United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20thStreet, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC Docket No.11-2559 JIM BOYD CONSTRUCTION,INC., Respondent. ON BRIEFS: Anne R. Ryder, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Ann Rosenthal, Acting Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC For the Complainant J. Larry Stine, Esq.; Mark A.Waschak, Esq.;Wimberly, Lawson,Steckel, Schneider & Stine, P.C., Atlanta, GA For the Respondent DECISION Before: ATTWOOD, Chairman;andMacDOUGALL,Commissioner. BY THE COMMISSION: In March 2011, the Occupational Safety and Health Administration inspected a trench dug by Jim Boyd Construction, Inc.(JBC)at a construction worksite locatedon theU.S.Marine Corps Logistics Base in Albany, Georgia.Following the inspection, OSHA issued JBCtwo citationsalleginga total of fourviolations ofOSHA’s excavation standard. Thewillfulcharacterization of Citation2, Item1,is the only issue onreview.1 <#ftn1> In that item, the Secretary alleged thatJBC violated29 C.F.R. § 1926.652(a)(1),whichrequiresthatthewalls aboveatrench shield be sloped back so that thebase of the slope is below thetop of the shield.2 <#ftn2> Following a hearing,formerAdministrative Law Judge Ken S.Welschaffirmed the violation but characterized it as serious,stating that “[a]lthoughon a technical level it could be argued that [JBC] substituted[its]judgment” for that of thecited standard, the company“had reason to believe that the construction of the trench was acceptable”because third-party safetypersonneldid not object to its design. For the reasonsthat follow, we reverse the judge’s decision, affirm the violation as willful, and assess a penalty of $27,500. BACKGROUND At the time of the inspection, the trench measured approximately 600 feet in length,and ranged from12 to 16 feet in width and 2 to 12 feet indepth. The trench’s nearly vertical walls were, as stipulated by the parties, composed ofTypeB soil, and in most areas the ground on either side of the trench was covered by a 12-to-18 inch thick concrete slab. Inside the trench were numerous,pre-existing pipesthatcrisscrossed the trench and each other. For the project,JBC rented trench shields that measured 6 to 8 feet inheight. The trench shields were not installed uniformly,andseveral areas of the trench’s wallswere leftunprotected. The onlyunprotectedareasat issueon reviewaretheportionsof the trench wallsthatextendedfrom2 to 4 feetabove the topsofsome ofthe shields. JBC’s supervisor at the worksite,superintendent DanielLayfield, was the company’s only employee to testifyat the hearing. Heacknowledged that the trench shields were “[p]robablynot” in compliance with § 1926.652(a)(1), but stated that he had “installed [them] to the best of [his] ability.” Layfieldexplained that the trench’s pre-existing pipes made stacking the shields (so that theywouldrise above the top of the trench’s vertical walls) difficult,and that he believed stacking them would haveincreased therisk of contactingoverhead power lines when hoisting pipe intothe trench. Headmitted that beyond considering whether to stack the shields, he “did nothing else to the ditch” because he believed “[t]here was no hazard.” According toLayfield,his belief was based on the fact thatsafety representatives from themarine base, andfromtheproject’s construction managerandgeneral contractor, had all inspectedthe trench and “had no problemwith what [he] had installed.” DISCUSSION I. Characterization “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.’ ” KasparWire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000)(quotingValdakCorp., 17 BNA OSHC 1135, 1136 (No. 93-0239, 1995)),aff’d, 268 F.3d 1123 (D.C. Cir. 2001). In proving a violation was willful, “it is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation,” as “such evidence is already necessary to establish any violation . . . .” HernIron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993). Instead, the Secretary must show that “the employer was actually aware, at the time of theviolativeact, that that the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care.” AJP Constr.,Inc. v.Sec’yof Labor, 357 F.3d 70, 74 (D.C. Cir. 2004)(quotingPropellexCorp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999))(emphasis omitted). Before the judge and again on review, theSecretaryargues thattheexcavationviolation was willful becauseLayfieldknew the trench shields did not comply with § 1926.652(a)(1), butdisregarded thestandard’s slopingrequirement because he believed the trench was safe. To prove intentional disregard, the Secretary must show that the employer (1)had a heightened awareness of the “applicable standard or provision prohibiting the conduct or condition” and (2) “consciously