United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, D.C. 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 10-2248 DAISY CONSTRUCTION COMPANY, Respondent. APPEARANCES: John A. Nocito, Esquire, U.S. Department of Labor, Philadelphia, Pennsylvania For the Complainant. Edward Stepp, Director of Risk Management Services, Daisy Construction Company Wilmington, Delaware For the Respondent. BEFORE: Dennis L. Phillips Administrative Law Judge DECISION AND ORDER This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected a work site of Daisy Construction Company (“Daisy” or “Respondent”) on April 29, 2010. The site was located in Dover, Delaware, where Respondent was engaged in trenching work. The inspection resulted in Respondent being issued one serious citation and one willful citation. Respondent contested the citations and the proposed penalties. The hearing in this matter took place in Wilmington, Delaware, on August 23, 2011. Both parties have filed post-hearing briefs. (Tr. 15-21; JX-1, ¶¶ 13-14). The OSHA Inspection Respondent has been in business for about 39 years. It is a Delaware corporation, and its corporate office is in Newport, Delaware. Its work involves highway and road construction. Daisy owns more than 200 pieces of heavy construction equipment. The project at issue, called the South Governors Avenue project (“the project”), involved a 2.25-mile-long area. Part of the project required installing PVC plastic conduit pipe underground so that overhead cables could be replaced with underground cables. (Tr. 31-32, 68, 106, 124, 178; CX-3, CX-4, p. 7, CX-6, p. 3, CX-8, p. 3). On April 29, 2010, OSHA’s Area Director (“AD”) for the Wilmington office, Domenick N. Salvatore, received a complaint about employees being in an unprotected trench at the work site. Footnote The trench was located at South Governors Avenue and Dover Street, Dover, Delaware (“work site” or “project site”). OSHA Compliance Officer (“CO”) Lester Paul Kessler arrived at the project site at about 1:15 p.m. on April 29. He saw an employee in the trench, which had no protection in it, and he photographed what he saw. Footnote He observed another individual standing next to the edge of the trench. He learned that person was Randy Drake, Daisy’s foreman and competent person at the site. Footnote The CO presented his credentials and asked Mr. Drake to have the employee exit the trench. Mr. Drake did so, and the CO began his inspection. He measured the trench and found it to be about 23 feet long and 6.5 feet wide. Its walls were vertical. Its depth was 7 feet 3 inches at one end, 7 feet 4 inches at the other end, and 8 feet 1 inch in the middle. Footnote The CO considered the soil in the trench to be Class C, the least stable soil, as it was previously disturbed soil. Footnote Daisy had previously excavated the soil to install water and sewer lines. The trench was also located at a busy intersection, which could affect the soil’s stability. There was a trench box a few feet away from the trench. Daisy had not put the box in the trench that day. (Tr. 50-51, 68, 96-111, 145-49; JX-1, ¶ ¶ 3-6, CX-2, CX-3, p. 1, CX-4, p. 18). On April 29, CO Kessler interviewed Michael Moore, the Daisy employee who had been in the trench, and Bill King, Daisy’s excavator operator. Mr. Moore said that he had not attended any trenching training classes conducted by Daisy. Mr. Moore also said that he had begun working in the trench that day at about 9:00 a.m. Footnote He told CO Kessler that the trench was approximately 7 to 7 ½ feet deep. Mr. King said that he did not get any training or classes, on trenching or other subjects, from Daisy. Mr. King stated that the trench box had not been used due to a concern that it could have broken the sewer main in the trench. The CO also interviewed Silvano DelSignore, Daisy’s general superintendent at the site. Footnote Mr. DelSignore told him he had arrived at the site around 10:00 a.m., he was aware there was an employee in the trench, and he did not think the trench was that deep. He said he had not used the trench box as he had feared it would break the utility lines in the trench. Finally, the CO interviewed Mr. Drake, who stated that Mr. DelSignore had been at the site and knew the employee was in the trench. Footnote Mr. Drake also stated that Mr. DelSignore had been at the trench site on and off throughout the day. Footnote (Tr. 41, 111-18, 136; CX-3, CX-11, CX-12). As a result of the inspection, Daisy was cited for a serious violation of 29 C.F.R. § 1926.21(b)(2), for failing to instruct employees in the recognition and avoidance