H.H. HALL CONSTRUCTION CO.
OSHRC Docket No. 76-4765
Occupational Safety and Health Review Commission
October 7, 1981
[*1]
Before: CLEARY and COTTINE, Commissioners. *
* Chairman Rowland took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See § 12(f) of the Act, 29 U.S.C. § 551(e). Commissioners Cleary and Cottine considered the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.
COUNSEL:
Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor, USDOL
Lawrence P. Kaplan, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Vernon Riehl is before the Commission for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 [*2] ("the Act"). In his decision, Judge Riehl concluded, among other things, that Respondent, H.H. Hall Construction Co. ("Hall"), was in serious violation of the trenching standards at 29 C.F.R. § 1926.651(q) n2 and 29 C.F.R. § 1926.652(a), n3 and in serious violation of a safety training standard at 29 C.F.R. § 1926.21(b)(2). n4 Hall filed a petition for discretionary review essentially raising the following issues:
1. Whether Stimson Contracting Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD P21,675 (No. 13812, 1977), is applicable in this case to preclude duplicative citations.
2. Whether the Administrative Law Judge properly considered evidence of working conditions and equipment at the jobsite which existed prior to the inspection.
3. Whether an employer can properly be found in violation of 29 C.F.R. § § 1926.651(q) and .652(a) if its employees were exposed to the hazard for a "minimal period" of time.
4. Whether Hall's state of noncompliance with 29 C.F.R. § § 1926.651(q) and .652(a) was a result of unpreventable employee misconduct due to employee refusal to install a proper protective device.
5. Whether the Secretary of Labor sustained his burden of proving [*3] a violation of 29 C.F.R. § 1926.651(q).
6. Whether the Administrative Law Judge erred in finding Hall in serious violation of 29 C.F.R. § 1926.21(b)(2).
Former Commissioner Barnako granted the petition. We affirm the judge's decision in part and reverse it in part.
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n1 29 U.S.C. § 661(i).
n2 § 1926.651 Specific excavation requirements.
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(q) If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.
n3 § 1926.652 Specific trenching requirements.
(a) Banks more than five 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 . . . .
n4 § 1926.21 Safety training and education.
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(b) Employer responsibility.
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(2) 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.
[*4]
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I
Hall was engaged in the installation of sewer pipe between two streets in Collinsville, Illinois. A compliance officer from the Occupational Safety and Health Administration inspected the worksite as a result of a telephoned complaint.
At the time of the inspection, Hall had dug an excavation measuring 46 feet in length and from 10 feet 8 inches to 15 feet 6 inches in width. The excavation's west wall measured 20 feet at its deepest point, and the excavation's east wall measured 15 feet in depth. At the bottom of this excavation, having a common west wall with the excavation, was a trench running 3/4 of the length of the excavation. The trench had a width of 4 feet 6 inches and, from the bottom of the excavation, an additional depth of 6 feet. These measurements are undisputed.
The compliance officer observed that soil was piled to a height of over 5 feet near the sides of the excavation. He further observed that the sides of both the trench and excavation were not sheet piled, shored, sloped or otherwise restrained from collapse. Furthermore, the parties stipulated that the trench and excavation [*5] were dug in soil that was mainly clay. Hall's employees testified that there was moisture and cracking of the soil at the bottom of the trench. Based upon such conditions, a citation alleging a serious violation for failure to comply with the trenching standard at 29 C.F.R. § 1926.652(a) was issued to Hall. A $650 penalty for this alleged violation was proposed by the Secretary of Labor ("Secretary").
During the inspection the compliance officer also observed that Hall was using an Ensley H 3500 B backhoe to dig the trench and excavation. After the digging had been completed, the backhoe was positioned at the end of the excavation where it was used to lower sewer pipe into the trench. A citation alleging a serious violation for failure to comply with the standard at 29 C.F.R. § 1926.651(q) was issued to Hall as a result of this condition. A $650 penalty for this alleged violation was proposed by the Secretary.
