SECRETARY OF LABOR,

Complainant.

v.

FLINT ENGINEERING & CONSTRUCTION CO.

Respondent.

OSHRC Docket No. 90-2873

*DECISION*

BEFORE: FOULKE. Chairman; WISEMAN and MONTOYA. Commissioners.

BY THE COMMISSION:

At issue is whether a Review Commission administrative law judge erred
in finding an employer In serious violation of the Occupational Safety
and Health Act where none of the cited employer's own employees was
exposed to any of the violative conditions.

Flint Engineering & Construction Company ("Flint") was among a number of
employers under contract to install a gas pipeline in Midwest City,
Oklahoma. After the Occupational Safety and Health Administration
Oklahoma City office was notified of an unprotected trench. Compliance
Officer George McCown ("CO") was sent to the site. Upon arriving at the
site, the CO asked the first group of workers he encountered to be
directed to the person in charge of the project. The CO was told that he
should see Jesse Winsett, who was later established to be a Flint
employee and one of the foremen at the site. Winsett gave the CO
permission to inspect the premises.

Several miles of 24-inch pipeline had already been laid during the six
weeks the crew had been on the job, which was performed in "hopscotch
fashion," opening up as many as three selected portions of the 4-to
5-mile site at a time. Flint personnel made the decisions on how to
progress from day to day, where and when to dig, when to transfer the
shoring materials from site to site, and how to compensate for the
narrow roadside right-of-way they had been given.

Very early on the morning of the inspection, about 100 feet of trench
had been opened. In the area where employees were working, the trench
was approximately 11 feet deep and 11 feet wide, with an unretained
spoil bank 6 to 8 feet high at the edge. Except for a small section that
was partially sloped, the walls of the unshored trench were vertical.

Of the approximately ten to fifteen workers on the jobsite, three were
actually in the trench at the time of the inspection. Asked their names
by the CO, one gave his name as Dale McCulley and the other two refused
to answer. Jesse Winsett, supervisor, equipment operator, and foreman
for Flint, was the only witness, other than the CO, who was present at
the site at the time of the inspection. He testified that he had seen no
one in the ditch, but admitted that he had been there only "off and on."
However. one photograph among the exhibits shows an employee in the
trench, and other photographs show an access ladder and a grinder in the
trench. Witnesses for Flint, Winsett and corporate safety manager Robert
Baker, stated that they were unfamiliar with anyone by the name of Dale
McCulley and that the name did not appear on Flint company records. They
testified that Flint employees had been instructed not to enter the
trench until it was safe to do so, and at the time of the inspection,
the crew was waiting for the arrival of shoring materials from another
worksite.

The Secretary cited Flint for serious violations of six standards, three
of which are encompassed in the direction for review.[[1]] Items 4,5,
and 6 of the citation alleged violations of three standards covering
safe trenching practices: 29 C.F.R. § 1926.6510)(2) (the "spoil bank"
standard).[[2]] 29 C.F.R. § 1926.651(k)(1) (the "daily inspection"
standard).[[3]] and 29 C.F.R. § 1926.652(a)(1) (the "trench wall"
standard).[[4]]

The judge found that the employees the CO saw in the trench were not
Flint employees, and that Flint's employees had stayed out of the
unprotected trench. Nevertheless, the judge held that "Commission
precedent is well settled that an employer who creates or controls a
hazardous condition, even when the only employees exposed to the
condition are those of different contractors at the site, will be held
liable under the Act," citing Anning-Johnson Co., 4 BNA OSHC 1193, 1199,
1975-76 CCH OSHD ¶ 20,690 p. 24,784 (No. 3684, 1976) (consolidated
cases) and Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1188-89,
1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1976). He further found
that Flint controlled the cited condition, that employees were exposed
to it, and that the violation was serious. He therefore affirmed the
three items, assessing penalties as proposed by the Secretary: $240 for
the spoil bank standard violation, $480 for the daily inspection
standard violation, and $480 for the trench wall standard violation.

