SECRETARY OF LABOR,

Complainant,

v.

A.P. O'HORO COMPANY, INC.,

Respondent.

LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, TRUMBULL
COUNTY LOCAL 935,

Authorized Employee
Representative.

OSHRC Docket No. 85-0369

DECISION

BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

At issue is whether Administrative Law Judge James D. Burroughs erred in affirming the citation issued to A.P. O'Horo Company, Inc. ("O'Horo") for willful violations of three construction safety standards.

On the morning of October 9, 1984, employees of O'Horo, a general contractor based in Youngstown, Ohio, were installing sewer pipe in a trench that an O'Horo employee had dug parallel to Route 46 in Howland Township, Ohio, as part of the Mosquito Creek Sewer Project. The trench was 10 feet deep and 25 feet long. The west wall of the trench, the side nearest the road, was sloped for about 1-1/2 feet from the top down, leaving about 8-1/2 feet vertical. The east wall was sloped for about 2 to 3 feet from the top down and was otherwise, vertical. Neither wall was shored, braced, or otherwise supported. There was a trench box 50 to 150 yards away, which the employees were not using that day. While pipe layer Isaiah Richardson, a member of that crew, was in the trench to check on a misaligned pipe, the west wall collapsed and completely covered him. He was extricated but never regained consciousness and he died a few days later.

The day after the accident, OSHA Compliance Officer Thomas Pontuti conducted an inspection of the site. As a result, the Secretary issued a willful citation to O'Horo for violations of three construction safety standards and proposed a combined penalty of $9, 000. Judge Burroughs affirmed the willful citation and assessed the proposed penalty.

The issues on review are whether the cited standards were violated, and, if so, whether the violations were willful.[[1/]]

I. Shoring or Sloping Requirement

Item 1b of the citation alleged a willful violation of 29 C.F.R. 1926.652(c), which provided:[[2/]]

Subpart P--Excavations,Trenching, and Shoring

*                            *                                * 

1926.652 Specific trenching requirements.

        *                        *                          *

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

To prove a violation of the standard, the Secretary must establish that: the standard applied to the cited conditions; the employer violated the terms of the standard; its employees had access to the violative conditions; and the employer had actual or constructive knowledge of the violation. See, e.g., Trumid Construction Co., Inc., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD 29,078 p. 38,859 (No. 86-1139, 1990).

It is undisputed that the standard applies. The trench was greater than 5 feet deep and more than 8 feet long, and a significant part of the trench wall was composed of hard or compact soil. It is also undisputed that O'Horo's employee Richardson had access to the cited condition while he was performing his assigned work. Remaining for consideration are the elements of noncompliance with the terms of the standard and employer knowledge.

A.  Noncompliance with Terms of Standard

The Secretary has the burden of establishing that the trench was neither shored nor sloped in accordance with the standard's requirements. It is undisputed that, prior to the cave-in, the walls of the trench were not "shored or otherwise supported," and the trench box that was available at the site was not in use. What is at issue is whether the "sides of the trench above the 5-foot level [were] sloped to . . . not be steeper than a 1-foot rise to each 1/2-foot horizontal."

The first question is whether the slope of the trench walls started at a point no more than five feet above the bottom. The judge found that the trench was approximately 10 feet deep prior to the cave-in, which would have required that the upper five feet be sloped. O'Horo takes issue with the judge's conclusion as to the amount of sloping required by disputing the judge's finding on the trench's depth. It asserts that because of "the bedding under the pipe, the pipe itself, and the gravel covering the pipe," the trench at the time of the cave-in was only 8 feet deep. O'Horo bases its argument on the testimony of Don Black, the backhoe operator for O'Horo who dug the trench. However, Black's testimony, except where he spoke of the "two or three inches of slag" placed under the pipe for bedding, described procedures performed after a pipe is aligned. Accordingly, because the cave-in occurred when Richardson was in the trench to check the pipe alignment, Black's testimony does not address the conditions that existed in the trench at the time of the cave-in. We therefore accept the judge's finding, based on testimony in which the Secretary's witnesses agreed with O'Horo's, that the trench was 10 feet deep, and his conclusion that sloping of the upper five feet of the trench was required under the cited standard.

Backhoe operator Black further testified that: the west wall of the trench, the side nearest the road, was sloped for about 1-1/2 feet from the top down, leaving about 8-1/2 feet vertical above the trench floor; and the east wall was sloped for about 2 to 3 feet from the top down leaving 7 to-8 feet vertical above the trench floor.

In his decision, Judge Burroughs concluded that O'Horo had violated the standard. He placed particular importance on Black's testimony that the sloping did not start until the 8-1/2 foot level on one wall and the 7 to 8 foot level on the other wall, rather than at the 5-foot level required by section 1926.652(c).

Moreover, as Judge Burroughs explained in his decision, the sloping that O'Horo had done was at an inadequate angle. Compliance Officer Pontuti testified that, when he measured the top of the trench after the cave-in, it was 7 feet wide. Although none of the witnesses measured the top width of the trench before the cave-in, Robert Mossman, an inspector for the consulting engineering firm overseeing the project, testified that it was approximately 5 or 6 feet, while Black testified that it was 7 to 8 feet. The judge stated that [t]he opening was obviously less than seven feet since a substantial amount of soil fell into the trench." Nevertheless, he gave O'Horo the benefit of the doubt and found that, prior to the cave-in, the trench was 7 feet wide at the top, and 3 feet wide at the bottom. The judge noted that to comply with the standard's requirement to lay back one-half foot horizontal for each one foot rise, the trench should have had a 2-1/2 foot slope for each wall starting at the 5-foot level. That would have required a top width of 8 feet, one foot more than the 7-foot measurement allowed by the judge.

O'Horo argues that it substantially complied with the standard because the top width of the trench prior to the collapse was, as Black testified, 7 to 8 feet. However, even if we were to accept O'Horo's claim that it substantially complied with the standard, that does not relieve it of being found in violation of the standard. Such evidence would only be relevant in recharacterizing the violation based on the reduced gravity of the hazard. See Pace Construction Corp.,13 BNA OSHC 2161, 2164, 1989 CCH OSHD 28,522, pp. 37,853-54 (No. 85-1362, 1989) (violation other-than-serious, rather than serious, as alleged); Triple "A" South, 9 BNA OSHC 1542, 1546-47, 1981 CCH OSHD 25,295 pp. 31,313-14 (Nos. 77-2922 & 77-3169, 1981) (violations de minimis, rather than serious, as alleged).

In any event, we conclude that O'Horo's attempt at compliance was less substantial than it claims. Based on the above discussion, it is clear that O'Horo failed to comply with the terms of the standard.

B.  Employer Knowledge

In order to satisfy her burden of establishing knowledge, the Secretary must prove that a cited employer either knew, or, with the exercise of reasonable diligence, could have known of the presence of the violative condition. ,United States Steel Corp. 12 BNA OSHC 1692, 1699, 1986-87 CCH OSHD 27,517, p. 35,671 (No. 79-1998, 1986). The actual or constructive knowledge of an employer's foreman can be imputed to the employer. Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD 27,651, p. 36,033 (No. 82-928, 1986). An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer. Paul Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379 ,1381-82, 1981 CCH OSHD 25,219 p. 31,150 (No. 76-4271, 1981); Georgia Electric Co., 5 BNA OSHC 1112, 1115, 1977-78 CCH OSHD 21,613, p. 25,951 (No. 9339, 1977), aff'd, 595 F.2d 309 (5th Cir. 1979).

In this case, Ronald Bowman, a laborer for O'Horo, had been designated as working foreman of the crew. He was at the work site before and during the cave-in. According to Bowman, the trench "looked good" that morning. He testified that he saw no need for the trench box because he thought that the walls of the trench were going to stand by themselves without shoring. Bowman gave instructions to backhoe operator Black to cut the trench, but he admitted that Black "sloped it on his own because that's the way we were working." Nevertheless, Bowman testified that during the trenching process he personally watched for differences or changes in the ground conditions, and he also checked for the adequacy of sloping. We conclude that, because he observed the trenching process that resulted in the inadequately sloped walls, Bowman had knowledge of the violative conditions. In light of his supervisory status, his knowledge is imputable to O'Horo and establishes a prima facie showing of knowledge. See Capform, Inc., 13 BNA OSHC 2219, 2222, 1989 CCH OSHD 28,053, p. 37,776 (No. 84-556, 1989), aff'd, 901 F.2d 1112 (5th Cir. 1990) (knowledge based on supervisors continually present at excavation).

Once the Secretary has made a prima facie showing of employer knowledge through its supervisory employee, the employer can rebut this showing by establishing that the failure of the supervisor employee to follow proper procedures was unpreventable. In particular, the employer must establish that it had work rules that effectively implemented the requirements of the cited standard, and that these work rules were adequately communicated and effectively enforced. E.g., H.E. Wiese, Inc., 10 BNA OSHC 1499, 1505, 1982 CCH OSHD 25,985, p. 32,614 (Nos. 78-204 & 78-205, 1982), aff'd per curiam, 705 F.2d 449 (5th Cir. 1983); see Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied, 108 S.Ct. 479 (No. 87-246, 1987).

The judge concluded that O'Horo did not prove unpreventable employee misconduct. We agree. Regarding the first element of this affirmative defense, namely proof of relevant work rules, O'Horo relies on its written safety plan, which was prepared by the Associated General Contractors of America and introduced into evidence as Exhibit C-18, and on its safety pamphlet, which was prepared by the Ohio Contractors Association and introduced as Exhibit R-I. However, there are no provisions in those documents that specifically require that a trench dug in hard or compact soil, that has not been shared or otherwise supported, must be sloped above the 5-foot level no steeper than a one-foot rise to each 1/2-foot horizontal, as section 1926.652(c) (quoted above) expressly requires.[[3/]] According to the testimony of Robert Sause, O'Horo's project superintendent, O'Horo relied on the crews to make their own decisions as to trench sloping and trench box use, because it considered the crews to be experienced.

