Anchor Construction Co.

Plain-English summary

Anchor Construction employees worked in an 11-foot-deep trench dug in clay soil with water entering it. Evidence showed sloughing at the bottom, a cracked wall, and soil that would not support weight without extra protection. The Commission allowed the Secretary to replace the originally cited trench standard with section 1926.652(b), finding that the original allegations gave the employer notice that soil stability was at issue and that the amendment caused no prejudice. It affirmed a serious violation because the trench in soft or unstable soil was not adequately sloped, shored, braced, or otherwise supported. The original section 1926.652(a) allegation and a separate section 1926.651(h) allegation were vacated, while the amended citation carried a $400 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a); 29 C.F.R. § 1926.652(b); 29 C.F.R. § 1926.651(h)
• Outcome: The citation was amended and affirmed under section 1926.652(b) with a $400 penalty; the original section 1926.652(a) and section 1926.651(h) allegations were vacated.
• Key point: A trench citation could be amended to the unstable-soil provision because the original allegations put the employer on notice and the proof addressed the same soil-stability issue.

Full text (OSHRC public release)

false
false
false

EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 8122

ANCHOR CONSTRUCTION CO.,

���������������������������������������������
Respondent.

June 16, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and
CLEARY, Commissioners.

BARNAKO, Chairman:

A
report of Review Commission Judge Alan M. Wienman, dated February 27, 1975, is
before this Commission for review pursuant to 29 U.S.C. � 661(i). The issues on
review are (1) whether the administrative law judge properly granted
Complainant�s motion to amend the citation and complaint to allege a violation
of 29 C.F.R. 1926.652(b) in lieu of 29 C.F.R. 1926.652(a), and, (2) if so,
whether the administrative law judge correctly found that Respondent violated
29 C.F.R. 1926.652(b). [1]
Having examined the record in its entirety, the Commission finds that the
administrative law judge properly decided the case and his report is therefore
adopted as the decision of the Commission.

Respondent
received a citation alleging a serious violation of 29 U.S.C. 654(a)(2) in that
employees were working in a trench dug in clay soil with water conditions and
which was eleven feet deep, five feet wide at the bottom and twenty-two feet
three inches wide at the top. The citation and complaint indicated that the
trench did not conform to the requirements of 29 C.F.R. 1926.652(a) [2]
and 651(h). [3] The matter went to
hearing, and Complainant presented his case. After his evidence in chief was
in, Complainant moved to amend the 652(a) allegation so as to allege a violation
of 29 C.F.R. 1926.652(b). [4]
The law judge ordered the motion reduced to writing and afforded Respondent the
opportunity to oppose.

Thereafter,
the law judge granted the motion to amend in reliance on our decisions in J.
L. Mabry Grading, Inc ., 9 OSAHRC 108, BNA 1 OSHC 1211, CCH OSHD para.
15,686 (1973); Lovell Clay Products, Inc., 10 OSAHRC 237, BNA 2 OSHC
1121, CCH OSHD para. 18,327 (1974). He determined that a serious violation of
652(b) existed on the basis that Respondent failed to rebut Complainant�s
evidence to the effect that the walls of the trench were soft and unstable
because they would not support weight placed on them, sloughing was observed in
the bottom, one wall was cracked, and water was flowing in the trench. He also
determined that Complainant did not prove a violation of 651(h).

On
review, Respondent argues that the amendment should not have been allowed
saying that the issue between the parties concerned the water conditions and
did not include the condition of the soil. The short answer is that the issues
cannot be separated since water conditions in a trench necessarily will affect
the stability of a trench dug in soil. But we need not rest our decision on
this ground.

The
fact is that the original citation and standards cited in this case should have
put Respondent on notice that the condition of the soil was in fact in issue.
Thus 652(a) provides, in part, that banks �shall be shored or laid back to a
stable slope, or some equivalent means of protection shall be provided where
employees may be exposed to moving ground or cave-ins. The citation referred to
the specific soil conditions Complainant thought were involved in the case.
Respondent does not argue that it was misled. Under these circumstances we must
conclude that Respondent was on actual notice that the issue was involved in
this case.