*I. Multi-Employer Worksite Defense*

Under the principles of Anning-Johnson and Grossman Steel, the
Commission and the courts have long held that it a hazardous condition
exists at a multi-employer worksite:

(1) an employer that neither creates nor controls the condition may,
under certain circumstances be relieved of liability for exposing its
employees to the hazard.[[5]] and

(2) an employer that does create or control a hazardous condition, on
the other hand, obligated to protect not only its own employees, but
those of other employers as well.[[6]]

If the employees in the trench were not Flint's own employees.[[7]]
Flint's multi-employer worksite defense turns on whether it created or
controlled the hazardous condition. Flint admits that it treated the
trench." The judge, on the other hand, based his decision on a finding
that "[I]t is obvious from the record Flint controlled the cited
condition." Flint countered that "[s]ince Respondent was not the general
contractor it cannot be said to have controlled the entire excavation
area." Although the Secretary did not show that Flint was the general
contractor, the evidence does suggest that even as a subcontractor.
Flint had considerable control over and responsibility for the work
area. For example, while other employers may have been under contract to
cut or weld pipe once it was placed, it was Flint that decided when and
where to excavate: when and where to have the crane place the pipe: and
when and how to slope, shore, or otherwise protect the open trenches. An
employer need not be labeled the "general contractor" to have control
over a hazard, particularly one it has itself created. See Brennan v.
OSHRC (Underhill Constr. Corp.). 513 F.2d 1032 (2d Cir.1975). In order
to be relieved of liability, as part of its multi-employer worksite
affirmative defense. Flint must show that it neither created nor
controlled the open trench.

As Flint correctly notes, under Anning-Johnson, a subcontractor that
neither creates nor controls a hazardous condition may defend against
the Secretary's charge by showing that its employees were protected by
means of realistic measures taken as an alternative to literal
compliance with the cited standard.

Preventing its own employees from entering the trench, according to
Flint, constitutes such a realistic alternative to shoring the trench.
We concur that this action would have sufficed had Flint been a
non-creating, non-controlling subcontractor on the worksite.

However, where, as here, an employer is "in control of an area, and
responsible for its maintenance," to establish a violation the Secretary
need only show that a hazardous condition existed and "that the area of
the hazard was accessible to the employees of the cited employer or
those of other employers engaged in a common undertaking." Underhill,
513 F.2d at 1038 (emphasis added). Similarly, in Beatty Equip. Leasing,
Inc., 4 BNA OSHC 1211, 1975-76 CCH OSHD ¶ 20,694, (No. 3901, 1976),
aff'd. 577 F.2d 534 (9th Cir. 1978), the Commission noted:

[i]n our rule governing liability on multi-employer construction sites,
we specifically adopted [Underhill] to the extent that it would impose
liability on a subcontractor who creates a hazard or has control over
the condition ... even though only employees of other subcontractors are
exposed.

Id. at 1212, 19715-76 CCH OSHD at p. 24,802 (citation and footnote
omitted and emphasis added). In this case, the Secretary's showing that
a hazard existed and that employees were exposed is unrebutted.

*ll. Knowledge of Employee Exposure*

The record establishes that Flint knew that its own employees could be
exposed to the hazard (it the unprotected trench and, as a realistic
alternative to actual compliance with the standard. Flint instructed
them not to enter the trench until it was properly shored. At the same
time, Flint knew that there were a number of other subcontractors'
employees on the site involved in various aspects of installing the new
pipeline. Under Otis Elevator Co., 6 BNA OSHC 2048, 2050, 1978 CCH OSHD
¶ 23,135 (No. 16057, 1978), access to the violative condition not actual
exposure, is the test. Thus, the Secretary has established that Flint
had the requisite notice or knowledge that employees could reasonably be
expected to be exposed to the unprotected trench it has left open.

