General Motors Corporation, Rochester Products Division

Plain-English summary

GM employees dug and shored a deep trench inside a manufacturing building to install an oil-collection trough. A worker was injured when an unshored wall collapsed as he used an unshored leg of the trench to leave the work area. The Commission affirmed a serious trenching violation because GM left a slope and ladder that made employee travel through the unprotected leg reasonably predictable, even though workers could enter unfinished areas when necessary to install shoring. It assessed $50 for that item. The two members divided over an employee-instruction item and an additional-shoring item, so they left the judge’s $50 affirmance of the training item and vacation of the additional-shoring item in place without precedential value. The resulting disposition affirmed two items for a total of $100 and vacated one item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.652(c); 29 C.F.R. § 1926.652(e)
• Outcome: Serious unshored-trench and training items affirmed for $50 each; additional-precautions item vacated.
• Key point: Employees installing shoring may need to enter an unfinished trench, but foreseeable travel through a separate unshored area creates unnecessary exposure and violates the trenching standard.

Full text (OSHRC public release)

Docket No. 80-5439

SECRETARY OF LABOR,

Complainant,

v.

GENERAL MOTORS CORPORATION,

ROCHESTER PRODUCTS DIVISION,

Respondent.

UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, LOCAL 1097,

Authorized Employee

Representative.

OSHRC Docket No. 80-5439

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA").  It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

A citation issued by OSHA alleged that General Motors Corporation
("GM") violated an employee instruction standard and two trenching standards.
 At issue is whether Administrative Law Judge Foster Furcolo erred in vacating the
two trenching items and affirming the employee instruction item.  For the reasons set
forth below, we conclude that GM violated one of the trenching standards, but we are
divided as to whether the other alleged violations were proven.[[1]]

Item 2:  Unshored Trench

Item 2 of the citation alleged that GM violated 29 C.F.R. � 1926.652(c) by failing to
slope or shore the sides of a trench dug in "hard or compact soil."[[2]]
 At the time of the alleged violation, a crew of second-shift employees was preparing
for the installation of a trough to collect oil from machinery in a large manufacturing
building.  Using the company's construction equipment, employees had broken through
part of the concrete floor and dug an L-shaped trench.  The leg of the trench running
from north to south was about 20 feet long, 7 feet wide, and 10 to 12 feet deep, with a
pipe and adjacent ladder at its north end. The leg of the trench running from east to west
was 38 feet long, 7 feet wide, and 8 to 10 feet deep.  At the western end of the
east-west leg, the soil sloped from the bottom of the trench to the floor level, and a
ladder was located along the slope.

GM planned to shore the trench before installing the trough.  Long steel rods called
"channels" were lowered with ropes into the trench and placed against the walls
every two feet.  After the channels were pounded into the bottom of the trench by the
bucket of the backhoe, employees at the top edge of the trench slid plywood sheets down
behind the channels.  Employees in the trench then nailed the sheets together.
 Millwrights at the top edge then tied back the channels and fastened them to the
concrete floor with brackets.

On the evening at issue, employees were shoring the north-south leg, and both
walls of the north end of that leg had been shored. The east-west leg was still completely
unshored.  Jesse DeVittorio and Al LoMonaco, two of GM's carpenter-masons, were in
the trench nailing the plywood sheets together.  LoMonaco told DeVittorio that it was
time for a coffee break, and they proceeded to leave the trench by the same route that
they had entered it-the slope at the far end of the east-west leg--so as not to bother a
pipe fitter and a welder who were working next to the ladder in the shored north end of
the north-south leg.  DeVittorio followed LoMonaco around the corner to the east-west
leg.  By the time LoMonaco had climbed up the slope, the unshored north wall of the
east-west leg near the corner had collapsed on DeVittorio.

