The evidence also establishes that the violation was serious. Under § 17(k) of the Act, a
violation is “serious” if there is “a substantial probability that death or serious physical harm
could result from a condition which exists.. . .” 29 U.S.C. § 666(k). The Secretary need not
show that there is a substantial probability that an accident will occur; she need only show that if
an accident occurred, serious physical harm could result. Whiting-Turner Contracting Co., 13
BNA OSHC 2155, 2157 (No. 87-1238, 1989).
The evidence establishes that, if the trench failed or material fell into the gap, the shields were
not constructed to restrict lateral movement and employees working within could have been
killed or seriously injured (Tr. 432). The violation was serious.
PMI’s serious violation of 29 C.F.R. § 1926.652(g)(1)(ii) is established.
Citation No. 1, item 3 – Alleged Violation of § 1926.1402(b)
The citation alleges a serious violation of 29 C.F.R. § 1926.1402(b) on the grounds that “[a]t the
trenching area-on March 12, 2011, employees were using a Broderson telescoping boom crane
that was not set up on secure soil to support the crane, exposing employees to struck-by
hazards.” The Secretary proposes a penalty of $3,500.00.
Section 1926.1402(b) provides:
The equipment must not be assembled or used unless ground conditions are firm,
drained, and graded to a sufficient extent so that, in conjunction (if necessary) with the
use of supporting materials, the equipment manufacturer's specifications for adequate
support and degree of level of the equipment are met. The requirement for the ground to
be drained does not apply to marshes/wetlands.
In order to assist in placing the pipe into the trench, PMI used a carry-deck crane. The
evidence establishes that on March 12, 2011, PMI did not have pads under the outriggers to support
them, as required by the standard. When the crane is set up, the outriggers are extended to lift the
crane off of the ground to give it more stability (Exhs. C-13, C-14; Tr. 297). If the crane is set
up on soft ground, pads are placed under the outriggers to keep it from sinking and tipping over
while lifting material (Tr. 297-298, 452-54, 456). When the CO inspected the location of the
crane, it was set up on dirt, not concrete. PMI crane operator who moved the crane and set it up,
confirmed it was set on dirt (Tr. 298). He testified that pads were available, but that they were
simply overlooked (Tr. 298). The photographs show no sign of concrete in the area where the
crane was stationed (Exhs. C-5, C-6, C-20, C-35). PMI’s safety director noted in her Accident
Report that the crane was placed in a congested area where there was “visible instability of
banks of trench” (Exh. C-38, p. 2). One of the outriggers had sunk into the dirt to the point
where the plate was not visible ( Exhs. C-13, C-14; Tr. 454).
The evidence also establishes that employees were exposed to the hazard. The crane operator
was exposed by virtue of being in the crane which was in danger of tipping over. Also, the crane
was located by the trench where PMI employees were working. Had the crane slipped or tipped
over, those employees were exposed to the hazard of the falling crane. Finally, the competent
person, who was operating as the flagman, was exposed to the hazard (Tr. 457).
PMI knew or, with the exercise of reasonable diligence should have known, of the violation.
The crane operator testified that the pads were available, but that he and the competent person
simply “overlooked that” (Tr. 298). This clearly establishes that, with the exercise of reasonable
diligence, the competent person should have known of the violation. As noted, supra, the
competent person was the leadman/foreman at the site. As such, his knowledge is imputed to
The violation was serious. Had the crane tipped over onto employees, the result would have been
death or serious harm (Tr. 458). PMI’s violation of § 1926.1402(b) is established.
Citation No. 1, items 4a and 4b – Alleged Violation of
§ 1926.1412(d)(1) and § 1926.1412(e)(1)
Item 4(a) alleges a serious violation of 29 C.F.R. § 1926.1412(d)(1) on the grounds that
“[a]t the trenching area-on March 12, 2011, the Broderson telescoping boom crane was not
inspected before operating the crane that day, exposing employees to struck-by hazards.” The
Secretary proposes a grouped penalty for items 4a and 4b of $2,800.00.
