COMMUNICATIONS, INC.

OSHRC Docket No. 76-1924

Occupational Safety and Health Review Commission

July 31, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Charles T. Magarahan, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James Burroughs is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed, as repeated and serious, a citation alleging a violation of 29 C.F.R. 1926.652(b) n1 and, as repeated and nonserious, a citation alleging a violation of 29 C.F.R. 1926.651(i)(1). n2 Although the employer was also charged with willful violations of the cited standards, the judge refused to characterize these violations as "willful" and, as a consequence, lowered the proposed penalties of $1900 and $190, to $950 and $125, respectively. On review, the Secretary takes exception to the judge's conclusion on the "willful" issue, while Communications excepts to the affirmance of the citations. Moreover, Communications excepts to the judge characterizing both violations as repeated and to his conclusion that the 1926.652(b) violation is serious. We agree with the judge's affirmance of both [*2] violations, his characterization of them as repeated, and his conclusion that the 1926.652(b) violation was serious. However, we find merit in the Secretary's exception regarding the willful nature of the violations. Accordingly, we modify in part the judge's decision.

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n1 29 C.F.R. 1926.652(b) provides:

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.

n2 29 C.F.R. 1926.651(i)(1) provides:

In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

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At the time of the inspection, on April 6, 1976, Communications, a utility contractor, was excavating a trench in Cobb County, Georgia. There were two employees working in the trench which was approximately 6'2" deep and 20' long. The sides of the trench were vertical and had [*3] not been sloped, shored or otherwise supported. Excavated soil was stored within 2' of the edge of the trench. The pile, which was 2' high, ran the length of one side of the trench and extended 14' from the edge of the trench to a nearby road.

The job superintendent, Gredrig, asserted that shoring or sloping the trench was not necessary because the soil was stable and solid rock was present starting at the 3-1/2 foot level. For support, he noted that he frequently had to replace the ripper teeth on the backhoe due to wear from grinding on the rock. He testified further that he did not set the spoil pile back at least 2' from the edge of the trench because he did not want to block the nearby road and asserted there was no other place to put it. He maintained that he had removed all rocks and boulders from the pile and believed the pile posed no threat to the safety of the employees. Finally, he testified that, subsequent to the inspection, dynamite was used in the trench without dislodging the spoil pile or cracking the walls.

The two trench workers, however, testified that they had not encountered solid rock until they reached the 6' level, at which point they began to use [*4] jackhammers. One of the workers also asserted that loose dirt had fallen into the trench while they were digging. The compliance officer employed by the Occupational Safety and Health Administration stated that the sides of the trench contained cavities and cracks, old fill, gravel and sand, as well as streaks of oil and tar. Similarly, the Secretary's soil expert, after analyzing soil samples taken from adjacent ground, described the work area as composed of loose fill and sandy micaceous silts. He found no continuous rock present and concluded that a trench dug in that vicinity would be potentially unstable.

In his decision, Judge Burroughs discredited Gredrig's testimony whenever it conflicted with that of other witnesses, in part because Gredrig had frequently been absent from the site during the excavation. In addition, he noted that if the superintendent was correct in his assertion that 2 1/2 to 3 feet of the trench had been cut through solid rock, a substantial pile of rocks would have been produced. However, he observed that the photographs did not show either a large quantity of rocks among the excavated materials or the presence of solid rock running the length of [*5] the trench. Accordingly, he concluded that the soil was unstable and a violation of 1926.652(b) had been shown. Finally, he characterized the violation as serious on the basis that if the walls fell into the trench the workers would probably have suffered serious injuries due to the weight of the soil and the extent to which it would have covered the employees' bodies.

The judge also affirmed the citation for violation of 1926.651(i)(1), recognizing Gredrig's own admission that the spoil pile had been within 2' of the edge of the trench. He noted the compliance officer's testimony to the same effect, as well as the supportive photographs introduced by the Secretary.

The judge further classified both violations as repeated. He observed that uncontested citations involving the same standards had previously been issued to Communications. He found that since those violations the company had failed to adequately train its supervisory personnel regarding OSHA standards and he characterized Communications' attitude towards safety matters as generally one of indifference. He thus concluded that the company had "flaunted" the requirements of the Occupational Safety and Health Act [*6] of 1970, 29 U.S.C. 651 et seq. (the Act) and therefore that the violations were "repeated" under either the Commission's test or the U.S. Court of Appeals for the Third Circuit's test in Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8392, 1975), aff'd in part and rev'd in part, sub nom. Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd. Cir. 1976).