Following the accident, the worksite was inspected by an OSHA compliance
officer.  The compliance officer did not take any soil samples or perform any test to
analyze the soil.  However, he and other witnesses for the Secretary testified that
the material in which the trench had been dug was backfill composed of sand, gravel, and
loose rocks.  They testified that the backfill was more firm in some walls than in
others.  Richard Carpenter, GM's superintendent of plant engineering, testified that
the soil was "backfill material" that was "sandy clay."

Judge Furcolo concluded that the Secretary failed to prove a violation of
section 1926.652(c).  He determined that "[t]he soil was certainly not the 'hard
or compact' type alleged in the citation . . . . " He stated that amending the
citation and complaint to allege a violation of section 1926.652(b)[[3]] was not justified
by the evidence, which "does not establish that the soil was 'unstable' or 'soft' or
any other classification."  He held that because the soil had not been analyzed
there was insufficient proof of a violation of any trenching standard.  The judge
stated that another reason for vacating the citation item was that GM "was doing the
shoring in timely fashion."  The judge noted that GM did not use the trench in
its unshored condition or "refuse to recognize" that it was required to shore
the trench.

The Secretary argues on review that he made the requisite showing that
section 1926.652(c) applies to GM's trench.  He contends that the record shows that
the soil was at best hard and compact, and that such a showing is sufficient to establish
the applicability of the standard.  The Secretary further asserts that GM violated
the standard in that it allowed its employees to be exposed to unshored areas of the
trench and to work in the partially shored north end of the trench.  GM argues on
review that Judge Furcolo's conclusion that section 1926.652(c) was not violated and his
reasons therefor should be affirmed.

We hold that the judge did err in vacating this item because it was not
proved whether the soil was governed by section 1926.652(b) or by section 1926.652(c).
  The trenching standards divide earth materials into categories, with trenches dug
in each category requiring a different degree of protection.  The greatest degree of
protection by way of sloping or shoring is required for "unstable or soft" soil.
  Trenches dug in such soil are governed by section 1926.652(b).  At the other
extreme, trenches in "Solid Rock, Shale or Cemented Sand and Gravels" need not
be sloped or shored at all.  See Table P-1, appended to section 1926.652.
  Between these types are trenches dug in "hard or compact" soil, which are
governed by section 1926.652(c).  Such trenches, if more than five feet deep, must be
sloped above the five-foot level or shored.  E.g ., CCI, Inc ., 80 OSAHRC
127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD � 25,091 (No. 76-1228, 1980), aff'd , 688
F.2d 88 (10th Cir. 1982).  Although the shoring requirements for trenches dug in
hard, compact soil are less demanding than for trenches dug in soft, sandy, or filled
soil, both sections require unsloped trenches to be shored.  See Table P-2,
appended to section 1926.652.  It is not the subject of dispute that the trench in
this case was substantially more than five feet deep and that most of its walls were not
sloped.  It is clear from the record that GM knew that it was required to shore or
slope the walls of the trench and that it had elected to shore the trench walls due to the
worksite conditions.

GM's argument that the Secretary failed to prove the applicability of section
1926.652(c) therefore reduces to the argument that it should have been cited under the
more stringent provision of section 1926.652(b) instead.  However, under the
circumstances of this case, there is no difference in the requirement of the two
standards:  both require that the trench walls be shored.  As the Secretary
points out, he gave GM the benefit of the doubt by citing under subsection (c) rather than
subsection (b) because subsection (c) requires less protection.  Thus, if there was a
defect in the citation, it tended to benefit GM and does not constitute grounds to vacate
the citation.  We conclude therefore that the judge erred in vacating the citation
for that reason.

GM also argues that, even if the standard applies, it was not in violation
because the employees in the trench were there for the purpose of installing the shoring
required to comply with the standard.  The company contends that a violation of the
standard only occurs if there is "needless exposure" of employees to the
unshored trench walls.