Moreover,
Respondent�s pleadings and briefs filed herein are consistent with our
conclusion. Thus by its answer Respondent avers that it was in compliance with
all trenching requirements; it also said that Complainant failed to perform
adequate tests to determine the nature of the soil. And in its brief to the law
judge it argued that the trench was dug in conformance with 29 C.F.R.
1926.652(c) which requires shoring or sloping above the five foot level for
trenches dug in hard or compact soil.

In
our view the law judge properly granted the motion to amend. Paragraph 652(b)
requires that sides of trenches five feet or more in depth and dug in �unstable
or soft soil� be sloped, shored, braced or otherwise supported. Unstable soil
is defined at paragraph 653(a) as meaning

Earth material other
than running, that because of its nature or the influence of related
conditions, cannot be depended upon to remain in place without extra support,
such as would be furnished by a system of shoring.

Clearly,
the issues for trial regarding the nature of soil whether it be �unstable or
soft� under 652(b) or �moving ground or cave-ins� under 652(a) are not so
different that an amendment at trial will result in prejudicial surprise. As we
have said recently:

We equate �unstable or
soft material� with �moving ground�. Functionally, these terms are equivalents;
the methods of proof are identical and the inquiry of fact is identical, D.
Federico Company, Inc. , Dkt.4395, BNA 3 OSHC 1970, CCH OSHD para. 20,422
(February 10, 1976).

�

On
review, Respondent also argues that �unstable or soft soil� are impermissibly
vague. We find no merit in this contention. The terms are broad but the
Secretary has defined them at 653(q) as precisely as would appear possible
given the vast differences in soil conditions that occur across the nation.
Moreover, Table P�1 provides a rule of thumb that may be used by employers to
determine the proper precautions to be taken in any particular set of
circumstances.

We
have reviewed the evidentiary record concerning the question whether Respondent
violated .652(b) on the facts, and we conclude that Judge Wienman properly
found the violation on the grounds set forth by him in his report. We therefore
adopt his report to the extent it is consistent herewith. So ORDERED.

�

FOR THE
COMMISSION:

�

William S. McLaughlin

Executive Secretar

DATE: JUN 16,
1976

�

MORAN,
Commissioner, Dissenting:

Complainant�s
motion to amend the complaint in this case to allege noncompliance with 29
C.F.R. � 1926.652(b), in lieu of the originally cited standard, 29 C.F.R. �
1926.652(a), is improper and should be denied. Furthermore, even if the
amendment were procedurally proper in this case, the evidence is insufficient
to establish that respondent violated � 1926.652(b).

The
amendment in this case is improper for two reasons. First, Rule 15(b) of the
Federal Rules of Civil Procedure does not apply to the amendment of a job
safety citation because it is a unique creature of statute to which strict
requirements for particularity, pursuant to 29 U.S.C. � 658(a), have been
attached. Secretary v. Warnel Corporation , OSAHRC Docket No. 4537, March
31, 1976 (dissenting opinion). Second, there was no trial by consent of issues
pertinent to the � 1926.652(b) charge which is a necessary prerequisite for an
amendment under Rule 15(b).

The
type of soil in the subject trench was not a legal or factual issue under the
original charge which related to the water conditions present in the trench.
Furthermore, when respondent attempted to elicit testimony from the inspecting
officer regarding whether or not soil samples were taken to determine the
nature or consistency of the soil involved, complainant objected to the
question as being irrelevant! Therefore, it is obvious that even complainant
did not believe the nature of the soil was in issue. A finding of �unstable or
soft material� is, however, an essential element of a � 1926.652(b) violation.
Respondent did not, therefore, receive fair warning of the issues against which
it was required to defend and cannot be said to have consented to a trial on
the amended charge. [5]

A
review of the record further convinces me that there is insufficient evidence
to support an affirmance of the � 1926.652(b) charge. There is no dispute that
water was present in the bottom of the trench. There is considerable question,
however, as to the nature of the soil in which the trench was dug. The
inspecting officer testified as follows at page 40 of the hearing transcript:

�Q. Now the softness
of the soil, is that the inherent softness of the soil or is this because of
the water?

�

A. I would say it
would have to be because of the water.�

�

Inasmuch
as the water was located at the bottom of the trench, [6]
how then can it be said that the trench was dug in �soft or unstable material�?
No soil samples or borings were taken, and the inspecting officer admitted that
he was not a soil expert. Under these circumstances, the citation should be
vacated because the evidence is clearly inadequate to support the alleged
violation.

