UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION



Secretary of Labor,

	

 

          Complainant

	

 

           v.

	

             OSHRC Docket No. 08-0524

A. L. Grading Contractors, Inc.,

	

 

          Respondent.

	

 



Appearances:


              Dane L. Steffenson, Esquire, Office of the Solicitor, U.S.
Department of Labor, Atlanta, Georgia

                            For Complainant


              Andrew N. Gross, Esquire, H B Training & Consulting, LLC,
Lawrenceville, Georgia

For Respondent


Before: Administrative Law Judge Ken S. Welsch


DECISION AND ORDER


            A. L. Grading Contractors, Inc., develops construction sites
and installs underground utilities in the Atlanta, Georgia, area. In
January 2008, ALG was preparing the site and installing underground
utilities for an expansion project of a shopping center, known as the
Prado, on Roswell Road in Sandy Springs, Georgia. Occupational Safety
and Health Administration (OSHA) compliance officer Freddy King drove by
the site on January 24, 2008, and, noting the large scope and numerous
pieces of heavy equipment on the project, decided to take a closer look.
When King observed what he considered to be violations of the
Occupational Safety and Health Act of 1970 (Act), he conducted an
inspection of the site. As a result of King’s inspection, the Secretary
issued two citations to ALG on March 13, 2008.

            Item 1 of citation no. 1 alleges a serious violation of 29
C. F. R. § 1926.21(b)(2) for failing to instruct each employee in the
recognition and avoidance of unsafe conditions. Item 2 of citation no. 1
alleges a serious violation of 29 C. F. R. § 1926.651(c)(2) for failing
to provide a safe means of egress from an excavation more than 4 feet
deep, so as to require no more than 25 feet of lateral travel. The
Secretary proposed penalties of $3,500.00 for each of these items.

            Item 1 of citation no. 2 alleges a willful violation of 29
C. F. R. § 1926.652(a)(1) for failing to provide an adequate protective
system from cave-ins in an excavation more than 5 feet deep. The
Secretary proposed a penalty of $ 38,500.00 for this item.

            ALG timely contested the citations. The court held a hearing
in this matter on July 22, 2008, in Atlanta, Georgia. The parties
stipulated jurisdiction and coverage (Tr. 4). The parties have filed
post-hearing briefs. ALG denies it violated the OSHA standards relating
to the means of egress from the excavation and the failure to have a
protective system from cave-ins in the excavation. ALG argues that if a
violation for failure to have a protective system in an excavation is
found, the violation is not willful. ALG concedes it violated the terms
of the standard relating to employee safety training, but asserts the
violation resulted from unpreventable employee misconduct. At the
hearing the parties stipulated to a number of facts regarding the
conditions on the worksite the day of the inspection (Tr. 4-7).

            For the reasons discussed below, the court affirms, as
serious, items 1 and 2 of citation no. 1. The court assesses a penalty
of $ 3,500.00 for item 1, and a penalty of $ 1,000.00 for item 2. The
court affirms item 1 of citation no. 2 as willful, and assesses a
penalty of $21,000.00 for that item.

Facts

            ALG has been developing worksites and installing underground
utilities for construction projects since 1993. ALG also undertakes deep
excavations for parking decks, large shopping malls, treatment plants,
and reservoirs. The company owns many pieces of heavy equipment,
including excavators, scrapers, bulldozers, and loaders (Tr. 19).

            In February 2007, ALG began work as a subcontractor to
general contractor Balfore-Beatty on the Prado project. The project
included the demolition of apartments and office buildings, and the
construction of a three-level parking deck and numerous retail stores. A
small section of the original Prado shopping center remained (Tr. 20-21).

            ALG’s job was to grade the site, excavate the area planned
for the parking deck, and install the storm sewer and water lines (Tr.
22). In January 2008, ALG had completed over half of its work on the
project. At the time of the inspection, ALG was in the process of tying
a new sewer line to an existing sewer line on Lake Placid Drive, the
street to the immediate north of the original Prado (Tr. 23).

