Roberts & Thompson Co.

Plain-English summary

A judge vacated a serious trench citation because OSHA had not proved that the soil was unstable or soft. During Commission review, two photographs that were important to the judge's soil finding could not be located. The Commission held that it could not fairly evaluate the decision without the whole record. It therefore affirmed without reviewing the merits, also noting that the sewer project and any alleged hazard had ended years earlier. The trench citation remained vacated, and the judge's ruling retained the significance of an unreviewed decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b)
• Outcome: Vacation of the serious trench citation affirmed without merits review
• Key point: The Commission will not reconsider a factual ruling when crucial record exhibits are missing and the full record cannot be evaluated fairly.

Full text (OSHRC public release)

Docket No. 3422

ROBERTS & THOMPSON COMPANY

OSHRC Docket No. 3422

Occupational Safety and Health Review Commission

August 23, 1977

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Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr. Reg. Sol., USDOL

Thomas Monaghan, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On March 18, 1974, Administrative Law Judge Vernon Riehl vacated n1 a citation for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. [hereinafter "the Act"] which alleged that respondent, Roberts & Thompson Co., failed to comply with the safety standard published at 29 CFR �
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1926.652(b). n2 The Judge held that the Secretary failed to show by a preponderance of the evidence that respondent's trench was dug in "unstable or soft" soil and, accordingly, did not establish a failure to comply with �
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1926.652(b).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Judge also affirmed a citation for nonserious violation of section 5(a)(2) of the Act for failure to comply with the standard at �
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1926.152(d)(4).
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Neither party has excepted to that portion of the Judge's decision.
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It is not before us on review.

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1926.652 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.
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See Tables P-1, P-2 (following paragraph (g) of this section).

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary timely filed a petition for discretionary review taking exception to the Judge's holding.
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Pursuant to section 12(j) of the Act, the Secretary's petition was granted.

While the case was pending review, some exhibits introduced by the parties were misplaced.
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Although copies of most of the exhibits have now been obtained through the assistance of the parties, two crucial exhibits remain missing. The missing exhibits are two photographs of the trench (respondent's exhibits 1 and 2).
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These were material to the Judge's conclusion that the soil in question was neither soft nor unstable.

Respondent objects to the Commission's consideration of the case with only the Secretary's exhibits, and urges the Commission to decide the case without regard to any exhibits.

We agree with respondent to the extent that the Judge's decision cannot be fairly and fully evaluated without benefit of respondent's exhibits.
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A decision must be based upon consideration of the whole record.
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S.D. Warren Co. v. N.L.R.B., 342 F.2d 814, 816 (1st Cir. 1965), proceedings after intermediate order, 353 F.2d 494 [*3]
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(1st Cir. 1965), cert.denied 383 U.S. 958 (1966); 5 U.S.C. �
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556(d).
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Therefore, the Judge's decision will be affirmed without review on the merits.

The citation was issued on May 30, 1973, well over four years ago.
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At the time, respondent was installing a sanitary sewer.
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This project has undoubtedly long been completed.
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Therefore, assuming for the sake of argument that the Judge erred and respondent was in violation as alleged, the hazard would have long ceased to exist.

The Judge's decision is accorded the significance of an unreviewed decision.
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Cf. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHC para. 20,387 (No. 4090, 1976).

Accordingly, it is ORDERED that the Judge's decision is affirmed.
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