We agree with GM's argument that an employer cannot be found in violation of
the standard based merely on the presence in the trench of employees installing the
shoring required by the standard.  As GM correctly states, the question is whether
employee presence in the trench is needless.  In this case, four employees were in
the north-south leg immediately before the accident.  A pipe fitter and a welder were
working in the shored portion at the north end of the leg.  The other two employees
were nailing together the plywood sheets that formed part of the shoring system.  
Inasmuch as the employees in the north-south leg were either working in a part of the
trench that had already been shored or were engaged in installing the shoring in that leg,
GM did not violate the standard in the north-south leg.

The east-west leg, however, was completely unshored, and GM did not take any
steps to keep the employees out of that leg. Moreover, at the west end of that leg was a
dirt slope along which ran a ladder that employees used to enter and leave the trench. The
presence of the slope and ladder made it reasonably predictable that employees would use
the east-west leg to gain access to their work area in the north-south leg, and in doing
so they would be exposed to the unshored walls of the east-west leg.  Because GM did
not limit employee access to the trench so as to eliminate the unnecessary exposure of
employees to the unshored walls, GM did violate the standard with respect to the east-west
leg.  Floyd S. Pike Electrical Contractor, Inc ., 77 OSAHRC 26/B11, 5 BNA OSHC
1088, 1977-78 CCH OSHD � 21,584 (No. 12398, 1977), aff'd , 576 F.2d 72 (5th Cir.
1978).

We reject GM's argument that the citation should be vacated because the
accident resulted from employee disobedience to instructions to remain out of the unshored
parts of the trench.  The proper inquiry is not the cause of the accident, but
whether GM violated the standard as alleged.  See Champlin Petroleum Co. v.
OSHRC , 593 F.2d 637, 642 (5th Cir. 1979) (Act is designed to achieve abatement of
hazardous conditions, not fix blame for particular injury).  The finding of a
violation is not based on the occurrence of the accident but on the foreseeable exposure
of GM's employees to the unshored east-west leg of the trench. [[4]]

The Commission therefore affirms the citation item alleging a violation of section
1926.652(c).  The parties stipulated that DeVittorio's injuries were
"serious" within the meaning of section 17(k) of the Act, 29 U.S.C. � 666(i).
  Based on that stipulation and on the obvious danger presented by the unprotected
walls of a trench 8 to 10 feet deep, the Commission finds a substantial probability that
death or serious harm could have resulted from the violation.  We therefore conclude
that the violation was "serious."  Having considered the penalty criteria
set forth in section 17(j) of the Act, 29 U.S.C. � 666(i), we assess a penalty of $50 for
the serious violation of section 1926.652(c).

Item 3:  Additional Precautions

Item 3 of the citation alleges that GM violated section 1926.652(e), which requires
additional precautions in trenches adjacent to backfilled excavations or subject to
vibrations from the operation of machinery.[[5]]  Witnesses for both parties
testified that the area in which the trench was dug consisted of backfill.

There was also some testimony at the hearing that the trench was subjected to
vibrations.  Two of GM's employees--John Boushie, a second-shift pipe fitter, and
Anthony Davide, a first-shift millwright--testified that both the backhoe, which was
located near the edge of the trench on a concrete slab, and another piece of equipment
called the "in-line transfer machine," which was situated about 10 to 12 feet
away from the trench, vibrated when they were in operation.  The employees did not
say, however, how much the machines vibrated.  James Conlon, the Secretary's expert
witness, testified that when the backhoe pounded the steel channels it transmitted
vibrations into the soil that could extend for 5 feet from the channel.  The backhoe
had been driving channels just before the accident.  When asked if there would be
vibrations in the soil when the in-line transfer machine was in operation, Conlon
testified that it was possible.  He stated, however, that "[v]ibrations are
difficult to predict," and he could not be sure whether the in- line transfer machine
produced vibrations in the soil because he had not been at the worksite.  Conlon
further acknowledged that any opinion as to vibrations without having felt them is
"highly theoretical" and "into the realm of speculation."