Finally,
I am constrained to comment on my colleagues� ridiculous effort in footnote 1
to add some consistency to their otherwise inconsistent action in addressing
sua sponte directions for review. Our recent decision in Secretary v. Rob�t.
W. Setterlin & Sons Company , OSAHRC Docket No. 7377, May 11, 1976, is
completely dispositive of the issue regarding the timeliness of my direction
for review. Rather than disposing of the issue on the basis of that precedent,
however, they do so because of complainant�s disinterest. I cannot join in such
folly and rely on the Setterlin decision in concluding that the
direction for review was timely.

Since
this opinion does not cover all the matters discussed in Judge Wienman�s
decision, the same is attached hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 8122

ANCHOR CONSTRUCTION CO.,

���������������������������������������������
Respondent.

FINAL ORDER DATE: March 31, 1975

APPEARANCES:

EUGENE F. DeSHAZO, Esq., United
States Department of Labor, Office of the Solicitor, Kansas City, Missouri, for
the Secretary of Labor

THOMAS J. MONAGHAN, Esq., 1500 City
National Bank Building, Omaha, Nebraska, for the Respondent

Wienman, Judge, OSAHRC:

�

STATEMENT
OF THE CASE

This
is a proceeding pursuant to section 10 of the Occupational Safety and Health
Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a
citation issued by the complainant against the respondent April 30, 1974, under
the authority vested in complainant by section 9(a) of that Act. The citation
alleged on the basis of an inspection of a workplace at Wood Hollow Sarpy
District 75, Papillion, Nebraska, on April 24, 1974, that the respondent
violated the Act by failing to comply with certain occupational safety and
health standards promulgated by the Secretary of Labor and codified as 29 CFR
1926.652(a) and 29 CFR 1926.651(h). The alleged violation was described as
follows:

�(Between Manhole

28 and 29) Employees were working in a trench approximately 11 feet deep. The

bottom of the trench was 5 feet wide and the width at the top measured
223�wide. (The sloping was not uniform.) The trench was in a clay soil, the
walls of the trench contained water and water was coming in the trench from the
north and south sides.�

Pursuant
to enforcement procedures set forth in section 10(a) of the Act, respondent was
notified by letter dated April 30, 1974, from Warren Wright, Area Director,
Occupational Safety and Health Administration, United States Department of
Labor, that he proposed to assess a penalty of $650 for the alleged serious
violation. Respondent gave due notice of its intention to contest the citation
and proposed penalty. After complaint and answer were filed by the parties, a
hearing was held on November 21, 1974, at which time both complainant and
respondent appeared and presented evidence.

THE
ISSUES

Despite
an express denial in the answer that �Juris-diction of this proceeding is
conferred upon the Commission by Section 10 C of the Act�, the parties
nevertheless pleaded facts sufficient to establish that the respondent is
subject to the Act, and that the Commission has jurisdiction of the parties and
the subject matter. As a result, no jurisdictional questions are in dispute.

At
the close of complainant�s evidence, complainant moved to amend the complaint
to allege a violation of safety regulation 29 CFR 1926.652(b) in lieu of 29 CFR
1926.652(a). Respondent resisted the motion to amend, and the initial issue for
resolution is whether the citation and complaint may be amended to allege a
violation of 29 CFR 1926.652(b). The central issue in the case, whether amendment
is permitted or not, is whether the respondent violated safety standards as may
have been properly alleged, and, if so, what penalty is appropriate.

An
additional issue was raised in paragraph IX of the answer wherein the
respondent averred that the Occupational Safety and Health Act of 1970 violated
various provisions of the Fourth, Fifth and Sixth Amendments of the United
States Constitution. The undersigned Judge is persuaded that neither the
Commission nor its several judges have jurisdiction to pass on the
constitutionality of the statute from which the Commission derives its
authority. The respondent is entitled to have the constitutional questions
determined by a court, but this decision and order will be limited to issues
relating to compliance with occupational safety and health regulations.

THE
AMENDMENT ISSUE

The
citation issued April 30, 1974, charged respondent with violating two
occupational safety regulations codified under Subpart P of the construction
standards relating to excavation, trenching and shoring. In paragraph V of its
answer respondent specifically alleged that it was in compliance with the
excavation, trenching and shoring regulations, Subpart P of the construction
safety regulations, promulgated by the Secretary of Labor. At the hearing
testimony was admitted without objection relative to the dimensions of an
excavation at respondent�s worksite in Papillion, Nebraska, and the nature of
the soil conditions existing at the time of the April 24, 1974, inspection.