Conversely, the judge concluded that the violations were not willful. Citing C.N. Flagg & Co., 74 OSAHRC 66/A2, 2 BNA OSHC 1195, 1974-75 CCH OSHD para. 18,686 (No. 1734, 1974), petition for review denied, No. 74-2362 (2nd Cir. 1976), and Intercounty Construction Corp., 73 OSAHRC 59/E9, 1 BNA OSHC 1437, 1973-74 CCH OSHD para. 17,044 (No. 919, 1973), affirmed, 522 F.2d 777 (4th Cir. 1975), cert. denied 423 U.S. 1072 (1976), Judge Burroughs indicated that a conscious, intentional, deliberate and voluntary decision by an employer to act contrary to a standard of which it is aware establishes a willful violation. However, the judge evaluated Gredrig's conduct using the standard of whether his conduct demonstrated a flaunting or reckless disregard of the Act. Against [*7] this background he found that Gredrig was acting in good faith and was not recklessly endangering the trench workers' safety when he failed to comply with 1926.652(b) and 1926.651(i)(1). To support his finding that Gredrig was acting in good faith, the judge noted that the job superintendent had spread the spoil pile uniformly between the trench edge and the road and that there were some sections of rock present in the walls of the trench. Citing C.N. Flagg & Co., d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD para. 19,251 (No. 1409, 1975), he stated that "a good faith opinion by an employer as to whether a violation existed on the facts will preclude a finding of willful," anc concluded that Communications had not willfully violated the Act.

Communications objects to the judge's decision on a number of grounds. n3 Although it admits to a technical violation of 1926.651(i)(1), it argues that the Secretary failed to establish a violation of 1926.652(b). It contends that the judge erroneously discredited Gredrig's testimony that below the 3 to 3-1/2 foot level the trench was cut through solid rock. Communications further argues [*8] that the judge's conclusion that the soil was unstable cannot be reconciled with the fact that the backhoe's ripper teeth had to be replaced frequently during excavation below the 3-1/2 foot level. In any event, it argues that before a violation of 1926.652(b) can be found, not only must the trench be at least 5' in depth, but there must also be at least 5' of unstable soil.

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n3 Respondent also raised a Seventh Amendment argument with respect to jury trials. The Supreme Court has held that there is no right to a jury trial in Commission proceedings. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977).

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Communications also objects to the judge's characterization of the violations. It contends that the judge erred in finding the violation of 1926.652(b) to be serious, arguing that the term can be applied only if there is a showing that a serious accident is likely to occur. It avers that a cave-in was not possible since the walls and pile remained intact even after dynamite was employed. It further maintains that [*9] the violation of 1926.651(i)(1) was de minimis. Insofar as the violations of 1926.652(i)(1) and 1926.652(b) were found to be repeated, it avers that the judge misapplied the Third Circuit's test of "flaunting" as set forth in Bethlehem Steel Corp. v. OSHRC, supra. Communications contends that after the earlier violations, it developed a written safety manual and instituted weekly safety meetings for supervisors. Rather than having "flaunted" the Act, Communications maintains these actions demonstrate a commitment towards safety. In any case, Communications contends that the Secretary must demonstrate an absolute identity in all respects between the present and the prior violations. Towards this end, it asserts that the Secretary must show the similarity of weather, trench dimensions and working conditions between the previous citations and instant ones before the violations can be termed repeated.

Conversely, Communications supports Judge Burroughs' conclusion that the violations were not willful in nature. It maintains that the evidence must show a reckless disregard for the safety of the employees, or a flaunting of or plain indifference to the Act before [*10] a violation can be characterized as willful. Gredrig's conduct, it argues, does not meet this test. Communications specifically addresses the 1926.652(b) allegation and urges that even if Gredrig was incorrect in his evaluation of the soil as stable, his mistake was a reasonable one, made in "good faith."

In most respects the Secretary urges that the judge's decision be upheld. With respect to the 1926.652(b) allegation, he maintains that there is sufficient evidence to support the finding that the soil was unstable and argues that the judge's credibility resolution of the conflicting evidence on this point should be respected. As to the 1926.651(i)(1) allegation, the Secretary notes that Communications concedes that the spoil pile was within the two foot limit. He agrees with the judge's characterization of the 1926.652(b) violation as serious and argues in support of upholding the judge's conclusion that the violations were repeated, in particular noting the judge's finding that since the prior violations Communications had not adequately trained or supervised its employees in regard to OSHA requirements. The Secretary rejects the contention that a finding of repeated [*11] can be sustained only where the respondent has "flaunted" the requirements of the Act.