of unsafe conditions relating to trenching and excavation work. It was cited for a willful violation of 29 C.F.R. § 1926.652(a)(1), for allowing an employee to work in an unprotected trench. It was also cited for a willful violation of 29 C.F.R. § 1926.651(k)(2), as the competent person had permitted employees to work in an unprotected trench. Jurisdiction The parties have stipulated that Respondent is an employer with employees that is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5). The parties have also stipulated that the Commission has jurisdiction of this proceeding under section 10(c) of the Act, 29 U.S.C. § 651, et seq. (Tr. 15-16, 20; JX-I, ¶¶ 1-2, 24-25). The Court finds, therefore, that the Commission has jurisdiction of the parties and the subject matter of this proceeding. The Secretary’s Burden of Proof To prove a violation of an OSHA standard, the Secretary must demonstrate that: (1) the standard applies, (2) its terms were not met, (3) employees were exposed to the violative condition, and (4) the employer either knew of the condition or could have known of it with the exercise of reasonable diligence. Astra Pharm. Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). Willful Citation 2, Items 1a and 1b Willful Item 1a alleges a violation of 29 C.F.R. § 1926.652(a)(1). That standard states as follows: 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) Excavations are made entirely in stable rock; or (ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in. The parties have stipulated that the cited standard applies and that its terms were not met. The parties have further stipulated that the exceptions to the cited standard do not apply in this case. That is, exceptions (i) and (ii) above do not apply here because the excavation was not made entirely in stable rock and it was greater than 5 feet in depth. Finally, the parties have stipulated that Respondent is not contending that a protective system in compliance with 29 C.F.R. §§ 1926.652(b) or (c) was being used at the site on the day of the OSHA inspection. (Tr. 19; JX-I, ¶¶ 16-20, 26). Willful Item 1b alleges a violation of 29 C.F.R. § 1926.651(k)(2). That standard provides, in relevant part, that: Where the competent person finds evidence of a situation that could result in a possible cave-in … exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety. The parties have stipulated that the cited standard applies and that its terms were not met. (Tr. 19-20; JX-I, ¶¶ 21-22, 26). The parties’ stipulations further establish the third and fourth elements of the Secretary’s burden of proof as to Items 1a and 1b, i.e., employee exposure to the cited condition and employer knowledge of the condition. In those stipulations, Daisy has admitted that two supervisors knew that employees were working in the trench without any cave-in protection in place. Footnote (Tr. 16-17; JX-I, ¶¶ 5-10). Daisy asserts, however, that Mr. Drake was the person responsible for the violations, noting the testimony of Mr. DelSignore. (R. Brief, pp. 8-9). Mr. DelSignore testified he went to the site between 9 a.m. and 10 a.m. on April 29, saw employees in the trench without a trench box, and got a ladder and had the employees exit the trench. Footnote Mr. Drake had gone to get a ladder himself, and when he returned, Mr. DelSignore allegedly told Mr. Drake to put the trench box in the trench before letting any employees go back in. Mr. DelSignore also testified he left before ensuring the box was put in, as he had to check on other areas of the project as well as another project. He did not return to the trench site until that afternoon, after he got a call about OSHA being there. (Tr. 210-17, 222-23, 226). It is clear from the above that Mr. DelSignore’s testimony was not consistent with the statements he made to the CO at the time of the inspection. It was also not consistent with Mr. Drake’s testimony. The Court observed the demeanor of these three witnesses as they testified, including their facial expressions and body language, and found the CO to be a credible and convincing witness. Mr. Drake was also a credible witness, for the most part, and his testimony was largely consistent with what he told the CO during the inspection. Mr. DelSignore, on the other hand, was not a reliable witness in significant respects. Besides the foregoing, he testified that he did not tell the CO he had gotten the employees out of the trench that morning because he “didn’t know [he] needed to.” (Tr. 212). He further testified that he had signed the CO’s “form” as the CO said he would have him “arrested” if