SECRETARY OF LABOR,
Complainant.
v..
WOOLSTON CONSTRUCTION CO, INC.,
Respondent.

Docket No. 88-1877

DECISION

BEFORE: FOULKE, Chairman and WISEMAN, Commissioner.
BY THE COMMISSION:

Respondent, Woolston Construction Company, Inc., is a small construction subcontractor. In April 1988, Woolston was assisting in the construction of a methane gas venting system at a landfill in Bordentown, New Jersey. Woolston was hired to dig trenches for other subcontractors who would lay pipes that would vent the methane gas accumulating in the landfill. A cave-in within a cutoff wall (a wall separating a "cell" of refuse from the surrounding land) killed two employees who were working in the trench, an employee of Woolston and an employee of Welfab, the subcontractor welding the pipe.

As a result of the accident and a subsequent inspection by the Occupational Safety and Health Administration ("OSHA"), Woolston Construction Co., Inc. was issued a citation that alleged a willful violation of section 5(a)(2) of the Occupational Safety and Health Act of 1908, 29 U.S.C.{sym}664(a) (2), ("the Act"), for failure to comply with 29 C.F.R. {sym}1926.652(b) [[1/]] on the grounds that Woolston failed to adequately slope or support the trench in which employees were working.

Administrative Law Judge Irving Sommer affirmed the citation and assessed a $10,000 penalty. [[2/]] Respondent filed a Petition for Discretionary Review that was granted by the Commission. For the reasons that follow, we affirm the judge's decision.

I Alleged Violation of 29 C.F.R. {sym}1926.652(b)

A. The Trench

On April 13, 1988, Respondent was working at the Parkland Reclamation Site, a landfill in Bordentown, New Jersey, owned by Waste Management of North America, Inc. Waste Management hired Hart Engineers, Inc. to manage, monitor, and document the construction and installation of a methane gas control system, and Woolston to do the actual excavation work. Woolston performed the excavation work with an excavator operated by its vice president and one of its principal share holders, David Woolston.

The landfill consisted of "cells," areas where garbage was placed and covered. Cut-off walls were erected from beneath the cell floor to ground level to separate one cell from another or to create a barrier from the landfill to the neighboring property. When an area was filled, the trash was covered with a clay cap and highly compacted by special compaction equipment.

The trench began on the north side of the landfill and proceeded generally south. The pipe descended at a constant 2% slope as it went south, with the trench becoming deeper as it proceeded south. Road Crossing No. 1 provided a dividing line between the north and south parts of the trench. The trench was approximately 500 feet long. Approximately 125 feet lay north of the road, while the remainder ran to its south. The trench in the northern zone ranged from 5-10 feet deep. In the southern zone the trench became progressively deeper, eventually reaching a depth of 15 feet. The trench was about 6 feet wide at the bottom and approximately 6-10 feet wide at the top. The trench walls were nearly vertical, and were not sloped, shored, or otherwise braced. After receiving complaints from Hart inspector Reigart, Woolston cut a step into each side of the trench the day before the accident. The steps began about 11-13 feet from the bottom of the trench, approximately 2-3 feet below the ground and were about 3 feet wide. [[3/]] Woolston did not dig out steps in new areas of the trench as digging continued. Nor did it go back and add the step to those areas already excavated.

Because the soil was hard to dig in, it was necessary for the excavator to be equipped with "rock teeth". The compliance officer testified that soil samples from the east wall, that sheared off in the fatal cave-in, appeared to be gray clay and were representative of the type of soil in the trench walls. The soil samples were tested by Dr. Alan Peck at OSHA's Salt Lake City, Utah office. Dr. Peck testified that each sample was a sandy, silty clay that would be classified as unstable under the OSHA standard. The critical slope for such soil, according to Dr. Peck was 32 degrees. He testified that, in order to achieve such a slope, each trench wall would have had to have been sloped more than 1.5 feet horizontally for each foot of depth.

The east wall of the trench was crumbly. Periodically, small blocks of clay would slough off and fall into the trench. At times, the crews came to work in the morning to find that large parts of the trench walls had fallen in overnight. Such a collapse took place the day before the fatal accident. Also, before the accident, there was a large crack on the surface that ran along the length of the trench, near the trench opening. At some points the crack was 16 inches wide. The crack was being monitored by Joel Reigart, the construction inspector for Hart Engineers. Other cracks occasionally appeared, due to the weight of the excavator on the trench. To protect employees, Woolston would place the excavator bucket against the loose, cracked material.

Respondent's employee, Thomas Wolverton, testified that two days before the cave-in he heard material trickling through the walls of trash and ordered employees out of the trench. The operation later continued with the excavator straddling the trench and digging from that position. On the day before the accident, Wolverton noticed that the weight of the excavator had caused the west wall to bow. The excavator was removed from its straddle position, and the employees resumed their work within the trench.

The collapse of the east wall started in the northern part of the trench, and continued in a wave-like pattern approximately 50 feet to where the trenching had progressed in the southern end of the trench. The employees tried to outrun the collapsing wall, but apparently in their confusion they ran in different directions, collided with each other and were buried by the collapsing trench.

B. Establishing a Violation

To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the standard applies to the cited conditions, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of the violative condition with the exercise of reasonable diligence. See, e.g., Ormet Corp., 14 BNA OSHC 2134, 2135, 1990 CCH OSHD (P)29,254, p. 39,199 (No. 85-531, 1991).

Respondent disputes the applicability of the standard and claims that it lacked knowledge of the conditions. However, it is undisputed that if the standard does apply, the trench was not sloped or otherwise supported within the terms of 29 C.F.R.{sym}1926.652(b). Similarly, there is no question of employee exposure.

C. Applicability of the Standard

The judge found that the soil was "soft and unstable." He also found that the soil samples were representative of soil conditions at the trench and that each sample was comprised of a sandy, silty clay that would be classified as unstable. Moreover, the judge found that the testimony of persons at the site further established that the soil was composed of an unstable clay. He took particular note of Wolverton's testimony: that he heard material trickling through the walls of the trench, one of the trench walls was bowed due to the weight of the excavator, material was falling into the trench, and a crack appeared in the ground parallel to the trench.

Respondent first argues that the evidence established that the soil that the trench was dug in was hard and compact. Therefore, it contends, the judge erred in finding that the cited standard, which requires shoring or sloping of trenches dug in soft or unstable soil, applied to the trench. Respondent argues that the judge overlooked evidence that established that the site consisted of cells and cut-off walls, which are made by running compaction equipment over the garbage to compact the garbage within the cells. These cells must be highly compacted to meet New Jersey Department of Environmental Protection (NJDEP) requirements and are designed to limit the escape of any agent from the landfill. Respondent also points out that It was in the financial interest of the landfill owner to optimize the use of its land by compacting the trash as much as possible. Moreover, even with rock teeth on the excavator, digging was so difficult that excavation could only be accomplished by repeatedly scraping and scratching at the layers of material.

Respondent's arguments fail to recognize that {sym}1926.652(b) applies to trenches dug in "unstable or soft" soil. By its own terms, the standard would apply to unstable soil, regardless of the hardness or compactness of the material.

The evidence in this case overwhelmingly establishes that even though the landfill had been mechanically compacted and the soil was not soft, it was highly unstable. First, a crack on the surface that ran along the length of the trench wall provided a fracture point that could have led to the collapse of the trench. [[4/]] Second, on several mornings the crew came to work to find that portions of the trench had caved-in overnight. The east wall of the trench was crumbly, and small blocks of clay would periodically slough off the trench walls and fall into the trench. Also, the weight of the excavator straddling the trench bowed its walls outward, revealing the intrinsic instability of the trench. Moreover, Wolverton heard material trickling through the trench the day before the collapse and fearing a collapse ordered employees out of the trench. Finally, the photographs taken at the accident sight reveal that, below the clay cap, the trench walls were laced with quantities of trash of varying types, including wood and paper products. A trench wall composed of materials of differing strengths is only as stable as its weakest component. CCI., Inc., 9 BNA OSHC 1169, 1173, 1981 CCH OSHD (P) 25,091, p. 30,994, aff'd, 688 F.2d 88 (10th Cir. 1982).