Section 1412(d)(1) provides:
A competent person must begin a visual inspection prior to each shift the equipment will
be used, which must be completed before or during that shift. The inspection must
consist of observation for apparent deficiencies. Taking apart equipment components
and booming down is not required as part of this inspection unless the results of the
visual inspection or trial operation indicate that further investigation necessitating taking
apart equipment components or booming down is needed. Determinations made in
conducting the inspection must be reassessed in light of observations made during
operation. At a minimum the inspection must include all of the following: [. . . ]
The standard proceeds to list items to be inspected on the crane such as, electrical
apparatus, control mechanisms, fluid levels, hooks and latches, ropes, and cab windows.
Item 4(b) alleges a serious violation of 29 C.F.R. § 1926.1412(e)(1) on the grounds that
“[a]t the trenching area-on March 12, 2011, the Broderson telescoping boom crane had been
operated at the site since January 2011 and had not been inspected on a monthly basis, exposing
employees to struck-by hazards.”
Section 1926.1412(e)(1) provides:
Each month the equipment is in service it must be inspected in accordance with
paragraph (d) of this section (each shift).
The crane was rented by PMI from a rental company called RSC and arrived on the site in
January 2011 (Tr. 647-648). PMI’s superintendent testified that RSC was supposed to come out
once a week to maintain and check all the equipment. However, he did not know who at PMI
was responsible to ensure that RSC actually performed the inspections (Tr. 647). To his
knowledge, PMI did not get any inspection reports (Tr. 648). The crane operator testified that he
did not conduct a monthly inspection of the crane (Tr. 294). He did not prepare any checklists or
conduct a hazard assessment (Tr. 294). He also agreed that cranes should be inspected weekly,
but he did not provide any written documentation of such an inspection to his supervisors
(Tr. 295). According to the crane operator, the superintendent never asked for an inspection
report on the crane. Moreover, he had no idea who monitored the inspection of the cranes
The crane operator claimed he performed daily inspections. Normally, however, his daily
inspection consisted only of walking around to check that there were no flat tires and that no
fluids were leaking. The crane operator testified that on March 12 he only looked to see if the
tires were okay. He likened his “inspection” that day to when “you walk to your car and you see
you don’t have a flat tire and you just go on” (Tr. 324). This evidence establishes that PMI
conducted neither daily nor monthly inspections of its crane.
PMI contends that RSR was responsible for conducting the monthly inspections. It also asserts
that the superintendent never ordered the crane to be used that day. Rather, employees were
supposed to lower the pipes into the crane with the lull. There is no evidence that the
superintendent knew that the crane was being used. Also, the violation was the result of
employee misconduct which as discussed previously is rejected. PMI’s other arguments are also
PMI seeks to be excused from the responsibility of conducting a monthly inspection because
RSC was obligated to conduct the inspections. However, there is no evidence that RSC
conducted these inspections. Nor is there any evidence that PMI checked to ensure that the
monthly inspections were conducted. PMI was in possession of the crane and its employees
were exposed to the hazards created by the lack of a proper monthly inspection.
“An employer may carry out its statutory duties through its own private arrangements with third
parties, but if it does so and if those duties are neglected, it is up to the employer to show why he
cannot enforce the arrangements he has made.” Froedtert Memorial Lutheran Hospital, Inc., 20
BNA OSHC 1500, 1508 (quoting Central of Georgia R.R. Co. v. OSHRC, 576 F.2d 620, 624
(5th Cir. 1978)). See also, Baker Tank Co./Altech, 17 BNA OSHC 1177, 1180 (No. 90-1786-S,
1995) (an employer cannot “contract away its legal duties to its employees or its ultimate
responsibility under the Act by requiring another party to perform them).
PMI has introduced no evidence that it made any effort to enforce RSR’s obligation to conduct
regular inspections of the crane. Moreover, any obligation by RSR to conduct weekly
inspections did not extend to the daily inspections required by the standard and which PMI failed
PMI’s attempt to assert a lack of knowledge and employee misconduct for the failure to conduct
a daily inspection is also without merit. The evidence demonstrates that PMI failed to ensure
that RSR was conducting the inspections. PMI’s superintendent was responsible for ensuring
that RSR conducted its inspections, but neither asked for nor received any inspection reports (Tr.
