SECRETARY OF LABOR,

Complainant,

v.

POTOMAC ELECTRIC POWER COMPANY,

Respondent.

OSHRC Docket No. 89-0202

ORDER

This matter is before the Commission on a Direction for Review entered by former Chairman Linda L. Arey on October 30, 1989. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission.[[1]] The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the commission in this case. See 29 U.S.C. § 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: October 23, 1990

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

POTOMAC ELECTRIC POWER COMPANY,

Respondent.

OSHRC Docket No. 89-0202

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which are currently pending before the Commission.

II

It is hereby stipulated and agreed between the Complainant, Secretary of Labor, and the Respondent, Potomac Electric Power Company (PEPCO), that:

1. Respondent represents that the alleged violation for which it was cited has been abated and shall remain abated.

2. Respondent hereby agrees to withdraw its notice of contest previously filed in this case.

3. The parties agree that in the future, when respondent engages in trenching and excavation work, PEPCO will ensure that all support systems are installed in a manner that protects employees from cave-ins, structural collapses, or from being struck by members of the support system; i.e., the installation of all protective support systems in trenches and excavations shall begin at, and progress from, the top and work down towards the bottom of the trench or excavation. Removal of support systems shall begin at the bottom of the excavation and progress towards the top. The parties also agree that all personnel of respondent involved in trenching and excavation operations shall be trained in the aforementioned installation and removal procedures.

4. Complainant hereby amends the citation to characterize the alleged violation of 29 CFR 1926.652(c) as a violation of Section 17 of the Act. The proposed penalty for this citation is amended to $1,000.

5. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

6. None of the foregoing agreements, statements, stipulations, or actions taken by respondent shall be deemed an admission by respondent of the allegations contained in the citations or the complaint herein. The agreements, statements, stipulations, and actions herein are made solely for the purpose of settling this matter economically and amicably and they shall not be used for any other purpose, except for subsequent proceedings and matters brought by the Secretary of Labor directly under the provisions of the Occupational Safety and Health Act of 1970.

7. No authorized employee representative elected party status in this case.

III

Respondent hereby agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rules 2200.7 and 2200.100.

ROBERT P. DAVIS
Solicitor of Labor

CYNTHIA L. ATTWOOD
Associate Solicitor for
Occupational Safety and Health

DANIEL J. MICK
Counsel for Regional
Trial Litigation

ORLANDO J. PANNOCCHIA (Date)
Attorney for the
Secretary of Labor

BARBARA C. JOB (Date)
Attorney for Respondent
Potomac Electric Power Co.

IN THE MATTER OF:

ELIZABETH DOLE,

SECRETARY OF LABOR,

Complainant,

v.

POTOMAC ELECTRIC POWER COMPANY

Respondent.

Docket No. 89-0202

Region III

APPEARANCES:   

MARK SWIRSKY, ESQUIRE
U.S. Department of Labor

For the Complainant,

BARBARA C. JOB, ESQUIRE
Potomac Electric Power Company

For the Respondent,

DECISION AND ORDER

JUDGE TENNEY

I. PROCEDURAL HISTORY

On September 13, 1988, Mr. John R. Wiseman, an Occupational Health and Safety Administration (OSHA) Compliance Officer, conducted a comprehensive inspection of the activities of all employers at the construction site of a new building at 750 17th Street, N.W., Washington, D.C. Following the inspection, one "serious" citation was issued to Potomac Electric Power Company (hereinafter Pepco). That citation was divided into two items, Item 1 and Item 2. A total proposed penalty of $800 was proposed for the items.

Item 1 alleges a serious violation of section 5(a)(2) of the Act, and 29 CFR 1926.450(a)(9). The Complaint specifies that on September 13, 1988, Pepco's employees were working in a trench in which the side rails of ladders did not extend more than 36 inches above landings, nor were grabrails provided.

Item 2 specifies a serious violation of section 5(a)(2) of the Act, and 29 CFR 1926.652(c). The Complaint specifies that on September 13, 1988, Pepco's employees were working in a trench which was dug in hard and compact soil, five feet or more in depth and which was not shored, supported or sloped.

Pepco filed a timely notice of contest. After the filing of the pleadings, a hearing was held on May 11, 1989, in Washington, D.C. Post-hearing briefs have been filed and considered.

II. BACKGROUND AND FACTS

1. Pepco, a corporation, is an investor-owned electric utility company. Pepco has its principal place of business at 1900 Pennsylvania Avenue, N.W., Washington, D.C. During the time of the inspection it maintained a worksite at 750 17th Street, N.W., Washington, D.C. The Commission has jurisdiction because Pepco's contest was timely and because Pepco uses tools, equipment, machinery, materials, goods and supplies which have originated in whole or in part from locations outside the District of Columbia. (Stipulation, Court's Exhibit-1, Nos. 1, 3, 5). Pepco is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. 652(5).

