“SECRETARY OF LABOR,Complainant,v.A.P. O’HORO COMPANY, INC.,Respondent.LABORERS INTERNATIONAL UNIONOF NORTH AMERICA, TRUMBULLCOUNTY LOCAL 935,Authorized EmployeeRepresentative.OSHRC Docket No. 85-0369_DECISION_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue is whether Administrative Law Judge James D. Burroughs erred inaffirming the citation issued to A.P. O’Horo Company, Inc. (\”O’Horo\”)for willful violations of three construction safety standards.On the morning of October 9, 1984, employees of O’Horo, a generalcontractor based in Youngstown, Ohio, were installing sewer pipe in atrench that an O’Horo employee had dug parallel to Route 46 in HowlandTownship, Ohio, as part of the Mosquito Creek Sewer Project. The trenchwas 10 feet deep and 25 feet long. The west wall of the trench, the sidenearest the road, was sloped for about 1-1\/2 feet from the top down,leaving about 8-1\/2 feet vertical. The east wall was sloped for about 2to 3 feet from the top down and was otherwise, vertical. Neither wallwas shored, braced, or otherwise supported. There was a trench box 50 to150 yards away, which the employees were not using that day. While pipelayer Isaiah Richardson, a member of that crew, was in the trench tocheck on a misaligned pipe, the west wall collapsed and completelycovered him. He was extricated but never regained consciousness and hedied a few days later.The day after the accident, OSHA Compliance Officer Thomas Pontuticonducted an inspection of the site. As a result, the Secretary issued awillful citation to O’Horo for violations of three construction safetystandards and proposed a combined penalty of $9, 000. Judge Burroughsaffirmed the willful citation and assessed the proposed penalty.The issues on review are whether the cited standards were violated, and,if so, whether the violations were willful.[[1\/]]I. _Shoring or Sloping Requirement_Item 1b of the citation alleged a willful violation of 29 C.F.R. ?1926.652(c), which provided:[[2\/]]_Subpart P–Excavations,Trenching, and Shoring_ * * * ?1926.652 Specific trenching requirements. * * *(c) Sides of trenches in hard or compact soil, including embankments,shall be shored or otherwise supported when the trench is more than 5feet in depth and 8 feet or more in length. In lieu of shoring, thesides of the trench above the 5-foot level may be sloped to precludecollapse, but shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal. . . . To prove a violation of the standard, the Secretary must establish that:the standard applied to the cited conditions; the employer violated theterms of the standard; its employees had access to the violativeconditions; and the employer had actual or constructive knowledge of theviolation. _See,_ _e.g.,_ _Trumid Construction Co., Inc.,_ 14 BNA OSHC1784, 1788, 1990 CCH OSHD ? 29,078 p. 38,859 (No. 86-1139, 1990).It is undisputed that the standard applies. The trench was greater than5 feet deep and more than 8 feet long, and a significant part of thetrench wall was composed of hard or compact soil. It is also undisputedthat O’Horo’s employee Richardson had access to the cited conditionwhile he was performing his assigned work. Remaining for considerationare the elements of noncompliance with the terms of the standard andemployer knowledge.A. _Noncompliance with Terms of Standard_The Secretary has the burden of establishing that the trench was neithershored nor sloped in accordance with the standard’s requirements. It isundisputed that, prior to the cave-in, the walls of the trench were not\”shored or otherwise supported,\” and the trench box that was availableat the site was not in use. What is at issue is whether the \”sides ofthe trench above the 5-foot level [were] sloped to . . . not be steeperthan a 1-foot rise to each 1\/2-foot horizontal.\”The first question is whether the slope of the trench walls started at apoint no more than five feet above the bottom. The judge found that thetrench was approximately 10 feet deep prior to the cave-in, which wouldhave required that the upper five feet be sloped. O’Horo takes issuewith the judge’s conclusion as to the amount of sloping required bydisputing the judge’s finding on the trench’s depth. It asserts thatbecause of \”the bedding under the pipe, the pipe itself, and the gravelcovering the pipe,\” the trench at the time of the cave-in was only 8feet deep. O’Horo bases its argument on the testimony of Don Black, thebackhoe operator for O’Horo who dug the trench. However, Black’stestimony, except where he spoke of the \”two or three inches of slag\”placed under the pipe for bedding, described