disregarded the standard.” Fluor Daniel v. OSHRC, 295 F.3d 1232, 1239-40 (11th Cir. 2002) (quotingJ.A.M. Builders Inc. v. Herman, 233 F.3d 1350, 1355(11th Cir. 2000));see alsoSal Masonry Contractors, Inc., 15 BNA OSHC 1609, 1611 (No. 87-2007, 1992)(“To show intentional disregard of a standard, there must be evidence that the employer knew of the applicable standard prohibiting the condition and that it consciously disregarded it.”). We findthatLayfield’shearing testimony, along with evidence of hisworkexperience,establishesaheightened awarenessof thecitedstandard’s requirementthatisimputed to JBC.SeeFluor Daniel, 295 F.3d at 1239-40 (awareness of cited requirements established through the testimony oftheemployer’s safety officer,theemployer’s existing knowledge of the danger, and a prior emergency at the employer’s facility);ConieConstr., 16 BNA OSHC1870,1872(No. 92-0264, 1994),aff’d, 73 F.3d 382 (D.C. Cir. 1995)(supervisor’sheightenedawarenessestablished by previous violation of similar standards and testimony “that hehad received specific training about the most recent OSHA regulations on excavations” imputed toemployer in finding willfulness).At the hearing,Layfielddemonstrated hisknowledgeof thecitedrequirementby testifyingthat § 1926.652(a)(1) requires “the starting of your slope. . .18 inches below the top of your box,” but where there is no sloping, like in the trench at issue here, “[y]ouwould have to stack the box[es].” Layfieldclarified that he had this knowledge before theOSHAinspection, explaining that prior to the inspection he had actually considered stacking the shields.In addition,therecord shows that hehadextensive trenching experience—at the time of the inspection,Layfieldhad been engaged in excavation work for more than twenty-five yearsand hadcompleted at least three trench safety courses, including one that specifically covered OSHA’s Subpart P excavation standards. We alsoagree with the Secretary thatLayfield’stestimony establishes conscious disregard. According toLayfield:(1) he knew the trench was “probably not” in compliance with thecitedstandard; (2) he had actually considered stacking the shields to make the trench compliant; and (3) he chose not to stack the shields because he believed that stacking would increase the risk of contact with overhead powerlines.Fluor Daniel, 295 F.3d at 1240;KasparWire Works, 18 BNA OSHC at 2181.Layfield’scontemporaneous consideration ofwhether to stack the shields(a means of complyingwiththe standard)showsthat heknewthe trenchwasnot in complianceat the time of the violation.3 <#ftn3> JBC’s only rebuttaltoLayfield’stestimonyisits claimthatthere is no reference in time to whenhereached hisstatedconclusions, and thereforehistestimonycannot establish conscious disregard. JBCignores, however,thatin explainingwhy hedecidednottostack theshields,Layfield’stestimony showsthathe made that decisionat the timethe violation occurred—“Ifeltlike it would bring more hazards to try to stack this box with the overhead utilities. . . .”(Emphasis added.) In sum,therecordestablishesthat JBC—through its supervisor,superintendentLayfield—had a heightened awareness of thecitedrequirement and consciously disregarded it. Thus, the Secretaryhasestablishedthat the violation was willful. II. Good Faith Effort Defense In rejecting theviolation’swillful characterization, the judgeconcludedthat JBC “had reason to believe that the construction of the trench was acceptable.” Asthe Secretary argueson review,thejudge’s conclusionactuallyrests onthegood faithbeliefdefense to willfulness,even though he never explicitlyidentifiedit as suchin his decision. SeeSec’yof Labor v. Williams Enters.,Inc., 876 F.2d 186, 188-89 (D.C. Cir. 1989) (judge’s“failure tolabelhis analysis withitscorrect name” does not “free him from the standards developed by the Commission for [his] line of reasoning”).The Commission, and many circuit courts, havelong held that a violation is not willful if the employer shows that it “exhibited a good faith,reasonable belief that its conduct conformed to law,. . .or[]it made a good faith effort to comply with a standard or eliminate a hazard.” Am. Wrecking Corp. v.Sec’yof Labor, 351 F.3d 1254, 1263 (D.C. Cir. 2003)(citations omitted).4 <#ftn4> On review,JBChasexpresslywaivedthe good faith belief defense, claiming that it is not “assert[ing] a ‘good faith’ substitution of judgment defense.”5 <#ftn5>The companydoesassert, however,that it“made good faitheffortsto comply with the standard”which, it claims,should obviate willfulness.