            On January 24, 2008, OSHA compliance officer Freddy King was
driving north on Roswell Road, the street to the immediate east of the
project. King saw the large construction project to his left at the
Prado. He turned left and entered the upper parking lot for the Prado
and observed the work underway at the south end of the project for 10 or
15 minutes. Satisfied there were no obvious OSHA violations, King
started to drive away from the site. As he exited, King noticed an
excavation at the north end of the site, between the Prado and Lake
Placid Drive. King parked his car in the lower parking lot where he
could overlook the excavation. He observed two employees in the
excavation, and an employee positioned as a flagger for the traffic on
Lake Placid Drive (Tr. 39-40). King did not see a protective system in
the excavation, despite the walls extending above the heads of the
employees in the excavation. King saw a ladder in the excavation. He
videotaped the excavation from his location in the lower parking lot.
King then walked from the parking lot to an access road, and followed
the access road to the excavation, arriving 2 or 3 minutes later (Exh.
C-1; Tr. 41). By this time, the ladder was no longer in the excavation,
but lying on the ground to the right of the excavation (Tr. 46).

            King motioned to the two employees to exit the excavation.
The employees climbed a mound of dirt and pulverized rock in the middle
of the excavation to exit it (Tr. 48). King also motioned to ALG site
superintendent Michael Berry, who was sitting in his truck, to come
over. King held an opening conference with Berry (Tr. 50).

            King measured the excavation and interviewed Humberto Cortez
and Mario Trujillo, the two employees in the excavation. Cortez could
speak some English, and he translated for Trujillo. The employees stated
they had been trained in excavation safety (Tr. 54). Cortez accompanied
King to speak with Melquiades Alvarez, the flagger. Alvarez told King he
had not been trained in traffic control safety (Tr. 55-56).

            King measured the excavation and found it to be 32 feet
long, 9.2 feet deep, and over 8 feet wide. King took the depth
measurement where he had seen Cortez and Trujillo working, just south of
an existing gas line that bisected the excavation. A manhole was at one
end of the excavation. An existing telephone line and other utility line
were at the other end of the excavation (Exhs. C-3, C-5; Tr. 55, 104).

            Because it was cold that day, King and Berry sat in Berry’s
truck to finish discussing the inspection. Berry presented King with his
competent person training certificate (Tr. 58). Berry told King he had
classified the soil as Type C. King took a written statement from Berry.
King would write down a question, read it to Berry, and then write down
Berry’s response. After King finished questioning Berry, he gave the two
pages to Berry to review and make any changes he thought were warranted.
Berry signed the bottom of the second page without making any changes
(Exh. C-6; Tr. 75).

            As a result of King’s inspection, the Secretary issued the
two citations that gave rise to this case.

Citation No. 1

The Secretary has the burden of proving the violation by a preponderance
of the evidence.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).


/Atlantic Battery Co., /19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Item 1: Alleged Serious Violation of § 1926.21(b)(2)

            The Secretary alleges ALG committed a serious violation of §
1926.21(b)(2), which provides:

The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other exposure
to illness or injury.


            The citation alleges the flagger “had not been trained or
certified in safe temporary traffic control practices.” ALG’s flagger
caught King’s attention as soon as he drove by that end of the worksite.
King stated (Tr. 116):

Mr. Alvarez was controlling traffic at the job site at that time. He
didn’t see me coming. He didn’t know I was there. If I would not have
stopped, I could have driven right past him, and he would not have known
I was even there. I went past him, turned around and came back, and Mr.
Alvarez just kind of motioned me through with just a glance over his
shoulder to see if any other traffic was coming.


            ALG does not dispute the applicability of § 1926.21(b)(2) to
Alvarez working as a flagger at the Prado worksite. ALG was performing
construction work and its activities are covered by the construction
standards found in part 1926 (Tr. 7). Neither does ALG dispute its
noncompliance with the terms of § 1926.21(b). At the hearing (Tr. 5-6)
and in its post-hearing brief, ALG stipulated (ALG’s brief, p. 4):
“Melquiades Alvarez, an A. L. Grading employee, was directing traffic.
He was not trained as a traffic controller or as a flagger.”