procedures performed aftera pipe is aligned. Accordingly, because the cave-in occurred whenRichardson was in the trench to check the pipe alignment, Black’stestimony does not address the conditions that existed in the trench atthe time of the cave-in. We therefore accept the judge’s finding, basedon testimony in which the Secretary’s witnesses agreed with O’Horo’s,that the trench was 10 feet deep, and his conclusion that sloping of theupper five feet of the trench was required under the cited standard.Backhoe operator Black further testified that: the west wall of thetrench, the side nearest the road, was sloped for about 1-1\/2 feet fromthe top down, leaving about _8-1\/2 feet vertical_ above the trenchfloor; and the east wall was sloped for about 2 to 3 feet from the topdown leaving _7 to-8 feet vertical_ above the trench floor.In his decision, Judge Burroughs concluded that O’Horo had violated thestandard. He placed particular importance on Black’s testimony that thesloping did not start until the 8-1\/2 foot level on one wall and the 7to 8 foot level on the other wall, rather than at the 5-foot levelrequired by section 1926.652(c).Moreover, as Judge Burroughs explained in his decision, the sloping thatO’Horo had done was at an inadequate angle. Compliance Officer Pontutitestified that, when he measured the top of the trench _after _thecave-in, it was 7 feet wide. Although none of the witnesses measured thetop width of the trench _before_ the cave-in, Robert Mossman, aninspector for the consulting engineering firm overseeing the project,testified that it was approximately 5 or 6 feet, while Black testifiedthat it was 7 to 8 feet. The judge stated that [t]he opening wasobviously less than seven feet since a substantial amount of soil fellinto the trench.\” Nevertheless, he gave O’Horo the benefit of the doubtand found that, prior to the cave-in, the trench was 7 feet wide at thetop, and 3 feet wide at the bottom. The judge noted that to comply withthe standard’s requirement to lay back one-half foot horizontal for eachone foot rise, the trench should have had a 2-1\/2 foot slope for eachwall starting at the 5-foot level. That would have required a top widthof 8 feet, one foot more than the 7-foot measurement allowed by the judge.O’Horo argues that it substantially complied with the standard becausethe top width of the trench prior to the collapse was, as Blacktestified, 7 to 8 feet. However, even if we were to accept O’Horo’sclaim that it substantially complied with the standard, that does notrelieve it of being found in violation of the standard. Such evidencewould only be relevant in recharacterizing the violation based on thereduced gravity of the hazard. _See Pace Construction Corp.,_13 BNA OSHC2161, 2164, 1989 CCH OSHD ? 28,522, pp. 37,853-54 (No. 85-1362, 1989)(violation other-than-serious, rather than serious, as alleged); _Triple\”A\” South,_ 9 BNA OSHC 1542, 1546-47, 1981 CCH OSHD ? 25,295 pp.31,313-14 (Nos. 77-2922 & 77-3169, 1981) (violations _de minimis,_rather than serious, as alleged).In any event, we conclude that O’Horo’s attempt at compliance was lesssubstantial than it claims. Based on the above discussion, it is clearthat O’Horo failed to comply with the terms of the standard.B. _Employer Knowledge_In order to satisfy her burden of establishing knowledge, the Secretarymust prove that a cited employer either knew, or, with the exercise ofreasonable diligence, could have known of the presence of the violativecondition. ,_United States Steel Corp._ 12 BNA OSHC 1692, 1699, 1986-87CCH OSHD ? 27,517, p. 35,671 (No. 79-1998, 1986). The actual orconstructive knowledge of an employer’s foreman can be imputed to theemployer. _Dun Par Engineered Form Co., _12 BNA OSHC 1962, 1965, 1986-87CCH OSHD ? 27,651, p. 36,033 (No. 82-928, 1986). An employee who hasbeen delegated authority over other employees, even if only temporarily,is considered to be a supervisor for the purposes of imputing knowledgeto an employer. _Paul Betty, d\/b\/a Betty Brothers, _9 BNA OSHC 1379,1381-82, 1981 CCH OSHD ? 25,219 p. 31,150 (No. 76-4271, 1981);_GeorgiaElectric Co_., 5 BNA OSHC 1112, 1115, 1977-78 CCH OSHD ? 21,613, p.25,951 (No. 9339, 1977), _aff’d,_ 595 F.2d 309 (5th Cir. 1979).In this case, Ronald Bowman, a laborer for O’Horo, had been designatedas working foreman of the crew. He was at the work site before andduring the cave-in. According to Bowman, the trench \”looked good\” thatmorning. He testified that he saw no need for the trench box because hethought that the walls of the trench were going to stand by themselveswithout shoring. Bowman gave instructions to backhoe operator Black tocut the trench, but he admitted that Black \”sloped it on his own becausethat’s the way we were working.