he did not. (Tr. 213). He agreed that instead of staying to ensure the trench box was installed, he “walked away” from the situation. (Tr. 216). He also agreed that it “look[ed] like” Mr. Drake did not follow his instructions, even though Mr. Drake knew he could have been fired for insubordination. (Tr. 223, 226). Based on the Court’s credibility determinations and the noted testimony, the Court will credit the testimony of the CO and Mr. Drake over that of Mr. DelSignore. Footnote According to Mr. Drake, Daisy began digging the trench at about 8:00 a.m. on April 29. Mr. DelSignore was there for at least part of the digging work. Around 9:00 a.m., Mr. DelSignore told Mr. Drake to get a trench box, and Mr. Drake did so. Mr. Drake then went to get a ladder. When he returned, employees were in the trench, Mr. DelSignore was standing nearby, and the trench box was not being used. Footnote Mr. Drake said that Mr. DelSignore did not order the employees out or tell him to do so, and he did not tell him to use the trench box. He also said that if Mr. DelSignore had told him to use the box, he would have, as Mr. DelSignore was his supervisor that day and the “big boss.” Footnote He stated that employees were in the trench for about three hours total; Mr. DelSignore was there “off and on” during that time. He further stated that there should have been protection in the trench but that the trench box could not be used. Footnote Mr. Drake testified that Respondent did not use any protection in the trench because he and “Everybody wanted to get it [the job] done.” Footnote (Tr. 68-79, 82; CX-3). Another aspect of Mr. DelSignore’s testimony must be examined. Mr. DelSignore has been with Daisy for 30 years. He has been the operations manager for four to five years and before then was a superintendent. He testified that on April 29 he was replacing Dathan Booth, the project superintendent assigned to the subject project. Footnote He further testified that on April 29, he had to check on that project and another project. He also had to attend to his operations manager duties. Mr. DelSignore stated that as the general superintendent that day, he was responsible for checking on projects that had either a superintendent or a foreman. A project superintendent is responsible only for the specific project to which he is assigned. Mr. DelSignore said that many projects have only a foreman and do not have a superintendent. He also said he was not that familiar with the subject project and did not know how deep the cited trench was. He noted that the foreman at a job site is in “direct charge of the day-to-day operations,” including safety. He agreed, however, that a superintendent has overall, day-to-day responsibility for safety. If a superintendent sees an unsafe condition or practice, he has a duty to correct it. According to Mr. DelSignore, he was a competent person in trench safety, he had OSHA training, and he was familiar with Daisy’s safety manual, which covers trenching and references the OSHA standard. (Tr. 79-80, 116, 176-77, 191-200, 206-08, 216-26). Daisy notes that Mr. Drake, as the foreman, was directly responsible for safety at the work site. It suggests Mr. DelSignore did not have the same level of responsibility, due to the brief period he was at the trench site, his other duties on April 29, and the fact he was part of Daisy’s administrative staff. (R. Brief, pp. 8-9). The Court disagrees. Mr. DelSignore testified that a superintendent, upon seeing an unsafe condition or practice, has a duty to correct it. Footnote (Tr. 199-200). And Mr. Drake testified that Mr. DelSignore was his supervisor that day and the “big boss” and that if he had told him to use the trench box he would have done so. Footnote (Tr. 68-69, 76). Further, Mr. Booth testified that when he was out of town, Mr. DelSignore replaced him. Mr. Booth agreed that Mr. DelSignore was the project superintendent on April 29 and thus would have had overall responsibility for safety on the project. Footnote (Tr. 181-88). Based on the record, the Court finds that Messrs. DelSignore and Drake were both responsible for safety at the site, that both were aware by direct observation that employees were working in the unprotected trench, and that neither took the necessary safety measures to protect the employees from a cave-in. Footnote Whether the Violations were due to Unpreventable Employee Misconduct Daisy contends that all of the violations in this case were due to the unpreventable employee misconduct of Mr. Drake, the foreman at the site. (R. Brief, pp. 3-6). The Third Circuit, where this case arose, has noted with approval the Commission’s test for proving unpreventable employee misconduct, i.e.: (1) the employer had established rules designed to prevent the violation; (2) it adequately communicated the rules; (3) it took steps to discover violations of the rules; and (4) it enforced the rules when violations were discovered. Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984)(“PP&L”). In PP&L, the Third Circuit held that the Secretary may not shift to the employer ultimate risks of nonpersuasion where the inference of an employer’s knowledge of conduct violating the Act is raised only by supervisory misconduct. Footnote In so holding, the Third Circuit stated: In cases where the Secretary proves that a company supervisor had knowledge of, or participated in, conduct violating the Act, we do not quarrel with the logic of requiring the company to come forward with some evidence that it has undertaken reasonable safety precautions….We do hold, however, that the Secretary may not shift to the employer the ultimate risk of non-persuasion in a case where the inference of employer knowledge is raised only by proof of a supervisor’s misconduct. The participation of the company’s own supervisory personnel may be evidence that an employer could have foreseen and prevented a violation through the exercise of reasonable diligence, but it will not, standing along, end the inquiry into foreseeability. 737 F.2d at 357-58. In this case, the Secretary has clearly shown that two Daisy supervisors knew of the trenching violation and did nothing to correct it. Footnote In fact, it was Mr. DelSignore, Mr. Drake’s superior, who had the employees enter the unprotected trench to begin working while Mr. Drake was searching for a ladder. In light of this evidence, and consistent with the Third Circuit’s holding above, the Court will examine the evidence to see whether it shows that Daisy had undertaken reasonable safety precautions. The record shows that Mr. Drake has worked in construction for 30 years. He had been with Daisy about a year and a half at the time of the inspection. Mr. Drake received Daisy’s safety manual when he began working for the company, but no one asked him if he had read it or understood it. Daisy sent Mr. Drake to a safety course that addressed excavation, trenching and soil mechanics on February 25, 2010. It also sent him to a 10-hour OSHA course in construction safety and health on March 25, 2010. Mr. Drake went to a Daisy supervisors’ meeting held on April 3, 2010. The supervisors’ meetings usually include discussions of safety and policy procedures. (Tr. 65-67, 82-84, 194; RX-F). The record also shows that on May 3, 2010, Daisy sent Mr. Drake a notice that advised him that he was suspended pending the company’s internal investigation of the circumstances at the subject site. It also advised him that the failure to provide workers with adequate protection in the trench violated section H of Daisy’s safety policy, which covers trenching and excavations. On May 10, 2010, Daisy sent Mr. Drake another notice informing him that it was terminating his employment. The notice stated that in spite of the training he had received, Mr. Drake had “blatantly disregarded” worker safety by not providing a protective shoring system in the trench. Footnote Before he was fired by Daisy, Mr. Drake went back to work for his previous employer, where he had worked for 15 years. (Tr. 65, 80-81; RX-A). Section H of Daisy’s safety manual addresses trenching and excavations. The Secretary notes that Exhibit RX-C, p. H-2, includes a provision for protective systems in trenches that references OSHA’s excavations standard and requires supervisors to refer to the OSHA standard “for guidance to comply with this plan.” She thus concludes that Daisy’s manual included work rules designed to prevent the trenching violation. (S. Brief, p. 20). As to Daisy’s communication of its rules, the foregoing describes the training Mr. Drake received and the fact that he was given a copy of Daisy’s safety manual. Mr. Drake testified, however, that no one asked him if he had read or understood the manual. (Tr. 66). Mr. DelSignore had also received OSHA training, and he was familiar with the safety manual. (Tr. 206-08). Messrs. Drake and DelSignore were competent persons in trenching and excavations, and both had 30 years of experience in construction work. (Tr. 65-68, 82-84,191, 196-97, 206-08). Despite their training, experience and qualifications, they allowed employees to work in the cited trench without any cave-in protection. Daisy presented Exhibit RX-D, which