United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

DECISION AND ORDER

APPEARANCES:

  For the Complainant:

     Bertha M. Astorga, Esq.

     Trial Attorney

     U.S. Department of Labor

     Philadelphia, Pennsylvania

  For the Respondent:

     Michael Metz-Topodas, Esq.

     Cohen, Seglias, Pallas, Greenhall, and Furman, P.C.

     Philadelphia, Pennsylvania

BEFORE:   William S. Coleman

     Administrative Law Judge

The Respondent, Petrongolo Contractors, Inc. (Petrongolo), is a corporation primarily engaged in the business of public utility contracting, much of which requires creating excavations. On January 27, 2020, Petrongolo excavated a trench in the street in the 4200 block of Adams Avenue in Philadelphia, Pennsylvania (Adams Site) to access a sewer owned by the Philadelphia Water Department (PWD). PWD had contracted with Petrongolo to reline the sewer for a length of about six city blocks in this vicinity. Petrongolo subcontracted with another company to do the actual relining work, but before the subcontractor did the relining, Petrongolo first had to remove the existing manhole to the sewer and replace it with a larger precast manhole so that the subcontractor to access the sewer to do the relining. In preparing the site for the subcontractor, Petrongolo removed the existing manhole and dug a trench in the spot where the existing manhole had been located. The resulting trench was about 10-feet deep from street level to the top of the sewer pipe (where the pipe had a large opening where the original manhole had connected to the pipe). The footprint of the trench at street level was about 10x6 feet.

A cast iron gas main owned by Philadelphia Gas Works (PGW) ran parallel to the sewer, at a slightly higher elevation than the sewer and somewhat offset so that it was not directly above the sewer. PGW received a report on January 27, 2020, that caused it to be concerned that Petrongolo’s excavation had compromised the structural integrity of its gas main. A PGW employee went to the Adams Site and caused Petrongolo to stop work at the site in the early evening of January 27, 2020.

PGW contacted the Occupational Safety and Health Administration (OSHA) and reported what it believed to be a hazardous excavation, and it sent to OSHA photographs that its employees had taken of the trench on both the evening of January 27 and on the morning of January 28. This information resulted in OSHA dispatching one of its Compliance Safety and Health Officers (CO) to the worksite on the morning on January 28, 2020, to investigate the report. The CO’s inspection and investigation resulted in OSHA issuing to Petrongolo two one-item Citations.

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.652(c)(1) for “fail[ing] to obtain the soil type to determine the proper configuration when using timber shoring.” Citation 1 proposed a penalty of $3,393.

Citation 2, Item 1 alleges a repeat violation of 29 C.F.R. § 1926.652(a)(1) for “fail[ing] to ensure that each employee working inside an excavation of approximately twelve (12) feet deep were protected by cave-in protection,” and stating further the alleged failure was “[n]oted on or about 28 JAN 2020.” Citation 2 proposed a penalty of $29,687.

Petrongolo timely contested the Citations and proposed penalties and thereby brought the matter before the independent Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act (Act). 29 U.S.C. § 659(c). The Commission docketed the matter on May 19, 2020. The Secretary of Labor (Secretary) thereafter filed his formal complaint that re-alleged the allegations and proposed penalties set forth in the Citations. The Commission’s Chief Judge assigned the matter to the undersigned for hearing and decision. The hearing was conducted remotely via videoconferencing technology on March 10–12 & 24, 2021. Post-hearing briefing was completed on June 25, 2021.

The principal issues for decision are as follows:

Decision: No.

Decision: Yes.

Decision: Yes.

Decision: No.

Decision: A penalty of $22,000 is assessed.

For the reasons set forth below, Citation 2, Item 1 is AFFIRMED as a REPEAT violation and a penalty of $22,000 is assessed. Citation 1, Item 1 is VACATED

FINDINGS OF FACT

Except where the following findings indicate that the evidence was insufficient to establish a certain fact or indicates the absence of evidence bearing on a matter of fact, the following facts were established by at least a preponderance of the evidence:

The Adams Site and Associated Trench Excavation

Events on January 27, 2020

Events on January 28, 2020

OSHA’s Inspection and Citation

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon Petrongolo’s timely filing of a notice of contest. 29 U.S.C. § 659(c). Petrongolo has employees and is engaged in a business affecting commerce, and thus meets the Act’s definition of “employer.” 29 U.S.C. § 652(5); (Finding of Fact ¶ 3).

Both Citations allege violations of safety standards promulgated pursuant to section 6(b) of the Act. 29 U.S.C. § 655(b). To establish a violation of such a standard, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees had access to the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition. Donahue Indus. Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003).

Alleged Insufficiency of Petrongolo’s Type C Soil Determination
Serious Citation 1, Item 1 – Section 1926.652(c)(1)

Citation 1, Item 1 alleges a violation of § 1926.652(c)(1), which provides in relevant part that “[d]esigns for timber shoring in trenches shall be determined in accordance with the conditions and requirements set forth in appendices A and C to this subpart.”