(Emphasis added.)The test for good faith is an objective one—“whether the employer’s efforts were objectively reasonable even though they were not totally effective in eliminating theviolativeconditions.” A.E. Staley Mfg. Co., 19 BNA OSHC 1199, 1202 (No. 91-0637, 2000) (consolidated),aff’d, 295 F.3d 1341 (D.C. Cir. 2002). However, in cases involving conscious disregard (as opposed to plain indifference), “[t]he [employer’s] good faith effort” must also have been made in “an effort to complywith the cited provision[].” SeeCalangCorp., 14 BNA OSHC 1789, 1793 (No. 85-319, 1990). See alsoLanzoConstr. Co., 20 BNA OSHC 1641, 1648 (No. 97-1821, 2004) (“[A]n employer may defend against a showing of willfulness by producing evidence tending to show that it acted in good faithwith respect to the requirements of the standard at issue.”)(emphasis added),aff’d, 150 F.App’x983 (11th Cir. 2005) (unpublished). Furthermore, the burden of proof for good faith is on the employer. N. Landing Line Constr. Co., 19 BNA OSHC 1465, 1476 (No. 96-0721, 2001)(citingMorrison-Knudsen Co., 16 BNA OSHC 1105, 1124 (No. 88-572, 1993)). According toJBC,Layfieldtook numerous “actions” to comply with the standard, such as properly installing the trench shields in non-obstructedareasof the trench, considering whether to stack the trench shieldsin the cited areas, and consulting with threeothersafetyrepresentativesat the worksite.6 <#ftn6>These actions, however, are insufficient to negate willfulness.With regard to the first action, compliance in other areas of the trench is not“an effort to complywith the cited provision[]” in thedeficientareas of the trench.As to the other actions,although JBC claims they were taken to render the workplace safe, we findthey werein lieu of compliance;not an effort to comply.SeeCalangCorp., 14 BNA OSHCat 1793.Stated simply, the fact that JBC may have believedits “actions”regarding the deficient areasmadethe trench safe does not constitute a good faith effort to comply with thecitedstandard. Throughout itsreviewbrief, JBCalsorepeatedlypoints toits general effort to comply withotherexcavationrequirements (often in different areas of the trench) as an effort to comply with thecitedrequirement in thedeficientareas. However,JBCneveridentifiesspecificmeasuresit took to bring the deficient areas of the trench into compliance with the cited requirement.Furthermore, JBC’s alleged actions,such as considering whether to stack the trench shields or consulting with other safetypersonnel,werenotattemptstocomply with the standardin the cited areas—theymerely explain why JBCbelievedits noncompliance was permissible. Thatbeliefisirrelevant,asJBCexpressly waived the good faith belief defenseon review. JBCfurthercontends thatthe company’scompliancewiththecitedrequirement inthe non-obstructedareas of the trench,as well aswithseveralof the excavation standard’s other requirements, is inconsistent with a willful state of mind.Compliance in one area of a worksite does not constitute an effort to comply in a completely different area—a willful violation is not limited to situations or areasfor whichcompliance was easy or convenient. LanzoConstr., 20 BNA OSHC at 1649 (employer’s compliance with § 1926.652(a)(1) in other areas of trench did not constitute good faith effort to comply, but instead illustrated “a heightenedawareness of the requirements of the standard”);A.G.Mazzocchi, Inc., 22 BNA OSHC 1377, 1388 (No. 98-1696, 2008) (employer’s partial compliance did not negate its decision to knowingly violate the standard);V.I.P. Structures Inc., 16 BNA OSHC 1873, 1875 (No. 91-1167, 1994) (employer’s inability to install safety nets at worksite due to mud was not sufficient to negate willfulness). As for JBC’s claim thatits compliance withsomeof the excavation standard’s other requirementsshows thatit“did not do nothing,”the companyrelieson Commission and circuit court casesaddressingplain indifference, notconsciousdisregard. Whilesuchcompliancemight showJBCwas not plainly indifferent toemployeesafety,ithas no bearingonwhetherthe companyintentionally disregarded the requirementat issue here. SeeAviation Constructors, Inc., 18 BNA OSHC 1917, 1920 (No. 96-0593, 1999) (willful characterization based on conscious disregard, despite evidence of employer’s “efforts to comply with the standard”).Moreover,JBCfailed topursue other options forcomplyingwith thecited standard,such assloping the excavation walls,obtaining taller trench shields,or—if complying with the cited requirementwas as “extremely difficult” as JBC now claims—using a registered professional engineer(RPE)to design a protective system,as permittedunderthe standard. SeeCalangCorp., 14 BNA OSHC at 1793 (requiring employer to show it attempted to comply withallalternative means of compliance available under standard);29 C.F.R. § 1926.652(b)(4)(sloping/benching designed by RPE), (c)(4)(support, shield,and other systems designed by RPE). Finally,JBC maintainsthat its “actions” were reasonable because other