the record reflects, none of the other workmen was standing in the unshored portion of the ditch at the time of the accident.

The Commission held that Pike's failure to prevent employees from working in an unshored portion of the trench violated 29 C.F.R. § 1926.652(b) which provides:

Specific Trenching Requirements

(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 the employees working within them.

A penalty of $800 was assessed. Pike contends that the Commission's decision places an employer in a "Catch-22" situation of having to violate the regulation in order to comply with it. Pike also argues that the decision impermissibly penalizes the company for the unpreventable misconduct of its employees. Evaluation of these contentions requires careful analysis of the record, a task to which we now turn.

I.

The Commission described the shoring operation at the Augusta site as follows:

The shoring procedure that respondent (Pike) maintains was to be followed by its employees was for a boom truck to lower four-foot by eight-foot sections of three-quarter inch plywood into the trench where they would be set into place by two employees who were in the trench. After nailing two-by-fours across the middle of the plywood, the employees were to lean out into the unshored area while remaining in a shored area and hold the plywood in place on the opposing walls of the trench until a jack was placed between the plywood sections.

Thus, the company's own evidence, accepted by the Commission, showed that there was a method of installing shoring which did not require workers to stand in the unshored portion of the trench. 1 At the moment of the cave-in, however, employees Riddle Sr. and Riddle Jr. were standing some two feet beyond the shored area and were leaning against the newly placed plywood sections to keep them from falling before a jack was received and installed.

Frank Riddle Jr. testified for the Secretary. He stated that he had never been instructed in the proper method of shoring nor warned about the hazards of standing in the unshored portion of the trench. He further testified that he had no prior experience installing shoring and divided his time at the site between working in the trench and driving a truck. His father, the working foreman in the trench, also had no prior experience installing shoring. Mr. Riddle also testified that the project foreman, Mr. Riggs, did not inspect the shoring operation while Riddle was present.

Mike Blackmon, area supervisor for Pike, testified that he visited the Augusta site three days of every five. On one visit in mid-November, two or three weeks prior to beginning excavation of the trench, Mike Blackmon met with Riggs and Riddle Sr. to discuss the best method of shoring the trench. After rejecting an alternative method, the three men decided to proceed section-by-section as described above. Blackmon testified that on subsequent visits he observed Riddle Sr. engaged in shoring the trench. On one such occasion, Blackmon saw Riddle Sr. working in the unshored portion of the ditch. He called Riddle Sr. out of the trench and privately reiterated that no one was to go into the unshored area. No disciplinary sanctions apart from this mild reprimand were imposed. Blackmon stated that he knew of no occasion subsequent to this when Riddle had entered the unshored portion of the trench. Blackmon did not inform the other members of the crew that Riddle Sr. had been reprimanded for a violation of company safety rules. Nor, so far as the record reflects, did he instruct them not to go into the unshored portion of the trench. Although he was present at the Augusta site three of five days a week, his time there was divided between supervising the shoring operation and supervising a manhole excavation.

Zack Blackmon, vice-president of the company, stated that he visited the Augusta site once a month. On January 15th, he visited the site and spoke briefly to Riddle Sr. He was "pleased with Mr. Riddle's knowledge of what he was doing" and, on the basis of prior experience, considered him to be "a safe and good working foreman." Vice-President Blackmon testified that he began his conversation with Riddle Sr. by asking the foreman to describe the shoring procedure used by Riddle's crew. Riddle answered that the men leaned forward from the shored portion of the trench while installing the jacks. Blackmon reiterated that at no time was Riddle to enter the unshored portion of the trench. Zack Blackmon had no knowledge of any occasion on which Riddle or members of his crew ventured into the unshored area.

The final witness before the administrative law judge was Ralph Jordan, another member of the trench shoring crew. Jordan testified that he knew the correct method of shoring, but there was no evidence that he had been trained in this method. He stated that he, Riddle Sr., and Riddle Jr. had all stepped into the unshored portion of the trench on an unspecified number of occasions prior to the January 20th accident. There is no evidence that disciplinary action was taken against Jordan or Riddle Jr. for this behavior.

It was stipulated that every Pike employee, including Riddle Sr., received a copy of the company's safety manual. Every employee was instructed to familiarize himself with the manual and to observe all safety rules. Foremen were charged with the responsibility of insuring that all safety rules were followed and were to correct any employee violating the rules. Specific sanctions for violation of each safety rule were set forth at the end of the manual. 2

Foremen were to be disciplined for failure to see to it that all safety rules were observed by workmen under their supervision.

II. The Applicability of the OSHA Standard

Throughout this litigation, Pike has contested the applicability of 29 C.F.R. § 1926.652(b) to the operation of installing shoring in a trench. The regulation requires that the sides of trenches be "shored . . . or otherwise supported by means of sufficient strength to protect the employees working within them." Pike contends that the Commission's interpretation of the regulation puts an employer in an impossible situation: he must violate the regulation in order to comply with it. Additionally, Pike points out that the regulation requires shoring, but does not specify any particular method of installing it.

The Commission rejected Pike's argument by a vote of 2-1, Commissioner Moran dissenting. 3 The Commission accepted the Secretary's interpretation of the standard:

By its plain terms, the standard applies when employees are working in trenches of unstable or soft material. There is no express limitation as to the type of work being performed which may be extending the shoring itself, and none is implied.

We agree. In the first instance, we note that the Secretary's interpretation of an OSHA regulation is entitled to great deference. "We have held that the promulgator's interpretation is controlling as long as it is one of several reasonable interpretations, although it may not appear as...

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