Flint contends that "Respondent had no notice that these unidentified
workers were in the trench on the day in question. Till this day. it is
unknown who employed these men.... [T]he exposed employees were not
[Flint's] and. were working there without [Flint's] knowledge." Flint's
foreman testified that he did not see anyone in the trench when he was
at the site off and on. As the Secretary notes, however, there were
construction materials and an access kidder in the trench in plain view.
Only a failure to exercise reasonable diligence could leave Flint
without knowledge. Even a non-creating, non-controlling subcontractor
may not "close its eyes" to hazards. Grossman Steel, 4 BNA OSHC at 1189,
1976-77 CCH OSHD at p. 25,481. A creating, controlling subcontractor
like Flint must be all the more vigilant.

Flint claims that "[s]hort of posting watchmen along all unshored
portions of [the] excavation site or fencing in the entire area.
Respondent could not have foreseen or insured that workers would not
enter into the trench of their own accord." However. the Secretary
points out that "[t]here was no evidence that ... Flint took measures to
barricade the excavation or to alert other employers to keep their
employees from the zone of danger until a protective system was in
place." As the Commission said in Knutson Constr. Co., 4 BNA OSHC 1759.
1761. 1976-77 CCH OSHD ¶ 21,185, p. 25,481 (No. 76-5. 1976) aff'd.566
F.2d 596 (8th Cir. 1977) "the duty we imposed...in Grossman Steel &
Aluminum Corp. and Anning-Johnson Co. is a reasonable one..." Faced with
the hazard of a temporarily unprotected trench. Flint would not be
expected to order its employees to walk off the job. or to demand that
other employers employees clear the worksite altogether. See, e.g.,
Anning- Johnson. 4 BNA OSHC at 1197, 1975-76 CCH OSHD at p. 24,782, and
Lee Roy Westbrook Constr. Co.,13 BNA OSHC 2101, 2104, 1987-90 CCH OSHD ¶
28,464, p. 37, 693 (No. 84-9, 1989). To the contrary, we think that the
very same "realistic measures" Flint took with respect to its own
employees (telling them to stay out of the trench) would have fulfilled
Flint's obligation to protect the employees of other employers. The
record here shows no effort on Flint's part to advise or notify the
other employers' employees at the site that no one could safely enter
the trench until it was properly shored.

*III. Characterization*

Flint notes that although the trench had been opened and left
unprotected, shoring materials were en route from another site at the
time the inspection took place and were used to protect the trench
properly after the inspection was over. It argues that "the fact that an
inspection occurred during this brief lapsed time should not raise this
technical violation" to serious. We take this to constitute a request
that the Commission modify the characterization of this citation to
other-than-serious.

The Secretary responds that even if a hazardous condition exists only
briefly, or if employees are exposed to a hazardous condition only
briefly, brief duration does not negate the violation or its
seriousness.[[9]] She cites Walker Towing Corp., 14 BNA OSHC 2072, 1991
CCH OSHD ¶ 29,239 (No. 87-1359, 1991) (passing an unguarded edge
constitutes brief exposure to fall hazard, resulting in a serious
violation and a $480 penalty); Whiting-Turner Contracting Co., 13 BNA
OSHC 2155, 1987-90 CCH OSHD ¶ 28,501 (No. 87-1238, 1989) (brief exposure
to a fall hazard while waiting for a welder to finish constitutes
serious violation and $500 penalty); and Morgan and Culpepper, Inc. v.
OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (professional engineers'
brief exposure to fall hazard during walkaround inspection constitutes a
serious violation and $50 penalty), in support of her position, as well
as H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1981 CCH OSHD ¶ 25,712 (No.
76-4765, 1981) (five to ten minutes in an unsafe trench results in
serious violation and $1,000 penalty.)

Flint admits that the unprotected trench was dangerous, and its efforts
to keep its own employees out of the trench belie its position that it
was cited for a technically.

Commission precedent compiles a finding of a serious violation under
these circumstances.