The compliance officer testified that he did not measure nor did he know how
much the machines vibrated.  According to Carpenter, GM's superintendent of plant
engineering, the in-line transfer machine was designed not to vibrate, and, even if it
did, the vibrations would be negligible.  He also testified that any vibrations from
the in-line transfer machine or the backhoe had "no bearing" on the collapse of
the walls of the east-west leg, for the vibrations were "in the manner of thousandths
of an inch."

Judge Furcolo vacated this item.  Although he found that the soil in the
area was backfill,[[6]] he went on to conclude that a violation of the standard was not
proven because the Secretary did not establish that the trench was "subjected to
vibrations from . . . the operation of machinery."  Judge Furcolo determined
that the word "vibrations" means "vibrations sufficient to have some effect
that might contribute to a slide or cave-in of any nearby excavation or trench."
  After reviewing the testimony and noting the lack of evidence as to the degree of
the vibration, he concluded that, even considering the evidence most favorable to the
Secretary, there was no proof that the trench was subjected to the alleged vibrations.
  He therefore vacated the citation item.

The Secretary argues on review that the judge misinterpreted section
1926.652(e).  He contends that the word "or" in the standard signifies that
it applies in two distinct situations:  where a trench is adjacent to backfilled
soil, or where the trench is subjected to vibrations from the operation of machinery.
  According to the Secretary, he met his burden of proof under the standard by
establishing that the unshored trench was dug in backfill, regardless of whether the
trench was also subject to vibrations.  The Secretary also argues that, in any event,
the trench was subjected to vibrations from the operation of machinery.  GM contends
on review that it was in the process of shoring the trench, and the Secretary failed to
show what additional precautions were required.

Chairman Buckley would affirm the judge's disposition, although he would do
so for reasons different than those stated by the judge.  He notes that section
1926.652(e) requires shoring or bracing in addition to precautions taken to comply
with sections 1926.652(b) or 1926.652(c).  In this case, GM had already shored part
of the trench and was in the process of shoring the remainder.  There is no evidence
that GM's shoring either was or would be, when completed, insufficient to protect
employees in the trench.  On the contrary, Conlon, the Secretary's own expert,
testified that the shoring GM had been installing would have been adequate when completed.
  The Secretary's allegation is based on the same conditions that allegedly
constitute a violation of section 1926.652(c):

the absence of any protection at all for portions of the trench walls.  
To establish a violation of section 1926.652(e), the Secretary would have to prove that
the shoring the employer was installing was inadequate to protect against cave-ins from
vibrating machinery or the presence of backfill.  The employer's failure here to
prevent exposure of employees to the hazard of a cave-in prior to completion of its
shoring does not establish that it also failed to take precautions in addition to those
required by section 1926.652(b) or (c).  The Chairman therefore concludes that the
Secretary failed to prove that GM violated section 1926.652(e).

Commissioner Cleary would affirm the citation item.  He agrees with the
Secretary's argument that the plain language of section 1926.652(e) requires additional
shoring or bracing under two alternative conditions--where trenches are dug adjacent to
backfilled areas or where trenches are subject to vibrations.  Cedar
Construction Co ., 77 OSAHRC 63/A2, 5 BNA OSHC 1311, 1977-78 CCH OSHD � 21,772 (No.
10929, 1977), aff'd 587 F.2d 1303 (D.C. Cir. 1978).  He also finds it
irrelevant that the required additional precautions would have been taken some time in the
future.  Just as GM violated section 1926.652(c) because the required shoring was not
in place when employees were unnecessarily in unshored parts of the trench, GM violated
section 1926.652(e) because the trench was dug in backfill and lacked additional
precautions.  An employer's failure to take any precautions to protect
employees against the walls of a trench collapsing violates the employer's duty to take
the additional precautions required by section 1926.652(e) as well as the precautions
required by section 1926.652(c).  Although the requirements of sections 1926.652(c)
and 1926.652(e) are closely related, an employer is not unfairly burdened when the same or
similar conditions are the subject of more than one citation item, for a single action on
the employer's part may be all that is necessary to achieve compliance with the cited
standards.  H.H. Hall Construction Co ., 81 OSAHRC 91/D12 10 BNA OSHC 1042,
1981 CCH OSHD � 25,712 (No. 76-4765, 1981).  Moreover, to the extent that the same
or similar conduct may violate more than one standard, the Commission has the discretion
to assess a single, combined penalty for the violations.  Wright & Lopez, Inc .,
81 OSAHRC 92/D10, 10 BNA OSHC 1108 ,1981 CCH OSHD � 25,728 (No. 76-256, 1981); H.H.
Hall , 10 BNA OSHC at 1049, 1981 CCH OSHD at p. 32,059.  Because the violation of
section 1926.652(e) involves conduct similar to that of section 1926.652(c), Commissioner
Cleary would assess a combined penalty for the violations of sections 1926.652(c) and (e).