Even if O'Horo's work rules were sufficient, the evidence demonstrates that they were not adequately communicated. Daniel O'Horo, O'Horo's president, testified that the written safety plan was distributed to O'Horo's foremen. However, when shown a copy of Exhibit C-18, O'Horo's written safety plan, at the hearing, both foreman Bowman and Larry Pawlik, another O'Horo foreman working on the same sewer project, testified that they could not recall ever having seen the plan before. Crediting the testimony of the two foremen over that of O'Horo's president, the judge found that the written safety plan had not been distributed to its employees. We defer to that credibility determination. See C. Kaufman. Inc., 6 BNA OSHC 1295,1297, 1977-78 CCH OSHD 22,481, p. 27,099 (No. 14249, 1978).

We also adopt the judge's finding that the information in the safety plan had not otherwise been communicated to employees. Foreman Bowman testified that, although he had received some safety pamphlets, he had not received any specific, formal instructions from O'Horo on sloping and trench box use. Backhoe operator Black testified that he had not received any training from O'Horo on trenching.

We further conclude that the work rules were not adequately enforced. Bowman testified that he was not aware of any O'Horo official checking on his safety judgment, and he did not know what David Limpach, O'Horo's safety director, was doing when he visited the job site. O'Horo's president testified that he told Limpach, who did not testify at the hearing, to make sure that the employees were apprised of all OSHA regulations. But, when asked if he followed up to see if that had been accomplished, O'Horo's president responded that Limpach reported to him only "occasionally" and told him that he had given instructions as to safety. Robert Sause, O'Horo's project superintendent, testified that he checked on the sewer project crews only occasionally because most of his time was spent at the waste water treatment plant project. Sause and O'Horo's president testified that they took steps to correct unsafe conditions that they observed when they were present at the site. Neither O'Horo's safety plan nor its pamphlet mention any discipline or reprimands for safety rule violations. Based on all of these factors, it is evident that O'Horo had no set policy on enforcement. O'Horo's work rules were therefore essentially a paper program. See Brock v. L. E. Myers Co., 818 F.2d. at 1278. Even safety director Limpach recognized the flaws in the plan. The compliance officer testified that Limpach had told him that O'Horo's safety plan was "very good" in writing, but "there was very, very minute implementation...."

We find that O'Horo failed to establish the affirmative defense of unpreventable employee misconduct, and that Bowman's knowledge is therefore properly imputed to O'Horo. Because the Secretary has established all of the elements of the alleged violation, we affirm the judge's conclusion that O'Horo, violated section 1926.652 (c).

II.  Employee Instruction Requirement

Item 1a of the citation alleged a willful violation of 29 C.F.R. 1926.21 (b)(2), which provides:

1926.21 Safety training and education.

(b)  Employer responsibility.

(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.

According to the citation, O'Horo violated the standard because its employees "were not adequately instructed regarding proper trench safe guards [sic]." O'Horo argues that its instructions were sufficient. The judge rejected that contention and concluded that O'Horo did not adequately instruct its employees.

While the citation item speaks of failure to instruct in trench safeguards in general, it appears, from the manner in which the alleged violation was tried and argued by the parties, that the heart of the charge is the inadequacy of O'Horo's instructions regarding the most basic of trench safeguards--adequate sloping or shoring--and the regulation that addresses that safeguard for the type of soil here--section 1926.652(c), quoted above.[[4/]]

Section 1926.21(b)(2) requires employers to instruct employees concerning "safety hazards which would be known to a reasonably prudent employer or which are addressed by specific OSHA regulations." (emphasis added). See H. C. Nutting Co. v. OSHRC, 615 F.2d 1360 [8 BNA OSHC 1241, 1242, 1980 CCH OSHD 24,548, p. 30,030] (6th Cir. 1980) (unpublished). At issue here is whether O'Horo instructed employees in the hazards addressed by section 1926.652(c).

A.  Written Instructions

At the hearing, Daniel O'Horo, O'Horo's president, testified that, prior to the cave-in, the company had adopted, and distributed to its foremen, a written safety plan prepared by the Associated General Contractors of America, a copy of which was admitted into evidence as Exhibit C18. The "Trenching and Excavating" portion of the plan, on pages E.1.1 through E.1.8, generally discusses trenching methods and safeguards, stating on one page that "OSHA requires that all excavations over five feet deep be sloped, shored, sheeted, braced, or otherwise supported." On page E.1.8, there is a note that the "Checklist" "is for general guidance only. To define the requirements for compliance, please consult OSHA standards 1926.650, 1926.651, 1926.652, and 1926.653."

Although the plan refers to section 1926.652, it does not include the specific requirement of section 1926.652(c), that sides of trenches dug in hard and compact soil (the type of soil in which O'Horo's trench was dug) "shall not be steeper than a 1-foot rise to each 1/2-foot horizontal." The safety plan does provide that, where trenches are sloped, the sides should be cut to the "'angle of repose,' the angle closest to the horizontal at which the soil will remain at rest." The plan includes a copy of the chart setting forth the specific minimum requirements for shoring, which was published in Table P-2 accompanying the regulations, but the plan does not include any specific minimum sloping, requirements. Therefore, the safety plan is inadequate to meet the employer's responsibility for training and instruction under section 1926.21(b)(2).

In addition to this shortcoming, the judge found that the evidence established that the written safety plan was not communicated to at least two O'Horo foremen, including Bowman.

O'Horo also contends that it issued written instructions to its employees in safety pamphlets. The only pamphlet in evidence is Exhibit R-I, a document published by the Ohio Contractors Association, of which O'Horo is a member. The section of the pamphlet relevant here is the one entitled "Trenching & Excavating" on page 23, which provides in pertinent part: "Do not enter a trench more than 5 feet deep unless it is shored, sheeted, boxed, layed-back [sic] or in solid rock." The pamphlet does not indicate what portion of the trench walls should be sloped. Nor does it state the angle of sloping required or whether different soil types require different sloping. We therefore conclude that the safety pamphlet used by O'Horo is also inadequate to meet the employer's responsibility under the standard.

B.  Other Instructions

O'Horo's president and its project superintendent Sause both testified that they had spoken to the pipe-laying crews about the need for sloping in areas where trench boxes could not be used. However, neither O'Horo's president nor Sause indicated whether their instructions addressed the requirements of section 1926.652(c).

Foreman Bowman testified that the only instructions that he had received before the accident concerning when to use a trench box, or when or how to slope, were from O'Horo's safety pamphlets. When asked if he was familiar with OSHA standards regarding hard or compact soil, Bowman replied, "I'm not sure. I understood that when you cut anything five feet, you start cutting back two-to-one." He also testified that he had never been given instructions about soil mechanics or attended any lectures on soil, and that all his knowledge had been gained through his 14 years of experience working in trenches. When asked what instructions on trench digging he gave to backhoe operator Black on the morning of the cave--in, Bowman responded that he "usually tell[s] [Black) nothing. He knows what to do."

Backhoe operator Black, who cut the trench, testified that he had not received any training on trenching or any safety information from O'Horo before the accident. He stated that, based on his knowledge, the trench should have been sloped "at least one to one, five feet."

Larry Pawlik, an O'Horo foreman who headed a different crew on the Mosquito Creek project, testified that he never gave his employees any general safety instruction before they started work, nor had O'Horo provided any films or lectures on training. Pawlik stated that he did not hold regular safety meetings.

In his decision, the judge noted that "[c]omplacency seems to have permeated O'Horo's safety program," with supervisors relying on the experience of the crew instead of providing specific trenching instructions for the job. The judge noted Bowman's concession that he did not tell Black how to slope the trench, because he was relying on Black's judgment and experience, which, the judge observed, were unfortunately not adequate. After further noting O'Horo's frequent reference to its reliance on the experience of its employees gained through on-the-job training, the judge rejected O'Horo's claims of proper training and raised the question, "One must wonder who was doing the training."

Based on the evidence noted above, we agree with the judge and conclude that, in addition to not providing adequate written instructions on trenching, O'Horo did not provide any other instructions regarding trenching, or, if it did, they were inadequate.

C.  Knowledge

O'Horo's president, who described himself as being in charge of overall safety, testified that he was not aware of any formal training or safety instruction about the hazards that might be encountered that was given by O'Horo to its employees prior to the start of the project. The president testified that he told David Limpach, O'Horo's safety director, to make sure that employees were apprised of OSHA regulations. When asked if he had followed up to see if that had been accomplished, O'Horo's president responded that Limpach had reported to him "occasionally." At the hearing, O'Horo foremen Bowman and Pawlik did not recall seeing the safety plan before. Because the knowledge of O'Horo's president concerning his own acts and omissions and the foremen's knowledge of their own lack of training are clearly imputable to O'Horo, we conclude that the company had knowledge of the violative condition.

Based on all the evidence noted above, we conclude that O'Horo violated section 1926.21(b) (2), and we affirm the judge's holding on this issue. See John R. Jurgensen Co. v. OSHRC, 872 F.2d 1026 [13 BNA OSHC 2121, 2125] (6th Cir. 1989) (unpublished). 

III.  Additional Precautions Requirement

Item 1c of the citation alleged a willful violation of 29 C.F.R. 1926.652 (e), another Subpart P standard, which provided: [[5/]]

1926.652 Specific trenching requirements.

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

There is no allegation in this case that the cited trench was adjacent to backfilled materials. Accordingly, in order to prove the alleged violation, the Secretary has the burden of showing that the trench was subjected to vibrations and that no additional precautions were taken. See Wright & Lopez, Inc., 10 BNA OSHC 1108, 1111, 1981 CCH OSHD 25,728, p. 32,077 (No. 76-256, 1981); Boh Brothers Construction Co., 4 BNA OSHC 1879, 1880, 1976-77 CCH OSHD 21,336, p. 25,621 (No. 7184, 1976). The standard "does not require the Secretary to show that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect." Wright & Lopez, 10 BNA OSHC at 1111-12, 1981 CCH OSHD at p. 32,077. See Boh Brothers, 4 BNA OSHC at 1880, 1976-77 CCH OSHD at p. 25,621 (Secretary need not take seismic measurements or have representative enter trench).[[6/]]

A. Noncompliance with Terms of Standard

The Secretary sought to prove the alleged violation in this case by introducing the following evidence. The cited trench was dug parallel to a portion of Route 46, a two-lane highway that runs north and south. The highway is heavily traveled by vehicles ranging from automobiles to tractor trailers. On the morning of the cave-in, the traffic was heavy throughout the time that the crew was working in and around the trench. The center of the trench was 9 feet from the edge of the road.[[7/]]

Compliance officer Pontuti testified that on October 12, three days after O'Horo's trench collapsed, he personally observed the collapse of the unsloped wall of another contractor's trench, which was similarly dug parallel to Route 46. He attributed this later cave-in to the vibrations caused by the traffic along Route 46.[[8/]]

The trench that he saw collapse on October 12 was about 1 to 1-1/2 miles from O'Horo's trench. Like O'Horo's, that trench was dug about 9 feet from the highway in hard and compact soil, and it was the wall nearest the road that collapsed. According to Pontuti, the "heavy truck traffic" along Route 46 had "a lot of impact" on trenches dug within 12 feet of the highway, for the "road vibrations" could cause, in possibly a short time, a side wall to cave in.