Complainant
seeks to amend the citation and complaint by alleging a violation of regulation
29 CFR 1926.652(b). This regulation provides:

�(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 employees working within them. See Tables P�1, P�2
(following paragraph (g) of this section).�

In
seeking amendment complainant represents that regulation 29 CFR 1926.652(a) is
inapplicable but urges that amendment be permitted because the instant case was
actually tried on issues �relating to the failure to shore or slope the
sidewalls of the trench dug in unstable soil.�

The
Commission Rule with respect to amendment of citations was enunciated in the case
of Secretary of Labor v. J.L. Mabry Grading, Inc ., 1 OSAHRC 1211 (Docket
No. 285) and reiterated in Secretary of Labor v. Lovell Clay Products, Inc .,
10 OSAHRC 237 (Docket No. 683), wherein it was stated:

�In Mabry the
Commission held that a defective citation may be cured by a subsequent
pleading. Where a sought amendment would not mislead or otherwise prejudice the
opposing party, leave to amend will be freely given when justice so requires.�

The
citation in the instant case described a trench with sufficient particularity
to provide notice of the conditions which complainant alleged to be unsafe.
Respondent itself affirmatively alleged that it was in compliance with all
excavation, trenching and shoring regulations, and the record reveals no basis
for concluding that respondent has been mislead or otherwise prejudiced. The
Mabry rule, posited upon the direction in Rule 15 of the Federal Rules of Civil
Procedure that leave to amend shall be freely given when justice so requires,
is controlling, and complainant�s motion to amend is granted.

SUMMARY
OF THE EVIDENCE AND DISCUSSION

OSHA
Compliance Officer, Uldis Sid Levalds, inspected respondent�s worksite April
24, 1974, accompanied by Rodney Lechtenberg, the job foreman. Respondent was
installing a storm sewer on the south side of Highway 370 in Sharp County,
Nebraska (T. 18). Levalds took photographs (T. 9) and measured the trench with
the help of Lechtenberg (T. 18�20). The trench was 11.4 feet in depth with a
width of 5 feet at the bottom expanding to 22 feet, 3 inches, at the top.
Intermediate widths were 12 feet wide at a 6 foot height and 15�1/2 feet at 8
feet from the bottom (T. 18). Levalds computed the slope for the entire depth
at approximately .8 to 1 (T. 21).

Levalds
observed a pump being carried away from the trench as he arrived (T. 31) and
stated that springs were flowing about 15 inches from the bottom of the trench.
There was some force behind the flow, the water carrying horizontally for about
an inch and a half before it dipped (T. 34). Levalds also observed some
sloughing at the bottom of the trench and one crack in the 40 foot long
excavation (T. 37�38).

Levalds
testified the earth material was so soft (T. 29). Standing on a section of
installed pipe he attempted to place a leg on the slope and found it would not
support his weight (T. 38). The hazard, according to Levalds, related to the
water conditions and the softness of the soil (T. 40). He was of the opinion
that conditions indicated a failure was almost imminent in which event every
man in the trench could be killed (T. 29).

Levalds
computed the proposed penalty, commencing with an adjusted penalty of $1,000
and reducing the penalty with a 20 percent credit for good faith, 5 percent for
size and 10 percent for history. He stated that respondent had a prior history
of violations and was therefore was accorded a 10 percent reduction for history
(T. 30).

Victor
Lechtenberg, president of respondent company, testified he had been engaged in
sewer construction for 25 years (T. 55). He had been on the site about an hour
before the inspection and had stopped to talk to the foreman who is his son. He
told his employees he thought it was �a good ditch� (T. 56).

Mr.
Lechtenberg recalled seeing a pump on each visit to the site and that there was
water at the bottom of the ditch, but at no time did he observe water coming
out of the sides (T. 58). The sides of the trench were moist and the spoil pile
was damp. Water was removed with the pump which operated at a rate of about 80
gallons per minute. The pump would probably be moved every hour, but on many
occasions it ran dry because there was not enough water for it to pump (T. 63).