However, the Secretary asks that we reverse the judge's decision insofar as the judge refused to characterize the violations as willful. He maintains that the judge erred as a matter of law in determining that a showing of "reckless disregard for employee safety" is a prerequisite to classifying a violation as willful. Rather, he contends that employee action indicating either careless disregard of or plain indifference to the requirements of a standard is sufficient to establish willfulness. The Secretary avers that the judge made such findings in support of his determination that the violations were "repeated". In particular, he notes that the judge found that Communications had shown an attitude of indifference towards the OSHA requirements and had failed to adequately train or supervise its personnel in safety matters.

We agree with the judge's conclusion that Communications violated the cited standards. With respect to the citation for a violation of 1926.652(b), his finding that the soil was unstable was adequately supported by the two workers' testimony as well as that of the compliance [*12] officer and of the soils expert. In addition, his credibility determination against Gredrig was sufficiently detailed and merits our deference. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978). Moreover, even if the Commission were to reverse the judge's credibility resolution and credit the testimony of Gredrig, we would still conclude that a violation existed. In W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD para. 20,574 (No. 7370, 1976), the Commission rejected the argument that the unstable soil must be at least 5 feet in depth before a violation of 1926.652(b) can be found. The Commission held that in trenches 5 feet or more in depth the employer must shore or slope walls partially composed of unstable soil as long as the soft or unstable portion is not insignificant.

We also agree with the judge's determination that Communications' violation of 1926.651(i)(1) was non-serious and that its violation of 1926.652(b) was serious. Hence, we reject Communications' contention that the violation of 1926.651(i)(1) should be termed "de minimis." That classification is reserved [*13] for violations where the resulting hazard is trifling. Van Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20,633 (No. 5007, 1976). The additional weight of the spoil pile could have caused the trench walls to cave in or the spoil pile itself could have fallen on the employees. Because the employees could have been buried if this occurred, the violation is not de minimis. See Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977), appeal dismissed, No. 77-1807 (3rd Cir. 1978). Nor is there merit to Respondent's position that the Secretary must establish the likelihood of an accident before a violation can be classified as serious. The Secretary need only show that an accident is possible and that such an accident will most likely result in serious injury. Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD para. 21,234 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977). The testimony of the soils expert, the compliance officer and one trench worker supports the conclusion that the soil was not stable and a cave-in was possible. Further, as pointed out [*14] by the judge, while a cave-in is unlikely to completely cover employees standing erect in a 6'2" deep trench, the employees would still be likely to suffer serious physical harm. Moreover, the judge correctly indicated that if the employees had been in a bending position, the chances are great that they would have been fully covered by soil.

We further agree with the judge's disposition of the repeated issue, but for reasons different from those advanced by him. Until recently, no consistent and authoritative view as to what constitutes a repeated violation had emerged from either the Commission or the courts. See the various administrative and judicial opinions in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), aff'd, No. 77-1591 (4th Cir. 1978); and Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1332 n.1 (9th Cir. 1977) (dissenting opinion) (synopsis of major decisions).

However, in the recent decision in Potlatch Corp.,    OSAHRC   , 7 BNA OSHC 1061, 1979 CCH OSHD para. 23,294 (No. 16183, 1979), we held that "[a] violation is repeated under section 17(a) of the Act if, at the time [*15] of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." The Secretary may establish a prima facie case of similarity by showing that the past and present violations are for failure to comply with the same standard. An employer may rebut the Secretary's prima facie case with evidence that the conditions and hazards associated with the second violation are significantly disparate from those involved in the first or other prior violation.

Under Potlatch evidence of an employer having "flaunted" the Act is not required to establish that violations are repeated. An employer's attitude, the commonality of supervisory control over the violative conditions, the geographical proximity of the violations, the time lapse between violations, and the number of prior violations are relevant only to determining an appropriate penalty. Here, the Secretary has established a prima facie case. Communications conceded that prior citations involving the same standards were uncontested and had become final orders of the Commission prior to the date of the inspection giving rise to the present [*16] citations. n4

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n4 In light of this evidence, we need not consider the Secretary's assertion that a prior violation of 1926.652(c) by Communications could serve as the basis for characterizing the present 1926.652(b) violation as repeated.