The compliance officer testified that Hall's assistant job superintendent stated that employees on the job had never received any instructions relating to the recognition of hazards in excavations or to safety regulations that apply to such hazards. Hall was issued [*6] a third citation alleging a serious violation for failure to comply with the safety training and education standard at 29 C.F.R. § 1926.21(a)(2). A $650 penalty was proposed by the Secretary for this third alleged violation.
II
Judge Riehl affirmed separate serious violations for Hall's failure to comply with the trenching standards at 29 C.F.R. § 1926.652(a) and 1926.651(q). He concluded that Hall was in serious violation of section 1926.652(a) because the moist and cracked clay soil at the bottom of the trench could cave-in unless properly shored, sloped or otherwise protected. The judge found that employees working in the trench were exposed to a cave-in hazard which could cause serious injury or death. The judge also concluded that Hall was in serious violation of the excavation standard at section 1926.651(q) because the backhoe used to lower pipe to the workers was located near the excavation. The judge reasoned that the soil conditions "plus the near vertical sides warrant additional precautions where a backhoe is used nearby and particularly where the backhoe causes vibrations." Finally, the judge found a serious violation for failure to comply with section 1926.21(b)(2) [*7] on the basis that Hall's employees testified that they had received no instruction in the recognition and avoidance of unsafe trench conditions. n5 The judge noted that the employees were in an unsafe excavation which they thought to be safe.
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n5 The judge did not make any specific credibility findings on thi issue even though Hall introduced evidence in rebuttal to the testimony of the three employees. The assistant superintendent testified that he instructed the employees as he was "going along" instead of lecturing to them about possible hazards before they went to work.
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On review, Hall argues that the judge did not follow Commission precedent, represented by the Commission's decision in Stimson Contracting Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD P21,675 (No. 13812, 1977) ("Stimson"), n6 when he found that Hall's failure to comply with section 1926.652(a) and section 1926.651(q) were separate violations. Hall reads Stimson to hold that when there are violations of the two standards [*8] at issue in this case, the failure to comply with section 1926.652(a) is included within the section 1926.651(q) violation. Hall concludes that citing an employer for both violations is duplicative and that an application of Stimson would require that the citation for the failure to comply with section 1926.652(a) be vacated. Hall argues on review that it was found to have committed three serious violations and "heavily fined" for what should amount to a single failure to comply with the Act.
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n6 The Commission decision in Stimson was issued three days before the hearing in this case. The judge issued his decision approximately six months after the hearing. It is not clear whether Judge Riehl considered Stimson and rejected it or failed to apply it in this case.
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Hall also argues that the standard at 29 C.F.R. § 1926.651(q) is unenforceably vague because the standard fails to contain an ascertainable standard of conduct. Hall maintains that because the standard is broadly worded, an objective test should [*9] be applied to determine whether a reasonably prudent person familiar with the trenching industry would have understood the standard to require shoring and bracing while the backhoe was used at the end of an excavation. Hall claims that because the Secretary failed to present evidence to show that hall had knowledge of an industry practice of shoring and bracing while a backhoe is at the end of the excavation, he failed to sustain his burden of proving a violation of section 1926.651(q). Furthermore, Hall argues that it showed that the backhoe did not create a "superimposed load" within the meaning of the standard by introducing an expert witness (engineer) who testified that the weight of the backhoe spread out over the crawler pads was 9 1/2 pounds per square inch -- pressure equivalent to that of a human being standing near the excavation. Hall also argues that the violation of section 1926.651(q) should be vacated because the Secretary failed to prove that there were vibrations emanating from the backhoe, as required in Moore Construction, Inc., 76 OSAHC 47/E14, 4 BNA OSHC 1131, 1975-76 CCH OSHD P20,632 (No. 5093, 1976).
Hall also argues on review that the judge improperly [*10] admitted and considered evidence of work performed in the trench prior to the dates of inspection. Hall asserts that its right to due process was violated because the citation put it on notice to defend only as to those conditions existing on the days of inspection and not for conditions existing prior to those dates. Furthermore, Hall contends that because the judge considered evidence as to conditions on other days, he necessarily ignored the requirement that pleadings be particular. Hall cites Tolar Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975).
Hall contends alternatively that because the employees were working in the excavation from five to ten minutes on the day of the inspection, employee exposure to a hazard in this case was "minimal" thus requiring a conclusion that the two trenching violations were de minimis.