\” Nevertheless, Bowman testified thatduring the trenching process he personally watched for differences orchanges in the ground conditions, and he also checked for the adequacyof sloping. We conclude that, because he observed the trenching processthat resulted in the inadequately sloped walls, Bowman had knowledge ofthe violative conditions. In light of his supervisory status, hisknowledge is imputable to O’Horo and establishes a prima facie showingof knowledge. _See Capform, Inc._, 13 BNA OSHC 2219, 2222, 1989 CCH OSHD? 28,053, p. 37,776 (No. 84-556, 1989), _aff’d_, 901 F.2d 1112 (5th Cir.1990) (knowledge based on supervisors continually present at excavation).Once the Secretary has made a prima facie showing of employer knowledgethrough its supervisory employee, the employer can rebut this showing byestablishing that the failure of the supervisor employee to followproper procedures was unpreventable. In particular, the employer mustestablish that it had work rules that effectively implemented therequirements of the cited standard, and that these work rules wereadequately communicated and effectively enforced._E.g.,_ _H.E. Wiese,Inc._, 10 BNA OSHC 1499, 1505, 1982 CCH OSHD ? 25,985, p. 32,614 (Nos.78-204 & 78-205, 1982),_aff’d per curiam_, 705 F.2d 449 (5th Cir.1983);_see Brock v. L.E. Myers Co.,_ 818 F.2d 1270, 1277 (6th Cir.1987), _cert. denied, _108 S.Ct. 479 (No. 87-246, 1987).The judge concluded that O’Horo did not prove unpreventable employeemisconduct. We agree. Regarding the first element of this affirmativedefense, namely proof of relevant work rules, O’Horo relies on itswritten safety plan, which was prepared by the Associated GeneralContractors of America and introduced into evidence as Exhibit C-18, andon its safety pamphlet, which was prepared by the Ohio ContractorsAssociation and introduced as Exhibit R-I. However, there are noprovisions in those documents that specifically require that a trenchdug in hard or compact soil, that has not been shared or otherwisesupported, must be sloped above the 5-foot level no steeper than aone-foot rise to each 1\/2-foot horizontal, as section 1926.652(c)(quoted above) expressly requires.[[3\/]] According to the testimony ofRobert Sause, O’Horo’s project superintendent, O’Horo relied on thecrews to make their own decisions as to trench sloping and trench boxuse, because it considered the crews to be experienced.Even if O’Horo’s work rules were sufficient, the evidence demonstratesthat they were not adequately communicated. Daniel O’Horo, O’Horo’spresident, testified that the written safety plan was distributed toO’Horo’s foremen. However, when shown a copy of Exhibit C-18, O’Horo’swritten safety plan, at the hearing, both foreman Bowman and LarryPawlik, another O’Horo foreman working on the same sewer project,testified that they could not recall ever having seen the plan before.Crediting the testimony of the two foremen over that of O’Horo’spresident, the judge found that the written safety plan had not beendistributed to its employees. We defer to that credibilitydetermination. _See C. Kaufman. Inc._, 6 BNA OSHC 1295,1297, 1977-78 CCHOSHD ? 22,481, p. 27,099 (No. 14249, 1978).We also adopt the judge’s finding that the information in the safetyplan had not otherwise been communicated to employees. Foreman Bowmantestified that, although he had received some safety pamphlets, he hadnot received any specific, formal instructions from O’Horo on slopingand trench box use. Backhoe operator Black testified that he had notreceived any training from O’Horo on trenching.We further conclude that the work rules were not adequately enforced.Bowman testified that he was not aware of any O’Horo official checkingon his safety judgment, and he did not know what David Limpach, O’Horo’ssafety director, was doing when he visited the job site. O’Horo’spresident testified that he told Limpach, who did not testify at thehearing, to make sure that the employees were apprised of all OSHAregulations. But, when asked if he followed up to see if that had beenaccomplished, O’Horo’s president responded that Limpach reported to himonly \”occasionally\” and told him that he had given instructions as tosafety. Robert Sause, O’Horo’s project superintendent, testified that hechecked on the sewer project crews only occasionally because most of histime was spent at the waste water treatment plant project. Sause andO’Horo’s president testified that they took steps to correct unsafeconditions that they observed when they were present at the site.Neither O’Horo’s safety plan nor its pamphlet mention any discipline orreprimands for safety rule violations. Based on all of these factors, itis evident that O’Horo had no set policy on enforcement. O’Horo’s workrules were therefore essentially a paper program. _See Brock v. L. E.Myers Co., _818 F.2d. at 1278. Even safety director Limpach recognizedthe flaws in the plan. The compliance officer testified that Limpach hadtold him that O’Horo’s safety plan was \”very good\” in writing, but\”there was very, very minute implementation….