_____________________________________
                                     :
SECRETARY OF LABOR,                  :
                                     :
          Complainant,               :
                                     :
          v.                         :   OSHRC DOCKET NO. 96-0640
                                     :
JAMES WOMACK, STEVEN WOMACK          :
  AND KENNY WOMACK, INDIVIDUALLY     :
  AND d/b/a WOMACK BROTHERS,         :
                                     :
          Respondent.                :
_____________________________________:

*_ORDER_*

This matter comes up on Complainant's motion for reconsideration.
Complainant objects to this judge's finding that Complainant failed to
prove employee exposure. Complainant never elicited testimony from its
witness, Renspurger clearly stating that he entered the cited trench
during the period during March 27, 1996 when the sides of the trench
extended approximately 5 feet above the top of an eight-foot trench box.
Complainant maintains, however, that two statements made by its witness
Renspurger, establish that Renspurger, in fact, entered the trench.

In the statements relied upon by Complainant, Renspurger stated that:

    We came back from lunch. . . we started to dig, to lay pipe again;
    and I noticed that the trench was instead of V'd back at the top, it
    was straight up and down; nothing at all down there above the box.
    And I hollered up to Tom Calderella why it wasn't V'd back.. . ."
    (Tr. 103).

    * * *

    I told him that there was no way I could work in the box or in the
    trench or none of my people under those conditions; that it was
    straight up and down. And I hollered up to Dennis Strake to have
    Robert Mueller come to the top of the trench." (Tr. 105).

By way of clarification, I find that observing Renspurger and hearing
his testimony in context during the hearing, it was clear that
Renspurger was not in the trench as Calderella was starting to dig,
preparing to lay more pipe. It was clear that Renspurger was calling up
to Calderella because Calderella was on the back hoe digging the trench.
Moreover, it was clear that Renspurger was not standing in the trench
telling Calderella that neither he nor his people would go into the trench.

Having reconsidered my decision in this matter, I find that further
amendment of my decision in this matter is unwarranted.

 

Benjamin R. Loye
Judge, OSHRC

Dated: June 2, 1997

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