167, 296, 647-648). The superintendent could not identify anyone at PMI who was responsible
for ensuring that RSR conducted the inspections (Tr. 647). Similarly, the superintendent did not
provide the safety director any documentation regarding daily or monthly crane inspections (Tr.
804-805). Reasonable diligence includes inspecting the worksite and anticipating hazards.
Halmar Corp., 18 BNA OSHC 1014, 1016 (No. 94-2043, 1997) , aff’d without published
opinion , 152 F.3d 918 (2d Cir. 1998). Had PMI officials exercised reasonable diligence, they
would have known that the crane was not being properly inspected.
The crane operator’s testimony establishes that his daily inspection of the crane consisted merely
of checking for oil leaks and flat tires. This falls far below the checks required by the standard.
On March 12, the crane operator did not conduct even this cursory look. That the superintendent
may not have been aware that the crane was being used is of no consequence. The competent
person was certainly aware that the crane was being used and, as foreman, his knowledge is
imputed to PMI. Also, there is no evidence that PMI had any enforced work rules requiring a
daily inspection of the crane. The crane operator could not even name who, at PMI, was
responsible for monitoring that the crane was properly inspected (Tr. 296).
The evidence establishes that employees were exposed to the hazard of the uninspected crane.
Employees were working in the trench where the crane was lowering the pipes. The flagman
who worked near the crane, and the crane operator were also exposed to the violative conditions.
The violations identified in items 4a and 4b were serious. Had the crane failed while picking up
or carrying a load, it could have fallen upon the exposed employees resulting in death or serious
harm (Tr. 460-461).
PMI’s violations of § 1926.1412(d)(1) and § 1926.1412(e)(1) are established.
Citation No. 2, item 1a and 1b – Alleged Violations of
§ 1926.651(k)(2) and § 1926.652(a)(1)
Item 1a alleges a willful violation of 29 C.F.R. § 1926.651(k)(2) on the grounds that (a) “[a]t the
trenching area-on March 12, 2011, employees were not removed from the 10-foot deep by 100-foot long trench with type-B soil, where there was no cave-in protection, exposing employees to
cave-in hazards. The competent person notified the project superintendent the trench was not
safe.” and (b) “[a]t the trenching area-on March 12, 2011, employees were not removed from the
10-12 feet deep area with type-B soil with the trench shields 2-4 feet below the top of the trench,
exposing employees to cave-in hazards. The competent person notified the project
superintendent the trench was not safe.” The Secretary proposes a grouped penalty of
$56,000.00 for items 1a and 1b.
Section 1926.651(k)(2) provides:
Where the competent person finds evidence of a situation that could result in a possible
cave-in, indications of failure of protective systems, or other hazardous conditions,
exposed employees shall be removed from the hazardous area until the necessary
precautions have been taken to ensure their safety.
Item 1b alleges a willful violation of 29 C.F.R. § 1926.652(a)(1) on the grounds that (a)
“at the job site-on March 12, 2011, employees worked inside the 10-foot deep by 100-foot long
trench with type-B soil, where there was no cave-in protection, exposing employees to cave-in
hazards,” and (b) at the job site-on March 12, 2011, employees worked inside the 10-12 feet
deep trench with type-B soil, with the top of the trench shields 2-4 feet below the top of the
trench, exposing employees to cave-in hazards.”
Section 1926.652(a)(1) provides:
Each employee in an excavation shall be protected from cave-ins by an adequate
protective system designed in accordance with paragraph (b) or (c) of this section except
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a
competent person provides no indication of a potential cave-in.
The Secretary argues that PMI employees worked in areas of the trench that lacked an
appropriate protective system. In instance “a,” the employees worked in an area 10 feet deep
that did not contain trench boxes or other cave-in protection (Exhs. C-5, C-6, C-29). The
competent person/lead man testified that on March 12 he worked all over the trench, including
those portions that had no protection (Tr. 168). According to the CO, the competent person
knew that employees were working in the unprotected area of the trench, yet allowed employees
to enter (Tr. 449). This was confirmed by a PMI pipefitter, who testified that he saw three PMI
employees in an unprotected area of the trench (Tr. 310).