\”We find that O’Horo failed to establish the affirmative defense ofunpreventable employee misconduct, and that Bowman’s knowledge istherefore properly imputed to O’Horo. Because the Secretary hasestablished all of the elements of the alleged violation, we affirm thejudge’s conclusion that O’Horo, violated section 1926.652 (c).II. _Employee Instruction Requirement_Item 1a of the citation alleged a willful violation of 29 C.F.R. ?1926.21 (b)(2), which provides:?1926.21 Safety training and education.(b) _Employer responsibility._(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.According to the citation, O’Horo violated the standard because itsemployees \”were not adequately instructed regarding proper trench safeguards [sic].\” O’Horo argues that its instructions were sufficient. Thejudge rejected that contention and concluded that O’Horo did notadequately instruct its employees.While the citation item speaks of failure to instruct in trenchsafeguards in general, it appears, from the manner in which the allegedviolation was tried and argued by the parties, that the heart of thecharge is the inadequacy of O’Horo’s instructions regarding the mostbasic of trench safeguards–adequate sloping or shoring–and theregulation that addresses that safeguard for the type of soilhere–section 1926.652(c), quoted above.[[4\/]]Section 1926.21(b)(2) requires employers to instruct employeesconcerning \”safety hazards which would be known to a reasonably prudentemployer or which are addressed by specific OSHA regulations.\” (emphasisadded). _See H. C. Nutting Co. v. OSHRC_, 615 F.2d 1360 [8 BNA OSHC1241, 1242, 1980 CCH OSHD ? 24,548, p. 30,030] (6th Cir. 1980)(unpublished). At issue here is whether O’Horo instructed employees inthe hazards addressed by section 1926.652(c).A. _Written Instructions_At the hearing, Daniel O’Horo, O’Horo’s president, testified that, priorto the cave-in, the company had adopted, and distributed to its foremen,a written safety plan prepared by the Associated General Contractors ofAmerica, a copy of which was admitted into evidence as Exhibit C18. The\”Trenching and Excavating\” portion of the plan, on pages E.1.1 throughE.1.8, generally discusses trenching methods and safeguards, stating onone page that \”OSHA requires that all excavations over five feet deep besloped, shored, sheeted, braced, or otherwise supported.\” On page E.1.8,there is a note that the \”Checklist\” \”is for general guidance only. Todefine the requirements for compliance, please consult OSHA standards1926.650, 1926.651, 1926.652, and 1926.653.\”Although the plan refers to section 1926.652, it does not include thespecific requirement of section 1926.652(c), that sides of trenches dugin hard and compact soil (the type of soil in which O’Horo’s trench wasdug) \”shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal.\” The safety plan does provide that, where trenches aresloped, the sides should be cut to the \”‘angle of repose,’ the angleclosest to the horizontal at which the soil will remain at rest.\” Theplan includes a copy of the chart setting forth the specific minimumrequirements for shoring, which was published in Table P-2 accompanyingthe regulations, but the plan does not include any specific minimum_sloping, _requirements. Therefore, the safety plan is inadequate tomeet the employer’s responsibility for training and instruction undersection 1926.21(b)(2).In addition to this shortcoming, the judge found that the evidenceestablished that the written safety plan was not communicated to atleast two O’Horo foremen, including Bowman.O’Horo also contends that it issued written instructions to itsemployees in safety pamphlets. The only pamphlet in evidence is ExhibitR-I, a document published by the Ohio Contractors Association, of whichO’Horo is a member. The section of the pamphlet relevant here is the oneentitled \”Trenching & Excavating\” on page 23, which provides inpertinent part: \”Do not enter a trench more than 5 feet deep unless itis shored, sheeted, boxed, layed-back [sic] or in solid rock.