The soil samples support the judge's finding that the soil was unstable. Dr. Peck, who analyzed the samples, testified that the tests revealed that the soil consisted of a sandy, silty clay that would be classified as unstable under the OSHA standard. The critical slope for such soil, according to Dr. Peck, was 32 degrees. He testified that to achieve such a slope each trench wall should have been sloped more than 1.5 feet horizontally for each foot of depth. This would have required that a trench 12 feet deep and 6 feet wide at the bottom have a top width of approximately 40 feet.[[5/]]

Respondent challenges the probity of the soil samples. It argues that, although the judge found that the samples were representative of the soil at the trench, two of the samples were taken from the cut-off wall on the side that collapsed and, therefore, were disturbed, and it was not known where Robert Everton, Waste Management's general manager, took his samples. Respondent contends that, where the clay only comprised a thin cover over the compacted trash, relying on soil analyses ignored the compaction of the garbage and grossly distorted the actual condition of the trench.
Respondent's argument have little merit. Dr. Peck testified that the samples he tested consisted of both disturbed and undisturbed soil. Respondent's reliance on Everton's inability to identify where he obtained the sample is particularly disingenuous since the thrust of its argument is that the trench was uniformly hard, compact, and stable due to the compaction of the soil and trash. If the argument has any validity, it should not matter from which particular part of the trench the soil came. [[6/]]

D. Knowledge

We also find that respondent knew or could have known that the trench was dug in unstable soil. Respondent's vice president David Woolston was at the site operating an excavator throughout respondent's presence at the site. He was present when Wolverton heard material trickling through the trench walls and ordered employees out of the trench. In addition, he was present when portions of the trench were found to have collapsed. Moreover, David Woolston knew or should have known that the large quantities of trash contained in the trench reduced the cohesiveness of the material in the walls of the trench. From these factors, a
reasonably diligent employer could have concluded that the trench was inherently unstable.

Accordingly, we affirm the judge's finding that Respondent violated 29 C.F.R. §1926.652(b).

II Willfulness

A. Testimony

Respondent next argues that the judge erred by finding that the violation was willful.

Hart inspectors Thomas Hanna and Joel Reigart both testified that they warned David Woolston on numerous occasions before the accident about the need to slope the trench. Hanna testified that near the beginning of the project, he told David Woolston that the unsloped trench created an unsafe condition and pointed out the OSHA sloping requirements. Hanna was concerned that soil conditions were wet and slippery and soil was breaking off and falling into the trench. According to Hanna, Woolston replied that Hanna should worry about his own job and that he would worry about safety. Hanna again testified that in March he told David Woolston that the trench needed to be sloped at a 1:1 ratio. Woolston replied that he would slope the trench. During the time Hanna was at the site, however, the trench was never sloped.

Reigart, who replaced Hanna as the inspector at the site, testified that when the trench crossed the access road and began to reach depths greater than five feet, he asked David Woolston how he planned to support the trench walls. According to Reigart, Woolston replied that he would be responsible for the trenching and
Reigart should concern himself with the piping. Reigart testified that he tried to discuss trench safety with Woolston on a daily basis, but Woolston did not respond to the inquiries. Reigart also testified that, a week before the accident, after the trench entered the southern zone, he told Woolston that the trench would be reaching depths of 15-20 feet and informed him about the OSHA shoring/sloping requirements. Reigart testified that Woolston replied that he would consider sloping. However, except for one step that was cut into a portion of each side of the trench, Reigart stated that he never noticed any shoring, sheeting, or sloping.

Respondent's employee, Wolverton, testified that a couple of days before the accident, he began to hear trash trickling through the walls of the trench, observed cracks in the walls, and became concerned about the trench's safety. He ordered the other two employees out of the trench and expressed his concerns to David Woolston. He and Woolston then approached Reigart and proposed that they dig from the top of the trench, with the excavator straddling the trench walls. Wolverton further testified that they stopped digging from the top because the weight of the excavator was causing the trench walls to bow and material began moving into the trench. They relocated the excavator to the west wall and pulled back the trench walls where they had buckled. Normal procedures resumed with employees working inside the trench. Eventually, respondent stopped sloping in newly dug areas.

Robert Everton testified that, the day before the accident, he observed that while the trench was 10-15 feet deep, the walls were vertical. He noted that dump trucks in the area were causing vibrations and that dirt was cracking off the top of the trench. Everton ordered the employees out of the trench and told David Woolston to widen the trench. He also testified that, the day before the accident, part of the trench had collapsed overnight.

B. Judge's Findings

The judge found that Woolston did take certain safety measures, such as cutting steps, digging from the top of the trench and placing excavated material a safe distance from the trench walls. However, the judge also found that, despite being repeatedly warned that the trench was unsafe, and having the OSHA trenching requirements brought to his attention, Respondent decided "to forego the time and effort needed to slope or support the trench walls as required. He took conscious and grave risks in that regard .... " Accordingly, the judge concluded that David Woolston displayed an "obstinate refusal to comply" with and flouted OSHA's trenching requirements.

In finding the violation willful, the judge expressly credited the testimony of Everton and Hanna. In crediting Everton, the judge noted that his testimony was uncontradicted by any competent evidence. The judge discounted Respondent's assertion that Everton's inability to properly locate critical areas on the worksite blueprints rendered him an incompetent witness, and attributed the failure to the pressure of cross-examination.

The Judge also found the attacks on Hanna's credibility to be unpersuasive. He stated that Hanna's occasional inability to consistently recall measurements and dates did not negate the essential points of his testimony. The judge noted that Hanna was no longer employed by Hart when he testified and was not at the site of the accident. He found that Hanna's testimony was not motivated by ill-will toward either David Woolston or Respondent.
The judge agreed with Respondent that there were problems with Reigart's testimony. He noted that Reigart made certain statements after the accident that were not consistent with his hearing testimony. For example, Reigart told the investigating police officers that he saw no cracks or other signs of danger before the trench collapse. At the hearing, however, he testified that he was monitoring a crack that ran parallel to the trench. Rather than resolve the credibility of Reigart's testimony, the judge concluded that there was sufficient evidence to establish willfulness without his testimony. Accordingly, the judge did not rely on any of Reigart's testimony that was unfavorable to Respondent.

C. Prior History

Respondent first argues that, because it has no history of safety violations, it should not be found to have willfully, violated the Act. The argument is without merit.
A willful violation is a violation done voluntarily with intentional disregard for the requirements of the Act, or plain indifference to employee safety. United States Steel Corp., 12 BNA OSHC 1692, 1703, 1966 CCH OSHD (P) 27,517, p. 35,675 (No. 79-1998, 1986). The receipt of prior citations may be a factor in determining whether willfulness exists. However, a prior citation is not a necessary condition to finding willfulness. To hold otherwise would obliterate the distinction drawn in section 17(a) of the Act, 29 U.S.C. §666(a), between "repeated" and "willful" violations. National Steel and Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir. 1979).

D. Attempted Compliance

Respondent next argues that the measures it took to reduce the hazardous condition of the trench precludes a finding of willfulness. We disagree.
A willful charge is not justified if an employer has made a good faith effort to comply with a standard or to eliminate a hazard even though the employer's efforts are not entirely effective or complete. Keco Industries, Inc., 13 BNA OSHC 1161, 1169, 1986-87 CCH OSHD (P) 27,860, p. 36,478 (No. 81- 263, 1987).

Respondent first calls attention to its efforts to cut steps into the trench. This stepping was undertaken to relieve pressure on the walls that had material sloughing into the trench, but was not continued beyond the problem areas. Respondent also points out that after Wolverton became concerned about the safety of the trench, David Woolston started to dig the trench by straddling the trench with a backhoe. This procedure eliminated employee exposure during excavation because employees were moved out of the trench when the backhoe was so positioned, and was stopped only when the weight of the 34-ton excavator caused the sidewall to bow.

Contrary to Woolston's argument, Wolverton's testimony high-lights Respondent's failure to take reasonable measures to bring the trench into compliance with the standard. Respondent chooses to ignore the fact that employees who resumed working in the trench after the excavator caused the trench walls to bow, were exposed to the same hazards presented by the unsloped, unshored trench that prompted Woolston to evacuate them in the first place. Indeed, the evidence reveals that the measures taken by Respondent were done largely to facilitate completion of the work rather than to comply with the Act or protect employees. The evidence clearly establishes that Respondent was aware of the dangerously unstable nature of the trench, yet failed to make any reasonable effort to comply with §1926.652(b). See Kehm Construction Co., 7 BNA 1976, 1979, 1979 CCH OSHD(P) 24,098, p. 29, 279 (No. 76-2154, 1979). We therefore find that Respondent's efforts qualified neither as a good faith attempt to comply with the standard nor as an effort to eliminate the hazard to employees.