            The Secretary established employee exposure to a hazardous
condition. King testified, “Alvarez was exposed to being struck by
vehicular traffic,” risking a concussion, multiple fractures, and
possibly death (Tr. 78). ALG also stipulated it knew Alvarez was working
as a flagger despite not being trained in traffic control safety (ALG’s
brief, p.4): “The Employer knew that the two employees were in the
trench, and that Mr. Alvarez was controlling traffic. . . . A. L.
Grading has trained certain employees on traffic control, including at
least two employees who were working at the Prado on the day of the
inspection.”

            The Secretary has established ALG violated § 1926.21(b)(2).
Despite ALG’s many concessions and stipulations regarding this item, the
company argues the violation of the cited standard resulted from
unpreventable employee misconduct.

Unpreventable Employee Misconduct

            In order to establish the affirmative defense of
unpreventable employee misconduct, an employer is required to prove (1)
that it has established work rules designed to prevent the violation,
(2) that it has adequately communicated these rules to its employees,
(3) that it has taken steps to discover violations, and (4) that it has
effectively enforced the rules when violations are discovered. /Precast
Services, Inc., /17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), /aff’d
without published opinion, /106 F. 3d 401 (6th Cir. 1997). ALG failed to
prove each of these elements of its defense.

Established Work Rule

            ALG superintendent Michael Berry claimed ALG had a work rule
requiring the company to use only trained flaggers, but his testimony on
this point was less than convincing. Berry’s testimony tends to support
the theory ALG established a work rule after King’s inspection took
place (Tr. 150-152):

Q. You said there is a rule that flaggers have to be trained. What rule
are you referring to?

 

Berry: That’s a Department of Transportation rule, and then A. L.
Grading has a rule.

 

Q. And, do you know where it appears as far as A. L. Grading having this
rule? Is it in their policies and procedures that we looked out every day?

 

Berry: I couldn’t tell you particularly whether it was there in the
handbook or whatever, but I think it is a written rule of A. L. Grading.

 

Q. Do you know whether it’s a written rule of A. L. Grading?

 

Berry: Do I know for a fact? I have seen a new pamphlet that it’s a
written rule in A. L. Grading. I don’t remember which pamphlet it is.

 

Q. A new pamphlet since the OSHA inspection?

 

Berry: I guess. I don’t know. I mean, I don’t know the date on it.

 

Q. Do you know whether A. L. Grading had such a rule prior to the OSHA
inspection?

 

Berry: I couldn’t say that they had a written rule or not, sir. I know I
knew about it.


            The employee misconduct defense does not require the
established work rule to be written, but it is helpful to adduce a copy
of the written rule if it exists. Although Berry referred to a handbook
and a “new pamphlet,” in which he read the rule, ALG did not introduce
into evidence a safety manual or any other documentation in which such a
rule appears.

Communicated to Employees

            Even if Berry’s testimony had proven that ALG had an
established work rule requiring flaggers to be trained, the company
failed to communicate it to its employees. Jose Israel Velez was not
only an employee of ALG’s at the time of the hearing, he was a pipe
foreman–a supervisory employee (Tr. 169). It was Velez who assigned
Alvarez to work as a flagger (Tr. 170). At the hearing, Velez contended
(through an interpreter) he was aware ALG had a work rule requiring
flaggers to be trained in traffic safety. This contradicted his
testimony given in a deposition the previous week (Tr. 170):

Q. Do you remember our deposition last week?

 

Velez: Yes.

 

Q. Do you recall me asking you, were you aware prior to January 24^th
that to be a flagger to control traffic that you had to be trained to do
that?

 

Velez: Yes, I remember you asked me.

 

Q. And, you answered, “No, I did not know.”

 

Velez: I don’t remember answering that.

Velez did not know whether Alvarez had been trained in traffic control
safety. Velez testified he assigned Alvarez the flagging position
because, “I just thought of putting him there” (Tr. 171). Velez first
said he learned of the training rule from “[f]riends and other people
that work in construction” (Tr. 171). When asked if he had been trained
to assign only flaggers who had received traffic control training, Velez
responded that, a couple of years ago, a supervisor named Jose had told
Velez about the rule “[d]uring a chat outside of work” (Tr. 172). Velez
also stated the day after the inspection, “Mr. Mike Berry told me in a
comment that we had done something wrong by putting [Alvarez] in that
position” (Tr. 172).