In instance “b,” there were trench boxes that did not extend to the top of the trench (Exhs. C-7,
C-11, C-32). According to Appendix B to the excavation standards, trench boxes or shields in
trenches dug in Type B soil, need to extend at least 18 inches above the top of the trench or the
soil needs to be sloped away from the box. Figure B-1.2 states: “3. All excavations 20 feet or
less in depth which have vertically sided lower portions shall be shielded or supported to a
height at least 18 inches above the top of the vertical side. All such excavations shall have a
maximum allowable slope of 1:1.” The accompanying figure demonstrates that the top of the
shield may not be below the top of the vertical side.
The CO testified that the top of most of the trench boxes were between 2 and 4 feet below the
top surface of the ground (Exhs. C-7, C-11; Tr. 435-436). When marking the space on the
photograph, the CO specifically drew the arrows from the top of the trench shields to the bottom
of the concrete pad (Exh. C-11; Tr. 436). JBC’s superintendent testified that the distance from
the top of the trench to the concrete pad was greater than 18 inches (Tr. 63). Exhibit R-7 shows
that the distance between the top of the shield to the top of the concrete at the pictured location
was 25 inches. The section of the trench with trench boxes measured 9-12 feet deep (Tr. 495).
The CO testified that the area marked “E” on exhibit C-7 had a slight angle, but did not know the
slope (Tr. 562). He testified that he did not measure the slopes at the areas where he found gaps
between the top of the shields and the top surface of the ground (Tr. 561-562, 587). However,
the CO explained that, in his view, there was no need to measure the slope because the walls
were nearly vertical (Tr. 503). JBC’s superintendent testified that the area marked “B” on
exhibit C-7 was not sloped at all (Tr. 40). He testified that the trench was sloped in other areas
“to some degree ” (Tr. 107).
In its brief, PMI points out that, under 29 C.F.R. §1926.650(b) “faces” or “sides” “means the
vertical or inclined earth surfaces formed as a result of excavation work” (emphasis added).
Therefore, PMI argues, the 18-inch limit imposed by the standard applies only to the soil and
does not include the thickness of any concrete slab sitting above the earthen surface (PMI’s
Brief, p. 27).
PMI argues that in the only area of the trench specifically measured, depicted in exhibit R-7, the
distance from the top of the shield to top of the surface was measured at 2 feet and 1 inch (PMI’s
Brief, p. 16; Tr. 581-582). PMI argues that the concrete slab was 12-18 inches thick.
Therefore, the exposed earth was only 13-17 inches thick. PMI contends that the gaps between
the shields and the trench wall were estimated at 7-13 inches wide. According to PMI, this
evidence demonstrates that the trench could have been sloped at the required 1:1 ratio. Having
failed to actually measure the slope, the Secretary has failed to meet her burden of establishing
the violation (PMI’s Brief, p. 27).
PMI confuses the gap between the shields and the trench walls with a slope. A vertical rise of
soil above a trench shield is not a slope and does not provide protection against a collapse of that
soil simply because it is recessed from the shield.
Under PMI’s argument, 5 feet of vertical soil
above a shield would be permissible if the gap between the shield and the trench were also 5
To comply with the standard, the soil above the trench shield must be sloped at a maximum
angle of 1:1 ratio. The CO testified that the trench was nearly vertical. This was corroborated
by the JBC superintendent who admitted that the area depicted in exhibit C-7 was not sloped and
that, in other areas, the trench was only sloped “to some degree” (Tr. 107). That the trench was
not properly sloped is further established by the photographic exhibits which demonstrate that
the trench walls were nearly vertical. Regardless of the distance of the soil from the trench
shields, the operative fact is that the soil above the trench shields were minimally sloped or not
sloped at all. Also, there were areas of the trench where the gap was substantially smaller. Even
under PMI’s theory, these areas would have been in violation of the standard.