contains copies of tool box safety talks held at its job sites in April 2010. Mr. Drake testified that one-page topic sheets were included in his paycheck envelopes. He indicated he led weekly tool box safety talks for his crews at his work sites. Footnote (Tr. 66-67). Of the many documents in Exhibit RX-D, only two represent that trenching safety was addressed. These two indicate that Mr. Stepp gave a trenching safety talk at two sites at the subject project on April 2, 2010. Daisy offered no evidence as to what specifically was covered in these talks. The CO testified that tool box talks usually last only five to ten minutes. He further testified that while he received copies of Daisy’s tool box talks during the inspection, the copies of the trenching safety talks were not provided until later, during discovery. Footnote (Tr. 122, 137-40; CX-3). In addition to the above, the CO testified that when he interviewed them, Messrs. Moore and King both said they had received no training from Daisy. (Tr. 112-14, 136; GX-11-12). Mr. Moore, the employee in the trench when the CO arrived, clearly required training in trenching safety. Mr. King, the excavator operator, also required such training, in that his job at the site involved digging the trench. The Secretary points to all of the foregoing in support of her assertion that Daisy did not adequately communicate its work rules. She also points to the fact that Messrs. Drake and DelSignore, the competent persons at the site, permitted employees to work in the unprotected trench. The Secretary cites to circuit court precedent which has held that “negligent behavior by a supervisor or foreman which results in dangerous risks to employees under his or her supervision … raises an inference of lax enforcement and/or communication of the employer’s safety policy.” Danis-Shook Joint Venture XXV, 319 F.3d 805, 811 (6th Cir. 2003). Footnote (S. Brief, pp. 20-25). The Court agrees and finds that Daisy did not adequately communicate its work rules in regard to trenching safety. Footnote See Complete Gen. Constr. Co., 20 BNA OSHC 1412, 1416 (No. 02-1896, 2003), aff’d No. 03-4456, 2005 WL 712491 (6th Cir. Mar. 29, 2005) (finding that employer was not entitled to employee misconduct defense because it did not adequately communicate its trench safety program to its employees where weekly tool box meetings did not sufficiently focus on trench safety rules and employer did not ensure that employees actually read and understood the contents of the safety manual); see also Schuler-Haas Elec. Corp., 21 BNA OSHC 1489 (No. 03-0322, 2006) (rejecting claim of employee misconduct due to inadequate communication of work rule where employer did not establish it provided hazard recognition training). (S. Brief, p. 22). As to whether Daisy took steps to discover violation of its rules, the Secretary notes that Exhibit RX-C (section H of Daisy’s safety manual) includes a “Trenching Inspection Checklist.” Exhibit RX-C requires the checklist to be completed at least daily. (See RX-C, p. H-3). The checklist requires the foreman to document the trench’s dimensions and to evaluate the soil type and the best protective system to use in the trench. It also requires, inter alia, noting the presence of any hazardous conditions and keeping spoil piles and equipment at least 2 feet from the edge of the trench. The checklist must be signed by the competent person. A note at the bottom of the checklist states as follows: All unsafe conditions must be corrected prior to trench entry. If any hazardous conditions are observed, the trench must be immediately evacuated and no one allowed to re-enter until corrective action has been taken. The Secretary points out that there is no evidence that a checklist was completed for the subject trench or, for that matter, that a checklist had ever been completed for any of Daisy’s trench sites. Mr. DelSignore testified that he was not aware that the checklist was required for trenching jobs. Further, despite his 30 years with Daisy, he admitted that he had never even seen the checklist until it was shown to him at the hearing. (Tr. 208-09; RX-C; S. Brief, pp. 23-24). The Secretary also notes that Exhibit RX-E, which Daisy submitted to demonstrate that it inspected its work sites for safety hazards, was insufficient. Exhibit RX-E contains four documents entitled “Safety Compliance Inspection Weekly Summary Report.” The reports summarize the site inspections Mr. Stepp performed during April 2010. Only two of the inspections relate to the subject project. Those inspections took place on April 12 and 13, 