\” Thepamphlet does not indicate what portion of the trench walls should besloped. Nor does it state the angle of sloping required or whetherdifferent soil types require different sloping. We therefore concludethat the safety pamphlet used by O’Horo is also inadequate to meet theemployer’s responsibility under the standard.B. _Other Instructions_O’Horo’s president and its project superintendent Sause both testifiedthat they had spoken to the pipe-laying crews about the need for slopingin areas where trench boxes could not be used. However, neither O’Horo’spresident nor Sause indicated whether their instructions addressed therequirements of section 1926.652(c).Foreman Bowman testified that the only instructions that he had receivedbefore the accident concerning when to use a trench box, or when or howto slope, were from O’Horo’s safety pamphlets. When asked if he wasfamiliar with OSHA standards regarding hard or compact soil, Bowmanreplied, \”I’m not sure. I understood that when you cut anything fivefeet, you start cutting back two-to-one.\” He also testified that he hadnever been given instructions about soil mechanics or attended anylectures on soil, and that all his knowledge had been gained through his14 years of experience working in trenches. When asked what instructionson trench digging he gave to backhoe operator Black on the morning ofthe cave–in, Bowman responded that he \”usually tell[s] [Black) nothing.He knows what to do.\”Backhoe operator Black, who cut the trench, testified that he had notreceived any training on trenching or any safety information from O’Horobefore the accident. He stated that, based on his knowledge, the trenchshould have been sloped \”at least one to one, five feet.\”Larry Pawlik, an O’Horo foreman who headed a different crew on theMosquito Creek project, testified that he never gave his employees anygeneral safety instruction before they started work, nor had O’Horoprovided any films or lectures on training. Pawlik stated that he didnot hold regular safety meetings.In his decision, the judge noted that \”[c]omplacency seems to havepermeated O’Horo’s safety program,\” with supervisors relying on theexperience of the crew instead of providing specific trenchinginstructions for the job. The judge noted Bowman’s concession that hedid not tell Black how to slope the trench, because he was relying onBlack’s judgment and experience, which, the judge observed, wereunfortunately not adequate. After further noting O’Horo’s frequentreference to its reliance on the experience of its employees gainedthrough on-the-job training, the judge rejected O’Horo’s claims ofproper training and raised the question, \”One must wonder who was doingthe training.\”Based on the evidence noted above, we agree with the judge and concludethat, in addition to not providing adequate written instructions ontrenching, O’Horo did not provide any other instructions regardingtrenching, or, if it did, they were inadequate.C. _Knowledge_O’Horo’s president, who described himself as being in charge of overallsafety, testified that he was not aware of any formal training or safetyinstruction about the hazards that might be encountered that was givenby O’Horo to its employees prior to the start of the project. Thepresident testified that he told David Limpach, O’Horo’s safetydirector, to make sure that employees were apprised of OSHA regulations.When asked if he had followed up to see if that had been accomplished,O’Horo’s president responded that Limpach had reported to him\”occasionally.\” At the hearing, O’Horo foremen Bowman and Pawlik did notrecall seeing the safety plan before. Because the knowledge of O’Horo’spresident concerning his own acts and omissions and the foremen’sknowledge of their own lack of training are clearly imputable to O’Horo,we conclude that the company had knowledge of the violative condition.Based on all the evidence noted above, we conclude that O’Horo violatedsection 1926.21(b) (2), and we affirm the judge’s holding on this issue._See John R. Jurgensen Co. v. OSHRC,_ 872 F.2d 1026 [13 BNA OSHC 2121,2125] (6th Cir. 1989) (unpublished). III. _Additional Precautions Requirement_Item 1c of the citation alleged a willful violation of 29 C.F.R.?1926.652 (e), another Subpart P standard, which provided: [[5\/]]? 