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)