Appendix A is titled “Soil Classification,” and its “scope” provision states: “This appendix describes a method of classifying soil and rock deposits based on site and environmental conditions, and on the structure and composition of the earth deposits. The appendix contains definitions, sets forth requirements, and describes acceptable visual and manual tests for use in classifying soils.”

Appendix C is titled “Timber Shoring for Trenches” and its “scope” provision states in part:

This appendix contains information that can be used [when] timber shoring is provided as a method of protection from cave-ins in trenches that do not exceed 20 feet … in depth. This appendix must be used when design of timber shoring protective systems is to be performed in accordance with § 1926.652(c)(1).

Citation 1, Item 1 alleges that Petrongolo violated § 1926.652(c)(1) by “fail[ing] to obtain the soil type to determine the proper configuration when using timber shoring.” 4

The cited standard applies to the Adams Site trench excavation, and Petrongolo does not contend otherwise. See § 1926.650(a) (“This subpart applies to all open excavations made in the earth’s surface. Excavations are defined to include trenches”); § 1926.650(b) (defining the terms “trench” and “trench excavation” as “a narrow excavation (in relation to its length)” that is generally deeper than it is wide but is not wider than 15 feet).

Appendix A establishes four soil classifications: Stable Rock, and Types A, B, and C soil. See 29 C.F.R. § 1926, Subpt. P, app. A ¶ (b). Type C is the least stable soil type. See App. A (b); see also (T. 306-07, 682-83). The use of design data in Appendix C is dependent on the soil classification that is determined according to the criteria set forth in Appendix A. See Appendix C, ¶ (b) (providing that “[i]n order to use the data presented in this appendix [C], the soil type or types in which the excavation is made must first be determined using the soil classification method set forth in appendix A”).

Appendix A requires a competent person to perform at least one visual and one manual test on the soil to determine the soil type. App. A ¶ (c)(2). The appendix sets forth a series of “[a]cceptable visual and manual tests” and provides also that a competent person may rely on other recognized methods of testing as well. Id. (“Such [visual and manual] analyses shall be conducted by a competent person using tests described in paragraph (d) below, or in other recognized methods of soil classification and testing such as those adopted by the America Society for Testing Materials, or the U.S. Department of Agriculture textural classification system.”).

The preponderant evidence established that Ron Petrongolo, who is a registered professional engineer with years of experience in testing soil and performing excavations in the Philadelphia area, is a “competent person” as defined in § 1926.650(b). 5 (T. 289-93). The Secretary recognizes as much. (Sec’y Br. 6-7). Ron Petrongolo performed at least one manual and one visual test of the soil at the Adams Site in conformance with the requirements of Appendix A. (Findings of Fact ¶ 20). These tests and other relevant information available to him caused him reasonably to conclude that the timber shoring design for the trench’s timber shoring must be adequate for Type C soil. (T. 306-08, 341-43).

Even if Ron Petrongolo had failed to conduct the visual and manual tests required by Appendix A, it would not have mattered, because his determination that the soil was Type C rendered any soil testing superfluous and thus not required. See OSHA Interpretation Letter, “Testing of type C soil is not necessary if employees are adequately protected,” (June 5, 1991) (stating that “soil testing would be superfluous and not required” if soil is classified as Type C and the protective system is adequate to protect against cave-ins in Type C soil); (see also T. 306-308, 682-83). The Secretary makes no argument that this 1991 letter of interpretation, which is published on OSHA’s public website, does not accurately represent current OSHA policy respecting the need to test soil in the manners specified by Appendix A where that soil is regarded to be Type C soil.

The Secretary did not establish that Petrongolo failed to comply with § 1926.652(c)(1) in the manner alleged in Citation 1, Item 1, and accordingly that citation item must be vacated.

Alleged Failure to Provide Adequate Protective System
Repeat Citation 2, Item 1 – Section 1926.652(a)(1)

Citation 2, Item 1 alleges a violation of § 1926.652(a)(1), which provides in relevant part that “[e]ach 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 … .” Citation 2, Item 1 alleges that Petrongolo violated this section because it “failed to ensure that each employee working inside an excavation of approximately twelve (12) feet deep were protected by cave-in protection.”

The cited standard applies to the trench excavation for the same reasons the excavations standard applied to Citation 1, Item 1. Petrongolo does not contend otherwise.

Alleged Violation on January 27, 2020

This decision adjudicates only whether Petrongolo employees were exposed to the violative condition on January 28, 2020, when the PGW officials observed and took photographs of workers in the unprotected excavation who appear to have begun installing timber shoring as depicted in the photographs in Exhibit C-1.