E. Credibility of Witnesses

Respondent challenges the credibility of Hanna, Everton and Reigart, as it did before the judge. It points out that Hanna was confused about dates and measurements and almost broke down from confusion when pressed to recollect how often he warned Woolston about the need to provide trench protection. Respondent also argues that Hanna admitted that he never mentioned his problems with David Woolston, either in his personal log or to his superiors at the site, and that Hanna's testimony involved times when the trench, was still shallow and therefore was not relevant to the cited conditions.

Similarly, Respondent argues, Waste Management's general manager, Everton, was unable to identify specific locations on the plans. The judge dismissed these failures as inadvertent error. Yet, Respondent argues, these errors misplaced events and locations by hundreds of feet. It also points out that Wolverton denied that Everton's visit took place, even though Everton testified that Wolverton was there and within earshot of the conversation with Dave Woolston.

Respondent further contends that Reigart's testimony was dishonest and that the judge's refusal to determine his credibility does it an injustice. It claims that the judge's refusal to resolve Reigart's credibility assumes that the testimony of witnesses is unconnected.

Finally, Respondent argues that the judge ignored the fact that both Hart and Waste Management are defendants in a wrongful death action. It claims that the desire to avoid civil liability colors the testimony of the witnesses against Woolston.

The Commission normally will not disturb a judge's credibility finding. Kent Nowlin Construction Co., Inc., 8 BNA OSHC 1286, 1980 CCH OSHD (P) 24,459 (No. 76-191 and 76-192, 1980); Otis Elevator Co., 8 BNA OSHC 1019, 1980 CCH OSHD (P) 24,236 (No. 14899, 1980), appeal withdrawn, No. 80-470 (2d Cir. May 15, 1980); C. Kaufman, Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHD (P) 22,481 (No. 14249, 1978). Historically, only serious infirmities in a credibility finding have warranted its being overturned. See e.g., York Heel of Maine, Inc., 9 BNA 1803, 1981 CCH OSHD (P) 25,351A (No. 78-5920, 1981)
(Credibility determination based on age and sex of witness improper); P & Z Co., Inc., 6 BNA 1189, 1977-1978 CCH OSHD (P) 22,413 (No. 76-431, 1977) (Credibility findings not accepted where judge failed to provide any justification for those findings in his decision); Archer-Western Contractors, 15 BNA OSHC 1013, 1991 CCH OSHD (P) 29,317 (No. 87-1067, 1991.) (Judge's subjective assessment of the probability of certain events occurring not a credibility finding).

We find that the judge justified his decisions to credit the testimony of Hanna and Everton. For example, the judge found that Everton's testimony was uncontradicted and that his inability to identify locations was the result of the pressure of cross-examination, and not relevant to Everton's veracity. Similarly, the judge dismissed as unimportant Hanna's inability to recollect times and locations with precision. The judge also noted that Hanna was neither currently employed by Hart nor directly involved in the accident, and displayed no ill-will toward any of the parties.

We would note, however, that regardless of the testimony regarding David Woolston's attitude, the undisputed facts establish that the violation was willful. The surface cracks running parallel to the trench walls; the earlier collapse of portions of the trench; and Wolverton's detection of material trickling through the trench walls should have provided ample warning to Woolston that the trench was inherently unstable and that steps to stabilize the trench were needed. However, even after it became clear that it could not continue to excavate the trench by straddling the trench walls, Woolston returned to the original procedure that required employee presence in the trench even though it knew from the earlier collapse and Wolverton's warnings that the trench was inherently unstable and that the conditions that caused Wolverton to order employees from the trench were unchanged. Despite these incidents, Respondent neither shored, sloped nor took any other measure to protect the employees working within the trench. Under these circumstances, the exposure of employees to the hazards present by the trench establishes, at a minimum, a careless disregard for employee safety.

Accordingly, we find that the judge properly determined that the violation was willful.

III. Motion for Stay

A. Procedural Background

Before the hearing, Respondent learned that the Office of Regional Solicitor of the Department of Labor was considering recommending to the Justice Department that criminal prosecution under section 17(e) of the Act, 29 U.S.C. §666(e), be filed against Respondent. Respondent moved for a stay of proceedings on the grounds that, with criminal charges possible, its principals would have to choose between testifying at the administrative hearing or maintaining their Fifth Amendment right not to testify on matters which could incriminate them. Respondent contends that if its principals chose not to testify at the hearing, its ability to defend itself would be seriously impaired. The Secretary consented to the motion. Judge Sommer denied the motion on the grounds that the public interest in the speedy resolution of OSHA cases superseded the need for an indefinite stay where the possibility of criminal proceedings was "inchoate".

On February 14, 1989, Respondent received confirmation from the Secretary that the Regional Solicitor had made a written recommendation to the Justice Department to institute section 17(e) criminal proceedings. A teleconference was set up between the judge and the parties during which Respondent argued that the possibility of criminal proceedings were no longer "inchoate." The judge responded that such recommendations are routinely denied and again denied the motion for a stay.

Subsequently, Respondent filed a Petition for Interlocutory Appeal with the Commission. The petition was not granted and the hearing commenced on schedule. At the hearing, Respondent renewed its motion to postpone the hearing. The motion was denied. During the hearing, David Woolston, the only Woolston principal who was at the work site, asserted his Fifth Amendment privilege and refused to testify.

B. Factors in Determining Whether to Grant a Stay

Respondent argues that the judge's refusal to grant the stay impaired its ability to defend against the charge that the violation was willful. The crux of respondent's argument is that testimony adduced by the Secretary concerning David Woolston's "attitude" went unrebutted because, facing criminal indictment, he chose to invoke his Fifth Amendment privilege rather than testify.

While a court may stay civil proceedings pending the outcome of parallel criminal proceedings, such action is not required by the Constitution. Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989.) There is no infringement of either the Fifth Amendment privilege against self-incrimination or the Due Process Clause of the Fourteenth Amendment when a party to civil litigation, faced with parallel criminal proceedings, must choose between testifying at the civil trial or maintaining its silence. Gniotek v. City of Philadelphia, 808 F.2d 241, 245 (3d Cir. 1986); cert. denied, 481 U.S. 1050, 107 S.Ct. 2183 (1987).
In any event, the Fifth Amendment privilege against self-incrimination does not extend to corporations. Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284 (1988); In Re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. 358, 360 (D. Md. 1981). Moreover, no Constitutional violation results when a party is deprived of exonerating testimony because of a witness' invocation of the Fifth Amendment, United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980); cert. denied, 449 U.S. 1077, 101 S.Ct. 856 (1981). Similarly, it is a settled rule that a party cannot assert the Constitutional rights of another person. United States v. Municipal Bond and Coll. Services, Inc., 810 F.2d 46, 49 (3d Cir. 1987) Accordingly, Respondent does not have standing to assert the Fifth Amendment rights of its corporate officers.

Nonetheless, Respondent properly argues that although the Constitution does not require that civil proceedings await the completion of any parallel criminal action, federal courts may defer civil proceedings when the interest of justice requires such action. United States v. Kordel, 397 U.S. 1, 12 n.27, 90 S.Ct. 763, 770 n.27 (1970); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980).

While the strongest case for granting a stay occurs when an indictment has been returned, SEC v. Dresser Industries, Inc., 628 F.2d at 1375-6, an indictment is not required. When determining whether to grant a stay of civil proceedings, the courts have traditionally looked to five factors:

(1) The interest of the plaintiffs in proceeding expeditiously with the civil action as balanced against the potential prejudice to the plaintiffs of a delay;

(2) The burden which any particular aspect of the proceedings may impose on defendants;

(3) The convenience to the courts:

(4) The interests of persons not parties to the litigation; and

(5) The public interest.

Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d at 903; White v. MAPCO Gas Products, Inc., 116 F.R.D. 498, 502 (E.D. Ark. 1987) ; In Re Mid- Atlantic Toyota Antitrust Litigation, 92 F.R.D. at 359; Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980).
The power of a court to stay proceedings is an offshoot of a court's inherent power to control its docket. In Re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. at 359. As such, the power to grant a stay is purely discretionary. In Re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. at 359.

C. Did the Judge Abuse His Discretion?

The only reason given by the judge for denying the stay was that the possibility of criminal proceedings was "inchoate". Therefore, the Commission must determine whether, in light of the factors outlined above, the judge abused his discretion by refusing to grant the stay. Having examined the record, we find that although the judge failed to provide adequate reasons, his denial of the stay did not amount to an abuse of discretion.

Because the statute of limitations for criminal proceedings under the Act is five years, 18 U.S.C. §3282, the Department of Justice has until April 13, 1993 to file charges against Respondent. Given the rapid turnover of employees in the construction industry,[[7/]] a stay of sufficient length to assure that Respondent's defense witnesses could testify without fear of incriminating themselves would probably result in the loss of witnesses and a breakdown in the Secretary's ability to continue with the case. As the judge noted, however, the Department of Justice seldom pursues criminal charges, even where the Secretary of Labor recommends indictment. Therefore, when presented with a request for a stay pending the resolution of any criminal proceedings, the judge was faced with the likelihood of years of delay, without any reasonable assurance that criminal proceedings would be initiated.

A judge has the discretion to fashion an order to fit the circumstances of the case. See generally Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 FRD at 58-60 (Complete stay denied; discovery permitted in those areas not relevant to criminal proceedings or already revealed to grand jury). It has been the Commission's experience that it is generally the Secretary who requests a stay of proceedings while a decision is made whether to pursue criminal charges due to the difficulty of obtaining discovery from employees and corporate officials facing the possibility of criminal indictment. Because the decision to recommend criminal proceedings is in the Secretary's control, the Commission has found it useful to grant a limited stay, requiring the Secretary to decide, within a given period of time, whether to pursue criminal charges. Here, the stay is being sought by the employer who had been informed that the Secretary recommended to the Department of Justice that a criminal indictment be pursued. To grant a limited stay under these circumstances would have been useless, since the stay would have had to have been continuously renewed until the Department of Justice either announced a decision not to prosecute or the statute of limitations expired.

We also find that, under the circumstances of this case, any attempt by the judge to stay the case for a limited time would have been a futile exercise.

Although the judge did not adequately articulate his reasons for denying the stay, the record is clear that he was primarily concerned with the prospect of an interminable delay of the case. As has been noted, one of the factors usually considered in determining whether a stay should be granted is the convenience to
the court. Included in this consideration is the court's interest in clearing its docket. Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d at 903. We find that the judge did not abuse his discretion by finding that the problems associated with an indefinite stay of the case overshadowed the inconvenience to Respondent by not granting the stay.[[8/]]

Moreover, under the circumstances of this case, had we found that the judge had abused his discretion by not granting the stay, the resultant error would have been harmless. Respondent contends that because David Woolston exercised his Fifth Amendment right not to testify, Respondent was deprived of the only witness capable of refuting testimony that the judge relied on in finding that Respondent had an obstinate attitude toward safety. However, as discussed supra, we do not rely on the disputed testimony of Hanna, Everton, or Reigart, regarding David Woolston's attitude. Rather, we find that the willful character of the violation was largely established by facts not disputed by Respondent. Therefore, even if David Woolston had testified, the facts still would show that Respondent displayed a careless disregard for the safety of its employees.[[9/]]

III. Penalty


In his decision, the judge assessed the maximum $10,000 penalty for the willful violation. In assessing the penalty the judge applied the statutory factors set forth in section 17(j) of the Act, 29 U.S.C. §666(j). Finding no error in the judge's application of those factors, we affirm the judge's assessment.

IV. Order

Accordingly, we affirm the citation for willful violation of 29 C.F.R. §1926.652(b) and assess a penalty of $10,000.

Edwin G. Foulke, Jr
Chairman

Donald G. Wiseman
Commissioner

Dated: June 28, 1991







SECRETARY OF LABOR,
Complainant.
v..
WOOLSTON CONSTRUCTION CO, INC.,
Respondent.

Docket No. 88-1877


APPEARANCES:

FOR THE SECRETARY: Barnett Silverstein
U. S. Department of Labor
FOR THE RESPONDENT: Bruce L. Harrison, Esq. Capehart & Scatchard, P.A.


DECISION AND ORDER

SOMMER, J.:

This decision resolves the merits of a contest by the Respondent ("WCC") of OSHA citations, issued on behalf of the Secretary, regarding WCC's trenching operations. WCC was digging a trench and laying pipe for a methane gas venting system at a New Jersey landfill. A section of the trench caved in, burying a WCC employee and a co-worker, who both died as a result.

WCC was cited for a willful violation of the trench support standard at 29 C.F.R. {sym} § 1926.652 (b). That standard requires sloping to designated angles, or other adequate support, for "[s]ides of trenches in unstable or soft material, 5 feet or more in depth."[[1/]] WCC also was cited for serious violation of {sym}1926.652(h). That standard requires adequate means of exit within 25 feet of where employees in trenches at least 4 feet deep [[2/]].A hearing on the issues was held in Camden, NJ, on April 7and 8, 1989, and in Philadelphia, PA, on April 17 and 18,1989.

Having reviewed the detailed evidence as set forth below, I find that the Secretary has proven each of the charges, including the willfulness of the § 652(b) item. Penalties in the amount of $11,000 are assessed.

A. Jurisdiction

WCC's notice of contest was timely filed. WCC admits the Commission's jurisdiction, and admits that it "is engaged in a business affecting commerce under the Act." (J-16) The Commission has jurisdiction over the parties and the subject matter.

B. Backqround

The work was performed at the Parkland Reclamation Site, a refuse disposal site in Bordentown, NJ. The site's owner, Waste Management of North America , Inc. ("WMNA"), hired Hart Engineers, Inc. ("Hart") to manage, monitor and document the construction and installation of the gas control system. Hart also was to provide necessary certifications to comply with regulatory requirements of the New Jersey Department of Environmental Protection ("NJDEP"). (Ex. R-8; Tr. 72- 73, 448-51) WMNA hired WCC to do the excavation work. (Ex. R-9; Tr. 454-57)

The work began on the north side of the landfill and proceeded generally south. The pipe had to descend at a constant 2% slope as it went south, so the trench generally became deeper as it headed that direction.

The dividing line between the northern and southern zones was Road Crossing No.1. (Tr.283- 85, 558; Ex. R-6) For the first 125 feet or so south of Road Crossing No. 1 the pipe was to be laid about 7 feet below ground level, according to the job blueprints (Ex. R-6). The blueprints show that from there to the location of the accident -- about 350 feet -- the trench was to become progressively deeper, with the pipe being laid 12 to 15 feet below ground level.[[3/]] The testimony supported the accuracy of the estimated depths contained in the blueprints. The trench had to be dug 7" or more below the pipe invert level to allow 6" of bedding sand under the pipe. (Tr. 91- 92)

The trench was dug with a backhoe ("excavator"), which usually was operated by David Woolston ("Woolston") - He was in charge of WCC's employees at the site and was there every day while they were on the south side. (Tr. 587) Woolston was vice-president and a principal shareholder of WCC. The other principal office and shareholder of WCC was David's brother, Richard Woolston.

The fatal cave-in occurred about 2:30 p.m. on Wednesday, April 13, 1988. It happened within a cutoff wall (a wall separating a "cell" of refuse from the surrounding land). (J-16 at 2; Tr. 451) Two employees were in the trench leveling off the sand bedding for the pipe. They were about 50-60 feet north of where the trenching had progressed. (Tr. 573; Ex. C-14) Working alongside WCC's employee was an employee of the pipe welding contractor, WelFab. (Tr. 85-86) The east wall caved in near where the employees were working. They tried to escape by moving south, but the cave-in continued in that direction. (Tr. 26, 34) They were buried about 15 feet north of the end of the trench. (Tr. 578, 644)

C. Alleged trench support violation (§ 652(c))

1. Trench dimensions

In the area of the accident, the trench was about 14 or 15 feet deep.[[4/]] The trench walls were nearly vertical (not more than an 80[DEG] slope) in general. The NJDEP bureau chief's measurements so indicated, and WCC's site foreman, Thomas Wolverton, who had been a laborer at the site at the time, so testified. (Tr. 362-63, 643) The police patrolmen's testimony is to the same effect. (Tr. 34, 53, 59). Photographs in evidence, including those taken by OSHA's inspector, Al Smith (Ex. C-4), illustrate the conditions. (Tr. 484-89) The only walls that were not basically vertical were where special activities had taken place, such as the cave-in and rescue attempt.