Under section 12(f) of the Act, 29 U.S.C. � 661(e), official action can be
taken by the Commission with the affirmative vote of two members.  The two Commission
members disagree whether the judge erred in his disposition of this citation item.
 To resolve this impasse and to permit this case to proceed to a final resolution,
the members have agreed to affirm the judge's decision vacating this item but accord it
the precedential value of an unreviewed judge's decision.  See Life Science
Products Co ., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD � 22,313 (No.
14910, 1977), aff'd sub nom. Moore v. OSHRC , 591 F.2d 991 (4th Cir. 1979).

Item 1:  Instruction of Employees

Item 1 of the citation alleged that GM violated section 1926.21(b)(2), which requires
employers to instruct employees in the recognition and avoidance of unsafe
conditions.[[7]]  Judge Furcolo affirmed the item.  He stated that the standard
requires an employer to issue instructions regardless of the knowledge or experience of
its employees.  The judge found that "[t]he witnesses who testified in substance
that there were no instructions were positive and definite in their testimony to that
effect while those who indicated the contrary were comparatively vague and
indefinite."  For that reason, he concluded that GM did not give its employees
instructions on trenching hazards and therefore failed to comply with the standard.  
Judge Furcolo determined that the violation was serious.  He assessed a penalty of
only $50 because "it was not unreasonable for [GM] to believe its employees were
familiar with trenching hazards..."

The Commissioners disagree on the disposition of this item.
 Commissioner Cleary would adopt the judge's decision and affirm the citation item.
  He notes that employees Boushie, LoMonaco, Davide, and Thomas Martin, a
second-shift welder, testified that no GM supervisor told them not to go into an unshored
trench or gave them oral or written instructions about the specific safety hazards
involved in working in and around trenches. Those four employees also testified that they
had not attended any safety meetings at GM during which trenching or shoring had been
discussed.  Boushie, Martin, and Davide stated that they were never told by any
supervisor about OSHA's trenching standards.  Boushie, Martin, and LoMonaco testified
that no supervisor, including their group leader, instructed them to stay out of the
east-west leg of the trench.  Boushie testified that this was the first trench that
he had worked in at GM.  Martin stated that when he began work at GM in 1973 he was
not given any safety booklets.  When he was shown a booklet entitled "Safety
Procedures and Instructions, Rochester Products" at the hearing, he declared that he
had never seen it before.

Gary Murphy, GM's supervisor for the second shift, and Nick Bianchi, the
crew's "group leader" who directed the work, testified that there were no formal
safety meetings at GM regarding trenching hazards.  Rather, informal discussions were
held at which employees told their ideas about improving working conditions.  Murphy
testified that he specifically instructed Bianchi, LoMonaco, and DeVittorio to remain out
of the unprotected areas of the trench, and he never observed employees in such areas when
he visited the trench.