*IV. Duplicativeness*

As a final matter we address Flint's claim that the citations for
violating the spoil bank standard at section 1926.651(j)(2) and the
trench wall standard at section 1926.652(a)(j) are duplicative. Flint
asserts that the shoring "included" a plywood extension to protect
employees from all debris re-entering the trench and argues that
employee exposure to the spoil pile would have been abated if the walls
had been adequately shored. Citing an unreviewed judge's decision in
support.

The Secretary maintains that the hazard involved in loose soil rolling
or failing into an excavation is related to yet distinct from a cave-in
resulting from the collapse of a trench. The Commission has held
citations to be duplicative only where they involve substantially the
same violative conduct Cleveland Consolidated, Inc. 13 BNA OSHC 1114,
1986-87 CCH OSHD ¶ 27,829 (No. 84-0696, 1987) In H.H. Hall, 10 BNA OSHC
at 1049 1981 CCH OSHD at p. 32,058. the Commission held that the fact
that compliance with two standards resulted in the same general hazard
does not render them duplicative. In Capform, Inc., 13 BNA OSHC 2219,
1987-90 CCH OSHD ¶ 28,503 (No. 84-0556, 1989). the Commission vacated
one of two citations under the former trench standards since with one
necessarily resulted In compliance with the other.

Here, however, Flint could not meet two standards with one abatement
effort. Flint's own safety manager testified that the intention was
either to (1) shore the trench walls and (2) install a plywood extension
to retain the spoil hank or to (1) use one trench box in the trench and
(2) stack another on top to address the spoil bank hazard. Taking
measures to abate the one hazard would not in and of itself result in
the abatement of the other hazard. In this case the hazards and their
respective abatement methods are sufficiently distinct so as to
constitute separate violations deserving of separate penalties.

V. Order

In conclusion, the evidence shows that Flint was in charge of the
excavation. It created and controlled the hazards in opening the trench
before protective shoring materials or trench boxes were available,
thereby endangering other employers employees. With respect to this
particular hazard alone, Flint owed at least the same warning to others
employees as the one it took the time to give its own.

Accordingly items 4, 5, and 6 are affirmed. Having considered the
statutory criteria.including gravity see supra note 9, we concur with
the judge's determination, undisputed by the parties, that the penalties
proposed by the Secretary are appropriate. Therefore, we assess
penalties in the amount of $240 for item 4, $480 for item 5, and $480
for item 6.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner


December 21,1992

------------------------------------------------------------------------

SECRETARY OF LABOR, Complainant. v. FLINT ENGINEERING & CONSTRUCTION
COMPANY, Respondent.

OSHRC DOCKET NO. 90-2873

APPEARANCES:
Terry K. Goltz, Esquire

George R. Carlton, Jr., Esquire
For the Complainant- For the Respondent.

Before: Administrative Law Judge Louis G. LaVecchia

*DECISION AND ORDER*

This is a proceeding brought before the Occupational Safety and Health
Review Commission ("the Commission") pursuant to section 10 of the
Occupational Safety and Health Act of 1970. 29 U.S.C. et seq. ("the Act").

On August 31, 1990, the Occupational Safety and Health Administration
("OSHA") inspected an excavation site in Midwest City, Oklahoma where
Respondent was installing a gas line. As a result of the inspection a
citation alleging six serious violations was issued. Respondent
contested the citation, and a hearing was held March 28, 1991.[[1]] The
alleged violations are discussed below.

_Item 3 - 29 C.F.R. 1926.303(c)(3)_

George McCown is the OSHA compliance officer ("CO") who inspected the
site.[[2]] He testified that during his inspection, he saw a portable
right-angle grinder in a truck without the required guard over the
abrasive wheel. He identified C-12 as a photo of the grinder, and noted
that while he did not see it used, he saw employees using the same types
of grinders in the trench, as shown in C-11. McCown said to the best of
his recollection, the employee in C-11 was Dale McCulley, he explained
there were ten to fifteen people at the site, and that while he talked
to Mr. Winsett, the foreman, and several others, McCulley was the one he
generally spoke to and through whom he verified exposure to the cited
conditions. McCown did not recall if there were employees besides those
of Flint at the site. (Tr. 6-9; 13-15; 20; 34: 40-48; 52).