The trench generally was no more than 6 to 10 feet wide at the bottom in areas where employees worked during the week of the accident.[[5/]] The trench dimensions clearly make it a "trench" as defined in 29 C.F.R. § 1926.653(n).

2. Employee exposure

Wolverton acknowledged that WCC employees had worked in the trench daily. (Tr. 560, 593-94, 624) The only exception was the period of time on Monday, August 11 (and early the next morning, perhaps), when they worked from the top. Employees were in the  trench in both the cell area and the cutoff wall -- which is where two were killed. (Tr. 571-74) They were exposed regularly to the conditions.

3. Whether the soil was "soft or unstable"

The cited standard applies only to "sides of trenches in unstable or soft material." An OSHA scientist who performed strength tests on soil samples testified that the trench walls were composed of "unstable or soft" soil. The testimony of eyewitnesses supports this conclusion.
However, WCC questions (1) whether the scientific tests were valid; (2) whether the OSHA scientist was qualified to do them; (3) whether the samples tested were the ones taken from the trench; and (4) whether the samples were preserved properly for testing. It also relies on evidence that the refuse was highly compacted, as well as the cutoff wall separating the landfill from the surrounding land. I find that the soil was "soft or unstable" as alleged.
a. Soil samples

The Secretary must prove by a preponderance of the evidence that the samples tested were the same ones taken from the worksite in question.[[6/]] OSHA inspector Al Smith testified that he took two soil samples from the area of the east wall that had sheared off in the fatal cave-in. That shear wall is depicted in Ex. C-4, p. 9, top photo. Smith took the first sample about 3 feet below ground level. He put it in a "zip-loc" bag and marked it. He took the second sample from about 8 feet below ground level and followed the same procedure. (Tr. 490-92)

WMNA manager Everton got a third soil sample from approximately 12 feet below ground level in the same location.[[7/]] (Tr. 491-92) Smith bagged it and marked it following the same procedure. He took the samples to his office, made out the OSHA Form 91A that accompanies such samples, and sent them to OSHA's Salt Lake City, Utah, laboratory by certified mail. Smith testified that those samples appeared representative of all the soil in the trench walls. It all appeared to him to be grey clay. (Tr. 155, 492) I find that the soil samples were representative of the soil at the site.

The samples were picked up at the Salt Lake City post office by a clerk from the OSHA lab. Dr. Alan Peck, a soils analyst at the lab, received Smith's Form 91A with the samples. (Tr. 155; Ex. C-7) As WCC notes, the inspection number listed on the Form 91A is not the same inspection number referenced in the citation. (Tr. 210) Also, the field numbers assigned to the samples by Smith did not begin at one. They were "AS4, AS5, and AS6." However, Dr. Peck explained that there is no normal practice by OSHA inspectors to begin the field numbers at one. (Tr. 211-12)

However, Dr. Peck testified that he had no doubt that his report referred to the samples from WCC's trench -- AS4, AS5, and AS6. He explained that Smith had sent three other soil samples from a different inspection along with the three samples from WCC's trench. (Tr. 238, 248-53) The samples from the other inspection were given field numbers AS1, AS2, and AS3. (Tr. 238). The Secretary sufficiently established that soil samples AS4, AS5 and AS6 tested by Dr. Peck were from WCC's trench.

Dr. Peck performed the testing. As to his qualifications, he holds a Ph.D degree in metallurgical engineering and mineralogy. He had been a research professor of metallurgical engineering at the University of Utah from 1968 to 1975, when he became an inorganic chemical analyst and asbestos analyst for OSHA. Previously, he had been a metallurgist for Kennecott Copper Corp. and other private concerns, as well as the U.S. Bureau of Mines. He became a soils analyst for OSHA in 1986, and had analyzed about 400 soil samples for OSHA. Since 1987, he had completed 21 credit hours of correspondence study with the U. S. Army School of Soil Engineering. (Tr. 150-52; Ex. C-6)

Although Dr. Peck's basic field until 1986 had been metallurgy and minerals, not soil engineering, the two fields are somewhat related. Dr. Peck explained that many of the analytical tools for determining the properties and strength of metals apply to the analysis of hard, compact soils as well. (Tr. 165-66) He was sufficiently qualified as an expert, by reason of his training and education, to assist the Commission in determining the soil type and its stability. See FRE 702.[[8/]]

Dr. Peck testified that each sample was sandy, silty clay, and would be classified as unstable under the OSHA standard. (Tr. 180-81; Ex. C-8) In his opinion, the critical slope for each sample (the steepest slope consistent with stability) would be 32[[DEG]]. (Tr. 185-87) (To achieve a 32[[DEG]] slope, each trench wall would have to have been sloped more than 1 1/2:1 -- 1 1/2 feet horizontally for each foot vertically.)





To make his determinations, Dr. Peck performed various tests. He focused principally on the internal friction of the soil. That is the most important factor in a soil's strength. (Tr. 175) Internal friction is the capacity of soils to bond together internally. (Tr. 160-62) The chief determinant of internal friction is the size of the particles. Dr. Peck used a series of sieves to determine the percentage of different sized particles in each soil sample. (Tr. 156-57) The percentage of salt and clay particles ranged from 60% to about 74% in the three samples. Those particles are smaller than gravel or sand particles. (Tr. 156-59, 185-86) More than a 14% of clay or silt content in a soil is considered to make it unstable. (Tr. 158)

He also performed dry strength tests. Each sample was dried at 60[[DEG]] centigrade. Then Dr. Peck determined its resistance to breaking with his hands. (Tr. 226) He also used a penetrometer to determine the approximate cohesive strength of the samples. (Tr. 229)

Dr. Peck acknowledged that soil borings could have been taken to produce completely undisturbed samples, and that more sophisticated cohesion tests could have been performed. (Tr. 213, 229) However, he testified that those matters, and the others raised by WCC, would not affect his opinion as to the soil type and its critical angle. (Tr. 253) WCC presented no scientific evidence or expert testimony on the subject. The tests Dr. Peck performed were a valid and sufficient basis for his conclusions. The soil samples were properly preserved for testing. Those samples support the Secretary's position that the trench soil was soft and unstable.

b. Observations of eyewitnesses

The testimony of numerous persons who saw the soil at the worksite support the conclusion that it was clay, and was unstable. Wolverton testified that in the area north of the cutoff wall, the top three feet of the trench walls were clay, with compacted trash below. (Tr. 559- 60) Hart inspector Thomas Hanna, who monitored the trench work for months in the northern zone, and OSHA compliance officer ("CO") Al Smith, who investigated the accident, also characterized the top 3 feet as clay. (Tr. 76, 513)

Clay and silt soil generally is considered unstable under the standard. Table P-1, incorporated in the cited standard by reference, contains the following Note: "Clays, Silts, Loams or Non-Homogenous Soils Require Shoring and Bracing." Soils that require shoring and bracing are "unstable soils" by definition under § 1926.653(a):

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

There was other testimony indicating instability in the trench walls. For example, WCC foreman Wolverton testified that he had felt unsafe in the trench about two days before the accident. Wolverton testified that he heard material trickling through the walls of trash, told the other employees to get out,and told Woolston and Hart inspector Joel Reigart that it wasn't safe. (Tr. 562-64)

The employees began to work from the top. Wolverton explained that to allow that, Woolston operated the excavator with its crawler treads straddling the trench. However, the pressure on the trench walls caused by straddling resulted in cracking along the sidewalls. Thus, Woolston stopped that effort the day before the accident, and employees returned to the trench. (Tr. 564-67)

Wolverton also testified that the day before the accident, he observed the west wall bowing out into the trench, and material moving into the trench. That occurred between 60 and 100 feet north of where the trench stopped at the time of the accident. At that time, Wolverton got the employees out of the trench again. He then noticed the cracks in the sidewalls and refused to have employees in the trench. (Tr. 566-69)

WCC notes testimony that the refuse that lay below the top 3 feet of clay in the cells of refuse was highly compacted, as was the soil in the cutoff wall. (e.g., Tr. 421-23, 451-52, 559-60) However, Dr. Peck testified that, although compaction could increase the specific gravity of a soil, which could increase its strength, the soil he studied still would need to be sloped about 1 1/2 : 1. (Tr. 253; cf. Tr. 235) That soil was representative of the soil in the trench walls generally, as discussed above.[[9/]]

Also, the evidence did not indicate that the top 3 feet of clay in the cells had been compacted. It had hazardous cracks in it. Employees had worked in the trench regularly during the week before the accident at depths of 12 to 15 feet in the cell area, beneath the unstable 3 feet of clay on each side.[[10/]] That exposure in itself establishes a violation.