safetypersonnelat the worksite approved of the trench’s design. However,as explainedabove,these opinionsmerelyrelate to the reasonableness of JBC’s belief that the noncompliant aspect of the trench posed no hazard; they do notnegatethe company’s awareness of the standard’s requirement and failure to act accordingly. Put another way, even if JBC’s belief weresomehowrelevant to the good faith effort defense, it is not “objectively reasonable” for an employer to ignore a known requirement on the basis that third-party safety personnel did not object. See V.I.P. Structures, 16 BNA OSHC at 1875 (emphasizing that “[r]esponsibilityunder the Act . . . rests ultimately upon each employer . . . .”). Therefore,we findJBC’salleged efforts were not objectively reasonable,and it has not established the good faitheffortdefense. III. Penalty In assessing a penalty, the Commission gives due consideration to:(1) “the size of the business of the employer being charged,” (2) “the gravity of the violation,” (3) “the good faith of the employer,” and (4) “the history of previous violations.” OSH Act§17(j), 29 U.S.C. § 666(j). The gravity of the violation is the “principal factor in a penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy & Automation,Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). On review, neither party addresses the appropriateness of the penalty. The Secretary proposed a $49,000 penalty, reasoning that the gravity of JBC’s violation was high due to the high probability that the trench would collapse, and includeda 30percentreduction on the basis of JBC’s small size. Having affirmed the violation as serious, the judge assessed a penalty of $4,500, which included the size reduction and a $400 reduction based on his finding that “JBC ha[d] [not] received [any] prior citations.” The judge agreed with the Secretary’s gravity assessment, stating that “[t]he violation was of high severity due to the potential seriousness of any injuries had the trench collapsed”—a “possibility” which he stated “was increased” by “the heavy equipment operating in the area” and the “concrete slab” covering theground adjacent to thetrench. Weagree that a reduction for size is appropriatebecause JBC has only 40 employees, but disagreewiththe judge’s gravity assessment. The companyusedtrench shieldsin thecitedareasof the trench, whichwe findsignificantlyreducedboth the likelihood and severity of potential injury. Thus,we find thatthe gravity of the violation is moderate. For purposes of determining an appropriate penalty, we also note thatthe companyconsultedwith safety representatives fromthe marine base, andfromthe project’s construction managerandgeneral manager.In light of these consultations, coupled with the use of the trench shields,we findthata penalty reductionforsomegood faith is warranted. See Aviation Constructors, 18 BNA OSHC at 1922 (“While we find that [the employer] did not make good faith efforts to comply with respect to the particular provision of the standard at issue here, we nevertheless conclude that [the] overall circumstances should be taken into consideration in assessment of an appropriate penalty [for a willful violation].”);ManganasPainting Co., Inc., 21 BNAOSHC2043, 2055 (Nos. 95-0103, 2007)(consolidated)(good faith can be mitigating factor in determining penalty for willful violation),rev’din part on other grounds, 540 F.3d 519 (6th Cir. 2008). Accordingly, we assess a penalty of $27,500. ORDER We affirm Citation2, Item1as willful, and assess a total penalty of $27,500. SO ORDERED. /s/ Cynthia L. Attwood Chairman /s/ Heather L. MacDougall Dated:November 16, 2016 Commissioner Straight Connector 1 United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1924 Building - Room 2R90, 100 Alabama Street, SW Atlanta, Georgia 30303-3104 Secretary of Labor, Complainant, v. OSHRC Docket No. 11-2559 Jim Boyd Construction, Inc., Respondent. Appearances: Karen E. Mock, Esq., U. S. Department of Labor, Office of the Solicitor Atlanta,Georgia For Complainant J. Larry Stine, Esq., & Mark A.Waschak, Esq.,Wimberly, Lawson,Steckel, Schneider & Stine, P.C. Atlanta, Georgia For Respondent Before: Administrative Law JudgeKen S. Welsch DECISION AND ORDER ON REMAND On September 26, 2013, the Review Commission remandedto the Court its decisionin this matterissued June 13, 2013,to consider the applicability of the Eleventh Circuit decision inComTranGroup, Inc. v. DOL, 722 F.3d 1304 (11thCir. 