            The court is left with the strong impression that Berry’s
post-inspection comment to Velez was the first time anyone from AGL had
mentioned the flagger safety training rule to him. AGL has failed to
establish it had a work rule addressing this issue that was communicated
to its employees, including its supervisory personnel.

Discovery of Violations

            ALG made no real attempt to prove it takes steps to discover
violations of its supposed rule. Velez did not know whether Alvarez had
been trained when he assigned him to be the flagger. Berry admitted he
did not know who was and was not trained in traffic control safety among
his employees, so he had no way of knowing whether a given flagger was
in compliance with the rule or not. Berry also stated he had no process
for discovering whether the rule was being violated: “I personally
didn’t know the name of every trained flagger we have, no, sir, I
didn’t. I did not personally ask Mr. Alvarez that day if he had flaggers
training, no” (Tr.154).

Enforcement of Rule

            Similarly, Berry stated he had no method for enforcing the
rule (Tr. 154). Velez testified that, even though Berry told him he had
done something wrong in assigning Alvarez as flagger, he was not
reprimanded or otherwise disciplined for this safety infraction (Tr.
172-173).

            ALG has failed to establish employee misconduct at every
level. Item 1 is affirmed as serious.

Item 2: Alleged Serious Violation of § 1926.651(c)(2)

Section 1926.651(c)(2) provides:

A stairway, ladder, ramp or other safe means of egress shall be located
in trench excavations that are 4 feet (1.22 m) or more in depth, so as
to require no more than 25 feet (7.62 m) of lateral travel for employees.

 

            It is undisputed that three of the four elements of the
Secretary’s burden of proof are established by the record:

            /Applicability: /The excavation was 32 feet long and more
than 4 feet deep (Tr. 55). The cited standard applies to the excavation.

 /          Employee Exposure: /Two employees were in the excavation. If
a violation is found, they were exposed to the hazard of being seriously
injured or killed in a cave-in.

 /          Knowledge: /A ladder was in the excavation when King first
observed it from the upper parking lot (Exhs. C-1, C-4; Tr. 43). For
some unknown reason, by the time King arrived at the excavation 2 or 3
minutes later, the ladder was laying on the pavement on the east side of
the trench (Tr. 110). The employees exited the excavation by walking up
a mound of dirt and pulverized rock in the middle of the excavation.
Berry and Velez knew the employees were exiting in this manner, and
Berry himself walked “[u]p and down the slope” to exit and enter the
excavation (Tr. 143). Footnote
<javascript:WPShow('WPFootnote1',%20WPFootnote1%20)> If a violation is
found, Berry had actual knowledge of the violation. “[W]here a
supervisory employee has actual or constructive knowledge of the
violative conditions, that knowledge is imputed to the employer, and the
Secretary satisfies [her] burden of proof without having to demonstrate
any inadequacy or defect in the employer's safety program."/Dover
Elevator Co., Inc/., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). As
supervisor, Berry’s knowledge is imputed to ALG.  

            The only remaining issue is whether the mound of dirt and
pulverized rock the employees used to exit the excavation was a safe
means of egress.

            The morning of the inspection, ALG’s crew had laid the first
piece of sewer pipe in the excavation. It then poured a mixture of dirt
and pulverized rock on top of the pipe as backfill (Tr. 124). The
resulting mound was located between the manhole at one end of the
excavation and an existing gas line that cut across the excavation. In a
typical ramp designed for exiting an excavation, the ramp rises from the
bottom to one end of the excavation, where it flattens out as it reaches
ground level. Here, the mound rose up in the middle of the excavation,
ending in a peaked top that fell short of ground level. King estimated
the distance between the top of the mound to the pavement to be 18
inches to 2 feet (Tr. 82). Velez estimated the distance to be 10 to 12
inches (Tr. 177). The photographs of the excavation show a significant
gap between the top of the mound and the pavement. Loose rocks are
visible on the mound (Exhs. C-2, C-3, C-4, C-5).