The Secretary argues that the evidence established employee exposure to an unprotected trench on the evening of January 27, 2020, as Mr. Pereira of PGW testified he had observed. This argument is not considered because the Citation identifies the next day, January 28, as the “on or about” date of the violation (not on or about January 27 and January 28). Moreover, the assistant area director of the OSHA area office that issued the citation testified that the citation item was not grounded upon any claimed worker exposure on January 27, 2020, but rather was based on the near conclusive photographs of worker exposure that were taken on the morning of January 28. (T. 418-24; Ex. C-1). The issue of whether the Petrongolo violated the cited standard on January 27 will not be adjudicated because the scope of the alleged violation is limited to whether Petrongolo violated the cited standard on January 28, not January 27, and the unpleaded issue of whether a separate violation occurred on January 27 was not tried by consent. See McWilliams Forge Co., Inc., 11 BNA OSHC at 2129.

The imprecise and somewhat unfocused evidence as to employee exposure on the evening of January 27 is further indicative that the parties did not try that issue by consent. While Mr. Pereira testified that he observed workers in the unprotected trench, he took no photographs of that violative conduct, although he did take photographs of the empty trench and PGW’s exposed gas main therein. (Ex. C-2; T. 44-45, 80). Mr. Pereira’s testimony did not squarely controvert Ron Petrongolo’s testimony that Petrongolo employees entered the trench on January 27 only when they were inside the precast concrete manhole that Ron Petrongolo had temporarily placed in the excavation on January 27. Rather, Pereira at least partially corroborated Ron Petrongolo’s account—Pereira testified that employees were in the trench at the same time the manhole was in the trench. (T. 44-45 & 79-80). With respect to the adequacy of the manhole to protect the workers from cave-ins, the Secretary presented no testimony respecting how or why that asserted method was noncompliant. In his closing briefs, the Secretary makes no argument that the use of the manhole for providing cave-in protection in the manner that Ron Petrongolo claimed was non-compliant with the cited standard. (See Sec’y Reply Br. 2-3). The adequacy of the cavein protection that the concrete manhole provided the workers in the trench on January 27 is similarly not adjudicated.

Alleged Violation on January 28, 2020 

On January 28, 2020, the trench was well over five feet deep and thus constituted a hazard for so long as it was open and lacked an adequate protective system. See Flint Eng’g & Constr. Co., 15 BNA OSHC 2052, 2055 n.8 (No. 90-2873, 1992) (rejecting cited employer’s argument that an unprotected trench was not a hazard so long as employees were not in the trench, concluding instead that “[t]he open trench was the hazard”). Accordingly, the open trench was non-compliant with the cited standard on January 28, 2020, from the time that Ron Petrongolo removed the steel plates covering it to the time that the Petrongolo crew completed installation of the timber shoring that was in place by the time the CO arrived at the Adams Site later that morning.

The photographs in Exhibit C-1 show two workers in the unprotected trench at the Adams Site that was at least ten feet deep. Those two workers were exposed to a cave-in hazard. Ford Dev. Corp., 15 BNA OSHC 2003, 2011 (No. 90-1505, 1992) (“The standard speaks of the depth of the trench, not of the position of employees in the trench”), aff’d, 16 F.3d 1219 (6th Cir. 1994); see also P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 109 (1st Cir. 1997) (“The safety standard is implicated by the depth of a particular trench, without regard to an individual worker’s precise position in it”).

Petrongolo defends on the grounds (1) the Secretary did not prove that the workers in the unprotected trench were Petrongolo employees, and (2) that the Secretary did not prove that Petrongolo had knowledge that any workers (whether Petrongolo employees or the employees of some other employer) had entered the unprotected trench. (Resp’t Br. 3, 21-25). As discussed below, the Secretary proved both (1) that the workers in the unprotected trench were Petrongolo employees, and (2) that Petrongolo had both actual and constructive knowledge that its employees were in the unprotected trench. It is therefore unnecessary to adjudicate the Secretary’s alternative theory of liability under the multi-employer worksite doctrine or Petrongolo’s counterargument that the Secretary did not prove it had knowledge that employees of other employers were in the unprotected trench. (Sec’y Br. 24-25; Sec’y Reply Br. 5).

The parties have stipulated that Petrongolo was the only contractor performing excavation work on the inspected trench. (Joint Pre-Hr’g Statement ¶¶ IV(A)(4); T. 270, 561-64, 649-52). There is likewise no dispute that on the morning of January 28, Petrongolo employees installed all the timber shoring that had been completely installed sometime by the time the CO arrived that morning. (Joint Pre-Hr’g Statement ¶ IV(A)(2); T. 163-64; Exs. C-3, R-25). Ron Petrongolo was present at the Adams Site on the morning of January 28. He used Petrongolo’s backhoe to remove the steel plates that had covered the trench overnight. He supervised the Petrongolo crew in installing all the timber shoring that had been completely installed by the time the CO arrived later that morning. (Joint Pre-Hr’g Statement ¶ IV(A)(3); T. 158-59, 271-72, 299-301, 699-700). In their hearing testimony, neither Ron nor Dan Petrongolo could rule out the possibility that the workers depicted in the photographs in the unprotected trench may have been Petrongolo employees. (T. 313-23, 577-78; Ex. C-1). No other employers other than Petrongolo had cause to have their employees enter the unprotected trench on January 28 and begin to install timber shoring in the unprotected trench, as the workers depicted in the photographs in Exhibit C-1 appear to be doing. (Findings of Fact ¶¶ 17–19).