Finally, Hall argues on review that the two serious trenching citations be vacated because the noncompliance with sections 1926.651(q) and 1926.652(a), if any, was a result of unpreventable employee misconduct. Hall asserts that on September 30, 1976, it provided a trench box and attempted to have it lowered into [*11] the excavation, but the employees refused to do so. Hall maintains that it did all that could reasonably be expected of it to prevent the violations. Hall relies on Ocean Electric Co., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD P20,167 (No. 5811, 1975).
The Secretary argues in his brief on review that under Koppers Co., Inc., OSAHRC , 2 BNA OSHC 1354, 1974-75 CCH OSHD P19,063 (No. 3449, 1974), an employer may be cited for failing to comply with different standards which relate to the same general hazard provided that "different factual situations" support each alleged violation. The Secretary maintains that two of the three serious violations in this case, although based on the same situation with some shared facts, involved separate and distinct hazards. The Secretary takes the position that the hazardous situation created by the failure to comply with section 1926.652(a) would be a cave-in of the 20 foot unshored wall. He maintains that this hazard could have been abated by the installation of bracing and shoring to stabilize the wall. The danger created by a failure to comply with section 1926.651(q) would, the Secretary asserts, be a cave-in of both [*12] walls due to the placement of a backhoe idling or operating near the excavation. This hazard, he claims, could have been abated by the removal of the backhoe from the edge of the excavation or by the installation of bracing and shoring in addition to the sloping or bracing required by section 1926.652(a). The Secretary claims that Hall's failure to brace the walls of the excavation to compensate for the superimposed load significantly increased the initial hazard of collapse due to the nature and condition of the soil. The Secretary maintains that to cite Hall only for a violation of section 1926.651(q) would not put the employer on notice that it was under a duty to take steps to prevent a cave-in of unstable soil regardless of whether heavy equipment was operating at the edge of the excavation. The Secretary urges the Commission to reconsider its holding in Stimson.
The Secretary also argues that he met his burden of proving a violation of section 1926.651(q) because under the Commission's holding in Stimson he need only show that the superimposed load was placed near the excavation.
The Secretary takes the position that the judge did not ear by admitting evidence [*13] about worksite conditions prior to the inspection dates. He cites the Commission decision in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976), n7 for the proposition that a compliance officer need not personally observe employee exposure to a hazard. Instead, he asserts, he can establish employee exposure by showing that employees "will be, are, or have been in a zone of danger." Therefore, the Secretary concludes that the judge did not err in considering evidence of pre-inspection worksite conditions.
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n7 At the hearing, Hall's employees testified that they were working in the excavation during a three day period before the inspection and that the backhoe was parked near the excavation during that time. Exhibits C-4 through C-9 show various tools and a ladder inside the excavation, which suggest that workers would have to have been inside the excavation in order to leave those items behind. See Concrete Constuction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD P21,269 (No. 5692, 1976).
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The Secretary of review further argues that employee exposure in this case was not "minimal," and that even if it was, "minimal" exposure is irrelevant in determining whether a violation existed. He also maintains that the record supports the inference that employees would have remained in the trench to continue laying pipe if the compliance officer and the union representative had not told them the excavation was unsafe.
Finally, the Secretary argues on review that Hall did not meet the elements of the unpreventable employee misconduct defense. The Secretary claims that if Hall actually intended to install the trench box, it could have done so by using available supervisors to finish the job. Therefore, the employer failed to do everything reasonably possible to assure compliance. The Secretary further points out that even if evidence existed to show that the employees refused to install the trench box, their refusal would not relieve the employer of its duty to cure the hazardous situation by use of other methods of abatement specified in the standards and by proper training and discipline of employees. He relies on Brennan [*15] v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975).