In C. Kaufman, Inc. , 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78
CCH OSHD � 22,481, p. 27,099 (No. 14249, 1978), the Commission stated that it will
usually accept an administrative law judge's evaluation of witnesses' credibility because
the judge was the one who "lived with the case, heard the witnesses, and observed
their demeanor."  In this case, the judge based his finding that GM had not
instructed employees in hazards associated with trenches on his conclusion that the
employee who testified that no such instructions were given were more credible than GM's
supervisors, whose testimony he stated was vague and indefinite. Commissioner Cleary
accepts Judge Furcolo's credibility determination and finds that GM did not instruct its
employees regarding trenching hazards.

Moreover, even crediting the testimony of GM's supervisors, what little
action GM took to instruct its employees about trench hazards was insufficient under the
standard.  GM distributed its safety booklet to some employees, but at least one
employee, Martin, had never seen it before the hearing in this case.  In any event,
the booklet contained no instructions on hazards involved in construction work in general,
and trenches in particular.  The standard is not satisfied by instructions that fail
to deal entirely with major hazards that employees face.  See National
Industrial Constructors, Inc. v. OSHRC , 583 F.2d 1048 (8th Cir. 1978) (section
1926.21(b)(2) requires more than a general safety program).  Whatever safety meetings
were held were informal and unstructured. Even if the testimony of Murphy that he gave
on-the-job warnings to remain out of the unshored areas of the trench was to be credited,
such warnings alone do not satisfy the cited standard.  Sawnee Electric Membership
Corp ., 77 OSAHRC 24/C10, 5 BNA OSHC 1059, 1061, 1977-78 CCH OSHD � 21,560, p. 25,873
(No. 10277, 1977)(Cleary, Commissioner, dissenting).  Moreover, GM's failure to give
the instructions required by the standard cannot be excused on the basis that the
employees were experienced. See Getty Oil Co. v. OSHRC , 530 F.2d 1143 (5th
Cir. 1976).  All employees, both experienced and inexperienced, are entitled to the
Act's protection.

Chairman Buckley would vacate the citation item.  The standard requires
that employers instruct employees, but it does not specify the nature and extent of the
required instructions.  A violation of such a standard cannot be predicated upon a
finding that an employer's safety program could have been improved.  Rather, there
must be a showing that the employer breached a duty to give reasonable instructions. 
H.C. Nutting Co. v. OSHRC , 8 BNA OSHC 1241, 1242, 1980 CCH OSHD � 24,548, p.
30,030 (6th Cir. 1980); Dravo Engineers and Constructors , 84 OSAHRC __/_, 11 BNA
OSHC 2010, 2011-12, 1984 CCH OSHD � 26,930, p. 34,507 (No. 81-748, 1984).  In
determining whether the instructions that an employer gave were reasonable, the substance
of the employer's safety program is more important than its form.  Jones &
Laughlin Steel Corp ., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD �
26,128, p. 32,887 (No. 76-2636, 1982); Texland Drilling Corp ., 80 OSAHRC 106/C13, 9
BNA OSHC 1023, 1026, 1980 CCH OSHD � 24,954, p. 30,788 (No. 76-5307, 1980).  The
standard should not be interpreted to require employers to tell their employees what is
obvious.  Butler Lime and Cement Co. v. OSHRC , 658 F.2d 544 (7th Cir. 1981).
Employers can permissibly rely on the judgment of experienced employees to perform their
work in a safe and proper manner.  See Davey Tree Expert Co ., 84 OSAHRC
11/D11, 11 BNA OSHC 1898, 1900, 1983-84 CCH OSHD � 26,852, p. 34,400 (No. 77-2350, 1984);
Jones & Laughlin Steel Corp ., 10 BNA OSHC at 1783, 1982 CCH OSHD at p. 32,888.
  Thus, section 1926.21(b)(2) requires a level of instruction appropriate to the
circumstances.