PMI employees were exposed to the violative condition in item 1b. The employees were
working in the trench all week before the accident (Tr. 427). The employees told the CO that
they were laying pipe as fast as JBC was installing the trench boxes. Indeed, they were right
behind them as JBC was installing the trench boxes (Tr. 430-431). Through his interviews with
PMI employees, the CO determined that PMI employees were working in areas of the trench on
March 11, 2011, where the trench shields went no higher than ground level (Tr. 439).
PMI knew, or with the exercise of reasonable diligence should have known, of the violations in
items 1a and 1b. The violations were in plain view. PMI’s superintendent was present at the
worksite each day that PMI crews worked and he walked the site several times a day to see how
work was progressing (Tr. 644). As superintendent, it was the superintendent’s responsibility to
make sure that everyone was following the safety rules (Tr. 643). PMI’s competent person was
also present and oversaw the pipe installation. In addition to being able to identify hazardous
conditions, the competent person must have the “authorization to take prompt corrective
measures to eliminate them.” See 29 C.F.R. § 1926.650. The competent person’s role as a lead
man overseeing the pipe work in the trench is consistent with the authority required of a
competent person. He inspected the trench the morning of the accident, before work began
Both PMI’s competent person and its superintendent saw the way the boxes were installed, with
the boxes placed 2-4 feet below the existing concrete slab and the one box that was installed
correctly. They were both present the day of the accident and looked at the trench, so they knew
it had not been stepped back. Indeed, the competent person warned the superintendent that he
thought that the trench was unsafe (Tr. 149-150, 153). Therefore, through its supervisors, PMI
had actual knowledge of the unprotected portions of the trench and the improper way the trench
boxes were installed in the trench.
Also, it is noted that the excavation was dug in previously disturbed, Type B soil. The
competent person oversaw the crew using heavy equipment to put pipes in the trench. The
morning of the accident, he noticed a crack in the wall and mud in the bottom of the trench. He
concluded the recently excavated and unprotected area of the trench was unstable and unsafe for
entry (Tr. 148-149, Ex. C-6). Thus, he had actual knowledge of conditions that warranted either
not allowing the crew to enter or removing the workers if they did enter.
PMI’s violations of § 1926.651(k)(2) and § 1926.652(a)(1) are established.
The Secretary cited PMI’s violations of § 1926.651(k)(2) (item 1a) and § 1926.652(a)(1) (item
1b) as willful. A violation is “willful” if it was committed with intentional, knowing or
voluntary disregard for the requirements of the Act or with plain indifference to employee safety.
Continental Roof Systems, Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). The
employer’s state of mind is the key issue. AJP Construction, Inc., 357 F.3d 70, 74 (D.C. Cir.
2004). The Secretary must differentiate a willful from a serious violation by showing that the
employer had a heightened awareness of the illegality of the violative conduct or conditions, and
by demonstrating that the employer consciously disregarded OSHA regulations, or was plainly
indifferent to the safety of its employees. Valdak Corp., 17 BNA OSHC 1135, 1136 (No.
93-0239, 1995), aff’d 73 F.3d 1146 (8th Cir. 1996). In the Eleventh Circuit, where this case
arises, a violation is willful where either (1) the employer knew of an applicable standard
prohibiting the conduct or condition and consciously disregarded the standard, or (2) although it
did not know of an applicable standard’s requirements, “it exhibited such ‘reckless disregard for
employee safety or the requirements of the law generally that one can infer that the employer
would not have cared that the conduct or conditions violated the standard.’” Fluor Daniel v.
OSHRC, 295 F.3d 1232, 1240 (11TH Cir. 2002)(quoting J.A.M. Builders v. Herman, 233 F.3d
1350, 1355 (11th Cir. 2000)).
PMI’s competent person/lead man was in charge of overseeing the employees’ work activities.
The evidence also establishes that he had substantial and progressive medical and personal
problems that lead to his removal as a supervisor. Yet, because of his experience and history
with many of the crew members, he was allowed to operate as a lead man. As a lead man, the
competent person was a conduit between the superintendent and the crew when the
superintendent could not be at the site. The evidence also establishes that the competent person
did not fully understand the superintendent’s directive to keep employees out of the trench on
March 12, 2011. Although, as suggested by the PMI investigation report, the superintendent
should have made extra efforts to ensure that his orders were understood, his failure to do so
does not rise to the level of willfulness.