Robert Baker is Flint's corporate safety manager.[[3]] He testified he
and three employees under his supervision oversee all company projects,
that he had been at the site the day before the inspection, and that he
was there the day after. He said he had never heard of Dale McCulley,
and that he had checked the company records and his name did not appear
as an employee. Baker noted there were other individuals besides Flint
employees on the site, but that to his knowledge, no one had used a
grinder or sander in the trench. He also noted that while Flint uses
sanders for other types of work, the grinder in C-12 was supplied by a
subcontractor and did not belong to Flint. (Tr. 54-55; 59; 62; 65-66).

Jesse Winsett has been employed by Flint for thirteen years. He has been
a foreman for the last five years, and he was a foreman at the subject
site. He testified that he had never heard of Dale McCulley. (Tr. 9; 20;
40; 76-77; 83).

The subject standard provides, in pertinent part, as follows:

[P]ortable abrasive wheels used for external grinding, shall be provided
with safety guards (protection hoods).

Based on the CO's testimony and C-11 unguarded grinders were used in the
trench. The CO Identified the Individual in C-11 as Dale McCulley. who
he believed was a Flint employee. The testimony of Baker and Winsett.
considered in conjunction with the CO's inability to recall if there
were employees other than those of Flint at the site. indicates McCulley
was employed by another contractor at the site. Baker's testimony,
moreover, indicates that the cited grinders did not belong to Flint,
that they were supplied by another contractor, and that Flint employees
did not use them. According to established Commission precedent, an
employer who does not create or control the violative condition, and
whose employees are not exposed to the condition, will not be found
liable under the Act.[[4]] Anning-Johnson Co., 4 BNA OSHC 1993, 1199,
1975-76 CCH OSHD ¶ 20,690, ¶ 24,784 (Nos. 3694 and 4409, 1976), Grossman
Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188-89, 1975-76 CCH OSHD ¶
20,691, p. 24,791 (No. 12775, 1976). Based on the record. the Secretary
has not shown that Flint created or controlled the cited condition, or
that Flint employees were exposed to it. This citation item is
accordingly vacated.

_Item 4 29 C.F.R. § 1926.651 (j) (2)_

George McCown testified that although Winsett told him the job had
started six weeks earlier. he saw only the part of the excavation that
was south of Fifteenth Street. He identified C-1 as a diagram he drew of
the site, and C-2-5, C-11 and C-13 as photos he took. McCown noted the
trench was about 127 inches deep, and that there was a spoil bank of
excavated earth 6 to 8 feet high right on the edge of the west side of
the trench that had no retaining device to keep it from failing back
into the trench. He further noted he observed Dale McCulley and two
other employees working in the trench in the area shown in C-5, which
was below the spoil bank. McCown said the condition was hazardous and
could have caused serious injuries to the employees in the trench;
falling clods of dirt could have struck and injured them and could also
have caused them to be injured by the grinders they were using (Tr.
10-12; 16-19; 41-44; 49-50; 53-54).

Robert Baker testified that a predominant amount of Flint's work
involves pipeline construction. He said he had been to a number of
seminars addressing trenching and pipeline work, and that he and his
staff had attended a Texas A&M program and received certificates of
training in excavation safety.[[5]] He also said all new employees go
through an orientation which addresses pipeline safety, that those on
the site had been trained, and that either he or Bobby Burns, the job
superintendent, conducted daily safety meetings at the site which
sometimes included representatives from the companies from whom they
obtained shoring and trench boxes. Baker observed that although there
were other individuals on the site, the Flint employees were instructed
to not get into any type of excavation until it was shored, sloped or
trench boxes were in place. (Tr. 56-62, 68-69).