This circumstantial evidence is sufficient to prove to a reasonable certainty that the workers inside the unprotected trench were Petrongolo employees. This circumstantial case is bolstered by Westergon’s reliable and credible testimony that he observed and heard Ron Petrongolo giving oral instructions to workers who were inside the unprotected trench. (Findings of Fact ¶ 17).

Westergon testified that he recognized Ron Petrongolo from having had prior contacts with him on other projects and that on the morning of January 28 he spoke to him face to face. (T. 123). Ron Petrongolo acknowledges that he spoke to PGW representatives while at the Adams Site. (T. 282). And while Westergon did not expressly testify that he observed Ron Petrongolo directing the workers in the trench at a time when the trench was unprotected, that detail is reasonably implied from the context of his direct and cross examination, including his tone and demeanor in responding to those questions. (T. 123-24, 143-44).

Petrongolo argues that during cross-examination Westergon equivocated away from the certainty he had expressed in his direct examination that the person he saw and heard directing workers in the unprotected trench was Ron Petrongolo. (Resp’t Br. 22). The undersigned finds Westergon’s testimony reasonably reliable and not significantly undermined by the somewhat unrelenting, albeit respectful, cross-examination regarding the reliability of his recognition of Ron Petrongolo. (T. 138-41). Moreover, it bears noting that the hearing witnesses were sequestered and that Westergon and Ron Petrongolo were never present in the videoconference hearing at the same time. Thus, neither Westergon nor Ron Petrongolo was afforded the opportunity to view the other’s video image for the purpose of confirming or denying whether they had a face-to-face encounter on January 28 as Westergon described them having. (T. 123, 137). (Petrongolo could have conceivably tested the reliability of Westergon’s testimony that on January 28 he recognized Ron Petrongolo based on prior contacts by requesting that Ron Petrongolo join the videoconference hearing briefly during Westergon’s testimony for purpose identification only, but Petrongolo made no such request.)

Other than Ron Petrongolo’s testimony that he never saw any workers inside the unprotected trench, Petrongolo has presented no probative evidence that the workers depicted in the photographs in Exhibit C-1 were not Petrongolo employees. Although Petrongolo identified the four other employees that were working at the Adams Site on January 28 (Ex. C-3), none were called to testify respecting whether they had entered the unprotected trench that day or to testify that they were not one of the two workers inside the trench depicted in Exhibit C-1. Cf. Well Sols., Inc., 17 BNA OSHC 1211, 1215 (No. 91-340, 1995) (determining that the Secretary’s prima facie case was sufficient to prove a violation where evidence that would have been in possession of the employer was not presented to rebut that prima facie case); Thomas Indus. Coatings, 21 BNA OSHC 2283, 2288 (No. 97-1073, 2007) (finding a violation where the employer failed to present evidence to rebut the most reasonable inference to be drawn from the evidence).

While the whole of the evidence may be susceptible of other inferences, those inferences are considerably less plausible than the reasonable inference that the workers depicted inside the trench in the photographs of Exhibit C-1 were Petrongolo employees, and on this record the undersigned finds no other inference to be reasonable. See R.D. Anderson Constr., 12 BNA OSHC 1665, 1666 (No. 81-1469, 1986) (a fact is established by a preponderance of the evidence where “the evidence taken as a whole shows that the fact sought to be proved is more probable than not”).

As to the fourth element of the Secretary’s burden of proof, a preponderance of the evidence establishes that Petrongolo knew or with the exercise of reasonable diligence could have known of a violative condition or conduct. Calpine Corp., No. 11-1734, 2018 WL 1778958, at *5 (OSHRC Apr. 6, 2018), aff’d 774 F. App’x 879 (5th Cir. 2019) (unpublished); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). A supervisor’s knowledge of the violative condition or conduct is imputable to the employer. Calpine Corp., 2018 WL 1778958, at *5; Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (No. 86-360, 1992) (consolidated).

There is no dispute that Ron Petrongolo, as the foreman of the Petrongolo crew at the Adams Site, was a supervisor whose knowledge is imputable to Petrongolo. See Rawson Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003) (supervisory status of an employee is based on a consideration of the “indicia of authority that the employer has empowered a foreman or other employee to exercise on its behalf”). As previously found, the greater weight of the evidence is that Ron Petrongolo supervised and gave oral directions to the Petrongolo employees who were installing shoring in the unprotected trench. (Findings of Fact ¶ 17). Ron Petrongolo thus had actual knowledge of the employees’ violative conduct, and his knowledge is imputed to Petrongolo. Calpine Corp., 2018 WL 1778958, at *5; Tampa Shipyards, Inc., 15 BNA OSHC at 1539.