III
We have reconsidered Stimson and overrule it to the extent that it requires the Commission to vacate a citation or an item of a citation on the grounds that one violation is included within another cited violation. Although a worksite condition may violate more than one standard, section 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition ever though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard. Thus, there is no unfair burden imposed on an employer when the same or closely related conditions are the subject of more than one citation item and a single action may bring an employer into compliance with the cited standards. However, the Commission has wide discretion in the assessment of penalties for distinct but potentially overlapping violations and it is appropriate to assess a single penalty for overlapping violations as the Commission has done in the past. See, e.g., CTM, Inc., 76 OSAHRC 87/D11, 4 BNA OSHC 1468, 1470, 1976-77 CCH OSHD P20,912, p. 25,107 (No. [*16] 5106, 1976), rev'd on other grounds, 572 F.2d 262 (10th Cir. 1978); see also Safeway Stores, 74 OSAHRC 92/D1, 2 BNA OSHC 1439, 1441, 1974-75 CCH OSHD P19,161, p. 22,706 (Nos. 454, 723 & 1070, 1974) (Cleary, Commissioner, concurring in part and dissenting in part), vacated on reconsideration of another ground, 75 OSARHC 54/C2, BNA OSHC 1123, 1974-75 CCH OSHD P19,694 (1975). Despite the fact that the violations alleged in this case, operation of heavy equipment near an excavation and improper support of trench walls, result in the same general hazard -- collapse or cave-in -- the conditions giving rise to the violations are separate and distinct. Accordingly, we conclude that Hall's simultaneous noncompliance with two standards is not necessarily duplicative. We thus reject Hall's argument in this case that separate violations for the cited conditions cannot stand. Hall has, however, presented other arguments which require disposition.
We also reject Hall's argument that section 1926.651(q) is unenforceably vague. Contrary to Hall's assertion, the standard does set forth an ascertainable standard of conduct. The language of the standard clearly requires sheetpiling, [*17] shoring or bracing in an excavation when heavy objects are placed or operated above and near an excavation. We conclude that such a requirement "affords a reasonable warning of the proscribed conduct in light of common understanding and practices." Cf. Dravo Corp., 80 OSAHRC 2/B10, 7 BNA 2095, 1980 CCH OSHD P24,158 (No. 16317, 1980), petition for review denied, No. 80-1267 (3d Cir. Oct. 9, 1980) (validity of 29 C.F.R. § 1916.31(b)(1)); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974) (validity of 29 C.F.R. § 1910. 132(a)).
Hall's argument that the citation alleging a violation of section 1926.651(q) must be vacated because its backhoe created no additional pressure on the excavation walls is misplaced. Hall sought to introduce evidence to show that despite the location of a backhoe near the excavation no additional pressure was imposed on the surrounding earth. Hall relies on the testimony of its safety coordinator, Mr. Jacobsmeyer, that the backhoe near the end of the excavation exerted a pressure of 9.49 pounds per square inch. Such pressure, Hall claims, is equivalent to that exerted by a person. Respondent's argument is based on the proposition [*18] that tracked vehicles, by their nature, spread the load out over the entire area of their tracks. We agree with the Secretary that section 1926.651(q) assumes that backhoes and other equipment located nearby impose weight on the earth in the vicinity of a trench. Thus, the standard takes cognizance of that fact. Hall's argument amounts to questioning the wisdom of a standard. The Commission has consistently held that it lacks the authority to question the Secretary's determination that the requirements of a standard are reasonably necessary or appropriate to eliminate or reduce workplace hazards. See, e.g., Dayton Tire & Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 1980 CCH OSHD P24,842 (No. 16188, 1980), pet. filed, No. 80-3755 (6th Cir., Nov. 25, 1980).
Hall also contends that the Secretary failed to sustain his burden of showing that vibrations emanated from the backhoe. Hall relies on the Commission decision in Moore Construction, Inc., supra, for the proposition that where the amount of vibration caused by a backhoe is not proven, the Secretary cannot rely solely on a general statement of possible vibrations. We disagree. The standard under which [*19] Hall was cited, 29 C.F.R. § 1926.651(q), is violated by the placement of a superimposed load near an excavation without additional precautions; it requires no evidence of vibrations. Moore Construction, Inc., supra, relied on by Hall, is inapposite. The standard at issue in that case, 29 C.F.R. § 1926.652(e), provides, "[a]dditional precautions . . . shall be taken . . . when excavations . . . are . . . subjected to vibrations . . . ." Section 1926.651(q), unlike section 1926.652(e), does not require proof of vibration.