            When King arrived at the excavation, he motioned the
employees to get out. King turned to look at Berry as he approached him
from his truck. King stated (Tr. 48):

I noticed a motion out of the corner of my eye, and it was the employees
climbing up this mound of dirt to exit the excavation. . . I was not
able to observe them climbing up the mound of dirt, as I was trying to
bring my video camera and turn it on to get it to activate and take a
picture of them exiting the trench by what I considered to be an unsafe
means.


            Velez testified that after the backfill had been poured on
top of the pipe, his crew had hit it with the bucket of a an excavator
and graded it (Tr. 178). Berry testified the mound was at a “walkable
slope” (Tr. 127). Velez stated it was no problem for employees to step
up out of the excavation “without using their hands” (Tr. 177). King
disagreed with their assessments. He estimated the angle of the slope to
be from 40 to 45 degrees (Tr. 114). He stated that, in an emergency
situation, employees could potentially attempt to exit the excavation in
a panicked state, exacerbating the already unsafe condition (Tr. 79-80):
“If the employees needed to exit the trench excavation in a hurry, due
to the looseness of the mound of dirt and the angle of that mound of
dirt, they could not egress the trench quickly in a safe manner. That
would lead to either being struck by a collapsing trench or engulfment
by the soil.”

            The court determines the mound of backfill did not serve as
a safe means of egress from the excavation. The mound was at a steep
angle and covered with loose rocks. It ended in a peak, not a flat
surface. From the peak, employees had to step up at least 10 inches to
the pavement. In the event of an emergency, it is likely employees would
have difficulty keeping their footing and emerging from the excavation
quickly. Item 2 is affirmed.

Citation No. 2

Item 1: Alleged Willful Violation of § 1926.652(a)(1)

 

The Secretary alleges ALG committed a willful violation of §
1926.652(a)(1), which provides:

Each employee in an excavation shall be protected from cave-ins by an
adequate protective system designed in accordance with paragraph (b) or
(c) of this section except when:

(i) Excavation are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52 m) in depth and examination
of the ground by a competent person provides no indication of a
potential cave-in.


           ALG stipulated the excavation was more than 5 feet deep and
no trench box was in it at the time of the excavation (Tr. 5). ALG
argues it was in compliance with the standard because the excavation
falls within exception (i) of § 1926.652(a)(1): it was made entirely in
stable rock. It is ALG’s burden, as respondent, to prove the excavation
was made entirely in stable rock. As an exception, the burden of proof
is on the party claiming its benefit. /Kasper Wire Works, Inc., /18 BNA
OSHC 2178, 2194(No. 90-2775, 2000 /aff’d /268 F3d 1123 (D. C. Cir. 2001)

            Section 1926.650(b) defines stable rock as:

natural solid mineral material that can be excavated with vertical sides
and will remain intact while exposed. Unstable rock is considered to be
stable when the rock material on the side or sides of the excavation is
secured against caving-in or movement by rock bolts or another
protective system that has been designed by a registered professional
engineer.


            Based on his visual inspection of the excavation, King
initially classified the soil as Type B because he observed mineral
deposits, striations, layering of rock, soil around stones in the walls,
and an unsupported undercut in one of the walls (Exh. C-5; Tr. 66). King
described the soil in the walls of the excavation as “mineral deposits,
. . . granular in nature, not the composition of a clay and not the
composition of a sand, somewhere in between, maybe a loam” (Tr.
112-113). King later changed his classification of the soil to Type C,
based on the “disturbance of the soil during the installation of the
preexisting utility lines” (Tr. 112).

            At the hearing, Berry testified ALG did not need to use a
trench box in the excavation because it was in “solid rock” (Tr. 124).
Berry based his opinion on his field experience (Tr. 163). Berry’s
testimony contradicts the written statement taken down by King and
signed by Berry during the inspection. In that statement, Berry
conceded, in pertinent part, the following (Exh. C-6):

3. Did you type the soil prior to or at the start of work?

 

/A. Yes test drilled the whole road. Typed as type C due to the
fractured rock./

 

4. For a trench of this depth, 9 foot plus, is protection required from
cave-in hazards?

 

/A. Yes/

5. What kind of protection could have been used?

 