Based on the evidence and precedent discussed above, the judge concluded that the Secretary had established a violation. He particularly noted that "[i]f [as Pontuti testified] vibrations were present on October 12, they would have been present on October 9. Heavy traffic, which included large tractors and trailers, would cause vibrations within nine feet of the road."

O'Horo's contentions on review are primarily reiterations of arguments addressed by the judge and already discussed in resolving the other items on review. The arguments are rejected here for the reasons already given. Requiring some further clarification is O'Horo's claim that the Secretary must introduce evidence that vibrations were felt, noting that in Wright & Lopez, supra, the compliance officer testified that he could feel vibrations. We find that no such showing is required. In Cedar Construction Co. v. OSHRC, 587 F.2d 1303, 1306 (D.C. Cir. 1978), the court concluded that "[t]he danger of excessive vibration was apparent from the fact that the trench was approximately 50 feet from a well-traveled highway." (emphasis added) . The 50-foot distance between the trench and the highway was far greater than the 9 feet involved here. See John R. Jurgensen Co., v. OSHRC [13 BNA OSHC at 2125] (trench subject to vibrations from highway traffic because of fact that it was dug within 4-1/2 feet of major highway with fairly heavy traffic).

Although it takes issue with the compliance officer's opinion testimony that there were vibrations at the trench from the traffic along the highway, O'Horo did not introduce expert testimony in rebuttal. Cf. Donovan v. John R. Hughes Construction Co. [11 BNA OSHC 1114, 1115, 1983-84 CCH OSHD) 26,409, pp. 33,508-09] (W.D. Tex. 1983) (test by expert in ground-borne waves revealed no vibrations were conveyed to earth in trench adjacent to highway; imminent danger injunction denied).

B. Employer Knowledge

Working foreman Bowman testified that he thought that the trench was stable and safe. He stated that, although he observed the traffic on the road, he did not think that it would affect anything in the trench because the vehicles "don't come over on the berm."

In his decision, the judge stated that Bowman's "lack of concern is surprising in view of the fact that the center line of the trench was only nine feet from the edge of the road." The judge noted that Bowman was obviously unaware of O'Horo's statement in its safety plan that "[v]ibrations or sudden shock from passing vehicles . . . can contribute to cave-ins by loosening the soil. . . . If these conditions exist near an excavation site, stronger support is vital."

We conclude that Bowman should have known of the violative condition, and his constructive knowledge is imputable to O'Horo because of his supervisory status.

Based on the evidence discussed above, we affirm the judge's conclusion that the Secretary established a violation of section 1926.652(e).

IV. Willfulness

In the citation, the Secretary alleges that the violations of sections 1926.21(b)(2), 1926.652(c), and 1926.652(e) were willful. A willful violation is one committed with intentional, knowing, or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety. E.g., Calang Corp., 14 BNA OSHC 1789, 1791, 1990 CCH OSHD 29,080, p. 38,870 (No. 85-319, 1990). In order to show intentional disregard of a standard, there must be evidence that the employer knew of an applicable standard prohibiting the condition and that it consciously disregarded it. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD 27,893, p. 36,589 (No. 85-355, 1987).

As the judge noted in his decision, O'Horo was aware of the requirements of the three interrelated standards that it violated. O'Horo's awareness is most clearly demonstrated in the words of its own safety plan, Exhibit C-18. On page C.1.1, under the "Training" heading, the plan quotes section 1926.21(b)(2) verbatim, although it miscites it as "1926.21(a)(2)." Regarding the other two standards, the first entry under "Trenching & Excavations--a Checklist" cautions the reader to "consult OSHA standards . . . 1926.652 . . . . " O'Horo also had knowledge of 29 C.F.R. 1926.652(b)[[9/]] from a prior citation it had been issued in 1976, which alleged a willful violation of section 1926.652(b) and resulted in a settlement. In addition, as indicated in Part II supra, the plan correctly states that "OSHA requires that all excavations over five feet deep be sloped, shored, sheeted, braced, or otherwise supported."

O'Horo had been given warnings about shortcomings in its trenching procedures at this worksite prior to the OSHA Inspection in this case. On July 27, 1984, Thomas Rink, construction safety consultant for the Ohio Industrial Commission's Division of Safety and Hygiene, inspected the Mosquito Creek project and observed O'Horo employees working in a trench that had not been sloped, shored, or laid back as required by the State of Ohio's trenching standards, which were essentially the same as federal OSHA standards. Rink explained to the O'Horo foreman on the site that, in lieu of sloping or shoring, a trench box could be used. He sent O'Horo's management written notification of the incident.

In response to this notification and other complaints about safety filed by Rink against other contractors on the Mosquito Creek project, the Assistant Prosecutor for Trumbull County, Ohio, directed O'Horo and those employers to appear at a meeting on August 8, 1984. David Limpach, O'Horo's safety director, attended that meeting, at which Rink reviewed the trench safety requirements and the prosecutor warned the contractors to comply.

During the week prior to the accident, O'Horo had used a trench box while working near Route 46. On the morning of October 8, the day before the accident, foreman Bowman gave instructions to backhoe operator Black to remove the trench box. Later that day, Mossman, the inspector for the civil engineering firm overseeing the project, told Bowman that parts of the trench walls had collapsed. Nevertheless, despite his knowledge of the hazards involved in continuing operations, Bowman did not order use of the trench box on that day. Similarly, on October 9, prior to the cave-in of the west wall onto Richardson, the trench box was not used, even though Mossman again had told Bowman of partial collapses that had occurred earlier that morning.[[10/]]

As the judge correctly noted in his decision, based on the evidence discussed above, O'Horo permitted its foreman Bowman and, through Bowman's delegation, its backhoe operator Black, to substitute their judgment as to whether the trench was safe for the clear requirements of the standards, of which O'Horo was well aware.

We conclude that the pattern of conduct of O'Horo's management, from its president down to its working foreman, is properly characterized as both intentional disregard of the construction safety standards and plain indifference to employee safety. See Titanium Metals Corp. of America, 7 BNA OSHC 2172, 2178, 1980 CCH OSHD 24,199 p. 29,434 (No. 14080, 1980).

We reject O'Horo's argument that it cannot be found in willful violation because it partially sloped the trench. The Commission has not considered a violation to be willful where the employer made a good faith effort to comply with the standard, even though the effort was not effective or complete. Calang Corp.,14 BNA OSHC at 1791, 1990 CCH OSHD at p. 38,870. Here, however, the evidence demonstrates that O'Horo made no good faith effort to comply with the standards at issue.

We therefore affirm the judge and conclude that O'Horo's violations of sections 1926.21(b)(2), 1926.652(c), and 1926.652(e) were willful.

V. Penalty

In determining an appropriate penalty, in accordance with section 17(j) of the Act, 29 U. S. C. 666(j), we must consider the size of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. As the judge noted, the principal factor in this case is the gravity of the offense. See Nacirema Operating Co., 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4. 1972). Here, we agree with the judge that the gravity of the violations was "quite severe" in that Richardson was buried alive by the collapsing wall of the trench.

With regard to the other penalty criteria, O'Horo had been cited in 1976 for violating section 1926.652(b). O'Horo is a fairly large construction company, and it was working on a multi-million dollar waste water treatment plant at the same time as it worked on the sewer project at issue here. There was no showing of good faith on the part of O'Horo.

The Commission has the discretion to assess a single, combined penalty for violations involving related or similar conduct. Wright & Lopez, 10 BNA OSHC at 1112, 1115, 1981 CCH OSHD at pp. 32,077, 32,080; H.H. Hall Construction Co., 10 BNA OSHC 1042, 1049, 1981 CCH OSHD 25,712, pp. 32,058-59 (No. 76-4765, 1981). Because these three willful violations are interrelated and concern similar conduct, we assess, as the judge did, a combined penalty of $9,000.

VI. Order

Accordingly, we affirm the decision of the judge and conclude that O'Horo committed willful violations of sections 1926.21(b)(2), 1926.652(c) , and 1926.652(e). We assess a combined penalty of $9,000.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: January 31, 1991


SECRETARY OF LABOR,

Complainant,

v.

A. P. O'HORO COMPANY, INC.,

Respondent,

and

LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, TRUMBULL COUNTY
LOCAL 935,

Authorized Employee

Representative.

OSHRC Docket No. 85-0369

APPEARANCES:

F. Benjamin Riek, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant

Alan D. Wenger, Esquire, and George J. Limbert, Esquire, Youngstown, Ohio, on behalf of respondent

DECISION AND ORDER

Burroughs, Judge: Respondent, A. P. O'Horo Company, Inc. ("O'Horo"), contests alleged willful violations of 29 C.F.R. 1926.21(b)(2), for not adequately instructing employees in the recognition and avoidance of unsafe conditions, 29 C.F.R. 1926.652(c), for failure to properly slope, shore or otherwise support the walls of a trench, and 29 C.F.R. 1926.652(e), for failure to take additional precautions where the walls of a trench were subjected to vibrations from highway traffic. The alleged violations emanated from an investigation of a trench collapse on October 9, 1984, in Trumbull County, Ohio, that resulted in the death of O'Horo employee Isaah ("Ike") Richardson.