2010. (S. Brief, pp. 24-25). The Court agrees with the Secretary. The subject project was a three-year undertaking, and it involved an area about 2.25 miles long. (Tr. 32, 178). The offer of documents that show only two inspections of such an extensive project is simply inadequate to establish effective monitoring of the project for trenching safety hazards. Put another way, in this case, two site visits do not constitute a diligent effort to discover violations. Footnote In regard to whether Daisy enforced its safety rules when violations were detected, the Secretary contends that Daisy did not. She asserts that Daisy’s failure to effectively enforce its trench safety rules is most readily apparent by the fact that two Daisy supervisors did not follow those rules at the subject work site. Again, the Court agrees. As set out previously, “negligent behavior by a supervisor or foreman which results in dangerous risks to employees under his or her supervision … raises an inference of lax enforcement and/or communication of the employer’s safety policy.” Danis-Shook Joint Venture XXV, 319 F.3d at 811. (S. Brief, pp. 25-27). Finally, the Secretary points out that there is no evidence that Daisy had implemented a disciplinary program to deal with violations of its safety rules. She notes that an employer may show effective enforcement of its rules where it has a progressive disciplinary program and where it has actually administered and consistently enforced the discipline set out in its policy. See, e.g., Pace Constr. Co., 14 BNA OSHC 2216, 2217-20 (No. 86-758, 1991). (S. Brief, p. 27). Exhibit RX-A, discussed above, shows Mr. Drake was suspended and then terminated for his failure to provide adequate protection for the employees working in the trench. But, as the Secretary notes, disciplinary action after an OSHA inspection or citation is only relevant when viewed in conjunction with pre-citation disciplinary action. See, e.g., McGuire & Bennet, Inc., 15 BNA OSHC 1878, 1878-79 (No. 91-0312, 1992). (S. Brief, pp. 27-28). Here, there is no evidence that shows that Daisy even had a disciplinary policy or that it had ever before issued any disciplinary notices to employees or supervisors for violations of company safety rules. For this reason, and for all of the reasons discussed herein, the Court concludes that there is insufficient evidence to demonstrate that Daisy undertook reasonable precautions to prevent the trenching violation in this case. The evidence shows that Daisy failed to: 1) adequately communicate its work rule, 2) take sufficient steps to discover violations, and 3) effectively enforce its work rules. The Secretary has thus met her burden of proof in regard to showing the alleged violations of 29 C.F.R. §§ 1926.652(a)(1) and 1926.651(k)(1). Whether the Violations were Willful The above-noted violations have been characterized as willful. Footnote (Tr. 150-51). As the Secretary notes, a violation is willful if committed “… with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.” Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 93-239, 1995, aff’d, 73 F.3d 1466 (8th Cir. 1996); Falcon Steel Co., 16 BNA OSHC 1179, 1181 (Nos. 89-2883 & 89-3444, 1993). A willful violation is differentiated by heightened awareness of the illegality of the cited condition and by a state of mind of conscious disregard or plain indifference. Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993) (citing Williams Enters., 13 BNA OSHC 1249, 1256-57, (No. 85-355, 1987)). Footnote (S. Brief, p. 10). As the Secretary indicates, Daisy was well aware of OSHA’s excavations standard. Daisy has been in business for 39 years. Its business involves road and highway construction and includes sewer and water line construction. (Tr. 124; GX-3, p. 9). Daisy’s safety manual contains a section on trenching and excavation which references OSHA’s excavations standard. See RX-C. Daisy has trench boxes of varying sizes and other equipment to protect employees who work in trenches. (Tr. 86-88). The company has used trench boxes on prior jobs, and it used trench boxes at times on the subject project. (Tr. 181; GX-8, p. 4; S. Brief, pp. 10-11). As set out previously, Messrs. DelSignore and Drake were competent persons in trenching and excavation work. Both had 30 years of construction experience, and both had attended the OSHA 10-hour course in construction. That course included trenching and excavation. (Tr. 65-68, 82-84, 191, 206-08). Mr. DelSignore testified that he was familiar with Daisy’s safety manual, which covers trenching and excavation. (Tr. 207-08). The Court