/A. Trench Box Could not slope it due to the situation and location./

 

6. Is there a trench box available for use at this site?

 

/A. Yes it’s a 20-foot box but we couldn’t use it because its too long
to be installed in the areas we had to work in between the existing
utilities./

 

7. Does the company have additional short trench boxes?

 

/A. Yes/

 

8. Why did you have employees enter the trench without protection from
cave-in?

 

/A. Trying to expedite re-opening the public road, Lake Placid Drive./

/. . ./

12. Did you consider this trench safe for employees to work in?

 

/A. No/

 

            Confronted with this damaging statement at the hearing,
Barry admitted he had read it and signed it without making any changes,
and without telling King he disagreed with any of the answers King had
written down (Tr. 131). Barry explained that he regarded the inspection
as a “traffic stop,” where you tell the officer, “‘Yes, sir,’ ‘No, sir,’
tell them what they want to hear” (Tr. 131-132). Barry elaborated (Tr.
164-165):

I was trying to be as polite and professional with Mr. King as I could
and agreed with anything he said, more or less, and was probably pretty
gullible because I wouldn’t have signed the statement if I had to do it
over again today. But, I wouldn’t have gotten confrontational with him
either because he was a man of authority. I view him just like a trooper.


            In his 35 years working in construction, Barry had been
involved in at least ten OSHA inspections (Tr. 144). Barry was the
superintendent over the Prado project and three other project sites at
the time of the inspection (Tr. 122). He was an experienced supervisor
entrusted with overseeing large project sites. It is reasonable to
expect Barry would be able to interact with an OSHA compliance officer
and correct mistaken impressions the compliance officer may have
expressed without becoming “confrontational.” While his claim he was
attempting to appease King may be understandable, it does not explain
away his answers in his written statement. Barry does not claim King
dictated his answers to him or otherwise coached him. Barry specifically
states in his answers that he did not use the trench box on site because
it was too long, and he was trying to expedite the job so he compromised
on excavation safety. He stated he did not consider the excavation safe
to work in. At no time during the inspection did Barry inform King he
believed the excavation was in stable rock. To the contrary, Barry told
King he classified the soil as Type C “due to the fractured rock” (Tr. 59).

            No weight is given to Barry’s testimony at the hearing
regarding his belief the excavation was in solid rock. The written
statement taken down by King and signed by Barry, contemporaneous with
the inspection, is credited as reliable.

            ALG attempted to bolster its argument at the hearing with
the testimony of John Clark. Clark is the project manager in testing for
Contour Engineering (Tr. 180). Contour Engineering performed a boring
test the parties stipulated was “further up the access road” from the
excavation located at the corner of the access road and Lake Placid
Drive (Tr. 188). Clark testified the boring sample indicated “auger
refusal at three feet below” (Tr. 187). Auger refusal typically
indicates the auger has reached solid rock, but, Clark stated, it could
also occur with layered rock or boulders mixed with sand or other
minerals (Tr. 183-184).

            Even if the results for the boring sample are assumed to be
the same for the excavation, ALG’s case is not proven. The boring sample
showed auger refusal at three feet. Exception (i) of Section
1926.652(a)(1) requires the excavation to be “made /entirely/ in stable
rock.” A 9.2 foot deep excavation made in the location of the boring
sample would be made only in ? stable rock.

            The court finds not only did AGL fail to establish the
excavation was in stable rock, the Secretary established the excavation
was not in stable rock. The court credits King’s testimony that the
excavation was dug in Type C soil.

            Employees Trujillo and Cortez were exposed to the risk of
serious injury or death by a cave-in. Supervisor Barry and pipe foreman
Velez knew the employees were in the excavation without adequate
protection. Their knowledge is imputed to ALG. The Secretary has
established ALG committed a violation of § 1926.652(a)(1).

Willful Classification

            The Secretary classifies this violation as willful.