O'Horo is a general contractor located in Youngstown, Ohio. It does a considerable amount of sewer construction work. Sometime in 1984 it was awarded a contract to construct a sewerage treatment plant and install part of the sewer lines for the Mosquito Creek Sewer project in Trumbull County, Ohio. O'Horo was the general contractor for the installation of the sewer line for that part of the job referred to as Madden Corners. The Madden Corners portion of the contract called for the laying of approximately 43,000 feet of pipe.

The Madden Corners job commenced in early June, 1984. The company used two trenching crews to lay the main sewer lines. Additional employees were used to connect the lateral lines from the sewer to the individual properties. The foremen for the two crews were Ron Bowman and Larry Pawlik. They were also responsible for the supervision of the employees connecting the lateral lines to the individual properties. Their immediate supervisor was Robert Sause. He was job superintendent for the sewerage plant construction and the sewer line installation. The safety director for O'Horo was David Limpach. The president, Daniel O'Horo, was in overall charge of job safety.

Around the first of October, O'Horo had installed the sewer line on Dawson Road and had reached the intersection of State Route 46. On October 5, 1984, the crew headed by Ron Bowman began to install the sewer line parallel to Route 46 in a northerly direction along the east side of the road. In addition to Bowman, the crew was comprised of Don Black, the backhoe operator, Mike Eazor and Ike Richardson, both of whom were pipelayers, Bowman, Black and Richardson had worked several years in pipe construction and were considered to be experienced employees.

On October 9, 1984, at approximately 10:00 a.m. there was a major collapse of the west wall of the trench located along Route 46 in Howland Township. Ike Richardson was in the trench when the wall collapsed. He was completely buried by the collapse of the wall. When he was uncovered, he was found to be in a standing position. He never regained consciousness and died several days later.

An investigation of the accident was conducted by Compliance Officer Thomas Pontuti. He determined that the trench was 25 feet in length, 10 feet deep, 7 feet wide at the top after the cave-in, and approximately 3 1/2 feet wide at the bottom. The walls of the trench were not shored or otherwise supported at the time of the collapse. As a result of the investigation, O'Horo was issued a willful citation on February 12, 1985, alleging violations of 29 C.F.R. 1926.21(b)(2), 29 C.F.R. 1926.652(c), and 29 C.F.R. 1926.652(e).

In order to establish a violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654(a)(2), the Secretary must prove that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the employer knew of the condition or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD 25,578 (No. 78-6247, 1981), affirmed on issue but remanded on penalty, 681 F.2d 69 (1st Cir. 1982). The evidence convincingly establishes that the Secretary has established the necessary burden of proof essential to sustain the alleged violations.
Bowman was the foreman at the site and in charge of the crew. His knowledge is imputable to O'Horo unless O'Horo can demonstrate that he was adequately supervised regarding safety matters.  Wright & Lopez, Inc.,80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1980 CCH OSHD 24,419 (No. 76-3743, 1980). For reasons hereinafter discussed, it is concluded that O'Horo had a lax safety policy and failed to adequately supervise Bowman on safety matters. His knowledge of the conditions on October 9 are imputed to O'Horo.

I. Alleged Violation of 29 C.F.R. 1926.21(b)(2)

Item 1a of the citation alleged that O'Horo violated section 1926.21(b)(2),[[1/]] which requires employers to instruct employees in the recognition and avoidance of unsafe conditions. The standard does not specify the extent of instruction that must be given to employees. "Fairly read, the regulation [1926.21(b)(2)] requires that an employer inform employees of safety hazards which would be known to a reasonably prudent employer or which are addressed by specific OSHA regulations." The H.C. Nutting Co., 615 F.2d 1360 (6th Cir. 1980). 1980 CCH OSHD 24,548, at p. 30,030. The court in Nutting vacated the alleged violation for lack of evidence as to industry practice and the lack of specific OSHA standards detailing what steps should have been taken. There is no lack of such evidence in this case.

O'Horo was cited for the violation of two standards, 1926.652(c) and 1926.652(e). These standards are specific in their requirements. O'Horo's written safety plan (Ex. 18) specifically covers the requirements of the two standards (Ex. 18. pp. E.1.1-E.1.8) and is an acknowledgement that it was aware of the hazards which the standards seek to prevent. In addition to the detailed written safety program, O'Horo issued employees a safety booklet (Ex. 1) which advised employees to shore or lay back all trenches (Ex. 18, p. 23). Its written safety program and safety booklet recognized all the unsafe conditions normally covered by the OSHA standards. These conditions are also recognized by the industry.[[2/]]

O'Horo's primary defense centers on its representation that each of the employees had extensive experience and knowledge in trenching and trenching safety practices and had specific knowledge as to the cited OSHA standards. It argues that the standard "requires only that employees be instructed as to hazards and as to safety standards and does not require continued warnings, or even enforcement of standards," citing Dravo Engineers and Constructors, 84 OSAHRC , 11 BNA OSHC 2010, 1984 CCH OSHD 25,885 (No. 81-748, 1984), wherein the Commission states (11 BNA OSHC at 2011):

*** The company argues that the standard requires only that instructions be given and that it complied with that requirement. We agree. The clear language of the standard requires only that an employer instruct its employees.

The preponderance of the evidence in this case clearly shows that O'Horo breached its duty of giving reasonable instructions to its employees. While there was a good written safety program, the evidence is lacking as to adequate implementation. The company lacked any type of formal training program and assumed employees to be well trained from on-the-job experience (Tr. 272).

During the investigation, the safety officer of O'Horo, David Limpach, presented a written safety program to Compliance Officer Pontuti (Tr. 274). A careful reading of the program reflects that it is a written program prepared by some third party for contractors and was apparently adopted by O'Horo. The written plan is a good one and is quite detailed. Unfortunately, the evidence is lacking to support implementation of the plan. Daniel O'Horo testified that the plan had been distributed to foremen prior to October 9, 1984, the date of the accident. He had no receipts from the foremen to show distribution (Tr. 374). Foreman Larry Pawlik testified that he had never seen the plan prior to its being shown to him at the trial (Tr. 207). Foreman Ron Bowman had no recollection of ever seeing the written safety program (Tr. 429, 431).

At various times, usually once a month, O'Horo distributed safety pamphlets to employees (Tr. 181, 189, 190, 203, 428). Both Pawlik and Bowman testified that they had received the safety booklet and other safety materials (Tr. 189-190, 203, 428-429). Pawlik testified that prior to commencing work on the project, he or the company never gave employees any type of safety instructions regarding what safety rules might apply or as to any type of problems they might encounter (Tr. 181, 208). Bowman testified that prior to the accident, no formal instructions had been given on when to use a trench box or when or how to slope (Tr. 428). Regular safety meetings, as required under the written safety program, were not conducted (Tr. 181-182, 273-274, 285). Daniel 0'Horo, who was in overall charge of safety, was unaware of whether any formal training, safety classes or instructions were given to employees prior to commencement of the project (Tr. 381- 382). He was also unaware of whether the company's safety program called for weekly safety meetings or whether the foremen conducted such meetings (Tr. 384). His total involvement seems to be that he told David Limpach "to make sure that the men were apprised of all the OSHA regulations" (Tr. 382).

The duties of David Limpach would also appear to be rather nebulous. Bowman testified that Limpach visited the site but that he was unaware of what Limpach was doing (Tr. 429-430). Bowman was also unsure if anyone ever checked on his judgment regarding matters of safety (Tr. 443). The written safety plan states that "[t]he Project Superintendent has the full responsibility to implement and direct a safety program on his project" (Ex. 18, p. A.2.5). The superintendent for the project was Robert Sause. He testified that he explained to Bowman what his duties were on the job (Tr. 489) but conceded that he "wasn't really there enough to tell them [crew] too much" (Tr. 461). He was not present at the site each day (Tr. 449) and prior to the accident he had last visited the site on October 5 (Tr. 454, 489). He indicated that the crew generally made the decision as to what safety procedures to use (Tr. 449-450) but that he never brought an inexperienced person into a crew and worked them in a trench (Tr. 450). Sause stated that all members of the crew had long tenure with the company and were experienced in sewer line construction work (Tr. 450). The degree of their past training and the reasonableness of their judgment in performing trenching work is unknown.

Sause testified that Black, the backhoe operator, had 25 to 30 years' experience (Tr. 455) and that he had observed his work and knew that he had sloped trenches (Tr. 456). Black testified that he had never received any training by O'Horo on trenching or how to properly slope a trench (Tr. 238). He had not been told how much slope to put into the trench prior to the accident, and no one told him that the slope of the trench was insufficient (Tr. 244). Black did, however, think the slope was sufficient to make the trench safe (Tr. 248).

Complacency seems to have permeated O'Horo's safety program. Pawlik conceded that at times they had become lax on safety (Tr. 183-184). Instead of providing specific trenching instructions for the job, the superintendent and foreman relied on their belief that the crew was experienced. Bowman conceded that he did not tell Black how to slope the trench; yet, he relied on Black's judgment and experience (Tr. 440). Unfortunately, Black testified that he had never received any training from O'Horo on trenching or how to properly cut a trench (Tr. 238). O'Horo alludes to experience of employees gained through on-the-job training. One must wonder who was doing the training. The fact that employees worked for the company a number of years does not per se satisfy the requirements of section 1926.21(b)(2). The evidence is overwhelming that O'Horo's safety training was inadequate for the level of instruction appropriate to the circumstances presented to employees in their daily duties. There Is a lack of evidence showing that employees were properly trained in detecting unsafe conditions or that they were aware of the OSHA requirements. The fact that Black thought the trench was safe (Tr. 248), and Bowman supposedly checked for the adequacy of the sloping (Tr. 436-437), shows a lack of understanding or plain indifference to the requirements of the trenching standards.