The circumstances surrounding employee entry into the unprotected portions of the trench are
unclear from the record. The Secretary argues that having employees enter the unprotected area
of the trench demonstrates that, even if he had been informed of the OSHA requirements, the
superintendent would have ignored them (Secretary’s Brief, p. 35). Such argument is not
supported by the record. The evidence fails to demonstrate that the superintendent was aware
that employees were entering the unprotected trench (Tr. 255-258, 630).
Moreover, the trench was inspected by SRS, Chevron, and Base Safety, none of whom voiced
any objection or expressed any concern about the trench box installation (Tr. 50, 93-95). With
twenty years in construction, focused mainly in piping, the superintendent’s experience in
trenching was minimal (Tr. 615). He testified that this project was the first time his work
involved trenches (Tr. 614). Thus, he was reliant upon his competent person and the inspections
of SRS, Chevron, and Base Safety in determining whether the trench was safe.
Under these circumstances, the elements of a willful violation were not established.
Although not willful, the evidence establishes that the violations in items 1a and 1b were serious.
The employees were exposed to a hazard that could have resulted in serious injury. That the top
portion of the trench contained a concrete slab does not diminish the hazard. Had the trench
failed, everything above the failure, including the concrete slab, would fall into the trench.
Moreover, even if the slab somehow stayed intact, the collapsing soil below it would pose a
hazard to employees. Rocks, soil and debris falling from the top of the trench to employees
below could have resulted in serious physical harm (Tr. 442).
Citation No. 2, item 2 – Alleged Violation of § 1926.1408(a)(2)
The citation alleges a willful violation of 29 C.F.R. § 1926.1408(a)(2) on the grounds that “[a]t
the trenching area and below the overhead power lines-on March 12, 2011, the employer did not
determine if any part of the Broderson crane, load line, or load could get closer that [sic] 20 feet
to the overhead energized 12.4 kV power line, exposing employees to an electrical shock
hazard.” The Secretary proposes a penalty of $56,000.00.
Section 1926.1408(a)(2) provides:
Before beginning equipment operations, the employer must:
* * *
(2) Determine if any part of the equipment, load line or load (including rigging and
lifting accessories), if operated up to the equipment’s maximum working radius in the
work zone, could get closer than 20 feet to a power line. If so, the equipment must meet
the requirements in Option (1), Option (2), or Option (3) of this section, as follows: [. . . ]
The relevant options require either deenergizing the lines, maintaining a 20-foot
clearance, or maintaining a clearance based on a Table.
Around lunch time, the crane operator and the competent person moved the Broderson crane
and set it up within 10 feet of the overhead power line that was 40 feet above the ground (Tr.
171, 466). When relocating the crane, they did not discuss any hazards they might encounter if
they moved the crane (Tr. 177, 300). The crane was used to place the pipes into the trench. It
had an extension boom which could extend 40 feet (Tr. 142). The boom retracted to 20 feet.
The crane had a radius of 360 degrees (Tr. 143). The pipes ranged from 20 to 40 feet in length
(Tr. 314). The crane operator was receiving signals from the competent person who was acting
as the flagger. He was relaying instructions from the pipefitter in the trench (Tr. 140, 291-292).
The competent person was aware of the power lines. Both he and a pipe fitter told the crane
operator to watch out for the lines (Tr. 249). However, they never discussed whether the lines
were energized, and the crane operator did not realize that they were energized until the accident
occurred (Tr. 292). According to the competent person, the crane operator was not able to see
the power line because the sun was obscuring his vision (Tr. 172).
One of the pipe fitters was standing in the trench between two pipes. He signaled to the
competent person to bring the crane closer. As he grabbed the hoop on the pipe, the competent
person heard a sound that he recognized as electricity. As a result, the pipe fitter was severely
injured (Tr. 136, 175-176). This evidence establishes that the crane either came into contact
with or came within 20-feet of the energized line in clear violation of the cited standard.