Even if the Secretary had failed to prove Ron Petrongolo’s actual knowledge, the greater weight of the evidence also establishes that Ron Petrongolo could have discovered or prevented the employees’ violative conduct with the exercise of reasonable diligence, and thus he had constructive knowledge of the violative condition. See Mastec N. Am., Inc., No. 15-1574, 2021 WL 2311875, at *6 n. 7 (OSHRC, Mar. 2, 2021) (commenting that in determining whether a supervisor had constructive knowledge of an employee’s violative conduct, “the question is whether [the] supervisor exercised reasonable diligence in monitoring” the employee’s work). Reasonable diligence can implicate “several factors, including an employer’s obligations to implement adequate work rules and training programs, adequately supervise employees, anticipate hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr. of Tex., 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016).

Ron Petrongolo was the foreman and supervised the work Petrongolo was performing at the Adams Site on January 28, 2020. (Joint Pre-Hr’g Statement ¶ IV(A)(3) ). He was in charge of running the worksite, he remained there the entire shift “for the most part,” and he directed the work during the excavation. (T. 261). He operated Petrongolo’s backhoe and removed the steel plates covering the trench on the morning of January 28, and he thus had actual knowledge that the unprotected trench was open and accessible to the Petrongolo employees who were present to begin to install the timber shoring. (Findings of Fact ¶ 16). And, while the evidence does not establish precisely establishes how long the workers were in the unprotected trench, the progress they had made in installing the timber shoring as depicted in the photographs of Exhibit C-1 permits the reasonable inference that they were in the trench for more than a “brief or indeterminate duration.” See David Weekley Homes, 19 BNA 1116, 1119 (No. 96-0898, 2000).

Even assuming Ron Petrongolo temporarily left the Adams Site after he had removed the steel plates that had been covering the trench, he had a heightened responsibility to keep the Petrongolo crew from entering the unprotected trench in his absence. There is no evidence that he took any affirmative steps to do so, such as admonishing the employees not to enter the unprotected trench or by re-covering the trench with the steel plates. His lack of reasonable diligence is even more apparent considering that before Messrs. Westergon and Eckroade of PGW observed the Petrongolo employees in the unprotected trench, Westergon made a point of warning Ron Petrongolo directly that the Petrongolo workers should not enter the unprotected trench. (T. 123, 137).

A preponderance of the evidence establishes that in the exercise of reasonable diligence Ron Petrongolo could have prevented the violation from occurring. S.J. Louis Constr. of Tex., 25 BNA OSHC at 1894; cf. KS Energy Servs. Inc., 22 BNA OSHC at 1267-68 (foreman’s presence at the worksite where hazardous conditions was in plain view was relevant to determining constructive knowledge). Ron Petrongolo’s constructive knowledge is imputed to Petrongolo. Calpine Corp., 2018 WL 1778958, at *5; Tampa Shipyards, Inc., 15 BNA OSHC at 1539.

Repeat Classification for Citation 2, Item 1

Section 17(a) of the Act, 29 U.S.C. § 666(a), allows for heightened penalties for “[a]ny employer who … repeatedly violates the requirements of … any standard … promulgated pursuant to section 6 of this Act … .” “A violation is properly classified as repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” Jersey Steel Erectors, 16 BNA OSHC 1162, 1167 (No. 90-1307, 1993), citing Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979) (Potlatch). 6 The Secretary can make a prima facie showing of substantial similarity “by showing that both violations are of the same standard.” Id. This prima facie showing of substantial similarity may be rebutted “by evidence of the disparate conditions and hazards associated with these violations of the same standard.” Id.

The Citation alleged Petrongolo’s violation of § 1926.652(a)(1) was a repeat violation based on the following:

Petrongolo Contractors, Inc. was previously cited for a violation of [§ 1926.652(a)(1)] which was contained in OSHA inspection number 1347967, citation number 2, item number 1 and was affirmed as a final order on April 26th, 2019, with respect to a workplace located at Broad Street and Wharton Street, Philadelphia, Pennsylvania.

Petrongolo Contractors, Inc. was previously cited for a violation of [§ 1926.652(a)(1)] which was contained in OSHA inspection number 1347967, 7 citation number 2, item number 1 and was affirmed as a final order on November 1st, 2018, with respect to a workplace located at Broad Street and Ell[s]worth Street, Philadelphia, Pennsylvania.

Petrongolo Contractors, Inc. was previously cited for a violation of [§ 1926.652(a)(1)] which was contained in OSHA inspection number 1323007, citation number 1 item number 2 and was affirmed as a final order on November 1st, 2018, with respect to a workplace located at 20th and Poplar, Philadelphia, Pennsylvania.