A violation of section 1926.21(b)(2) has been determined where the evidence reflected that no safety meetings were held, no specific instructions were given on digging the particular trench, except for being told to "do it in a safe manner," and the foreman indicated that employees were supposed to know the hazards of the job. Cedar Construction Company, 83 OSAHRC 40/A6, 11 BNA OSHC 1652, 1983 CCH OSHD 26,639 (No. 82-1029, 1983) (unreviewed Judge's decision). The evidence in this case is much stronger. The violation of 29 C.F.R. 1926.21(b)(2) has been established.

II. Alleged Violation of 29 C.F.R. 1926.652(c)

The Secretary alleges that O'Horo violated 29 C.F.R. 1926.652(c)[[3/]] in that the walls of the trench were not properly sloped, shored or otherwise supported. In order "[t]o establish a prima facie showing of noncompliance with section 1926.652(c), the Secretary must show that (1) the trench at issue is at least 5 feet deep and at least 8 feet long, (2) the trench is neither shored nor sloped appropriately, and (3) a significant portion of the trench wall is composed of hard or compact soil." CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173, 1981 CCH OSHD 25,091, p. 30,994 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982).

The parties concur in the determination that the soil in which the trench was excavated on October 9 was hard and compact (Respondent's Finding of Fact, No. 10). This conclusion of the parties is inconsistent in this case with Table P-1 of Subpart P which sets forth the angle of repose for sloping the sides of excavations. The Commission has held that "Tables P-1 and P-2 contain guidelines for the proper sloping and shoring of various dimensions in various soil types." CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173, 1981 CCH OSHD 25,091, p. 30,993 (No. 76-1228, 1980). aff'd, 688 F.2d 88 (10th Cir. 1982). In Connecticut Natural Gas Corporation, 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1799, 1978 CCH OSHD 22,874, p. 27,689 (No. 13964, 1978), the Commission discussed the interrelationship between section 1926.652(b) and (c) and the application of Tables P-1 and P-2, and reached the following conclusion (6 BNA OSHC at 1799):

The standards provide further guidance to enable employers to determine whether a particular trench is regulated by 1926.652(b) or 1926.652(c). In addition to the definitions of "unstable soil" and "hard compact soil in 1926.653, 1926.652 contains Table P-1, which illustrates the approximate angle of repose for different types of earth material. This Table lists an angle of repose of 1/2 to 1 for compacted angular gravels, and less steep slopes for average soils, compacted sharp sand, and well rounded loose sand.Since 1926.652 (c) requires a slope of not steeper than 1/2 to 1 for hard or compact soil, it is evident that those materials listed in Table P-1 as having a less steep angle of repose must be considered soft or unstable, and are therefore regulated by 1926.652 (b). (Underlining added)

This language makes clear that only compacted angular gravels can be classified as hard and compact soil since it is the only material listed in Table P-1 that permits a slope of 1/2:1. Under this rationale, O'Horo should have been cited under section 1926.652(b), which pertains to soft or unstable soil.

The evidence in this case establishes that the soil was a sandy silt with some clay, which under Table P-1 would be classified as average soil and require an angle of repose of 1:1. Thomas Rink, a construction safety consultant for the Ohio Industrial Commission, Division of Safety and Hygiene, expressed the opinion that the trench was dug in average soil (Tr. 44, 87) and should have been sloped at a 45-degree angle (1:1) (Tr. 51, 87). The backhoe operator, Don Black, testified that the trench should have been sloped 1:1 (Tr. 242-243), which would indicate he thought the trench was of average soil. There is no evidence that the soil was compacted angular gravel, which under Table P-1 would require a slope of 1/2:1.

The Commission has not always been consistent with the quoted rationale in Connecticut Natural Gas Corporation, supra. In D. A. & L. Caruso, Inc., 84 OSAHRC__, 11 BNA OSHC 2138, 1984 CCH OSHD 26,985 (No. 79-5676, 1984), a violation of section 1926.652(c) was sustained where the Commission placed credibility on evidence which indicated that "the soil was sandy clay with, perhaps, some weathered rock at the bottom of the trench." A violation by the Commission of section 1926.652(c) was sustained in CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169 1980 CCH OSHD 25,091 (No. 79-1228, 1980), even though it found that the soil tests "indicated the presence of significant amounts of clays and silts." The Commission has declined to review Judges' decisions finding a violation of section 1926.652(c) where the trench walls were not composed of compacted angular gravels. See Royal Plumbing & Heating, Inc., 84 OSAHRC, 11 BNA OSHC 2249,1984 CCH OSHD 27,019 (No. 83-1112, 1984) (material described as "hard dirt"); Jennings & Churella Construction Co., 84 OSAHRC , 11 BNA OSHC 1915, 1984 CCH OSHD 26,842 (No. 83-827, 1984) (material described as "composed mostly of clay"); Kenneth E. Brown Construction Company, Inc., 63 OSAHRC 8/E14, 11 BNA OSHC 1208, 1983-84 CCH OSHD 26,435 (No. 81-2399, 1983) (material described as "a clayey gravel"); Burn Construction Company, Inc., 81 OSAHRC 21/C4, 9 BNA OSHC 1435, 1981 CCH OSHD 25,242 (No. 80-1880, 1981) (material consisted of "soft caliche or clay-like sand" to a depth of four feet and "hard caliche" below that level).

This seeming disparity is easily explained by the following language of the Commission in Rochester Products Division, General Motors Corporation, 85 OSAHRC , 12 BNA OSHC 1324, 1326, 1985 CCH OSHD 27,257, p. 35,218 (No. 80-5439, 1985):

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

Since section 1926.652(c) is less stringent than section 1926.652(b), the citing of O'Horo for a violation of section 1926.652(c) inured to its benefit. In the context of this case, the distinction has little significance since the evidence establishes a violation of section 1926.652(c) .

The evidence is undisputed that the walls of the trench were not shored or otherwise supported and that a trench box was not being used. The evidence is also undisputed that the trench was more than five feet in depth and eight feet or more in length. O'Horo argues that the measurements of the trench show that the trench was in substantial compliance with the sloping requirements of 29 C.F.R. 1926.652(c). The argument is based on its conclusion that 29 C.F.R. 1926.652(c) requires a slope of one-half foot horizontal for each one foot vertical rise above the five-foot level.

There are some slight but insignificant differences in the measurements of the trench. O'Horo, relying on the testimony of Don Black, the backhoe operator, states that the trench was about three feet wide at the bottom and seven to eight feet wide at the top (Tr. 245). Black testified that the trench was "probably seven or eight feet" wide but testified that he did not recall exactly (Tr. 245). Robert G. Mossman, an inspector for the consulting engineering firm, testified that the width at the bottom was approximately three and a half feet and approximately five or six feet at the top (Tr. 133). Compliance Officer Pontuti testified that the trench width at the top measured seven feet after the collapse of the west wall (Tr. 266). He estimated the width at the bottom to be approximately three and a half feet (Tr. 266-267). The depth of the trench was measured to have been approximately ten feet before the cave-in (Tr. 263-264). Pontuti was assisted by Bowman in making the measurements (Tr. 262-264). Pontuti further testified that Black and the other employees informed him that the trench was approximately ten feet deep (Tr. 266). Robert Sause, the superintendent for the job, testified that the depth of the pipe from invert to the ground elevation was about 9.56 feet (Tr. 474) and that the specifications called for six inches of bedding. He agreed that a depth of ten feet was essentially correct (Tr. 477). The trench was 25 feet in length (Ex. L).

The end result in this case is not altered by the slight variances in the measurements. Respondent uses Black's estimate of seven to eight feet as the width at the top and three feet wide at the bottom to argue that the trench was sloped in substantial compliance with Table P-1 of Subpart P. Pontuti measured the top width of the trench after the collapse of the west wall. Since the actual measurement by Compliance Officer Pontuti was seven feet, the estimate of a width of possibly eight feet advanced by Black is considered unreliable. Testimony based on an actual measurement made by a witness is entitled to greater weight than a "ball park" estimate. Since there is no way of determining how much of the west wall collapsed, seven feet will be used in determining if there was an adequate slope. However, it is noted that Mossman testified that the width at the top prior to the collapse was approximately five to six feet (Tr. 133). The opening was obviously less than seven feet since a substantial amount of soil fell into the trench.

A depth of ten feet and width of seven feet at the top are considered favorable to O'Horo and are used in determining if the slope was in compliance with 1926.652(c). While Pontuti estimated the bottom width to be three and a half feet, O'Horo uses a three-foot measurement. Since a 35-inch bucket was used to excavate the trench (Tr. 477), the width was probably closer to three and a half feet. It is doubtful a trench could be dug a depth of several feet with only a total clearance of one inch; however, the three-foot measurement will be used since it is more favorable to O'Horo. While the critical width measurement under section 1926.652(c) is at the five-foot level, there was no direct evidence of the measurement at this level. There was evidence that the walls were vertical from the bottom to the point of slope (Tr. 243-244), which would mean the same measurement at the five-foot level as at the bottom. For purposes of section 1926.652(c), the trench was three feet wide at the five-foot level, ten feet deep, and seven feet wide at the top.

To comply with the standard's sloping requirements, each trench side above the five-foot level had to be sloped or laid back one-half foot horizontal for each one-foot rise. This means the trench should have had a two and a half foot slope of each wall (a total of five feet) commencing at the five-foot level. This would have required a top width of eight feet. The top width was only seven feet. More importantly, the slope did not commence at the five-foot level. Black testified that the slope on the west wall commenced at a point approximately eight and a half feet from the bottom and that the slope for the east wall commenced at a point some seven to eight feet from the bottom of the trench (Tr. 243-244). A violation of section 1926.652(c) has been established.

III.  Alleged Violation of 29 C.F.R. 1926.652(e)

The Secretary alleges that O'Horo violated 29 C.F.R. 1926.652(e)[[4/]] by failing to take additional precautions by way of shoring or bracing since the excavation was subjected to vibrations from Route 46. The trench was dug parallel to Route 46. The center of the trench was nine feet from the edge of the highway. The highway is heavily traveled. Traffic on the highway was not halted during the pipe installation.