PMI argues that the citation should be vacated. It asserts that employees were instructed to use
the lull, not the crane, to place the pipes in the trench. Also, employees were instructed not to
enter the trench. Had these orders been followed, the accident would not have happened (PMI’s
Brief, p. 29). Indeed, the employees involved were disciplined for disobeying orders. PMI’s
defenses lack merit.
As discussed supra, the evidence demonstrates that PMI’s competent person/lead man knew that
employees were working in the trench. His knowledge is imputed to PMI. Also, while
employees were instructed to place the pipes in the trench with the lull, there is no evidence that
they were specifically prohibited from using the crane. When they decided to move the crane,
the crew never discussed the power lines, even though they were aware of its presence.
Moreover, the competent person was operating as the flagman and gave the directions that led
the crane to contact the power line. Yet, he attempted to place the blame on the crane operator
with the excuse that the sun was in the operator’s eyes. The evidence demonstrates that the
accident was the result of a failure of training and communication (Exh. C-38; Tr. 763). PMI
points out that its employees were disciplined for the events of March 12. Certainly, effective
discipline is a necessary part of an adequate safety program which must include adequate
training and communication. However, standing alone, employee discipline is of little
consequence where, before the accident, training and communication are inadequate.
Also, the superintendent testified that he saw that the crane was moved to the trench and that
employees were trying to set the pipes (Tr. 630). Indeed, he instructed the competent person not
to set the pipes, yet said nothing about the power lines. Therefore, the superintendent had actual
knowledge that the crane was being operated in proximity to the power lines, yet took no
measures to ensure that adequate distances were maintained.
PMI’s violation of § 1926.1408(a)(2) is established.
The Secretary asserts that PMI’s violation of § 1926.1408(a)(2) was willful. The Secretary
argues that the crew had been working a grueling schedule, was way behind schedule and was
being pressured to get the job done. The superintendent instructed the crew to place the pipes in
the trench without entering, but did not show them how to do it, even though they never did it
that way before. Instead, he relied on their experience to carry out his vague and misunderstood
orders (Secretary’s Brief, p. 41). The Secretary further asserts that safety was lax, especially that
Saturday. The competent person shifted his focus away from safety and toward carrying out the
superintendent’s direction. Also, the superintendent chose to work in his trailer, even though he
knew the competent person was struggling with his instruction. Even when two pipe fitters told
the superintendent of the competent person’s confusion, he did nothing. Progress on the project
was first, safety was second (Secretary’s Brief, p. 42).
The record demonstrates that PMI was working a tight schedule and was under pressure to
complete the job. Some employees worked seven days a week, for as many as 16 hours a day
(Tr. 641-642). Indeed, on the day of the accident, Chevron offered the crew a steak dinner if
they got all the pipes in the trench-no matter what it took (Tr. 226). As a result of the pressure, it
is clear that PMI got sloppy. For example, the crane operator did not conduct his usual
inadequate inspection of the crane and both the competent person and the crane operator failed to
place the pads under the outriggers. However, the competent person’s medical problems were a
significant factor in the superintendent’s inability to adequately communicate his instructions.
Although he failed to ensure that the competent person understood his instructions, the
Secretary’s assertion that he did nothing is not borne out by the record. To the contrary, as noted
supra, the superintendent repeated his instructions several times, including at least once while in
front of other employees. In any event, none of these other violations (inadequate crane
inspections and lack of pads) were cited as willful.
The pressure the crew was under was likely a major factor in its sloppiness. However, there is
no evidence that PMI ever made a decision to place the job over employee safety. The evidence
fails to establish that the failure to maintain the required distance from the power line was
committed with “intentional, knowing, or voluntary disregard for the requirements of the Act or
with plain indifference to employee safety. The Secretary failed to differentiate willful conduct
from a serious violation by showing that PMI had a heightened awareness of its unsafe activity
near the overhead power lines by demonstrating that PMI consciously disregarded OSHA
regulations, or was plainly indifferent to the safety of its employees. No such showing was
made here. The violation of § 1926.1408(a)(2) was not willful.