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As previously discussed, once the Secretary has made a prima facie showing of similarity, the burden shifts to the employer to rebut that showing. Here, Communications has offered no evidence that the conditions associated with the prior violations are dissimilar from those involving the present violations. With respect to the 1926.652(b) charge, contrary to Communications' contentions, it is immaterial to the repeated characterization that the weather, soil and other conditions accompanying the violations may not have been absolutely identical in all respects. The standard has specific provisions and the hazards associated with the violations are the same - the danger of a cave-in. As to the 1926.651(i)(1) violation, the requirement that the spoil pile be kept [*17] at least 2' from the edge applies to every excavation that employees may be required to enter regardless of soil composition or dimensions. In short, there are no possible dissimilarities of circumstances that the Respondent could prove that would rebut the Secretary's prima facie case. n5

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n5 This case was tried and decided prior to our decision in Potlatch. Usually when there has been a significant intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense. See, e.g., Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976). However, in view of the facts as discussed above and the Respondent's defense to the repeated characterization, we conclude that the defense in this case would not have been tried any differently had Potlatch been issued before the hearing. Therefore, we need not offer Respondent an opportunity for a remand. Cf. Belger Cartage Service, Inc., 79 OSAHRC    , 7 BNA OSHC 1233, 1979 CCH OSHD P23440 (No. 76-1480, 1979).

[*18]

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Finally, we conclude that the violations were also willful in nature. We note initially that although the judge correctly identified the test for willful, he did not utilize it in determining whether the violations were willful. The Commission has previously defined a willful violation as action taken knowledgeably by one subject to the statutory provisions of the Act in disregard of the action's legality. P.A.F. Equipment Co, Inc., 79 OSAHRC, 7 BNA OSHC 1209, 1979 CCH OSHD para. 23,421 (No. 14315, 1979). It is conduct that is marked by a careless disregard of a standard or employee safety, or that results from a conscious, intentional, deliberate or voluntary decision. See Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (No. 9483 et al., 1977), aff'd, 593 F.2d 368 (10th Cir. 1979); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD para. 21,613 (No. 9339, 1977), aff'd, 595 F.2d 309 (5th Cir. 1979). Contrary to the judge's holding, no showing of venal motive or reckless disregard on the employer's part is required. [*19] Accordingly, we must reweigh the evidence in light of the appropriate test.

Regarding the 1926.652(b) violation, Gredrig testified that he did not shore, slope or otherwise support the walls of the trench because the walls were solid rock starting at the 3-1/2 foot level and therefore there was no danger of the walls collapsing. n6 With respect to the violation of 1926.651(i)(1), he maintained that he placed the spoil pile within 2' of the trench because it posed little danger to the workers' safety.

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n6 Communications argues that Gredrig also based his decision not to slope or shore on the fact that there was not at least 5 feet or more of unstable soil. However, nowhere in his testimony does Gredrig indicate that his failure to comply was attributable to a belief that the standard was only applicable where 5 feet or more of the walls were unstable. Accordingly we do not consider this contention.

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On the basis of this testimony, the judge found and Communications now argues, that even if Gredrig's action indicated [*20] bad judgment, he acted in "good faith" and therefore the violations were not willful, citing Northeastern Contracting Co., supra. We do not agree.

In Northeastern Contracting Co., supra, the Commission held that where the respondent's supervisor had a reasonable, "good faith" factual difference of opinion with the Secretary as to whether the soil was unstable, there was not a willful infraction of the standard. Here, we find that Gredrig's claim that there was solid rock present in the trench which obviated the need for shoring or sloping, was neither reasonable nor made in "good faith". In reaching this determination, we recognize the judge's contrary conclusion that Gredrig was acting in "good faith." However the judge's ultimate finding of fact as to the "good faith" on Gredrig's part is incompatible with other findings of fact the judge made. n7 See P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD para. 22,491 (No. 14249, 1978).

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n7 It is the Commission, and not its Administrative Law Judges, that is ultimately responsible for the findings it enters. See Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

[*21]

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Specifically, Judge Burroughs found that there was no credible basis to support Gredrig's claim that the trench was solid rock below the 3-1/2 foot level. He noted that a trench cut through solid rock for a depth of 2 1/2 to 3 feet would produce a great pile of rock and that the photographs did not show this. The judge also found that Gredrig had failed to conduct a careful inspection of the trench, that there was fill dirt present, and that the walls of the trench contained gravel and sand. We agree with these findings. In view of these facts, Gredrig, an experienced foreman, who had spent 14 years in the trench industry, could not have reasonably believed that the trench walls were predominantly rock as he claimed. To the contrary, his failure to conduct a careful inspection, coupled with the obvious presence of old fill, gravel and sand, can only support the inference that he acted in careless disregard of both the standard and employee safety. n8 Therefore, the defense of a "good faith", factual difference of opinion as set forth in Northeastern Contracting Co. supra, is not available. [*22] Accordingly, we find that the Respondent willfully violated 1926.652(b).