            A willful violation is one “committed with intentional,
knowing or voluntary disregard for the requirements of the Act, or with
plain indifference to employee safety.” /Falcon Steel Co., /16 BNA OSHC
1179, 1181, 1993-95 CCH OSHA ¶30,059, p. 41, 330 (No. 89-2883,
1993)(consolidated); /A.P. O’Horo Co., /14 BNA OSHC 2004, 2012, 1991-93
C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of evil or
malicious intent is not necessary to establish willfulness. /Anderson
Excavating and Wrecking Co., /17 BNA OSHC 1890, 1891, n.3, 1995-97 C.H.
OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), /aff’d/ 131 F.3d 1254
(8th Cir. 1997). A willful violation is differentiated from a nonwillful
violation by an employer’s heightened awareness of the illegality of the
conduct or conditions and by a state of mind, /i.e., /conscious
disregard or plain indifference for the safety and health of employees.
/General Motors Corp., Electro-Motive Div., /14 BNA OSHC 2064, 2068,
1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated).
A willful violation is not justified if an employer has made a good
faith effort to comply with a standard or eliminate a hazard, even
though the employer’s efforts were not entirely effective or
complete./L.R. Willson and Sons, Inc., /17 BNA OSHC 2059, 2063, 1997
C.H. OSHA ¶ 31,262, p. 43,890 (No. 94-1546, 1997), /rev’d on other
grounds, /134 F.3d 1235 (4th Cir. 1998); /Williams Enterp., Inc., /13
BNA OSHC 1249, 1256-57, 1986-87 C.H. OSHA ¶ 27,893, p. 36,589 (No.
85-355, 1987). The test of good faith for these purposes is an objective
one; whether the employer’s efforts were objectively reasonable even
though they were not totally effective in eliminating the violative
conditions. /Caterpillar, Inc. v. OSHRC, /122 F.3d 437, 441-42 (7th Cir.
1997); /General Motors Corp., Electro-Motive Div., /14 BNA OSHC at 2068,
1991-93 C.H. OSHA at p. 39,168; /Williams Enterp., Inc., /13 BNA OSHC at
1256-57, 1986-87 C.H. OSHA at pp. 36, 589.

 

/A.E. Staley Manufacturing Co., /19 BNA OSHC 1199, 1202//(Nos. 91-0637 &
91-0638, 2000).

            ALG contends Berry was a well qualified project supervisor
with 35 years of experience in construction. The court agrees with this
assessment. Berry received training as a competent person (Tr. 141).
Berry also took OSHA’s 30-hour class and a soil erosion class
administered by the State of Georgia (Tr. 141). King stated, “[I]t was
my determination that he was, in fact, a competent person and had a good
general working knowledge of the OSHA requirement for safe excavation
and trenching work” (Tr. 58).

            ALG uses Berry’s expertise to argue, “The reasonable and
objective good faith determination by Superintendent Berry that his
excavation was in stable rock and therefore conformed to OSHA
requirements negate the willful classification” (ALG’s brief, p. 12).
This argument cannot be squared with Berry’s written statement.

            Berry did not determine the excavation was in stable rock.
He determined the excavation was in Type C soil. Berry admitted he knew
the excavation was not safe to work in. He could not use the 20-foot
trench box on site because it would not fit into the excavation with the
existing gas line cutting across it. Although the company has shorter
trench boxes Berry could have had brought to the site, he chose not do
so. Berry deliberately sent two employees into the excavation without
cave-in protection because he was trying to expedite the re-opening of
Lake Placid Drive (Exh. C-6). Berry sacrificed safety for expedience.

            “The hallmark of a willful violation is the employer’s state
of mind at the time of the violation–an ‘intentional, knowing, or
voluntary disregard for the requirements of the Act or . . . plain
indifference to employee safety.’” /Kaspar Wire Works, Inc., /18 BNA
OSHC 2178, 2181 (No. 90-2775, 2000), /aff’d /268 F.3d 1123 (D.C. Cir.
2001). The record makes clear Berry’s state of mind at the time Trujillo
and Cortez were working in the excavation. Berry knew the excavation was
not safe, yet he sat in his truck next to the excavation as they labored
in the trench. Berry knew ALG should place a trench box in the
excavation, but he knowingly disregarded this requirement.
            The Secretary has established ALG’s violation of §
1926.652(a)(1) is willful.