2. Mr. Schuetz accompanied Mr. Wiseman during the inspection of the 750 17th St., N.W. worksite. Mr. Schuetz was the Corporate Safety Director for the general contractor, Tiber Construction Company. (Testimony of Mr. Wiseman, Tr. 17; Testimony of Mr. Schuets, Tr. 64).

3. Mr. Wiseman has over twenty years' experience as a compliance officer; has taken many courses on trenching and shoring; and has taught a course in trenching and excavation. Mr. Wiseman has conducted over 1500 inspections of trenching and excavation conditions. (Testimony of Mr. Wiseman, Tr. 10-12).

4. Mr. Schuetz has seven years' experience as a safety superintendent in various positions and six years' experience as a gold miner in Colorado. (Testimony of Mr. Schuetz, Tr. 63-68).

5. Mr. Wiseman observed the Pepco employees opening a trench, on his way to lunch at about 12:30 p.m. on the day of the inspection. Upon his return at about 1:15 p.m., Mr. Wiseman saw two Pepco employees at the bottom of the trench about to install a jack. The two employees were identified as Mr. Troy Devane and Mr. "Gogo" Bacote. (Testimony of Mr. Wiseman, Tr. 19; Testimony of Mr. Devane, Tr. 96; Govt. Exhibit-F). Mr. Schuetz' testimony corroborated Mr. Wiseman's observations. (Tr. 64-65).

6. The Pepco employees were constructing a drain to allow water to flow from a manhole to a sewer line. (Stipulation, Court's Exhibit-1, No. 13). To construct the drain the Pepco employees had dug a trench eleven and one half-feet deep and thirty inches in width. (Testimony of Mr. Wiseman, Tr. 18, 29; Govt. Exhibit-B, P. 2). The trench extended in an east-west direction nine and one-half feet from the building under construction, across a sidewalk, and into 17th Street. The trench was dug in hard or compact soil. (Stipulation, Court's Exhibit-1, No. 17).

7. At the time Mr. Wiseman observed the employees at the bottom of the trench, the sides of the trench had not been shored or sloped. According to Mr. Wiseman, there were no trench jacks in place; none of the tour uprights that had been placed in the trench were secured. Additionally, there were no horizontal boards, or stringers, in place. (Testimony of Mr. Wiseman, Tr. 22-23; that of Mr. Devane, Tr. 130).

8. As to the jacks, this is inconsistent with the testimony of Mr. Devane. According to Mr. Devane, the employees had installed a middle and bottom jack between the pair of uprights adjacent to them. (Tr. 116-118). Later, Mr. Devane testified that they had not planned to use stringers. (Tr. 131-132).

9. Mr. Wiseman's testimony which is corroborated by Mr. Schuetz is credited. (See Paragraph Nos. 2-5).

10. Mr. Wiseman asked the two employees to come out of the trench and proceeded to delineate the proper shoring of a trench. (Tr. 23-26). Although familiar with OSHA standards on shoring, the employees had not consulted the standards in determining how to proceed in shoring trenches beyond four feet in depth. (Testimony of Mr. Devane, Tr. 130).

11. There were eight Pepco employees at the worksite. (Stipulation, Court's Exhibit-1, No. 11). Pepco had recently instituted a new job assignment system. Under the new system experienced conduit installers could become trained as crew leaders. (Testimony of Mr. Sigafoose, Tr. 218-220). On the day of the inspection, Mr. Devane was the crew leader in training.

12. Another employee present at the scene, George Maslar, was an equipment operator, experienced crew supervisor, and the supervisor in charge of training Mr. Devane. Specifically, Mr. Maslar's charges included; to make sure the work was performed properly, to help Mr. Devane with decisions if asked, and to assist Mr. Devane should any problems arise. (Testimony of Mr. Maslar, Tr. 144-146; Testimony of Mr. Sigafoose, Tr. 219-220).

13. There were two other supervisors at the Pepco worksite at the time of the inspection. Mr. Terry Proctor had responsibility for several worksites, one of which included the 750 17th St. worksite. (Testimony of Mr. Proctor, Tr. 198). Mr. Bill Badgley was a foreman and supervised Mr. Proctor. (Testimony of Mr. Devane, Tr. 102, 106-107). Both men were present at the worksite on the day of the inspection.

DISCUSSION

Alleged violation of 29 CFR 1926.450(a)(9)

14. Concerning Item Number 1, the Complaint alleges that on September 13, 1998, Pepco's employees were working in the cited trench and the side rails of ladders did not extend more than 36 inches above landings, nor were grabrails provided as required by the standard.

15. Before the hearing, I called attention to a recent Review Commission decision. Secretary of Labor v. Lowe Construction Co., 13 BNA OSHC 2182 (No. 85-1388, April 20, 1989). The parties concede that Lowe does control. I have afforded the parties leave to supplement the record with respect to the adequacy of the means of exit. See my separate Order dated September 7, 1989.

Alleged violation of 29 CFR 1926.652(c)

16. 29 CFR 1926.652(c) provides in pertinent part that sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than five feet deep and eight feet or more long.