agrees with the Secretary that, in view of the type of work the company performs and the training, experience and knowledge of Messrs. DelSignore and Drake, Daisy had a heightened awareness of the OSHA standards cited in this case. See Fiore Constr. Co., Inc., 19 BNA OSHC 1408, 1409 (No. 99-1217, 2001) (affirming willful violation where foreman had a heightened awareness of the requirements of § 1926.652(a)(1) based upon his 12 years of excavation work experience, completion of a 40-hour OSHA excavation course, and his testimony that he knew OSHA’s standards required him to use a trench box). (S. Brief, p. 11). Another basis for finding heightened awareness is the fact that Daisy was previously cited in 2008 for a violation of 29 C.F.R. § 1926.652(a)(1) at the same project at issue here. Footnote That citation became a final order of the Commission on December 8, 2008. (GX-14, p.1, GX-15, JX-I, ¶¶ 11-12; S. Brief, p. 12). The Court further agrees with the Secretary that the actions of Messrs. DelSignore and Drake on April 29, 2010, show Daisy’s conscious disregard of the cited OSHA standards and its own safety manual, as well as plain indifference to employee safety. Footnote (S. Brief, pp. 12-19). The cave-in hazard was in plain view and was open and obvious. Footnote The CO’s testimony establishes the depth of the trench and its hazardous condition (i.e., it was 7 to 8 feet deep, had vertical walls and previously-disturbed soil, and was located next to a busy intersection). Footnote Mr. Drake’s testimony establishes the essential facts of what occurred on the morning of April 29, 2010. In particular, the digging of the trench began around 8:00 a.m. Mr. Drake was present during that activity, and Mr. DelSignore was there for at least part of the digging work. At about 9:00 a.m., Mr. DelSignore told Mr. Drake to get a trench box, and Mr. Drake did so. Mr. Drake then went to get a ladder. When he got back, employees were already working in the trench, Mr. DelSignore was standing nearby, and the trench box was not being used. Messrs. DelSignore and Drake did not discuss the trench box. And, while Mr. DelSignore was at the trench site off and on during the three-hour period employees were in the trench, he never told Mr. Drake to use the trench box or to have the employees exit the trench. (Tr. 68-82). In fact, as specifically found previously, Mr. DelSignore had the employees enter the trench while Mr. Drake was off looking for a ladder. As also found previously, Messrs. DelSignore and Drake were aware by direct observation that employees were working in the unprotected trench, and neither took the necessary safety measures to protect the employees from a cave-in. Footnote The Secretary cites to a number of cases in support of her contention that the violations were willful. The Court finds two of these cases to be particularly significant. Footnote In one, the Commission upheld the judge’s willful classification; the foreman had been trained as a competent person to identify trenching hazards, and he knew the condition violated OSHA standards, but decided to remove the trench boxes and send employees into the unprotected trench. Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081-82 (No. 99-0018, 2003). (S. Brief, p. 16). In the other, the Seventh Circuit upheld the Commission’s final order that adopted the judge’s finding of a willful violation; the competent person allowed employees to work in an unprotected trench that was 10 to 11 feet deep, had vertical walls, and was in Type B and Type C soil. Globe Contractors, Inc. v. Herman, 132 F.3d 367, 372-73 (7th Cir. 1997). (S. Brief, p. 18). On the basis of the evidence of record, the violations of the cited standards are affirmed as willful. Penalty Determination The Secretary has proposed a grouped penalty of $63,000.00 for Items 1a and 1b of Willful Citation 2. In assessing penalties, the Commission must give due consideration to the gravity of the violation and to the size, history and good faith of the employer. See section 17(j) of the Act, 29 U.S.C. § 666(j). Gravity is generally the primary factor to consider. Orion Constr., Inc., 18 BNA OSHC 1867 (No. 98-2014, 1999). AD Salvatore issued the citations in this case. He testified that he reviewed the investigative file and followed the procedures in OSHA’s Field Operations Manual to arrive at the proposed penalty of $63,000.00. He considered the violations to have high severity. At least one employee was working in the trench for several hours. If a cave-in had occurred it would likely have resulted in long-term incapacitation or