Penalty Determination

            The Commission is the final arbiter of penalties in all
contested cases. In determining an appropriate penalty, the Commission
is required to consider the size of the employer’s business, history of
previous violations, the employer’s good faith, and the gravity of the
violation. Gravity is the principal factor to be considered.

            ALG employed approximately 85 employees at the time of
King’s inspection (Tr. 7). OSHA had previously inspected an ALG worksite
and had issued citations to the company, including a citation for
failing to provide cave-in protection in an excavation (Tr. 77, 118).
ALG demonstrated good faith during the inspection. The remaining factor
to be considered is the gravity of the violations.

            /Item 1 of citation no. 1–§ 1926.21(b)(2): /The gravity of
this violation is high. ALG assigned Alvarez as a flagger despite his
not having been trained in traffic control safety. Alvarez was exposed
to being struck by passing vehicles. It was Alvarez’s inattentiveness
that first drew King’s attention (Tr. 116). The gravity of Velez’s
assignment of Alvarez as flagger is exacerbated by the fact ALG had at
least two employees on site who had been trained in traffic control
safety (Tr. 8). The assignment of Alvarez demonstrates a cavalier
attitude toward the requirements of § 1926.21(b)(2). The court agrees
with the Secretary that the proposed penalty of $ 3,500.00 is appropriate.

            /Item 2 of citation no. 1–§ 1926.651(c)(2): /The gravity of
this violation is high. The only means of egress the employees had out
of the excavation was a steep backfill mound that fell short of the
pavement. The gravity is mitigated somewhat by the peculiar
circumstances surrounding the ladder that disappeared from the
excavation. The stills from King’s videotape show the ladder was in the
excavation when he arrived at the worksite. Velez stated that, in his
experience, ALG always used a ladder, rather than a ramp, for employees
to exit and enter an excavation. For some reason (perhaps so the
employees could maneuver more easily as they worked?), someone removed
the ladder and placed it next to the excavation by the time King walked
to the immediate worksite. When King motioned to the employees to exit
the excavation, the only means available to them was to climb the
backfill mound. King saw the ladder lying next to the excavation. It is
unclear why he did not instruct another ALG employee to replace the
ladder in the excavation for the employees to make a safe exit as they
obeyed his order. Due to the fleeting nature of the exposure (no more
than 3 minutes), the court determines an appropriate penalty for this
violation is $ 1,000.00.

            /Item 1 of citation no. 2–§ 1926.652(a)(1): / The gravity of
employees working in a 9.2 foot deep excavation without any form of fall
protection is high. Had a cave-in occurred Trujillo and Cortez most
likely would have been crushed by the weight of the rock and soil
mixture that made up the walls. An excavator was running adjacent to the
excavation, creating vibrations that could contribute to the occurrence
of a cave-in (Tr. 36). It is determined, however, the Secretary’s
proposed penalty of $ 38,500.00 is too high. Berry testified ALG had
used a hydraulic hammer to excavate the trench (Tr. 137). In two days,
ALG had excavated approximately 32 feet. Usually Berry would expect his
crew to excavate 200 feet a day (Tr. 133-134). Although Berry knew the
excavation was in fractured rock, he took a calculated risk the
excavation walls would not collapse. Pressured to finish the sewer
tie-in quickly, Berry made a snap judgment. While misguided, his
judgment was influenced by the difficulty the crew had in excavating the
trench. The court determines a penalty of $21,000.00 is appropriate.

 

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

            The foregoing decision constitutes the findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal Rules of
Civil Procedure.

ORDER

            Based upon the foregoing decision, it is ORDERED that:

            1.        Item 1 of citation no. 1, alleging a serious
violation of § 1926.21(b)(2), is affirmed             and a penalty of $
3,500.00 is assessed;

            2.        Item 2 of citation no. 1, alleging a serious
violation of § 1926.61(c)(2), is affirmed             and a penalty of $
1,000.00 is assessed; and

            3.        Item 1 of citation no. 2, alleging a willful
violation of § 1926.652(a)(1), is affirmed             and a penalty of
$21,000.00 is assessed.

 

 

 

                                                                                                /s/


                                                                                                KEN
S. WELSCH

                                                                                                Judge


Date:     December 15, 2008