Baker further testified the subject project was roughly a 5-mile
excavation through the middle of Midwest City, that it had a very narrow
right-of-way due to its passing through residential areas, and that work
was taking place in three different areas at the same time. Baker noted
he had talked to Burns the day before the inspection, after which they
determined there was insufficient right-of-way to slope the trench and
that shoring and trench boxes from other areas of the job would be used.
He said the company's intent was to use the shoring, and if it was
satisfactory, install 4 by 8 plywood sheets to retain the spoil bank,
otherwise, the trench boxes, which protect the employees working inside
them from cave-ins, would be stacked and locked in place to retain the
spoil bank. Baker understood the shoring and trench boxes were en route
when the CO was there, and observed that the shoring and the plywood
were installed after the inspection. (Tr. 59-64).

Jesse Winsett testified he was present during part of the inspection,
and that Bobby Bums was the overall superintendent of the job. He said
he had been trained in trenching safety and that the company has safety
meetings. He also said the same procedure was used on the entire job,
which was to shore up the trench after it was opened. Winsett noted the
spoil bank is normally kept 2 feet or more from the trench edge, but
that since this was not possible at the site, plyboard was used. He
further noted the portion of the trench the CO saw had been opened the
night before. that the crew was waiting for the shoring material to
arrive when the CO, was there and that he himself had told the crew to
not get into the trench until it was shored. which was done after the
CO, left. Winsett said no one should have been in the trench when the CO
was there, and that no one was in it when he himself was present. (Tr.
77-85).

The subject standard provides as follows:

Employees shall he protected from excavated or other materials or
equipment that could pose a hazard by falling or rolling into
excavations. Protection shall be provided by placing and keeping such
materials or equipment at least 2 feet (.61 m) from the edge of
excavations, or by the use of retaining devices that are sufficient to
prevent materials or equipment from failing or rolling into excavations,
or by a combination of both if necessary.

Based on CO's testimony, Dale McCulley and two other employees were
working in the trench below a 6 to 8-foot spoil bank located on the edge
of the trench without a retaining device. The CO's testimony is
supported by C-2-5, C- 11 and C-13, and was not rebutted by Respondent.
The preceding discussion indicates McCulley was not a Flint employee,
and there is nothing in the record to establish that the other two
workers in the trench were employed by Flint. Moreover, the testimony of
Baker and Winsett in regard to the training and instructions employees
received and the trenching procedures used at the site suggests that
Respondent's employees were not in the trench at the time of the
inspection. Regardless, Commission precedent is well settled that an
employer who creates or controls a hazardous condition, even when the
only employees exposed to the condition are those of different
contractors at the site. will be held liable under Act. Id. It is
obvious from the record Flint controlled the cited condition. that
employees were exposed to it, and that a serious violation has been
established. This citation item is affirmed as a serious violation, and
the proposed penalty of $240.00 is assessed.

_Item 5 - 29 C.F.R. § 1926.651(k)(1)_

George McCown testified the standard requires daily inspections by a
person 16 competent to determine any hazards in the excavation, and that
such person should have knowledge of soil analysis. protective systems
and OSHA regulations. He further testified that when he asked Winsett
whether anyone had been trained in these matters, Winsett responded that
he had not been trained, but that a Mr. White, a company employee who
was working on another project, had received excavation training earlier
that year. McCown said that not having a competent person available to
conduct inspections was a serious hazard because soil conditions can
change daily. and an untrained person would be unable identify hazards.
(Tr.19-22).

Robert Baker testified that none of the persons on his staff were at the
site. Jesse Winsett testified he had been trained In trenching, sloping
and shoring requirements. He indicated he had been trained by Burns, and
that Burns was at a different area of the project the day of the
Inspection. (Tr. 68. 77-78).

The subject standard provides as follows:

Daily inspections of excavations, the adjacent areas, and protective
systems shall be made by a competent person for evidence of a situation
that could result in possible cave-ins, indications of failure of
protective systems, hazardous atmospheres, or other hazardous
conditions. An inspection shall be conducted by the competent person
prior to the start of work and as needed throughout the shift.
Inspections shall also be made after every rainstorm or other hazard
increasing occurrence. These inspections are only required when employee
exposure can be reasonably anticipated.