O'Horo argues that there was no evidence that there was traffic at the time of the cave-in or that the traffic caused vibrations which led to the cave-in. In Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1111, 1981 CCH OSHD 25,728 at p. 32,076 (No. 76-256, 1981), the Commission, in commenting on 29 C.F.R. 1926.652(e), stated:

***The plain words of the standard require additional precautions when an excavation is "subjected to vibrations." They do not require the Secretary to show that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect. Thus, while the extent of the additional precautions depends upon the amount of vibration, the standard does not permit the employer to do nothing.

It is clear that the Secretary need only show that the trench was subjected to vibrations and not that there were enough vibrations to cause a cave-in. See also Boh Brothers Construction Co., 76 OSAHRC 142/A2, 4 BNA OSHC 1879, 1880, 1976-77 CCH OSHD 21,336 (No. 7184, 1976), wherein the Commission construed section 1926.652(e) to mean that precautions must "be taken where external sources cause the possibility of vibrations in the trench."

The statement by O'Horo that there was no evidence of traffic on the highway at the time of the evidence is apparently directed to a lack of evidence of traffic at the exact moment of the cave-in. It is undisputed that there was traffic on the highway while the sewer pipe was being installed. Traffic was maintained on Route 46 while work progressed in the trench (Tr. 125, 249). The foreman, Ron Bowman, testified that "[t]here was traffic on the road" (Tr. 437, lines 4-5). Don Black, the backhoe operator, testified that there was heavy traffic on Route 46 (Tr. 249). The Secretary does not have to show traffic present at the exact tire of the cave-in or that the cave-in was caused by vibrations from traffic. The standard is made applicable when excavations are subjected to vibrations from highway traffic.

Three witnesses, Ron Bowman, Don Black and Robert Mossman, were present at the site prior to the collapse at the west wall. There is no testimony from any one of them that they felt vibrations from the traffic. Mossman could not recall if he felt vibrations from the passing traffic (Tr. 125). Black and Bowman were not asked a question concerning whether they felt vibrations from the traffic.

Bowman was asked if he had watched for changes in vehicular traffic or traffic patterns near the trench. He replied (Tr. 437):

A. That, I'm not so sure about. There was traffic on the road. They don' t come over on the berm, so you wouldn't think that would affect anything on the ditch that far away.

His statement indicates that he did not regard the traffic as a problem. His lack of concern is surprising in view of the fact that the center line of the trench was only nine feet from the edge of the road (Ex. L; Tr. 263, 334). It is obvious that Bowman was unaware of O'Horo's statement in its safety plan concerning vibrations. The plan states (Ex. 18, p. E.1.4):

Vibrations or sudden shock from passing vehicles or railways, blasting, equipment such as trucks or pile drivers, and some tools can contribute to cave-ins by loosening the soil. Even machines operated in nearby buildings, such as punch presses, can create enough vibration to endanger a shoring system. If these conditions exist near an excavation site, stronger support is vital.

Since the plan refers to the possibility of vibrations from machines in nearby buildings and vibrations from passing vehicles, it is clear that Bowman should have been more alert to the possibility of vibrations.

While Compliance Officer Pontuti was not at the site at the time of the accident, he was familiar with the traffic conditions along Route 46. On October 12, 1984, he personally observed a different trench cave-in along Route 46 that he felt was caused by vibrations (Tr. 308).  The trench was located approximately one to one and a half miles north of the O'Horo accident site along Route 46 (Tr. 309-310). The trench was located approximately nine to ten feet off the street (Tr. 310). The soil type was basically the same as at the O'Horo accident site (Tr. 311). The circumstances on October 12 were similar to those existing at the accident site on October 9. If vibrations were present on October 12, they would have been present on October 9. Heavy traffic, which included large tractors and trailers, would cause vibrations within nine feet of the road. The violation has been established.

IV.  The Unpreventable Employee Misconduct
  Defense is Rejected

O'Horo argues that any violations determined in this case should not be attributed to it on the grounds that the violations resulted from employee misconduct. This defense recognizes that it would be unfair to penalize an employer for conditions that were unpreventable. In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show: (1) that it has established work rules designed to prevent the violation; (2) that it has adequately communicated these rules to its employees; (3) that it has taken steps to discover violations; and (4) that it has effectively enforced the rules when violations have been discovered. Jensen Construction Company, 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD 23,664 (No. 76-1538, 1979). "Employees must be properly trained and supervised and must be made aware that the work rules will be enforced." Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1662, 1982 CCH OSHD 26,075, p. 32,804 (No. 78-3491, 1982). The employer bears the burden of proving the defense.

A.  O'Horo Had a Work Rule Designed to Prevent the Violation

The first element to establish an unpreventable employee misconduct defense must show that the employer had established work rules implementing the requirements of the standard. The lack of an established work rule adequate to meet the particular violative conduct encountered is sufficient to defeat the defense. See Frank Swidzinski, 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD 25,129 (No. 76-4627, 1981). The rule must afford the employees "a degree of protection comparable to that provided in the standard." The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1206, 1977-78 CCH OSHD 21,696, p. 26,059 (No. 11015, 1977).

Exhibit 18, which was introduced into evidence as O'Horo's safety plan, covers the particular conduct set forth in the three standards. The segment on training (p. C.1.1) covers section 1926.21(b)(2), although the reference is inadvertently made to 1926.21(a)(2). The section on trenching and excavation covers the requirements of sections 1926.652(c) and 652(e). The safety booklet distributed to employees covers the requirements of trenching but makes no mention of vibrations or the requirement for providing instruction to employees. The written safety program satisfies the first requirement of the unpreventable employee misconduct defense.

B.  The Work Rules Were Not Adequately 
Communicated to Employees

The second element focuses on an employer's safety training, specific work instructions, and hazard warnings. The failure to provide adequate safety training may result in rejection of the defense. New England Telephone Co., 80 OSAHRC 54/A2, 8 BNA OSHC 1478, 1980 CCH OSHD 24,523 (No. 76-3010, 1980). The defense is also not applicable where there are inadequate specific work instructions. Danco Construction Co., 77 OSAHRC 189/B1, 5 BNA OSHC 2043, 1977-78 CCH OSHD 22,280 (No. 12847, 1977), aff'd, 586 F.2d 1243 (8th Cir. 1978). The defense has been sustained where the employees were well trained, experienced, and knew of the rules. Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1980 CCH OSHD 24,954 (No. 76- 5307, 1980).

There is no evidence that the information in the written safety plan was ever adequately disseminated to employees. This plan was supposedly distributed to foremen; yet, they were unaware of its existence. Foreman Larry Pawlik testified that he had never seen the plan prior to its being shown to him at the trial (Tr. 207). Foreman Ron Bowman had no recollection of ever seeing the written safety program (Tr. 429, 431). While the superintendent, Robert Sause, testified that he told company personnel many times about proper procedures (Tr. 450), the evidence reflects he did not do an adequate job. In addition to Pawlik and Bowman having never seen the written safety plan, the backhoe operator, Don Black, had never received any training by O'Horo on trenching or how to cut a trench (Tr. 238). Regular safety meetings were not conducted (Tr. 181-182, 273-274, 285), and no formal instructions had been given on when to use a trench box or when or how to slope (Tr. 428). The plan was never adequately communicated to employees. The mere distribution of safety pamphlets to employees does not satisfy the requirement.

C. Steps Were Not Taken to Discover Violations

The third element in establishing the defense requires evidence that the employer exercised reasonable diligence in detecting workplace hazards. The defense has been rejected where there were numerous incidents of prior noncompliance and where several employees were engaged in the proscribed conduct. Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD 26,027 (No. 16265, 1982); Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD 23,664 (No. 76-1538, 1979).

If steps were taken to insure compliance with the written safety plan, the course of action pursued was not made clear to the foremen or employees. Foreman Ron Bowman testified that he was unaware of anyone checking on his judgment as to safety matters (Tr. 443). He was also unaware of what David Limpach, the safety director, was doing on the Job (Tr. 443). The superintendent, Robert Sause, testified that he occasionally checked on the foreman but did not specifically refer to his checking on safety habits or procedures (Tr. 448). He stated that the crew made the decision as to what precautions should be taken (Tr. 450). Sause indicated that on one occasion he observed employees working outside the trench box, and the matter was brought to the attention of Bowman (Tr. 458, 460, 490). Foreman Pawlik testified that Daniel O'Horo inspected jobsites and let employees know if the job was safe (Tr. 181-182, 190) . The policy seems to have been that Daniel O'Horo, Robert Sause or David Limpach corrected any unsafe conditions they observed while on the site. There appears to have been no stated policy on what steps were to be taken to discover violations. The preponderance of the evidence clearly shows that employees were not adequately made aware of the fact that work rules would be enforced.

D. Work Rules Have Not Been Effectively Enforced 
When Violations Have Been Discovered

The last element of the defense involves the degree to which the employer takes action through sanctions and discipline to enforce its safety rules. Where an employer fails to discipline employees after prior incidents of violative conduct, subsequent violations have not been considered unpreventable and the defense has been rejected. Austin Building Co. v. OSHRC, 647 F.2d 1063 (10th Cir. 1981); H. B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD 24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981); Leo J. Martone & Associates, 77 OSAHRC 87/A3, 5 BNA OSHC 1228, 1977-78 CCH OSHD 21,718 (No. 11175, 1977). Where sanctions such as reprimands and docking of pay have been imposed, the defense has been sustained. Asplundh Tree Expert Co., 79 OSAHRC 109/A2, 7 BNA OSHC 2094, 1980 CCH OSHD 24,147 (No. 16162, 1979); Engineers Construction, Inc., 75 OSAHRC 84/E11, 3 BNA OSHC 1537, 1975-76 CCH OSHD 20,012 (No. 3551, 1975).

There is no evidence of any policy of imposing discipline or reprimands for violations of safety rules. The written safety plan (Ex. 18) and safety booklet (Ex. I) do not cover the subject. No examples of discipline imposed for violations of safety rules were offered at the hearing.

O'Horo has failed to satisfy three of the requisite requirements to support its defense of unpreventable employee misconduct. While the written plan was adequate, O'Horo made little or no effort to adequately communicate the rules to employees, to discover violations or enforce the rules by imposing sanctions on the violators. The defense of unpreventable employee misconduct is rejected.