At the hearing, the Secretary submitted the following evidence regarding the prior violations:

Based on the evidence submitted for the Broad-Ellsworth and Poplar Citations, 8 the Secretary has established a prima facie case of substantial similarity for purposes of classifying Petrongolo’s violation of § 1926.652(a)(1) as a repeat violation. Jersey Steel Erectors, 16 BNA OSHC at 1167; Triumph Constr. Corp., 26 BNA OSHC 1331, 1346-47 (No. 15-0634, 2016) (ALJ) (determining that an informal settlement agreement constitutes a “Commission final order” for purposes of repeat classification), aff’d, 885 F.3d 95 (2d Cir. 2018). The burden therefore shifts to Petrongolo to rebut the Secretary’s showing. Lake Erie Constr. Co., 21 BNA OSHC 1285, 1289 (No. 02-0520, 2005). In so doing, Petrongolo must show that the previous violations resulted in different hazards, not just distinguish the factual circumstances surrounding the instant violation and the previous ones. Amerisig Se., Inc., 17 BNA OSHC 1659, 1661 (No. 93-1429, 1996) (“[T]he principal factor in determining whether a violation is repeated is whether the two violations resulted in substantially similar hazards”), aff’d without published opinion, 117 F.3d 1433 (11th Cir. 1997). Petrongolo has not rebutted the Secretary’s prima facie case for either the Poplar or the Broad-Ellsworth Citations.

Poplar Citation

For the Poplar Citation, Petrongolo points out that, as indicated in the Violation Worksheet for that Citation, there was no shoring installed for workers in a trench that was over five feet deep. (Resp’t Br. 27, citing Ex. J-2). Petrongolo asserts that this was because “Petrongolo did not anticipate needing to excavate further than five feet, so it did not bring shoring materials to the job site.” (Resp’t Br. 27). By contrast, Petrongolo goes on to argue, the shoring for the instant Citation was alleged to have been inadequate rather than non-existent. (Id. 28).

This argument is rejected. The violation at the Adams Site involves the exposure of two Petrongolo employees who were inside an unprotected trench and beginning to install timber shoring. The Petrongolo employees at the Adams Site were exposed to a substantially similar, if not identical, hazard as the employee who was inside an unprotected excavation in connection with the Poplar Citation, as that employee is depicted in the photographs at Exhibits C-4 and C-5. Amerisig Se., Inc., 17 BNA OSHC at 1661; Lake Erie Constr. Co., Inc., 21 BNA OSHC at 1289 (“We find that the record supports the judge’s finding that these violations were substantially similar because both involved the same standard and the same hazard, a fall of more than 20 feet to a road below”); see also T. 186-89 (describing the cave-in hazards associated with an unprotected trench five feet or more in depth). Indeed, Dan Petrongolo acknowledged that the possibility of severe injury or death is a hazard associated with any trench that lacks an adequate protective system in place. (Tr. 590-91). Cf. Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 1628 (No. 99-1520, 2004) (finding substantially similar hazards where foreman acknowledged the hazards were similar in nature).

Broad-Ellsworth Citation

For many of the same reasons discussed in connection with the Poplar Citation, Petrongolo’s attempts to distinguish the Broad-Ellsworth Citation from the instant Citation also fail. Petrongolo again points to the fact that the Broad-Ellsworth Citation allegedly involved a trench with no cave-in protection, whereas this case involves the use of two types of cave-in protection at one time or another. (Resp’t Br. 29). This argument again fails for the reasons set forth above.

Petrongolo also points to a photograph in the Violation Worksheet for the Broad-Ellsworth Citation which Petrongolo characterizes to be an employee working on a water main. (Resp’t Br. 29, citing Ex. J-1; see also Ex. C-7). Petrongolo argues that, because “such utility work falls within the scope of work for much of Petrongolo’s business,” it is more likely that this photograph depicts an employee doing “authorized work in an excavation over 5-feet deep.” (Resp’t Br. 29). This argument is contrary to the facts found herein that Petrongolo employees were inside the unprotected trench on January 28, 2020, while receiving oral instructions from Ron Petrongolo, and thus performing work that Ron Petrongolo was explicitly authorizing that they do. In any event, this argument does not alter the incontrovertible fact that the employees at the Adams Site and the employee at the Broad-Ellsworth site were exposed to substantially similar cave-in hazards, which is the crux of the inquiry for purposes of repeat characterization. Lake Erie Constr. Co., 21 BNA OSHC at 1289.