"Competent person" is defined at 1926.650(b) as follows:

Competent person means one who is capable of identifying existing and
predictable hazards in the surroundings, or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.

The basis of this citation item was Winsett's response to the CO that he
had not been trained in such matters as soil analysis, protective
systems and OSHA regulations relating to excavations. It is evident from
Winsett's testimony he was unfamiliar with soil analysis. (Tr. 84).
Moreover, while he indicated Burns had trained him in trenching
requirements, there was no evidence Burns was adequately trained in
these matters. There was likewise no evidence that White, who Winsett
said had been trained, was available to conduct daily inspections of the
site. Finally, while the preceding discussion demonstrates Baker and his
staff received excavation safety training, it is clear Baker was not
present the day of the inspection and that none of his staff was at the
site. The preceding discussion establishes employee exposure, and the
serious nature of the violation is apparent. This citation item is
affirmed as a serious violation, and the proposed penalty of $480.00 is
assessed.

Item _6 - 29 C.F.R. § 1926.652(a)(1)_

George McCown testified the standard requires employers to use one of
several methods to protect employees in excavations. including sloping,
shoring and the use of trench boxes. He further testified the only
precaution he saw at the site was that the top 37 inches of the trench
had been sloped back 43 inches; the rest of the trench walls were
vertical and unprotected. McCown noted he took samples of the two
different types of soil present at the excavation and submitted the
samples to a lab for testing; the results, shown in C-14, indicated both
samples were "Type B." McCown said he would have recommended the
citation even if the soil had been "Type A" the most cohesive class of
soil, since the walls were vertical and not sloped as required for
either "Type A" or "Type B" soil (Tr. 22-34; 50; 53).

The subject standard provides, in pertinent part, as follows:

Each employee in an excavation shall be protected from cave-ins by an
adequate protective system.

The CO testified that the walls of the trench at the site were vertical,
other than the top 37 inches which had been sloped back 43 inches. He
further testified that the sloping was inadequate, even if the soil had
been "Type A." His conclusion is supported by Table B-1 of the standard,
which provides the maximum allowable slopes for "Type A" and "Type B"
soil, and by Figure B-1, which shows the required sloping for an
excavation in "Type A" soil. Respondent did not rebut the CO's
testimony, and the statements of Baker and Winsett set out in item 4,
supra, demonstrate there was no other method of protection in use at the
time of the inspection. The discussion in item 4 also demonstrates
employee exposure to the unprotected trench, and the serious nature of
the condition is obvious. This citation item is affirmed as a serious
violation, and the proposed penalty of $480.00 is assessed.

_Penalty Determination_

Penalties have been assessed for Items 4, 5, and 6, supra. In assessing
the penalties, due consideration has been given to the employer's size,
history and good faith, as well as to the gravity of the violations.
_
Conclusions of Law_

1. Respondent, Flint Engineering and Construction Company, is engaged in
a business affecting commerce and has employees within the meaning of
section 3(5) of the Act. The Commission has jurisdiction of the parties
and of the subject matter of the proceeding.

2. On August 31, 1990, Respondent was in nonserious violation of 29
C.F.R. §§ 1926.21(b)(2) and 1926.59(h).

3. On August 31, 1990, Respondent was not In violation of 29 C.F.R. §
1926.303(c)(3).

4. On August 31, 1990, Respondent was in serious violation of 29 C.F.R.
§§ 1926.651(j)(2), 1926.651(k)(l) and 1926.652(a)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law,
it is ORDERED that:

1. Items 1 and 2 of serious citation number 1 are AFFIRMED as nonserious
violations, and no penalties are assessed.

2. Item 3 of serious citation number 1 is VACATED.

3. Items 4, 5 and 6 of serious citation number 1 are AFFIRMED, and
penalties of $240.00, $480.00 and $480.00, respectively, are assessed.