death. He considered the probability of harm to be greater. The trench was over 5 feet deep, and it was composed of previously disturbed, Type C soil. The AD noted that a willful violation with high severity and greater probability results in an unadjusted penalty of $70,000.00. (Tr. 127-29, 149-50, 154-61; CX-1 through CX-3, CX-16). AD Salvatore also testified about the adjustments that were made. He determined that Daisy was entitled to a 10 percent reduction due to its size (about 150 employees). Footnote Daisy was not entitled to reductions for history or good faith, however, because the violations were classified as willful. The resulting adjusted penalty was $63,000.00. The AD noted that the penalties for Items 1a and 1b were grouped, since the violations were related. (Tr. 161-65; JX-1, CX-3, CX-16). The Court finds that the full 20 percent reduction normally applied for an employer of Daisy’s size is appropriate. The Court notes that Mr. Booth testified that, despite this instance, Daisy always used a trench box where needed. He also testified that Daisy had not experienced a trench cave-in. He said that no Daisy worker had experienced a life threatening injury, or died on the job. (Tr. 181-82). The Court concludes that a substantial penalty for the willful items is appropriate, especially in light of the hazardous condition of the trench and the likelihood of serious injury or death if a cave-in had occurred. The Court finds it appropriate to reduce the $63,000.00 penalty proposed by the Secretary to $56,000.00. A penalty of $56,000.00 is assessed by the Court for these willful items. Footnote Serious Citation 1, Item 1 This item alleges a violation of 29 C.F.R. § 1926.21(b)(2), for Daisy’s failure to instruct employees in the recognition and avoidance of unsafe conditions relating to trenching and excavation work. The cited standard states as follows: 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 parties have stipulated that the cited standard applies. (JX-I, ¶ 15). As to the second and third elements of the Secretary’s burden of proof, the Court finds that the terms of the standard were not met and that employees were exposed to the cited hazard. CO Kessler testified that when he spoke to them, Messrs. Moore and King both told him that they had received no training from Daisy. Footnote (Tr. 112-15, 136; CX-3, CX 11, CX-12). Mr. Moore plainly required training in the hazards of working in trenches, as he was the employee the CO saw in the trench. Mr. King also required training in trenching work, as he was the individual who had excavated the trench. The Court further finds that Daisy either knew or should have known that it had not trained Mr. King as required. Footnote The Secretary has met her burden of proving a violation of the cited standard. Footnote As with the willful violations, Daisy contends this violation was due to the unpreventable employee misconduct of Mr. Drake, the foreman at the site. (R. Brief, pp. 3, 5-6, 9-10). The Court has already found that Daisy did not show that it had taken reasonable safety precautions to prevent the trenching violations in this case. See PP&L, 737 F.2d at 358. In view of this finding, the Court concludes that the record does not show that Daisy’s failure to adequately train Messrs. Moore and King was caused by unpreventable employee misconduct. Footnote The alleged violation is affirmed as serious, as it is clear that the failure to train employees in the hazards of working in and around trenches could cause serious injuries or death. (Tr. 129-30). The Secretary has proposed a penalty of $4,000.00 for this item. AD Salvatore testified that he determined this item to have high severity and greater probability, resulting in a gravity-based penalty of $5,000.00. A 20 percent reduction was applied, based on the company’s size, but no reductions were given for history or good faith. (Tr. 165-67; CX-3, CX-16). The Court finds it appropriate to reduce the proposed $4,000.00 penalty to $3,000.00. A penalty of $3,000.00 is assessed by the Court for this item. Footnote Findings of Fact and Conclusions of Law The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). ORDER 1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.21(b)(2), is AFFIRMED, and a penalty of $3,000.00 is assessed. 2. Items 1a and 1b of Willful Citation 2, alleging violations of 29 C.F.R. §§ 1926.652(a)(1) and 1926.651(k)(2), respectively, are AFFIRMED, and a penalty of $56,000.00 is assessed. __/s/___________________________ The Honorable Dennis L. Phillips U.S. OSHRC Judge Date: January 13, 2012 Washington, D.C.