Finally, Petrongolo argues generally that “substantially similar” must “be construed sufficiently narrowly [so] that the citation for the first violation placed the employer on notice of the need to take steps to prevent the second violation.” Resp’t Br. 26, 9 quoting Caterpillar, Inc. v. Herman, 154 F.3d 400, 403 (7th Cir. 1998) (“Caterpillar”); Resp’t Br. 30-31. Further citing to Caterpillar, Petrongolo argues that a repeat characterization is “only warranted where an employer fails to learn from experience.” Id., quoting Caterpillar, 154 F.3d at 402. The Seventh Circuit’s decision in Caterpillar is not controlling precedent in this matter, but even if it were, it would not alter the result here. In Caterpillar, the Commission found that the employer had failed to rebut the Secretary’s prima facie showing of similarity for violations under the same standard, and the court affirmed that finding. Caterpillar, 154 F.3d at 404. The language Petrongolo quotes merely recognizes, as the Commission has since Potlatch, that an employer can rebut a prima facie showing of substantial similarity for violations under the same standard by proffering sufficient “evidence of the disparate conditions and hazards associated with these violations of the same standard.” Potlach, 7 BNA OSHC at 1063. Petrongolo has simply failed to make that showing here. 10

The Secretary’s evidence established a prima facie case that Citation 2, Item 1 was substantially similar to the violations in the Poplar and Broad-Ellsworth Citations. Petrongolo has not rebutted the Secretary’s showing, and accordingly Petrongolo’s violation of § 1926.652(a)(1) is properly classified as a repeat violation.

Penalty

Section 17(a) of the Act, 29 U.S.C. § 666(a), provides, in relevant part, that “[a]ny employer who … repeatedly violates … any standard … promulgated pursuant to section 6 of this Act … may be assessed a civil penalty” that is up to ten times the maximum penalty for a serious or other-than-serious violation. The maximum penalty for the repeat violation proven here is $134,937. 29 C.F.R. § 1903.15(d)(2) (2020).

The Commission and its judges conduct de novo penalty determinations and have discretion to assess penalties based on the facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) aff’d, 73 F.3d 1466 (8th Cir. 1996); Allied Structural Steel, 2 BNA OSHC 1457, 1458 (No. 1681, 1975). 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. Specialists of the S., Inc., 14 BNA OSHC 1910, 1910 (No. 89-2241, 1990). Gravity is the primary consideration among these four statutory criteria and is determined by “such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

The Secretary proposes a penalty of $29,687 for the repeat violation. At the hearing, the OSHA assistant area director indicated that this proposed penalty was based on a determination that the gravity of the violation was high because the severity of any injury that could result from the violation was “higher” and the probability of an injury occurring was “greater.” (T. 393-94). The photographs at Exhibit C-1 indicate that soil on at least one wall of the trench was visibly unstable. (T. 104-05, 146-47). The undersigned concurs in that assessment of the statutory gravity factor, so that if the penalty were based solely on its gravity, the maximum penalty of $13,494 for a serious violation would be appropriate. 29 C.F.R. § 1903.15(d)(3) (2020); cf. Mossier Constr., Inc., 23 BNA OSHC 1044, 1047 (No. 08-0631, 2010) (“[R]egardless of the probability of a cave-in, we find that the gravity of the violation remains moderate to high considering the serious consequences in the event a cave-in occurred”).

The undersigned further concurs with the Secretary’s penalty calculation in reducing that figure by 60% to account for Petrongolo’s small size. (T. 394). The undersigned concurs further with the Secretary in providing no reduction for good faith in view of the violation being repeated based on two prior violations of the same standard occurring within 20 months of the violation proven here. The undersigned does not concur in increasing that figure by 10% to account for history of violations as the Secretary has proposed, because the substantial enhancement of the penalty for to account for its repeated nature sufficiently addresses that statutory factor.

The undersigned concurs in multiplying the resulting figure for a repeated violation based upon the two prior violations of the same standard occurring within 20 months of the instant violation. The Secretary’s proposed penalty was based on the assertion that there were three prior violations of the same standard, rather than two prior violations that the Secretary proved. Although there was no testimony on the point, the Secretary’s proposed penalty would presumably have been lower had the Secretary formulated it based on two, rather than three, prior violations of the same standard. For this reason, a penalty of $22,000 will be assessed for the repeat violation based upon Petrongolo’s two prior violations of the same standard, both occurring less than two years before the violation proven here. Cf. M.V.P. Piping Co., 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014) (“a high gravity violation of the cave-in protection standard typically warrants a substantial penalty”).

ORDER

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

/s/ William S. Coleman

WILLIAM S. COLEMAN

Administrative Law Judge

Dated: September 28, 2021

1 References herein to “Petrongolo” are references to the Respondent only. Messrs. Ron and Dan Petrongolo are referred to by full name only.

2  No evidence of the length of this segment of Adams Avenue was presented at the hearing. This finding respecting the distance between the two intersections is based on judicial notice of a Google map and satellite image of the area, the accuracy of which cannot reasonably be questioned for purposes of this case. See Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013) (taking sua sponte judicial notice of a Google map and satellite image as a “‘source[ ] whose accuracy cannot reasonably be questioned’ for purposes of this case” under Fed. R. Evid. 201(b)(2)); accord U.S. v. Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) (taking judicial notice of the same on motion of party).