Louis G. LaVecchia Administrative Law Judge
DATE: May 18, 1992


FOOTNOTES:

[[1]]Flint withdrew its notice of contest of two citation items when the
Secretary downgraded the violations to other-than-serious with no
penalty assessed. The judge vacated a third citation item for an
unguarded grinding tool because the Secretary failed to show either that
Flint employees were exposed or that Flint created or controlled the hazard.

[[2]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.651 General requirements.
(j) Protection of employees from loose rock or soil.
(2) Employees shall be protected from excavated...materials...that could
pose a hazard by falling or rolling into excavations.

[[3]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.651 General requirements.
(k) Inspections (1) Daily inspections of excavations, the adjacent
areas, and protective systems shall be made by a competent person for
evidence of a situation that could result in possible cave-ins, failure
of protective systems...or other hazardous conditions.... These
inspections are only required when employee exposure can be reasonably
anticipated.

[[4]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.652 Requirements for protective systems.
(a) Protective of employees in excavations. (1) Each employee in an
excavation shall be protected from cave-ins by an adequate protective
system....

[[5]] See D Harris Masonry Contract. Inc., v. Dole. 876 F.2d 343 (3rd
Cir. 1989); Electric Smith. Inc. v Sec'y of Labor 666 F.2d 1267(9th Cir.
1982): Central of Ga R Co. v. OSHRC 576 F.2d 620 (5th Cir. 1978); Novak
& Co., Inc. 11 B N A OSHC 1763 1983-84CCH OSHD ¶ 26,756 (No. 80-7335, 1984)

[[6]] See Dun-Par Engineered Form Co. v. Marshall. 676 F.2d 1333 (10th
Cir. 1982): Marshall v. Knutson Constr. Co.,566 F.2d 596 (8th Cir.1977)
F.L. Hughes and Co., 11 BNA OSHC 1391. 1983-84 CCH OSHD ¶ 26,520 (No.
14519, 1983); H. B. Zachry Co., (Intl).8 BNA OSHC 1669. 1980 CCH OSHD ¶
24,588 (No. 76-267,1980).

[[7]] The Secretary argues that the employees observed in the trench
were in fact Flint employees. Since, as the Secretary
acknowledges,affirmance of the citation does not depend on a
determination of this issue, we make no factual finding as to whether
the employees in the trench were Flint employees or those of another
sub-contractor. For analytical purposes, however, we treat the ma s
non-Flint employees.

[[8]] Flint contends, that the trench itself was not the hazard in
question. Instead, it claims that the hazard was the absence of adequate
shoring in the trench, and then only when combined with the presence of
employees. We disagree. The open trench was the hazard.

[[9]] The duration of employees exposure is not determinative of the
seriousness of a violation; it relates rather to the gravity factor in
assessing a penalty. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1047, 1981
CCH OSHD ¶ 25,712 at p. 32,057 (No. 76-4765, 1981) and cases cited.

[[1]] Items 1 and 2 of the citation alleged violations of 29 C.F.R. §
1926.21(b)(2) and 1926.59(h), respectively. At the hearing, the
Secretary amended items 1 and 2 to nonserious and reduced the proposed
penalties to zero after which Respondent withdrew its contest of these
items. (Tr. 4-6)

[[2]] McCown has been with OSHA for six years; his previous experience
includes seven years as a safety officer with the United States Army and
ten years as an accident loss control supervisor and manager with Aetna
Insurance Company. (Tr. 6-8, 36-37).

[[3]] Prior to this position, which he has held for two years, Baker was
a corporate safety manager for Western Oil Well Service Company for
thirteen years. (Tr. 55).

[[4]] A general contractor on a multi-employer worksite is typically
responsible for assuring the prevention or abatement of all conditions
affecting the safety or health of employees on the site. Id. However,
the Secretary did not establish Flint was. the general contractor in
this case.

[[5]] Baker said the seminars and Texas A&M program had taken place in
1989 and 1990. (Tr. 68).