Hall's argument that the judge erred in considering evidence of work performed in the trench prior to the dates of inspection is without merit. Inasmuch as it is unrebutted that employees were working in the trench on the day of the inspection, it is unnecessary to respond to Hall's objection to the admission of evidence regarding other days.
We also reject Hall's argument that the violations, if any, are de minimis because employees were exposed to a hazard for a "minimal" period of time. In Stahr and Gregory Roofing Co., Inc., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1979 CCH OSHD P23,261 (No. 76-88, 1979), we held that the brevity of an employee's exposure [*20] to a hazard would not negate a finding of a violation. While a brief exposure to a hazard may result in a lower likelihood of an incident occurring, it is the nature of the consequences of such an incident that is relevant to a determination of whether a violation is serious under section 17(k). The duration of employee exposure is not determinative of the seriousness of a violation, it relates only to penalty assessment. See Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979); Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978). The hazard of an excavation cave-in could be considered neither "slight" nor as having "no direct or immediate relationship to safety or health." Section 9(a), 29 U.S.C. § 658(a). See Gallo Mechanical Contractors, Inc., 80 OSAHRC 122/A2, 9 BNA OSHC 1178, 1981 CCH OSHD P25,008 (No. 76-4371, 1980); Fabricraft, Inc., 79 OSAHRC 49/A2, 7 BNA OSHC 1540, 1979 CCH OSHD P23,691 (No. 76-1410, 1979).
Hall contends that in light of employee refusal to help lower a trench box into the excavation it did all that could reasonably [*21] be expected of it to prevent the violation. Hall relies on the Commission decision in Ocean Electric Co., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD P20,167 (No. 5811, 1975). Hall's reliance on Ocean Electric is misplaced for two reasons. First, the alleged violation in this case existed on the morning of September 30 prior to the time Hall claims employee refusal precluded it from installing trench boxes. There is undisputed evidence of record that the required trench boxes, totalling a height between 16 and 20 feet, were not at the cited location and ready for installation until approximately 10:00 a.m. n8 Second, we reject Hall's argument to the extent that its reliance on the Commission decision in Ocean Electric Corp., supra, seeks to preclude the imputation to it of its supervisor's action in allowing employees to enter the unshored trench. A supervisor's actions are usually imputed to his employer unless the employer is able to show that it did everything it could be prevent the violation including providing adequate safety instruction and proper supervision for the supervisors themselves. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC [*22] 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980). In this case, Hall presented no evidence regarding either the training of its supervisors as to conditions requiring the use of trench boxes or as to steps it took to assure that its supervisors properly dealt with trench problems.
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n8 Because a violation is shown by this record notwithstanding inconsistent testimony regarding an asserted labor dispute affecting the installation of the trench boxes, we need not resolve the conflicts in the testimony on this point.
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Our reading of the record indicates that an amendment of the pleadings to conform to the evidence is necessary in this case. Throughout these proceedings the Secretary has supported and Hall has defended against the allegation that Hall failed to comply with 29 C.F.R. § 1926.652(a). Section 1926.652(a) is applicable to "[b]anks more than 5 feet high." See note 3, supra. The term "bank" is defined at 29 C.F.R. § 1926.653(c) as "[a] mass of soil rising above a digging level." (Emphasis added). [*23] Section 1926.652(a), on its face, is not applicable to "sides" or "walls" of an excavation which are defined in 29 C.F.R. § 1926.653(k) as "[t]he vertical or inclined surfaces formed as a result of excavation work." Gerstner Electric, Inc., 75 OSAHRC 54/A2, 2 BNA OSHC 1130, 1974-75 CCH OSHD P18,406 (No. 997, 1974). Both parties tried the case with the understanding that the issues involved the "sides" or "walls" of the trench and excavation and not a mass of soil above the original ground level. Indeed, both parties presented evidence and argument regarding the "sides" or "walls" of the trench. The judge found that moist and cracked clay soil at the bottom of the trench could cave-in the absence of proper protection. Thus, while the parties was referring to section 1926.652(a) they actually tried on alleged violation of section 1926.652(b). n9
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n9 29 C.F.R. § 652(b) provides:
§ 1926.652 Specific Trenching Requirements.