17. Table P-2 following Section 1926.652 outlines the minimum requirements for trench shoring. When the condition of the earth is hard and the trench is from ten to fifteen feet in depth both uprights and stringers and cross braces are required.

18. Although Pepco argues that the employees were in the process of shoring the trench when Mr. Wiseman halted their operations, the testimony indicates differently. At the time Mr. Wiseman passed by the trench on his return from lunch, there were two Pepco employees at the bottom of the trench about to install a jack at the bottom. (Testimony of Mr. Devane, Tr. 116; See Paragraph No. 5). Moreover, the testimony of the various crew members present at the trench was contradictory and is not fully credited because of their uncertainty in what actually occurred. Even Pepco personnel had been unable to determine what had actually occurred on the day in question. (Testimony of Mr. Sigafoose, Tr. 227).

19. The standard is read to require that shoring be done in a reasonably safe manner. Also, the standard contemplates that there be vertical and horizontal support. (Table P-2 following section 1926.652; Paragraph No. 17). As there were no jacks to provide horizontal support I find that the trench was not properly shored under the standard.

20. Despite the number of Pepco supervisors on the job, there was a lack of supervision. (Paragraph Nos. 11-13). There was confusion at the worksite as a result of a newly instituted job assignment system. (Testimony of Mr. Sigafoose, Tr. 218). Devane, the supervisor in training, was inexperienced in that capacity, and had no experience in digging trenches beyond four feet in depth. Indeed, Devane stated that he was not aware of any Pepco rules or training in digging beyond four feet. (Testimony of Mr. Devane, Tr. 137). The crew members similarly were without experience. Although Mr. Maslar was supposed to assist in the supervising, if needed, the evidence indicates that he paid little attention to what was happening during the digging of the trench. (Testimony of Mr. Devane, Tr. 140-141). Moreover, even if Mr. Maslar had been supervising the employees properly, he had only a sparse knowledge of Pepco's safety manual, having glanced at it only "a 'time or two." (Testimony of Mr. Maslar, Tr. 156-157). This lack of knowledge is evinced by Mr. Maslar's mistaken belief that in a trench of over ten feet, two-inch width stringers were sufficient. (Testimony of Mr. Maslar, Tr. 151-153).

21. This lack of supervision was further complicated by Pepco's training system with respect to trenches in excess of four feet in depth. Pepco's training had a weakness. It did not include digging trenches beyond four feet in depth. Although Pepco's safety manual indicated the proper shoring of trenches in cases such as this, the employees did not actively refer or refresh their memories of the required standards. (See Paragraph 20).

22. The Secretary having established that Pepco failed to properly instruct its employees on necessary safety precautions and that three supervisory personnel present on the day of the inspection had knowledge of or participated in the conduct violating the Act, has made out a prima facie case. Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276, f.7, (6th Cir. 1987). Pennsylvania Power & Light v. OSHRC, 737 F.2d 350, 357 (3d Cir. 1982).

23. Pepco asserts one affirmative defense. It argues that the citation should be vacated because of unpreventable employee misconduct. In order to establish the affirmative defense of employee misconduct, Pepco must prove that the employee's action constituting noncompliance with a standard was a departure from a uniformly and effectively enforced work rule. Daniel International Corporation Wansley Project, 9 BNA OSHC 2027, 2031, (No. 76-1538, 1979).

24. Pepco has failed to prove that the conduct which occurred here was the result of idiosyncratic or unforeseeable employee misconduct. The employees' lack of knowledge in the proper shoring of a trench beyond four feet is indicative of the aforementioned deficiency in the training program. The violation is affirmed.

PENALTY

25. Under section 17(j) of the Act, consideration is given to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of any previous violations in determining the assessment of an appropriate penalty.

Pepco, a large corporation, had eight employees at the worksite on the day of the inspection. Pepco acted in good faith and the objectives in establishing the crew leader position are commendable. Although proceeding in a mistaken fashion, the crew leader was taking steps to shore the trench. The record does not reflect any previous violations. A penalty is assessed only because the gravity of the offense is potentially severe. Under these circumstances a penalty of $200 is appropriate.

ORDER

IT IS HEREBY ORDERED THAT:

1. Consistent with a separate order entered on this date, the allegation concerning means of egress from the trench, 29 CFR 1926.450(a)(9) Citation 1, Item 1, is severed and is hereby assigned a separate docket number, 89-2435. The parties are allowed 14 days to notify me in writing if they intend to offer additional evidence in which event, a supplementary hearing will be noticed.

2. The alleged violation of 29 CFR 1926.652(c) Citation 1, Item 2, is affirmed with a penalty of $200.

Paul A. Tenney
Judge, OSHRC

DATED: SEP 27 1989
Washington, D.C.

FOOTNOTES:

[[1]] The Stipulation and Settlement Agreement renders moot a Motion for Oral Argument filed previously by Respondent.