D. Means of exit (§ 652(h))

There was no ladder or other device provided at any time for employees to exit the trench. (Tr. 479-80, 632, 650) They had to climb the trench walls to get out at all times. What the standard requires is not merely a place to pull oneself out of the trench, but a ready means of exit, comparable to a ladder or steps, in the event of danger.[[11/]] Such means of exit are required within 25 feet of where employees are working at all times. The standard are violated.

E. Seriousness and knowledge

Both violations were quite serious, as the fatalities illustrate. WCC had the requisite knowledge of the violations, because they were in Woolston's plain sight and had existed for a long time. See 29 U.S.C. § 666(k).

F. Alleged willfulness of trench support item

1. Legal standards

Under Commission precedent, 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., Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD (P) 27,893, p. 36,589 (Rev. Comm. No. 85-355, 1987). It is differentiated from other types of violations by a "heightened awareness -- of the illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or plain indifference." Id. A finding of willfulness is not justified if an employer has made a good faith effort to comply with a standard, even though the employer's efforts are not entirely effective or complete. Id. Also, a violation is not will if the employer had a good faith opinion that the violative conditions conformed to the requirements of the cited standard.   However, the test of good faith for these purposes is an objective one -- whether the employer's belief concerning a was reasonable under the circumstances.  Id. 13 BNA OSHC at 1259, 1986-87 CCH at p. 36,591

This case arises within the jurisdiction of the U.S. Court of Appeals for the Third Circuit.  That circuit has held that:

Willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting [sic, flouting] of the Act.   Willful means more than merely voluntary action or omission -- it involves an element of obstinate refusal to comply.

Frank Irey, Jr. v. OSHRC, 519 F.2d 1200, 1207 (Id Cir. 1974).  However, that court also has stated that there is little, if any, difference between its approach and the "intentional disregard, plain indifference" standard employed by other courts and the Commission.

In our way of thinking, an "intentional disregard of OSHA requirements" differs little from an "obstinate refusal to comply"; nor is there in context much to distinguish "defiance" from "intentional disregard." "Flaunting the act" or "flouting it," as some would say, again carries the same meaning.

Babcock & Wilcox Co. v. OSHRC.  622 F 2d 1160, 1165 (3d Cir. 1980).  See Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978, (comparing Third Circuit test with that if the court.

2. Evidence

The Secretary relies on the testimony of Hart's inspectors, Thomas Hanna and Joel Reigart. They testified that they warned David Woolston before the accident numerous times of the need for more sloping, and specifically mentioned the OSHA standards to him .The Secretary also relies on the testimony of WCC employee Wolverton and WMNA general manager Robert Everton that they alerted Woolston to safety problems in the trench during the two days before the accident.

WCC argues that the testimony of the Hart inspectors and Everton is not credible. It asserts that they had a strong motive to distort the facts, because Hart and WMNA are co- defendants with WCC in lawsuits brought by the deceased employees' survivors. WCC also argues that there are inconsistencies in their testimony that affect its credibility. According to WCC, CO Smith, who recommended issuing the citation as willful, ignored important facts contrary to those he relied on. It also asserts that the numerous safety measures taken by David Woolston negate any inference of willfulness.

Even leaving aside the testimony of the Hart inspectors and Everton, the preponderance of the evidence indicates that David Woolston knew about cave-in hazards and relevant OSHA requirements well before the accident. The witness who might have contradicted that evidence was Woolston himself. However, he did not testify. Rather, he invoked his Fifth Amendment constitutional privilege against self-incrimination.

No adverse inferences are drawn from his failure to testify. The Secretary had referred the case to the Justice Department for passable criminal prosecution. Although no prosecution was commenced by that Department in this case or other OSHA cases generally, the Fifth Amendment privilege was available. [[12/]] However, the evidence of record establishes willfulness on Woolston's part. His actions properly are imputed to WCC. [[13/]]

a. Testimony of Wolverton and CO Smith

The discussion above of Wolverton's observations of the soil's instability also shows that he informed Woolston at least twice before the day of the accident that he considered the trench unsafe. CO Smith testified without contradiction that Woolston "said he knew OSHA standards" when Smith spoke to him after the accident. (Tr. 481) Smith also testified that he inferred that Woolston was aware of OSHA's sloping requirements because he kept talking about 2:1 sloping.[[14/]] (Tr. 483)[[15/]] This evidence indicated that Woolston knowingly disregarded the applicable requirements of the Act, and thus acted willfully.

As WCC notes, Woolston took certain measures to reduce the cave-in hazards after warnings on the two days before the accident. However, the changes were not a good faith effort at compliance -- they bore no reasonable relationship to OSHA's requirements.

Woolston's changes were as follows. After Wolverton removed the employees from the trench two days before the accident, Woolston had them work from the top the rest of the day. (Tr. 560-66) However, the next day (the 12th) they were back in the trench. (Tr. 566-69, 444-46) Then, about mid- day on the 12th, after another warning, Woolston sloped the west wall slightly for about 40 feet (from about 60 to 100 feet north of where trenching stopped). (Tr. 360, 567-69; Ex. C-4, p. 4, bottom photo; Ex. C-14)[[16/]] However, there is no indication that the east wall, which later collapsed in that area, was sloped. Under the OSHA standard, both trench walls must be sloped back to their angle of repose.

Also, after being warned on the 12th, Woolston began cutting a step into the top portion of the trench walls. However, the stepping was incomplete and inadequate, as discussed above. Even if Woolston had believed that the cutoff wall and the refuse below the clay in the cells were the equivalent of hard and compact soil, he was required under § 1926.652(c) to shore or brace them, or slope each wall 1/2:1 (about 63[[DEG]]) above the 5-foot level. The partial stepping did not remotely approach compliance with that requirement.

WCC took certain other safe measures. It placed the excavated material a safe distance from the trench. (Tr. 433; Ex. C-4) It used a remote control compactor, which eliminated the necessity for having an employee in the trench when it was being backfilled. (Tr. 129, 540-41) It also may have kept extraneous machinery away from the trench.[[17/]]

However, those factors do not negate the willfulness of Woolston's decision to forego the time and effort needed to slope or support the trench walls as required. He took conscious and grave risks in that regard, contrary to known OSHA requirements. No good faith effort to meet OSHA's requirements was shown. The testimony of Wolverton and Smith leads to the conclusion that there was an obstinate refusal by Woolston to heed OSHA's trench support requirements, and a flouting of those requirements.

b. Testimony of Everton

WMNA general manager Everton testified that he observed the trenching the day before the accident at about 11:30 a.m. According to Everton, the trench was about 6 or 7 feet wide at both top and bottom and was about 10 to 12 feet deep. He could see dirt "cracking off the top a little bit," although he did not see surface crack in the sidewalls. The two employees who later died were at the bottom of the trench. Everton testified that he stopped the job temporarily by ordering the employees out of the trench and ordering that the dump trucks in the area not be brought near the trench, to avoid vibrations. Everton also testified that he ordered David Woolston to widen the trench walls. (Tr. 444-46) [[18/]] Everton's testimony is uncontradicted by any competent evidence and I credit that testimony.[[19/]]

c. Testimony of Hanna

Thomas Hanna was Hart's first inspector on the job, from December, 1987 to about the beginning of April, 1988. He was present at the trench daily. (Tr. 99) He testified that employees were in the trench when its walls were at least 7 feet, and vertical. The job blueprints (Ex. R-6) are consistent with that estimate. Hanna testified that he told David Woolston that the trench was unsafe and that he felt that a 1:1 (45[[DEG]]) slope was required. His understanding of Woolston's answer was that Woolston would worry about safety in the trench, and that Hanna should confine himself to whether the pipe was put in properly. (Tr. 93-99)

In March, Hanna testified, he spoke to Woolston about what precautions to take when the trench got to the deepest section (where the accident occurred). Hanna testified that he suggested to Woolston sloping the trench 1: 1 or using a trench box. According to Hanna, Woolston replied that he would slope the trench, although. he did not say how much. (Tr. 104-05) During the four months that he was at the site, Hanna testified, WCC never sloped the trench and never used a trench box.
Hanna testified generally that "whenever we had unsafe conditions, I would bring it up" to Woolston in some manner. He developed a sense that talking to Woolston about trench safety was becoming fruitless. (Tr. 101-03), He never told anyone besides Woolston about the safety problems, even though he believed that WCC was under WMNA's supervision. (Tr. 143, 146) However, he was not required to make such reports.