Rodney
Lechtenberg, the construction foreman, recalled seeing a spring (T. 65), but
contradicted the compliance officer as to the rate of the flow. He stated there
was not much water, just trickling down the wall (T. 66). The banks, he stated,
were wet from water that spilled out of the backhoe bucket during excavation
(T. 66).

The
construction foreman recalled that they had been digging through springs
throughout the project and would widen the excavation to lessen the chances of
a cave-in when they encountered a spring (T. 66�67). He recalled the respondent
used a water pump throughout the excavation (T. 73).

The
foregoing testimony reveals no dispute with respect to the dimensions of the
trench, the slope of the sides, or the presence of moisture in the excavation.
The compliance officer�s testimony that the excavation was dug in soft soil
material was not rebutted, and we conclude that the provisions of 29 CFR
1926.652(c) are applicable as they relate to sides of trenches in unstable or
soft material 5 feet or more in depth. This regulation contains a reference to
Table P�1 which recommends that the sloping of the sides of excavations in
average soil at a 1 to 1 ratio to produce a 45 degree angle. The table also has
an appended note which states:

�Clays, Silts, Loams
or Non-Homogenous Soils Require Shoring and Bracing. The Presence of Ground
Water Requires Special Treatment.�

As
depicted in the photographic exhibits (G�2, G�3, R�1, R�2) the sides of the
trench were not shored, sheeted, or braced, and the undisputed testimony
establishes sloping at less than the recommended angle with ground water adding
to the possibility of a cave-in. Complainant�s proof documents a clear
violation of regulation 29 CFR 1926.652(b), and the salient facts were
confirmed by the foreman who testified that respondent was constantly digging
through springs and using a pump to remove water from the excavation.

We
are mindful of the testimony that Victor Lechtenberg, respondent�s president,
who had 25 years experience in excavation work, had inspected the worksite and
concluded it was a �good ditch� (T. 56). This testimony is entitled to
considerable weight in view of the fact that respondent�s own son was an
employee whose safety might be imperiled by a cave-in. The trench was sloped to
a substantial degree, although it failed to meet OSHA standards given the dimensions,
soil material and moisture conditions. We conclude there was a moderate
probability of a failure which would have threatened the lives of respondent�s
workmen laboring in the trench. Had an accident occurred, however, the
consequences would have been serious within the meaning of the statute since
death or serious injury would have been a likely result. We therefore find a
serious violation established and that a penalty in the sum of $400 is
appropriate under the total circumstances.

We
do not find that the record supports a violation of regulation 29 CFR
1926.651(h) for reasons which relate more to the state of regulations than the
compliance officer�s description of the worksite. Regulation 29 CFR 1926.651(h)
directs, in pertinent part, that �the angle of repose shall be flattened when
an excavation has water conditions . . .�. Although the regulation appears to
be drafted in commonplace language, we are at a loss to determine what the
regulation mandates, i.e., what an employer must do in order to excavate an
approved trench. The first problem is the evident use of the word �flattened�
as a term of art without any guidelines, mathematical or otherwise, to indicate
its precise meaning. Second, the definition of �angle of repose� appearing in
regulation 1926.653(b) raises questions about the entire regulatory scheme. As
defined by the Secretary, the angle of repose is �the greatest angle above the
horizontal plane at which a material will lie without sliding.� If an employer
has sloped an excavation to the point where material will lie without sliding,
what additional purpose is accomplished by �flattening�?

We
cannot help but harbor a suspicion that the complainant shares our ignorance
with respect to the thrust of 29 CFR 1926.651(h). Not one word of complainant�s
testimony was devoted to an explanation of the regulation, and the briefs
submitted by counsel are similarly silent. A search of the cases decided by the
Review Commission reveals that the regulation has been little employed although
OSAHRC reports abound with trenching and excavation disputes. With no hint of a
rationale for the standard, much less respondent�s deficiencies in fulfilling
the regulation, we are compelled to vacate that portion of the citation
relating to 29 CFR 1926.651(h).

FINDINGS
OF FACT

Having
held a hearing and considered the entire record herein, it is concluded that
the substantial evidence in the record as a whole supports the following
findings of fact:

1.
Respondent, Anchor Construction Company, is a corporation with an office and
principal place of business located at 14925 Industrial Road, Omaha, Nebraska,
where it is engaged in the business of sewer and water line contracting. On
April 24, 1974, respondent had a worksite at the Wood Hollow Sarpy District 75,
Papillion, Nebraska, where it was engaged in construction of a storm sewer.