In Chairman Buckley's view, the record shows that GM did give adequate
instructions in light of the experience and knowledge of the employees doing the work.
 Judge Furcolo found that it was reasonable for GM to believe that its employees were
familiar with trenching hazards, and that finding is supported by the record.  Gary
Murphy, the supervisor for the second shift, testified that the crew was composed of
skilled tradesmen, not general laborers, who had shored many trenches and knew what they
were doing. The testimony of the employees shows that they knew the hazards presented by
unshored trenches.  Boushie acknowledged that he was aware of the hazards of unshored
trenches because he had prior experience on construction jobs.  Davide admitted that
while he had been an apprentice at GM his leader had instructed him to stay out of
unshored trenches.  LoMonaco was asked if he knew not to go into an unshored portion
of a trench, and replied that he never went down into such an area.

The record also shows that GM had an ongoing safety program.  Safety
booklets were distributed to employees when first hired. The instructions in those
booklets were supplemented by oral on-the-job instructions and informal safety meetings.
 Both Murphy and Bianchi testified that trenching hazards had been addressed during
informal safety meetings.  Murphy and Bianchi also stated that they had instructed
employees to stay out of the unshored portions of the trench involved in this case.  
Considering the experience of the employees and their awareness of the hazards associated
with trenches, Chairman Buckley concludes that the instructions GM gave its employees
concerning such hazards were reasonable and met the general requirement of section
1926.21(b)(2).

As noted above, section 12(f) of the Act, 29. U.S.C. � 661(e), states that
official action can be taken by the Commission with the affirmative votes of two members.
  To resolve their impasse on this issue and to permit this case to proceed to a
final resolution, the members have agreed to affirm the judge's decision on this citation
item but accord it the precedential value of an unreviewed judge's decision.

In sum, the Commission affirms citation item 2 and assesses a $50 penalty for the serious
violation of section 1926.652(c).  The members have also agreed to affirm Judge
Furcolo's disposition of citation items 1 and 3, alleging violations of sections
1926.21(b)(2) and 1926.652(e), but accord their decision on those two items no
precedential value.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  APR 26 1985

FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.
 Section 12(a), 29 U.S.C. � 661(a).  Currently, the Commission has two members
as a result of a vacancy.

[[2]] Section 1926.652(c) states:

Sides of trenches in hard or compact soil, including embankments, shall be
shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or
more in length.  In lieu of shoring, the sides of the trench above the 5-foot level
may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each
1/2-foot horizontal....

[[3]] The standard provides:

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

Appended to section 1926.652, and referred to by it, is Table P-1, which
provides that trenches dug in solid rock, shale, or cemented sand and gravels need not be
sloped.

[[4]] The parties also dispute whether there was needless employee exposure
to ground collapse during the process of shoring.  The parties put on conflicting
evidence as to whether workmen stood in the north-south leg of the trench to guide steel
channels being pounded into the trench floor by the backhoe.  If employees did enter
the unshored leg for that purpose, that would constitute another basis for a violation of
this standard because GM conceded that this work could have been accomplished without
employees in the trench.  Inasmuch as employee use of the east-west leg for exiting
clearly establishes a violation of the standard, we will not reach the close credibility
questions raised by this secondary dispute.

[[5]] Section 1926.652(e) reads as follows:

Additional precautions by way of shoring and bracing shall be taken to
prevent slides or cave-ins when excavations or trenches are made in locations adjacent to
backfilled excavations, or where excavations are subjected to vibrations from railroad or
highway traffic, the operation of machinery, or any other source.

[[6]] GM argues that Judge Furcolo erroneously found that the trench was "adjacent
to" a backfilled area because it was within 10 to 30 feet of such an area.  Any
such error was harmless.  Statements earlier in the judge's decision to the effect
that the area in which the trench was dug was backfill are sufficient to establish that
the trench was "adjacent to" backfill under section 1926.652(e).  J.D.
Blum Construction Co ., 76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD � 20,735
(No. 3543, 1976).

[[7]] The standard provides:

The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.