The testimony of Everton and Hanna strongly corroborates the defiant attitude Woolston had toward following trench support requirements. As with Everton, I credit Hanna's essential testimony on the disputed issues. WCC'S attacks on his credibility are unpersuasive.[[20/]] Also, Hanna no longer was employed by Hart at the time of his testimony, and he was not directly involved in the accident, having left the site about ten days before. (Tr. 69, 79) No ill will toward Woolston or WCC seemed to motivate Hanna's testimony.[[21/]]

d. Testimony of Reigart

Joel Reigart succeeded Hanna as Hart's inspector on the project in the first week of April, 1988. (Tr. 256-57) The digging still was in the northern zone. Reigart was at the site every day full-time, except for a few days when he was at another landfill for a few hours. (Tr. 262-63) Reigart's testimony corroborates that of the other witnesses on the essential facts, and adds certain details. For example, he testified that about a week before the accident, he mentioned to David Woolston that the trench would be getting 15 or 20 feet deep. Reigart asked Woolston what kind of shoring or support he would use. Reigart testified that he explicitly mentioned OSHA's trench support requirements and advised Woolston to use 2:1 sloping (2 feet of horizontal slope for each vertical foot on each trench wall). According to Reigart, Woolston said that his preference was for sloping, but also said that "he [Woolston] was going to be responsible for the trenching and I [Reigart] should maintain the pipe and the inspection of it..." (Tr. 274-78, 297-99)

Reigart also testified that many times before the accident he asked Woolston if he considered the walls properly sloped, and that Woolston never gave him a direct answer (Tr. 300, 302) According to Reigart, Woolston was aware of the surface crack, which ran parallel to the trench for its entire length, and warned employees frequently to be very cautious near it. Reigart also corroborated Everton's testimony that he told the employees to leave the trench the day before the accident. (Tr. 310-11)

WCC attacks Reigart's credibility on numerous grounds. As it notes, Reigart made certain statements just after the accident that may be inconsistent with parts of his hearing testimony.[[22/]]   However, Reigart's testimony would not affect the outcome. In the circumstances, I will not attempt to resolve WCC's attacks on his credibility. I have not relied on any of Reigart's testimony that is unfavorable to WCC. Regardless of Reigart's testimony, the evidence shows that David Woolston displayed an "obstinate refusal to comply" with OSHA's trench support requirements, and flouted them.

G. Penalties

The conscious disregard of OSHA trench support requirements by WCC over such a long period of time in the deep trench merits the penalty asked by the Secretary -- $10,000, the maximum for a willful violation. See 29 U.S.C. § 666(a). Similarly, the failure over the same period to provide a ladder or other adequate means of exit from the trench merits the maximum penalty for a serious violation -- $1,000.  In assessing these penalties, I have considered the fact that WCC had no previous violations in its four-year history, and that it was a small company with less than 10 employees.(Tr.108) Also, I have considered the fact that it took certain safety measures at the site. However, the conditions were so serious and the warnings so clear, that the maximum penalties are appropriate, even considering those factors. See 29 U.S.C. § 666(j).

H. Findings of Fact and Conclusions of Law

The findings of fact and conclusions of law have been made above. See Fed. R. Civ. P. 52(a).

ORDER

1. The alleged willful violation of 29 C.F.R. § 1926.652(b) is affirmed, and a penalty of $10,000 is assessed.
2. The alleged serious violation of 29 C.F.R. {sym}1926.652(h) is affirmed, and a penalty of $1,000 is assessed.

IRVING SOMMER
Judge, OSHRC

DATED: OCT 23 1989
Washington, D. C.

FOOTNOTES:

[[1/]] On October 31, 1989, the Secretary completely revised the construction industry trenching standards. At the time of the citation, however, the cited standard stated in relevant part:
{sym}1926.652 Specific trenching requirements.

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

[[2/]] Judge Sommer also affirmed a citation that alleged a serious violation of 29 C.F.R.{sym}1926.652(h), for failure to provide employees with an adequate means of exiting the trench. Respondent has not taken exception to that portion of the judge's decision and it will not be reviewed by the Commission. See Trumid Construction Co., 14 BNA OSHC 1784, 1785, n..1, 1990 CCH OSHD (P) 29,078, p. 38,855

[[3/]] The record does not indicate the length of the step.

[[4/]] Wolverton testified that he first noticed a crack as it began to fracture, leading to the trench collapse. The evidence does not establish; however,whether this was a new crack or the same one observed by other witnesses.

[[5/]] The evidence indicates that, even in those areas where steps were cut into the trench wall, the top of the trench was only approximately 10-14 feet wide.

[[6/]] Even if the test results were discounted, the eyewitness testimony is sufficient to establish that the soil was unstable. Scientific testing and analysis is not a prerequisite for determining the stability of soil in order to establish noncompliance with the trenching requirements. Duane Meyer d/b/a D.T. Construction Co, 7 BNA 1560, 1563, 1979 CCH OSHD (P) 23,742 at p.28,793 (No. 16029, 1979)

[[7/]] We note, for example, that at the time of the hearing, Thomas Hanna had already left the employ of Hart Engineers.

[[8/]] We would also note that, as a general principle, the Commission looks with disfavor upon motions for stays. Commission rule 63(a), 29 C.F.R. 2200.63(a)

[[9/]] Respondent argues that despite his statement to the contrary, the judge implicitly drew an adverse inference regarding David Woolston's attitude from his failure to testify. Because we find the violation willful regardless of David Woolston's attitude, we need not determine whether the judge properly drew such an adverse inference. We note, however, that the Supreme Court has stated that the drawing of an adverse inference from a party's failure to testify in a civil case due to a Fifth Amendment self-incrimination privilege is not a violation of that privilege. Baxter v. Palmigiano, 425 U.S. 308, 316-18, 96 S.Ct. 1551, 1557-8 (1976).

[[1/]] The standard provides in full:
Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

[[2/]] That standard provides in full:
When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

[[3/]]The depths shown on the blueprints are to the invert elevation of the pipe (the bottom of the pipe on the inside)

[[4/]] Two Bordentown police patrolmen who arrived on the scene within an hour of the accident so testified. (Tr. 29, 59) Measurements taken the day after the accident under the supervision of the bureau chief who investigated the accident for the New Jersey Department of Environmental Protection ("NJDEP") confirm that depth. (Tr. 354-57, 478; Ex. C-15) (See also Ex. R-6, p. 2)

[[5/]] The NJDEP bureau chief's measurements and those of CO Smith so indicated. Wolverton testified to the same effect. (Tr. 363, 445, 493, 589-91, 633-34; Ex. R-10.

[[6/]] Rule 901 of the Federal Rules of Evidence ("FRE") covers this question (The FRE apply in Commission proceedings. 29 C.F.R. {sym}2200.71) Rule 901 provides in pertinent part:

(a) General provision. -- The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Rule 901(a), unlike prior authentication rules, applies to real and demonstrative evidence generally -- not just writings. United States v. Zink, 612 F.2d 511 (10th Cir. 1980).