V.  Classification of Violations
Willful

The violations of 29 C.F.R. 1926.652(c), 29 C.F.R.1926.21(b)(2), and 29 C.F.R. 1926.652(e) were classified as willful. A willful violation is one that is "committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety." Asbestos Textile Co., Inc. 84 OSAHRC__, 12 BNA OSHC 1062, 1063, 1984 CCH OSHD 27,101 (No. 79-3831, 1984) appeal filed and withdrawn. The Secretary must establish more than carelessness or a lack of diligence in discovering or eliminating a hazard. Where an employer has made a good faith effort to comply with the standard, a willful violation is not justified even though the employer's efforts are not entirely effective or complete. Marmon Group, Inc., 84 OSAHRC ____, 11 BNA OSHC 2090, 1984 CCH OSHD 26,975 (No. 79-5363, 1984), appeal filed and withdrawn.

A number of factors has been considered by the Commission in deciding the issue of willfulness. These factors include not only the evidence of knowledge or plain indifference but also factors which argue in an employer's favor, e.g., good faith efforts at compliance. Such factors as an employer's knowledge of the standard, his reason for noncompliance, good faith efforts made to comply, established procedures for compliance, responsibility for compliance, previous violations of the same standard, warning from employees or other workers at the site, precautions, if any, taken to protect employees, the isolated acts of employees or supervisors, and training of employees are considered in reaching a determination as to whether a violation is willful. See, e.g., Asbestos Textile Co., Inc., supra; Marmon Group, Inc., supra; D. A. & L. Caruso, Inc., supra; Mobil Oil Corporation, 83 OSAHRC 47/B6, 11 BNA OSHC 1700, 1983-84 CCH OSHD 26,699 (No. 79-4802, 1983). There must be evidence, apart from establishing knowledge of a hazard, from which it can be reasonably concluded that the employer intentionally disregarded or was indifferent to the safety of the workplace. Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD 25,738 (No. 76-2644, 1981).

O'Horo was aware of the requirements of the standards. Its written safety rules adequately covered the work situation but were not effectively communicated to employees. In addition, the contract for the construction of the sewer line required O'Horo to support the walls of the trench to fully protect all workers (Ex. 15). It had previously been issued and agreed to a willful violation of 29 C.F.R. 1926.652(b) (Ex. 38). On July 27, 1984, it had been notified by Thomas Rink, a construction safety consultant employed by the State of Ohio Industrial Commission, that the trench on Dawson Street (part of the same project) needed to be shored or sloped (Ex. 1; Tr. 20-21, 64). Its safety director, David Limpach, attended a meeting of the various contractors on the job that was called by the Assistant Prosecutor of the county. The meeting was arranged because of the number of safety violations observed by Rink during his inspections. At the meeting, Rink informed the contractors that there had been a failure to slope, shore or use a trench box to conform to the construction codes of the State of Ohio (Tr. 25-26). The trenching standards of the State of Ohio are basically the same as the OSHA standards (Ex. A; Tr. 55-56).

The fact that the foreman and backhoe operator thought the trench was safe (Tr. 248, 431, 438) is not controlling. They substituted their judgment for that of the standards. Bowman made a conscious decision to remove the trench box from the excavation on Friday, October 5, 1984. The trench box was not used on October 8 in spite of the fact that partial collapses of the east wall occurred on that date and were brought to Bowman's attention (Tr. 117-121). Partial collapses also occurred on the morning of October 9 prior to the collapse of the west wall and were brought to the attention of Bowman. Yet, he refused to use the trench box. The standards are clear in their requirements. If Bowman and Black were not fully cognizant of the requirements of the standards, the fault must be placed on the lax safety policy of O'Horo.  The failure to follow the standards in the circumstances of this case indicates an intentional disregard of and plain indifference to OSHA regulations and a careless disregard for the safety of its employees.  The violations were willful.

VI.  Penalty Determination

While the Secretary proposed a penalty of $9,000 for the willful violations of 29 C.F.R. 1926.21(b)(2), 29 C.F.R. 1926.652(c) and 29 C.F.R. 1926.652(e), the Commission is the final arbiter in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) [[5/]] of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co. 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972).

The gravity of the violations was quite severe. An employee was working in a trench ten feet deep. A collapse of the west trench wall resulted in the death of employee Isaah Richardson. O'Horo has previously received and agreed to a willful violation of 29 C.F.R. 1926.652(b). A penalty of $9,000 is appropriate and is assessed for the violations.

FINDINGS OF FACT

1.  The A. P. O'Horo Company, Inc. ("O'Horo"), is a general contractor located in Youngstown, Ohio. It is engaged in the construction business and has considerable experience in sewer construction which involves excavations and trenches. Daniel O'Horo is president of the company (Tr. 359-362, 423, 446).

2.  O'Horo is a member of the Ohio Contractors Association and the Associated General Contractors of America (Tr. 377).

3.  O'Horo was the general contractor for the installation of sewer pipe on a job known as Madden Corners which was located in Trumbull County, Ohio. The job was a portion of the comprehensive Mosquito Creek Sewer Improvement Project in Trumbull County, Ohio (Tr. 12, 102-103, 362, 372, 446-448). It was also the general contractor for the construction of the waste treatment plant (Tr. 372, 447). The sewerage plant construction was being done simultaneously with the Madden Corners sewer project (Tr. 447).

4.  The Madden Corners job commenced in late June or early July, 1984 (Tr. 447). Two main line crews were working on the job. Additional persons were installing lateral lines to homes off the main line (Tr. 448). The project involved laying 43,000 feet of various size sewer pipe for a sewerage treatment plant (Tr. 12, 362). Approximately 20 to 22 employees were working on the Madden Corners job (Tr. 448).

5.  O'Horo's contract for construction of the sewer line required it "to keep the sides of the trench adequately supported by use of suitable planks and jacks, sheet piling, rangers, shores, braces or other means to fully protect all workmen, adjacent structures and conduits and property" (Ex. 15; p. S107; Tr. 304, 379) .

6.  Commencing on October 5, 1984, the sewer line was laid in a north direction parallel to State Route 46 (Tr. 106-107, 118).

7.  On October 9, 1984, the west wall of the trench along Route 46 in Howland Township collapsed (Ex. 4, 7, 9; Tr. 36-37, 41, 43, 117, 123, 132, 134, 244, 252, 255, 401).

8.  There was a distance of nine feet from the center line of the trench to the edge of the road (Ex. L; Tr. 263, 334). At the time of the collapse, the crew had been working parallel to Route 46 for approximately three days (Tr. 238).

9.  Route 46 is a two-lane road that runs north and south. It is heavily traveled and is used by all types of vehicles, including large tractors and trailers (Tr. 49-50, 106-107, 124-125, 222-223, 249, 307-308, 437). Traffic was heavy on the morning of October 9, 1984 (Tr. 50, 223, 249).

10.  Traffic was maintained on Route 46 while work progressed in the trench (Tr. 89, 125, 249).

11.  The foreman of the crew working during the wall collapse was Ron Bowman. The crew also included Don Black, backhoe operator, Mike Eazor and Isaah Richardson, both of whom were pipelayers (Tr. 104-106, 199, 237-238, 368, 421-422, 458-459). Black was operating the backhoe at the time of the collapse (Tr. 237).

12.  Prior to October 9, 1984, Black had received no training from O'Horo on trenching requirements or how to slope a trench (Tr. 238, 368). He had never been informed as to how much to slope a trench. He usually cut away the walls until he concluded the slope was appropriate (Tr. 244).

13.  Employee Isaah Richardson was completely buried (Ex. 5, 6; Tr. 38, 96, 132, 219, 222, 371). When extricated from the trench, Richardson was almost in a full standing position (Tr. 39-41, 219).

14.  The alignment of the pipe was off a little. Richardson was in the trench at the time of the accident trying to find how much misalignment was present (Tr. 130-132).

15.  There was no shoring, trench box or other means used to support the trench walls (Ex. 4, 8, 20-21, J; Tr. 52, 85, 122, 205, 243). A trench box was at the site (Tr. 48, 122, 126, 301).

16.  Prior to the collapse which buried Richardson on October 9, 1984, two or more partial collapses of the east wall had occurred on that morning. Additional collapses of the east wall had occurred on October 8, 1984. The collapses were brought to the attention of Ron Bowman, the foreman (Tr. 117-122).

17.  A trench box had been used in the trench prior to October 8, 1984, but was ordered removed by the foreman, Ron Bowman (Tr. 108-110, 112-113, 239).

18.  The west wall of the trench was vertical from the bottom of the trench to a point approximately one to one and a half feet from the top. The east wall of the trench was vertical from the bottom to a Point approximately two to three feet from the top (Tr. 243-244).

19.  At the time of the collapse, the trench was approximately ten feet deep. The soil was a sandy silt with some clay (Ex. L; Tr. 123, 126, 130, 241, 263, 266, 297, 438-439, 474-475, 477).

20.  The bore samples taken by the consulting engineers previous to the bid contract show the soil in the area of the collapse to a depth of ten feet to be clay with some gravel (Ex. 36, 37; Tr. 297-299).

21.  The trench was approximately three to three and a half feet in width at the bottom and approximately seven feet in width at the top after the cave-in. It was 25 feet in length (Ex. L; Tr. 245, 262-263, 266-267, 338, 356). Eight-inch diameter pipe was being installed in the trench (Tr. 126-127). It was being dug with a 35-inch bucket (Tr. 477).

22.  O'Horo has a written safety program (Ex. 18; Tr. 274, 373-374), which discusses the fact that 1926.21(b)(2) requires training for employees (Ex. 18, p. C.1.1; Tr. 274-275). Pages E.1.1 through E.1.60 of the program discuss proper procedures for trenching and excavating. Page E.1.8 is a checklist of items to be checked before, during and after trenching or excavating (Ex. 18; Tr. 373-375, 380). The written safety program was not distributed to foremen of the company (Tr. 207, 429, 431).

23.  The Associated General Contractors Association publishes a safety program which makes reference to and discusses the requirements of 1926.21(b)(2) (Ex. 33; Tr. 276-279).