2013) which was issued almost two weeks later. In theComTrandecision as noted by the Commission,the Eleventh Circuit held that where “the Secretary seeks to establish that an employer had knowledge of misconduct by a supervisor, [he] must do more than merely point to the misconduct itself. To meet [his] prima facie burden, [he] must put forth evidence independent of the misconduct” such as “evidence of lax safety standards.” Id. at 1316. The Review Commission in its Remand Order stated that “[B]ecauseit is unclear if the issue of knowledge as presented in the case before us is affected by the court’s decision inComTran, we remand this case in its entirety to the judge for him to consider the applicability of the Eleventh Circuit’s decision.” Pursuant to the Commission’s instruction, the Court held two telephone conference calls with the parties. As a result of the conference calls, the parties filed a Joint Stipulation on Remand on December 2, 2013. The parties stipulated that: 1.Respondent Jim Boyd Construction, Inc. did not raise unpreventable employee misconduct as a defense to the alleged violations in this case. 2.Respondent is not alleging that the actions of its superintendent at the worksite were malfeasance. 3.The decision in theComTrancase should not affect the outcome of the decision in this case. In view of the parties’ stipulations, the Court concludes that theComTrandecision has no applicability to the Court’s decision inJim Boyd Construction Inc.issued June 13, 2013 and the record in this matter does not need any further development. /s/ KEN S. WELSCH Judge Date: December 18, 2013 Atlanta, Georgia ------------------------------------------------------------------------ " <#ftnref-1> <#ftnref0> 1 <#ftnref1>This is the second time this case has come before the Commission. See Jim Boyd Constr., Inc., 24 BNA OSHC 1152 (No. 11-2559, 2013) (remand order). 2 <#ftnref2>Section 1926.652(a)(1) generally requires use of a cave-in protective system “designed in accordance with paragraph (b) or (c) . . . .” Paragraph (b), whichapplies to sloping and benching systems, requiresthatwhen a trench shield does not extend up to the top of a trench,the soil on each side oftheshieldmustbe sloped back so that the top of the shield risesat least 18 inchesabove the top of the verticalportion of thewalls. 29 C.F.R. § 1926.652(b); 29 C.F.R. pt.1926,subpt. P, app. B, fig.B-1(Vertically Sided Lower Portion). Paragraph (c), in relevant part, requires that the employer follow the shield manufacturer’s tabulated data, which here requires that the ground above the shield also be sloped, starting at a point six inches below the top of the shield, with a maximum allowable slope of 1:1. 29 C.F.R. § 1926.652(c)(2). For deeper trenches, the tabulated data state that employers may stack the shields. 3 <#ftnref3>At the hearing, JBC argued thatLayfield’sbelief that complying with thecited standardwould create a greater hazard is evidence thatthe violation was not willful. JBC, however,has never asserted the greater hazard defenseandsuch evidence onlyshows thatJBC was not plainly indifferent to employee safety—it does not change the fact thatLayfieldknewofthecitedrequirement and chose not to comply with it. 4 <#ftnref4>Incontrast,the Eleventh Circuit(to which this case could be appealed based on the worksite’s location in Georgia) has held thatan employer’s “good faith disregard of the regulations” or good faith“beliefthat its alternative program meets the objectives of OSHA’s regulations” is “irrelevant”towhether a violation was willful.Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1153 (11th Cir. 1994) (emphasis added);Fluor Daniel, 295 F.3d at 1240 (“Allowing a willful violation to be imposed only in cases of bad faith would unduly restrict OSHA’s authority to impose its most severe sanction, and thus undermine the congressional purpose of creating a strong and effective federal job safety statute.”)(internal quotation marks and citations omitted). 5 <#ftnref5>GivenJBC’s waiverof this defense, we do not address it. 6 <#ftnref6>In its review brief, JBC points to statements made bytheOSHAcomplianceofficer—such ashis “acknowledg[ment] that [JBC] had tried to address [the safety] issue by talking . . . with the rental company that providedthe trench boxes, and had correctly installed trench boxes in other portions of the project”—as evidence that it made a good faith effort to comply. Whether any of JBC’sassertedefforts constitute a “good faith effort” is a “question of law, and therefore constitutes a legal determination about which the CO was incapable of testifying.” SpiritAerosys., Inc., 25 BNA OSHC 1093, 1096 n.5 (No. 10-1697, 2014)(citingAdvanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1283(Fed. Cir. 2000)). Accordingly, “neither the Secretary nor the Commission is bound” by anyof the CO’s purportedlegal conclusions. See GEM Indus.,Inc., 17 BNA OSHC 1184, 1187 n.6 (No. 93-1122, 1995)(“[N]either the Secretary nor the Commission is bound by an erroneous interpretation of the Act made by a representative of the Secretary.”).