[[7/]] Everton was unable to recollect whether he got the clump from the shear wall or from the bottom of the trench, where further excavation had been done by the backhoe. (Tr. 467-68)

[[8/]] Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
See Dychalo v. Copperloy Corp., 78 F.R.D. 146, 149 (E.D. Pa. 1978) (metallurgical engineer permitted to testify on principles of mechanical engineering known to him by education). The expert's opinion must simply be sufficient to convince the trier of fact that its version of what occurred is more likely correct than not. Alexander Hamilton Life Ins. Co. v. Gov't of V. I., 757 F.2d 534, 542-43 (3d Cir. 1985).

[[9/]] Contrary to WCC's claim, the references in Table P-1 to compacted material do not indicate that the soil here could properly be sloped more steeply than 1 1/2 :1. The Table states that "compacted angular gravels" may be sloped 1/2 : 1 (about 63[[DEG]] ). However, the soil here was not angular gravel. The only other reference to compaction in Table P-1 is that "compacted sharp sand" must be sloped at least 1 1/2 :1 (about 33[[DEG]] ) The evidence showed that the soil here was no more stable than compacted sharp sand.

[[10/]] As WCC notes, following the discussion of safety the day before the accident, Woolston began to cut a step about 3 feet wide and 3 feet deep in the trench walls. (Tr. 303-06, Ex. C-12) That may have relieved the problem of the top 3 feet of soil in the area where the step was cut However, the step was not used consistently. There was no step in the area where the employees tried to escape the fatal cave-in (the "D" area on Ex. C-14, sketch 2). (Tr. 650-51) Also, there was no stepping north of where the work stopped on the 12th. Employees were exposed to a cave-in hazard there, as they had been during the preceding week. The standard was violated on that basis as well.
WCC's counsel elicited from CO Smith that there is some possibility that ground water contributed to the cave-in. (Tr. 522-26) It also is possible that WCC did not know, and had no reasonable way of knowing, about the ground water. However, the employee protection was inadequate under the standard, regardless whether there was ground water.

[[11/]] WCC asserts that the slightly sloped portion of the west wall, 60 to 100 feet north of where the trenching stopped, could have been an adequate means of exit. This is unfounded. That high wall was not even sloped properly, considering the unstable soil within it. Much less was it an appropriate exit ramp. No other means of exit was suggested within 80 feet of the employees who died in the cave-in.

[[12/]] WCC's motion for a stay of the proceedings pending Justice Department review was denied. (E.g., Document J-10) Its Petition for Interlocutory Review of that ruling was denied by the Commission by order of March 24, 1989. (Document J-25) That order stated, "The Respondent has not yet shown the need for a stay to avoid prejudice to any right against self-incrimination." WCC showed no such need for a stay during the hearing. Its asserted need for a stay was based on the possibility of adverse inferences being drawn from David Woolston's failure to testify. (E.g., Tr. 655-57) As discussed above, no such inferences are being drawn. It is noted that the case law on the propriety of drawing adverse inferences from the assertion of a Fifth Amendment privilege is not totally uniform.

[[13/]] See Dun-Par Engineering Form Co. 12 BNA OSHC 1962, 1965-66 (Rev. Comm. No. 82- 928, 1986).

[[14/]]Although WCC does not question this testimony specifically, it attacks CO Smith's investigation generally. It asserts that he was gullible in believing Hanna, Reigart and Everton, and that he failed to follow up sufficiently on the Woolstons' statements contrary to theirs. However, the evidence did not show any deliberate or careless failure to investigate on Smith's part. In any event, the sufficiency of Smith's investigation is not properly in issue. WCC had the opportunity to present those facts that support its position on the citations.

[[15/]]Wolverton testified that he knew the OSHA standard about sloping. (Tr. 630)

[[16/]] Wolverton testified that the trench also was widened out somewhat where it curved to the southeast, between 30 and 60 feet north of where trenching stopped. (Tr. 570-71) However, the west wall was essentially vertical in that area. (E.g., Ex. C-4)

[[17/]] WCC had done other excavation work at the landfill for WMNA previously, and Everton had heard no safety complaints about that previous job. (Tr. 446 - 47) There were no time pressures on the work. (E.g., Tr. 455-56)

[[18/]] WCC asserts that Everton's testimony that he stopped the work for safety reasons was contradicted by other evidence. It cites Wolverton's testimony. However, Wolverton merely said he did not recall Everton coming and speaking about safety. There was no evidence that Wolverton necessarily would have known if Everton had discussed safety with Woolston. Wolverton's testimony does does not contradict Everton's.
WCC also notes the CO's acknowledgment that the Woolstons told him before the citations were issued that they disputed Everton's statement that he had stopped the job for safety reasons. (Tr. 498) However, WCC presented no witness to contradict Everton's testimony at the hearing. The Woolstons' out-of-court statements are admissible to show notice to the CO of matters to investigate. This was apparent purpose for WCC's introducing those statements. However, they may not be relied on to prove the truth of the matters asserted. Those statements do not have the "circumstantial guarantees of trustworthiness" which justify the recognized exceptions to the rule against admission of hearsay evidence. Cf. FRE 803 (24) . Those statements, by themselves, would not have significant probative value even if admissible.

[[19/]] WCC apparently attacks Everton's credibility by noting that when he was asked to mark on the job blueprints the place where he stopped the work, Everton's mark was too far north by 100 to 200 feet . (Tr. 459-62) However, that error is insignificant. The difference is only 2 to 4 inches on the blueprints. (Ex. R-6) There is no indication that his error was anything more than an inadvertent one made under the pressure of attempting to read the complex blueprints during his cross-examination.

[[20/]] As WCC notes, Hanna did not display an entirely consistent recall of trench measurements and dates. However, those recollection problems do not negate the essential points of his testimony. He testified at first that the trench had been 12 feet deep in places. (Tr. 84) He corrected that, however, to say that the 12-foot depth related to the horizontal collection system, and that no employees entered it until it had been backfilled to 6 feet deep or less. (Tr. 92-93) He also gave specific estimates that employees were in the trench at depths of 7 to 10 feet. (Tr.93-94, 116 ) Those estimates are consistent with the depths estimated in the job blueprints (Ex. R-6), considering that the trench was dug out some distance below the pipe.
WCC also attacks Hanna's credibility on the ground that he testified that he spoke to Woolston about trench safety in January, 1988. WCC claims that it did not begin work until February 9, 1988. Whether Hanna correctly recollected in April, 1989, that the conversation was in January rather than February, 1988, is not important.

[[21/]] To show a possible motive by the Hart inspectors to testify falsely, WCC argues that they were responsible for OSHA compliance by WCC, or for the safety of WCC's employees generally. However, there was no proof that they were. WCC notes that the general agreement between Hart and WMNA states:
The CONSULTANT his employees, agents, and representatives, shall at all times comply with all applicable laws, ordinances, statutes, rules, or regulations, including those relating to wages, hours, fair employment practices, antidiscrimination, and safety and working conditions.
(Ex. R-7, Art. IX, emphasis added) However, that language seemingly relates only to the safety and working conditions of Hart's own employees. WCC was not Hart's employee, agent or representative, so far as this record show. It was directly hired by WMNA.
Everton testified that in his opinion the responsibility for safety on the job lay with "the contractor [WCC] and the third party engineer [Hart]" (Tr. 464-65) His testimony does not make clear whether he believed Hart was responsible for the safety of WCC's employees in general, or what the basis for such a belief would be.

[[22/]] Evertron testified that he spoke with Reigart on the afternoon of April 13, after the accident, and that Reigart told him the trench wall involved in the accident had a 2:1 slope and that the trench was 10 feet deep. (Tr. 466) Reigart then prepared a drawing of the site, containing the same information. (Tr. 433- 35, 466; Ex. R-2) CO Smith talked to Reigart about the apparent inconsistencies in his statements. Reigart told him that his statements right after the accident were made under great emotional stress and strain, and he was no longer sure what he had said or done. (Tr. 519)
Also, the report concerning the accident by Bordentown Patrolman O'Reardon contains statements attributed to Reigart that are at odds with his hearing testimony. (Ex. C- 1, p. 2) Those statements concern a lack of signs of danger before the accident, and the depth of the trench. However, Reigart gave a plausible explanation of how his actual statements had been misconstrued, which was corroborated in part by another patrolman's testimony. (Tr. 382, 44-45)