2.
On April 24, 1974, OSHA Compliance Officer Uldis Sid Levalds conducted an
inspection at the aforesaid worksite and observed two of respondent�s employees
working in a trench approximately 11 feet deep. The bottom of the trench was 5
feet wide and the width at the top measured 22 feet, 3 inches. The trench was
excavated in soft soil materials and the presence of springs necessitated the
frequent use of a pump to remove water from the bottom of the trench.

3.
On April 24, 1974, at the aforementioned worksite respondent failed to
adequately slope, shore, sheet, brace or otherwise support the sides of the
trench by means of sufficient strength to protect employees working within the
excavation.

4.
The conditions and practices in use by the respondent at the aforesaid worksite
created the substantial probability that death or serious physical harm could
result to employees working within the excavation, and respondent did know, or
could, with the exercise of reasonable diligence, have known said fact.

CONCLUSIONS
OF LAW

1.
Respondent is and at all times material was an employer within the meaning of
section 5(a) of the Act.

2.
Jurisdiction of the parties and the subject matter is conferred upon the
Occupational Safety and Health Review Commission by section 10(c) of the Act.

3.
Respondent violated occupational safety and health regulation 29 CFR
1926.652(b) by allowing employees to work in an inadequately sloped, unbraced,
unshored, unsheeted trench more than 5 feet deep in soft or unstable soil. The
aforesaid violation occurred with the knowledge of the employer and constituted
a serious violation within the meaning of section 17(k) of the Act. Due
consideration having been given to the evidence of record, it is concluded that
a penalty in the amount of $400 is appropriate for said violation.

4.
On April 24, 1974, respondent was not in violation of the safety regulation
codified as 29 CFR 1926.651(h).

ORDERS

Based
on the above findings of facts and conclusions of law, it is ORDERED that:

1.
The citation for serious violation issued to respondent April 30, 1974, is
hereby amended to reflect a violation of the safety regulation codified as 29
CFR 1926.652(b) and the portions of the citation alleging violations of safety
regulations 29 CFR 1926.652(a) and 29 CFR 1926.651(h) are hereby vacated.

2.
The citation as amended herein is affirmed, and a penalty in the sum of $400 is
assessed for violation of safety regulation 29 CFR 1926.652(b).

�

Alan M. Wienman,

Judge, OSAHRC

Dated: February
27, 1975

[1]
Review was also directed by former Commissioner Van Namee on the question
whether Commissioner Moran�s order was untimely within the meaning of 29 U.S.C.
� 661(i). We recently decided this issue and determined that orders issued
within the period involved in this case are timely. Robert W. Setterlin and
Sons, Co. , No. 7377 (OSHRC, May 11, 1976). However, we need not dispose of
this issue on this basis. Complainant has not addressed the issue, and
Respondent argues that review was timely ordered. Since the parties are in
apparent agreement that review was timely ordered we will assume that review
was properly ordered and not examine the issue on our own motion.

[2] ��������� 29 C.F.R. 1926.652(a) provides:

Banks more than 5
feet high shall be shored, laid back to a stable slope, or some other
equivalent means of protection shall be provided where employees may be exposed
to moving ground or cave-ins. Refer to Table P�1 as a guide in sloping of
banks. Trenches less than 5 feet in depth shall also be effectively protected
when examination of the ground indicates hazardous ground movement may be
expected.

[3] 29 C.F.R. 1926.651(h)
provides:

The angle of repose shall be flattened
when an excavation has water conditions, silty materials, loose boulders, and
areas where erosion, deep frost action and slide planes appear.

[4] ��������� 29 C.F.R. 1926.652(b) 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).

[5] It is interesting to note
that Messrs. Barnako and Cleary have not even extended to respondent the basic
fairness of a remand for a hearing on the new issues raised by the amended
charge as respondent requested in its Petition for Discretionary Review which
asserts that:

�To allow an amendment . . . operates a
grave hardship on the Respondent and at the very least the matter should be
remanded for rehearing.�

Respondent also contends that had the type of soil been in
issue, testimony would have revealed that it was, in fact, hard and compact.

[6] Any water present on the
sides of the trench was explained as having resulted from water dripping from
the backhoe bucket when swung upward to dump excavated dirt.