Nonetheless, the violation of § 1926.1408(a)(2) was serious. As demonstrated by the accident,
the failure of an employer to keep a crane the appropriate safe distance from a power line can
result in death or serious physical harm, including death and serious burns (Tr. 470).
Penalty Considerations For Citations Nos. 1 and 2
Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the Commission
give “due consideration” to four criteria: the size of the employer's business, the gravity of the
violation, the employer’s good faith, and its prior history of violations. These factors are not
necessarily accorded equal weight; but generally gravity of a violation is the primary element in
the penalty assessment. J. A. Jones Construction Company, 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
With only 75 employees, PMI is considered a medium-size employer and credit is given for
PMI’s size (Tr. 412). PMI is also entitled to credit for good faith and history based on having a
safety director and written safety program and the lack of prior OSHA inspections (Exh. R-16;
Tr. 736, 857-858).
A penalty of $2,500.00 is reasonable for PMI’s violation of § 1926.652(g)(1)(ii) (Citation No. 1,
item 2). The severity of the violation was high because if the shields failed, employees could get
hurt. However, the probability of an incident was considered low.
A penalty of $3,000.00 is reasonable for PMI’s violation of § 1926.1402(b) (Citation No. 1, item
3). The crane without pads was placed near the trench where employees were working. The
crane operator admitted that it was “overlooked” (Tr. 298).
A grouped penalty of $2,500.00 is reasonable for PMI’s violations of § 1926.1412(d)(1) and §
1926.1412(e)(1) (Citation No. 1, items 4(a) and 4(b)). There is no showing that adequate crane
inspections were made. Although the likelihood of an accident was low, had one occurred the
results could have been death or serious harm. The gravity was moderate.
A grouped penalty of $5,000.00 for PMI’s serious violations of § 1926.651(k)(2) and
§ 1926.652(a)(1) (Citation No. 2, items 1a and 1b). Having found the violations were serious,
and not willful, a substantial reduction in the penalty is required. The violations were of high
severity due to the potential seriousness of any injuries had the trench collapsed (Tr. 443). The
possibility of a trench collapse was heightened because of the heavy equipment operating in the
area, particularly from vibrations from the crane that was being used.
A penalty of $5,400.00 is reasonable for PMI’s serious violation of § 1926.1408(a)(2) (Citation
No. 2, item 2). Finding that the violation was serious, but not willful, a substantial penalty
reduction is required. As demonstrated by the accident, the likelihood of an accident was high
and the results of an accident were severe (Tr. 470). Therefore, the gravity of the violation was
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with
Rule 52(a) of the Federal Rules of Civil Procedure.
Based upon the foregoing decision, it is ORDERED that:
1. Citation No. 1, item 1, alleging a serious violation of 29 C.F.R. § 1926.652(c) is vacated.
2. Citation No. 1, item 2, alleging a serious violation of 29 C.F.R. § 1926.652(g)(1)(ii) is
affirmed and a penalty of $2,500.00 is assessed.
3. Citation No. 1, item 3, alleging a serious violation of 29 C.F.R. § 1926.1402(b) is affirmed
and a penalty of $3,000.00 is assessed.
4. Citation No. 1, items 4(a) and 4(b), alleging a serious violations of 29 C.F.R.
§ 1926.1412(d)(1) and 29 C.F.R. § 1926.1412(e)(1) are affirmed and a grouped penalty of
$2,500.00 is assessed.
5. Citation No. 2, items 1a and 1(b), alleging a willful violations of 29 C.F.R. § 1926.651(k)(2)
and 29 C.F.R. § 1926.652(a)(1) are affirmed as serious violations and a grouped penalty of
$5,000.00 is assessed.
6. Citation No. 2, item 2, alleging willful violation of 29 C.F.R. § 1926.1408(a)(2) is affirmed as
a serious violation and a penalty of $5,400.00 is assessed.
_/s/_Ken S. Welsch_________________
Ken S. Welsch
Administrative Law Judge
Dated: June 10, 2013