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n8 Although Gredrig did not testify that he was specifically aware of 1926.652(b), he did state that he was familiar with Communications' Safety Manual, which the company's vice-president testified includes the trenching standards. Thus, even if Gredrig did not actually know of the requirements of the cited standard he had the opportunity to and should have become aware of the standard. Georgia Electric Co., supra.

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With respect to the 1926.651(i)(1) citation, we find that this violation was also willful. Gredrig had been advised of the 2' setback requirement, but chose to ignore it because he believed that the spoil pile posed little danger to the workers. n9 Where a standard prescribes specific conduct, an employer cannot make a deliberate choice to ignore the standard's specific requirements. Western Waterproofing Co., Inc., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977), aff'd in part and [*23] remanded in part, 576 F.2d 139 (8th Cir. 1978). Accordingly, we find that Gredrig acted in intentional disregard of the standard and therefore the violation was willful.

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n9 Gredrig's contention that there was no other place to put the spoil pile is without support in view of the fact that there was 14 feet of land between the trench edge and the road. That portion of the pile within 2 feet of the trench could easily have been spread across the top of the remaining 12 feet expanse of dirt.

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Turning to the penalty assessment, we conclude that the full penalty is $1,900 proposed by the Secretary for the 1926.652(b) violation is appropriate. n10 This amount is warranted because of Communications' attitude of indifference towards OSHA standards. The Respondent failed to properly train its foremen in regard to OSHA standards, while giving them broad discretion to disregard the safety requirements. We also rely on the fact that Communications' prior history of OSHA compliance is not good. The present matter is the [*24] third occasion within 3 years for which it has been issued citations involving trench violations.

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n10 Although the Secretary challenged the willful issue with respect to both citations, he expressly challenged the judge's assessed penalty only as to the 1926.652(b) violation. Therefore, we shall not distrub the $125 amount assessed by the judge for the 1926.651(i)(1) violation.

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Accordingly, we affirm the citations for a repeated, willful and serious violation of 1926.652(b) and a repeated and willful violation of 1926.651(i)(1) and assess penalties of $1,900 and $125 respectively.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with the majority that the violations of 29 C.F.R. 1926.652(b) and 1926.651(i)(1) were repeated within the meaning of 17(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act). However, I reach this conclusion for reasons somewhat different from those advanced in the majority opinion.

The majority correctly concludes that evidence [*25] of flaunting by the employer is not necessary to establish a finding of repeated. Further, I agree with the majority that a violation, in order to be found repeated, must be substantially similar to a prior violation established by a final order of the Commission. However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC    , 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) (concurring and dissenting opinion), I would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise. Instead, I would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation. Where this is not apparent from the face of the citations, I would require the Secretary to prove substantial similarity. Where such a showing has been made, I would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar [*26] violation.

Applying these principles to the facts of this case, I would find that the past and present violations of each standard were substantially similar. Regarding the violations of 1926.652(b), the standard is not directed at a variety of situations, but rather addresses only the hazard of unstable trench walls collapsing. It prescribes methods of abatement which are applicable to all such violations. Therefore, although the prior citation was not introduced into the present record, it is a reasonable inference that the prior violation was substantially similar to the instant violation. n1 With respect to the violation of 1926.651(i)(1), the standard addresses a specific hazard, involving all trenches, and provides for an explicit and invariable means of abatement; therefore I conclude that the instant violation of this standard is substantially similar to prior violations. Accordingly, insofar as the conditions involved in the present citations, Communications was put on actual notice by the prior citations that its safety precautions were inadequate.

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n1 I agree with the majority's observation that weather, soil and other conditions need not be absolutely identical in all respects in order to characterize a violation of a trenching standard as repeated.

[*27]

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I next turn to the issue of whether Communications took good faith steps after the entry of the prior final orders to prevent the recurrence of substantially similar violations. Since this case was tried prior to the issuance of Potlatch, supra, I would normally afford the employer an additional opportunity to present evidence as to this defense. See, e.g., Triple "A" South, Inc., 79 OSAHRC    , 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979). However, such a remand is unnecessary here since the evidence in the present record is sufficient to establish that Communications did not make a good faith effort following receipt of the first citations which would justify vacation of the repeated characterization of the instant citations.

The company's vice-president for safety affairs, Sullivan, testified that Communications distributed a safety manual, which included the trenching standards, and instituted safety meetings after the earlier violations of the cited standards. However, he further stated that its supervisory personnel were free to disregard express safety instructions. [*28] Granting such wide discretion is inconsistent with a program of taking the necessary steps to comply with the standards and avoid a repetition of the same violations. To the contrary, Communications' policy virtually invited a repetition of the same violations. Therefore, I concur in the affirmance of the citations as repeated.