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(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. See Tables P-1, P-2 (following paragraph (g) of this section).
[*24]
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Rule 15(b) of the Federal Rules of Civil Procedure, n10 made applicable to Commission proceedings by section 12(g) of the Act, 29 U.S.C. § 661(f), and 29 C.F.R. § 2200.2(b), n11 governs amendments of pleadings to conform to the evidence. Under Rule 15(b), amendment of the pleadings to conform to the evidence is permissible where, as here, parties have, without objection, tried the unpleaded issue. See Rodney E. Fossett d/b/a Southern Lightweight Concrete Co., 79 OSAHRC 92/D2, 7 BNA 1915, 1979 CCH OSHD P23,989 (No. 76-3944, 1979). Accordingly, we amend the pleadings to allege a violation of section 1926.652(b) in place of section 1926.652(a). See Gerstner Electric, Inc., supra.
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n10 Fed. R. Civ. P. 15(b) provides:
Rule 15. Amended and Supplemental Pleadings.
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(b) Amendments To Conform To The Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to safisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
n11 Section 12(g) of the Act provides:
Every official act of the Commission shall be entered of record, and its hearings and records shall be open to the public. The Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings. Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.
29 U.S.C. § 661(f). Commission Rule 2, 29 C.F.R. § 2200.2(b), provides:
Rule 2 Scope of Rules; applicability of Federal Rules of Civil Procedure.
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(b) In the absence of a specific provision, procedure shall be in accordance with Federal Rules of Civil Procedure.
[*25]
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For the reasons discussed above, we conclude that Hall failed to comply with 29 C.F.R. § 1926.651(q) and 29 C.F.R. § 1926.652(b).
Hall's final arguments, that the alleged violation for failure to provide adequate safety training pursuant to 29 C.F.R. § 1926.21(b)(2) is duplicative of the trenching violations and, if it is an independent violation, should be reduced from serious to other than serious, are rejected. The standard at 29 C.F.R. § 1926.21(b) imposes a duty on employers to instruct employees "in the recognition and avoidance of unsafe conditions." The undisputed evidence here is that Hall's employees received no instruction in how to recognize or avoid "unsafe conditions" commonly encountered in trenching operations. Thus, even if the trench in this case was in compliance, Hall's failure to fulfill its duty to instruct its employees would be a violation of section 1926.21(b). The violation for failure to instruct is separate and distinct from the trenching violations. In determining whether a particular violation is serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j), [*26] the proper inquiry is whether there is a substantial probability that an incident, if it occurs, will result in death or serious physical harm. California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD P16,520 (No. 14, 1973), aff'd, 517 F.2d 986 (6th Cir. 1975). The evidence in this case demonstrates that Hall's employees, due to their lack of safety training, neither recognized nor sought to avoid the unsafe conditions presented by the excavation until the dangers were pointed out to them by the compliance officer. The hazard presented by the collapse of a trench 6 feet deep, itself dug in an excavation over 10 feet deep, is clearly one that could result in death or serious physical harm. We thus conclude that Hall's violation of section 1926.21(b)(2) was serious within the meaning of the Act.
After considering the penalty factors set forth in section 17(j) of the Act, n12 as well as the fact that proper use of the trench boxes which arrived at the worksite late would abate both the section 1926.651(q) and 1926.652(b) violations, we assess a single penalty of $1,000 for the serious violations of sections 1926.651(q) and 1926.652(b). We affirm [*27] the judge's assessment of $650 for the serious violation of section 1926.21(b)(2).
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n12 Section 17(j) of the Act, 29 U.S.C. § 661(i), states that:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
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Accordingly, we affirm citation 1 for a serious violation of 29 C.F.R. § 1926.21(b)(2) and assesses a penalty of $650. We also affirm citations 2 and 3 for serious violations of 29 C.F.R. § 1926.651(q) and 29 C.F.R. § 1926.652(b), respectively, and assess a single $1,000 penalty for these two violations.
SO ORDERED.