3 The CO testified that he arrived at the Adams Site in the morning, but there is no more precise evidence of the time he arrived. (T. 158). The CO took 30 photographs of the Adams Site, which were admitted in evidence as Exhibit J-8. (T. 178-79). Eight of the photographs have timestamps ranging from 12:19 p.m. to 12:25 p.m., but the other photographs have no timestamps. (Ex. J-8, pp. 1-8). In his testimony, the CO indicated that these timestamps may have been one hour off, but he did not indicate whether this discrepancy was one hour earlier or later. (T. 200).

4 The Secretary has argued that Petrongolo’s design of the timber shoring did not conform to the requirements of Appendix C. (Sec’y Br. 22-23). That issue will not be adjudicated because the scope of the alleged violation is limited to whether Petrongolo conformed with the requirements of Appendix A for classifying the soil type. The citation item does not allege a violation of Appendix C respecting the design of Petrongolo’s timber shoring system, and so the issue of whether Petrongolo’s design conformed with Appendix C is outside the scope of the pleadings. Moreover, that issue was not tried by consent of the parties such that a judge could sua sponte amend the pleadings post-hearing. Fossett, 7 BNA OSHC 1915 (No. 76–3944, 1979) (upholding Commission judge’s decision to amend a citation item sua sponte after the close of the hearing pursuant to the provisions set forth in current Fed. R. Civ. P. 15(b)(2) ); McWilliams Forge Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (deciding that amendment under Fed. R. Civ. P. 15(b)(2) “is proper only if two findings can be made – that the parties tried an unpleaded issue and that they consented to do so”; and stating further that “[t]rial by consent may be found only when the parties knew, that is, squarely recognized, that they were trying an unpleaded issue”). In any event, even if the issue were deemed to have been within the scope of the pleadings or tried by consent, the evidence that Petrongolo’s design failed to meet the requirements of Appendix C was not preponderant. (See T. 435-36, 664-67).

5 The definition is: “Competent person means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.” § 1926.650(b).

6 The employer or the Secretary may appeal a Commission final order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Pennsylvania, in the Third Circuit, where Petrongolo’s office is also located. See Citation at 1 (listing Petrongolo’s business address in Philadelphia, Pennsylvania). The Third Circuit has adopted the Commission’s Potlatch test. Reich v. D.M. Sabia Co., 90 F.3d 854 (3d Cir. 1996).

7  The documentation received in evidence reflects the actual inspection number being 1326082. (Ex. J-3).

8 No evidence of a final order respecting the Broad-Wharton Citation was presented. In arguing that this Citation was disposed of by informal settlement, the Secretary cites only to vague, general testimony from OSHA’s assistant area director and Dan Petrongolo concerning settlement negotiations. (Sec’y Br. 29, citing T. 362, 574). This is insufficient to establish the existence of a “Commission final order” for the Broad-Wharton Citation, and so that Citation is not regarded to constitute a prior violation for purposes of classifying the current violation as repeated or for assessing the penalty.

9 In support of this argument Petrongolo also cites to the Commission’s decision in Angelica Textile Servs., Inc., 27 BNA OSHC 1246 (No. 08-1774, 2018), vacated as moot, 803 F. App'x 542 (2d Cir. 2020) (unpublished). A vacated decision of the Commission has no precedential effect. Reich v. Contractors Welding, 996 F.2d 1409, 1413-14 (2d Cir. 1993) (analysis in a vacated Commission decision may not “retain any precedential effect” because the Commission lacks rulemaking authority and adjudicating cases based on a decision that could not be reviewed due to intervening mootness is unfair).

Petrongolo also cites to the Fourth Circuit’s decision in George Hyman Constr. Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978). This decision predates the Commission’s Potlatch decision. However, the court did note that it had “deliberately avoided setting forth an all-inclusive and rigid definition of ‘repeatedly’ under the Act” and was “allowing the Commission flexibility in working out reasonable guidelines in enforcing the Act.” George Hyman Constr. Co., 582 F.2d at 841. In the more than forty years after the Commission decided Potlatch, the Fourth Circuit has not revisited the issue of what standard to apply to determine repeat classification, and there is no reason to conclude that the Fourth Circuit would now regard Potlatch not to provide “reasonable guidelines” for classifying a violation as repeated.

10  Petrongolo also argues that defining the hazard addressed by § 1926.652(a)(1) simply as a “cave-in hazard,” as the Secretary does, “could describe virtually any violation of 29 C.F.R. § 1926.652(a)(1), [which] would broaden the concept as to render ethereal any supposed ‘advance warning’ from prior citations.” (Resp’t Br. 31, quoting Mondo Constr. Co., 25 BNA OSHC 1285 (No. 13-1332, 2014) (ALJ) (addressing how a predicate violation may provide a basis for a repeat classification for the violation of a different standard) ). Unlike Mondo Construction, the two prior violations here were for violations of the same standard as the instant violation, which is specifically focused on protecting employees in excavations from cave-ins. § 1926.652(a)(1).