24.  O'Horo had a safety officer, David Limpach, who reported directly to Daniel O'Horo, the president. Daniel O'Horo oversees the safety program through the safety officer whose duty was to implement the safety program (Tr. 363, 383).

25.  Daniel O'Horo was personally aware of OSHA safety standards for trenching (Tr. 363-364). He visits jobs of the company as often as he can (Tr. 363).

26.  A safety booklet is distributed to all employees. Page 23 of the booklet covers trenching and excavating (Ex. 1; Tr. 203, 303-304). The following warning is shown on page 23 of the booklet in bold letters (Ex. 1):

AVOID BEING BURIED ALIVE -- SHORE OR
LAY BACK ALL TRENCHES

27.  Paragraph one on page 23 of the safety booklet provides (Ex. 1; Tr. 203):

1.  Do not enter a trench more than 5 feet deep unless it is shored, sheeted, boxed, layed-back or in solid rock.

28.  The safety booklets are obtained from the Ohio Contractors Association for distribution to employees (Tr. 376). They are prepared and published by the safety committee of the Ohio Contractors Association (Ex. 1, p. 28).

29.  O'Horo does not hold regular safety meetings. Safety pamphlets were distributed to employees about once a month (Tr. 181-182, 190, 284-285).

30.  The foreman, Ron Bowman, was aware of the OSHA standards. He felt it was a safe trench (Tr. 300-301, 431).

31.  O'Horo has had at least one employee previously injured from a cave-in (Tr. 318, 488).

32.  On August 2, 1976, O'Horo was issued a willful citation for violation of 29 C.F.R. 1926.652(b). The citation, with a reduction in the proposed penalty, was affirmed under the terms of a settlement agreement filed with the Commission on November 24, 1976 (Ex. 38; Tr. 315-316).

33.  Thomas Rink, a construction safety consultant employed by the State of Ohio Industrial Commission, Division of Safety Hygiene (Tr. 8-9), conducted an inspection of the sewer project on July 27, 1984. The crew was working on Dawson Street. The foreman in charge was Larry Pawlik (Ex. 1; Tr. 13-14, 20, 62, 177-178).

34.  When Rink arrived at the site, a trench was being excavated. There were seven or eight employees at the site (Tr. 13). An open trench ran alongside Dawson Street (Tr. 14). The trench was approximately ten to twelve feet deep and three to four feet wide. The lower two feet of the trench was composed of rock (Tr. 14-15). There was approximately eight to ten feet of soil on the rock (Tr. 15). The walls of the trench were not sloped, shored or otherwise supported (Tr. 14, 18).

35.  On July 27, 1984, Rink recommended to O'Horo by his report that the trench in which employees were working be sloped or shored. A standardized form, called a "Report of Services and Activities," showing a failure to slope or shore was mailed to O'Horo on July 27, 1984 (Ex. 1; Tr. 20-21, 64).

36.  Rink spoke with the prosecutor of Trumbull County concerning safety problems on the Mosquito Creek Sewer Project with the various contractors. Assistant Prosecutor Milan Brickich wrote O'Horo a letter dated August 1, 1984, and advised the company that a meeting was scheduled for 2:00 p.m. on Thursday, August 8, 1984, with all contractors to discuss safety problems (Ex. 2; Tr. 22-24, 77-78).

37.  The meeting was held on Thursday, August 9, 1984 (Ex. 3; Tr. 31-34, 76). David Limpach attended the meeting on behalf of O'Horo (Ex. 3; Tr. 23, 25, 76).  The meeting was conducted by the prosecutor. At the meeting, Rink discussed various Ohio code violations and reviewed trenching requirements. Rink informed the contractors that there had been a failure to slope, shore or use a trench box to conform to the construction codes of the State of Ohio (Tr. 25-26). The trenching standards of the State of Ohio are basically the same as the OSHA standards (Ex. A; Tr. 55-56, 59).

38.  Rink also conducted inspections of the trench on July 26, July 30, and August 6. No trenching violations were observed during these visits (Ex. B-D; Tr. 67-74, 92).

39.  After the collapse was reported to OSHA on October 9, 1984 Compliance Officer Thomas Pontuti was assigned to conduct an investigation. He commenced his investigation on October 10, 1984, with a visit to the work site (Tr. 253). The foreman, Ron Bowman, accompanied him to the location of the cave-in on Route 46 (Tr. 256).

CONCLUSIONS OF LAW

1.  O'Horo, at all times material to this proceeding, was engaged in a business affecting commerce within the meaning of the Act.

2.  O'Horo, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction over the parties and over the subject matter herein.

3.  On October 9,1984, O'Horo employee Isaah Richardson was working in a trench 25 feet long, ten feet deep, and three to three and a half feet wide at the bottom and five-foot level. The trench was seven feet wide at the top. The soil was hard and compact.

4.  The walls of the trench were not shored or otherwise supported and the slope was inadequate. O'Horo was in violation of 29 C.F.R. 1926.652(c).

5.  The trench was excavated parallel to State Route 46, Trumbull County, Ohio. The road is heavily traveled and traffic was not curtailed during the sewer pipe installation. The center of the trench was nine feet from the edge of the road. No precautions were taken to protect against vibrations from vehicles on the road. O'Horo was in violation of 29 C.F.R. 1926.652(e).

6.  Employees performing sewer installation work in the trench were not adequately instructed regarding proper trench safeguards. O'Horo was in violation of 29 C.F.R. 1926.21(b)(2).

7.  The violations of 29 C.F.R. 1926.21(b)(2), 29 C.F.R. 1926.652(c) and 29 C.F.R. 1926.652(e) were willful. A penalty of $9,000 is assessed for the violations.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED: That the willful citation issued to O'Horo on February 12, 1985, is affirmed and a penalty of $9,000 assessed for the violations.

JAMES D. BURROUGHS
Judge

Date: March 18, 1986


FOOTNOTES:

[[1/]] The direction for review in this case particularly set forth issues concerning Items 1a and 1c of the citation. The Secretary contends that, by requesting supplemental briefs on the additional issue of the alleged willful violation of section 1926.652(c) (concerning Item 1b of the citation), the Commission was reaching an issue not included in the petition for review. However, it is well-settled that the issuance of the direction for review gives the Commission jurisdiction to review any and all issues in a case. See Hamilton Die Cast Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD 27,576 (No. 83-308, 1986); 29 C.F.R. 2200.92 (a). Furthermore, contrary to the Secretary's contention, in its petition for review O'Horo did take issue with the judge's disposition of Item 1b.

[[2/]] Since the citation in this case was issued, the Secretary has extensively revised the standards in Subpart P. See 29 C.F.R. Part 1926, Subpart P--Excavations, effective March 5, 1990; 54 Fed. Reg. 45,894, 45,959 (1989); 54 Fed. Reg. 53,055 (1989).

[[3/]] The judge stated that the "Trenching and Excavating" section in O'Horo's safety plan covered the requirements of section 1926.652 (c). While the plan includes the general safety aspects of the standard and the specific shoring requirements incorporated by reference, it lacks the specific sloping requirement. (For a more detailed discussion of the plan's provisions, see Part II infra.)

[[4/]] O'Horo argues that because another compliance officer considered its safety program to be acceptable during two inspections at another worksite in 1981, and it had not changed its program by the time of the accident, its safety program should not be found to be inadequate here. However, those inspection reports evaluated O'Horo's safety program in general as "average". There was no indication in the reports that the compliance officer evaluated O'Horo's trenching instructions.

[[5/]] See note 2 supra.

[[6/]] In its brief on review, O'Horo misstates the holding in Moore Construction, Inc., 4 BNA OSHC 1133, 1134, 1975-76 CCH OSHD 20,632, p. 24,696 (No. 5093, 1976) by describing that decision as one in which the Commission vacated a citation due to lack of proof that traffic near a trench created vibrations that caused a cave-in. In Moore, the Secretary based the citation solely on alleged vibrations from a backhoe idling near the excavation. The Commission concluded that such evidence was not sufficient to prove a violation of the standard, and it noted the other conditions, such as vibrations from highway traffic, that might have established a violation of the standard, but were not asserted by the Secretary.

[[7/]] This finding is based on the judge's determination that Pontuti's own measurement of nine feet was more credible than the estimations of 12 to 15 feet in the testimony of foreman Bowman and project superintendent Sause. The judge credited the compliance officer because he measured from the edge of the shoulder, rather than from the edge of the traveled road, which was 4 feet farther from the trench. O'Horo contends that the judge erred in this determination. We reject that argument and defer to the judge's credibility finding. See C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD 22,481, p. 27,099 (No. 14249, 1978). We note that, for purposes of finding a violation here, it does not matter whether the center of the trench was 9 feet or 12 to 15 feet from the highway.

[[8/]] Recognizing that it was a contributing, but not dispositive, factor, we take administrative notice of the fact that October 9 and 12, 1984, the dates involved, were both weekdays. The traffic volume at the time of the cave-in at issue here would have therefore been similar to the traffic on the day of that later trench collapse, in contrast to weekend traffic.

[[9/]] Section 1926.652(b) set forth the requirements for supporting the walls of trenches in soft and unstable soil, prior to the revisions in Subpart P. See note 2 supra.

[[10/]] The judge based his findings that Mossman had alerted Bowman to the partial cave-ins on Mossman's unrefuted testimony. O'Horo argues that the testimony of Mossman was unreliable. We reject that argument. We accept the judge's findings in this matter because Mossman's testimony was not rebutted, and because the judge, after observing the demeanor of the witness, found the testimony to be credible.

 

[[1/]] Section 1926.21(b)(2) provides:

(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.

[[2/]] The safety booklet (Ex. 1) distributed by O'Horo was prepared by the Safety Committee, Ohio Contractors Association. The American General Contractors Association, a trade group to which O'Horo belongs (Tr. 377), recognizes the need for instruction as required by 29 C.F.R. 1926.21(b)(2) (Ex. 33, p. C.1).

[[3/]] The standard at 29 C.F.R. 1926.652(c) provides:
(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the top of the sloped portion.

[[4/]] The standard at 1926.652(e) states:

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

[[5/]] Section 17(j) of the Act provides:

(j) 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.