1926.652 _Specific trenching requirements._(e) Additional precautions by way of shoring and bracing shall be takento prevent slides or cave-ins when excavations or trenches are made inlocations adjacent to backfilled excavations, or where excavations aresubjected to vibrations from railroad or highway traffic, the operationof machinery, or any other source.There is no allegation in this case that the cited trench was adjacentto backfilled materials. Accordingly, in order to prove the allegedviolation, the Secretary has the burden of showing that the trench wassubjected to vibrations and that no additional precautions were taken._See Wright & Lopez, Inc.,_ 10 BNA OSHC 1108, 1111, 1981 CCH OSHD ?25,728, p. 32,077 (No. 76-256, 1981); _Boh Brothers Construction Co_., 4BNA OSHC 1879, 1880, 1976-77 CCH OSHD ? 21,336, p. 25,621 (No. 7184,1976). The standard \”does not require the Secretary to show that thevibrations created an additional danger of collapse, for the standardalready makes the judgment that vibrations have that effect.\” _Wright &Lopez,_ 10 BNA OSHC at 1111-12, 1981 CCH OSHD at p. 32,077. _See BohBrothers,_ 4 BNA OSHC at 1880, 1976-77 CCH OSHD at p. 25,621 (Secretaryneed not take seismic measurements or have representative entertrench).[[6\/]]A. _Noncompliance with Terms of Standard_The Secretary sought to prove the alleged violation in this case byintroducing the following evidence. The cited trench was dug parallel toa portion of Route 46, a two-lane highway that runs north and south. Thehighway is heavily traveled by vehicles ranging from automobiles totractor trailers. On the morning of the cave-in, the traffic was heavythroughout the time that the crew was working in and around the trench.The center of the trench was 9 feet from the edge of the road.[[7\/]]Compliance officer Pontuti testified that on October 12, three daysafter O’Horo’s trench collapsed, he personally observed the collapse ofthe unsloped wall of another contractor’s trench, which was similarlydug parallel to Route 46. He attributed this later cave-in to thevibrations caused by the traffic along Route 46.[[8\/]]The trench that he saw collapse on October 12 was about 1 to 1-1\/2 milesfrom O’Horo’s trench. Like O’Horo’s, that trench was dug about 9 feetfrom the highway in hard and compact soil, and it was the wall nearestthe road that collapsed. According to Pontuti, the \”heavy truck traffic\”along Route 46 had \”a lot of impact\” on trenches dug within 12 feet ofthe highway, for the \”road vibrations\” could cause, in possibly a shorttime, a side wall to cave in.Based on the evidence and precedent discussed above, the judge concludedthat the Secretary had established a violation. He particularly notedthat \”[i]f [as Pontuti testified] vibrations were present on October 12,they would have been present on October 9. Heavy traffic, which includedlarge tractors and trailers, would cause vibrations within nine feet ofthe road.\”O’Horo’s contentions on review are primarily reiterations of argumentsaddressed by the judge and already discussed in resolving the otheritems on review. The arguments are rejected here for the reasons alreadygiven. Requiring some further clarification is O’Horo’s claim that theSecretary must introduce evidence that vibrations were felt, noting thatin _Wright & Lopez,_ _supra,_ the compliance officer testified that hecould feel vibrations. We find that no such showing is required. In_Cedar Construction Co. v. OSHRC_, 587 F.2d 1303, 1306 (D.C. Cir. 1978),the court concluded that \”[t]he danger of excessive vibration _wasapparent_ from the fact that the trench was approximately 50 feet from awell-traveled highway.\” (emphasis added) . The 50-foot distance betweenthe trench and the highway was far greater than the 9 feet involvedhere. _See John R. Jurgensen Co., v. OSHRC_ [13 BNA OSHC at 2125](trench subject to vibrations from highway traffic because of fact thatit was dug within 4-1\/2 feet of major highway with fairly heavy traffic).Although it takes issue with the compliance officer’s opinion testimonythat there were vibrations at the trench from the traffic along thehighway, O’Horo did not introduce expert testimony in rebuttal. _Cf.__Donovan v. John R. Hughes Construction Co._ [11 BNA OSHC 1114, 1115,1983-84 CCH OSHD) ? 26,409, pp. 33,508-09] (W.D. Tex. 1983) (test byexpert in ground-borne waves revealed no vibrations were conveyed toearth in trench adjacent to highway; imminent danger injunction denied).B. _Employer Knowledge_Working foreman Bowman testified that he thought that the trench wasstable and safe. He stated that, although he observed the traffic on theroad, he did not think that it would affect anything in the trenchbecause the vehicles \”don’t come over on the berm.\”In his decision, the judge stated that Bowman’s \”lack of concern issurprising in view of the fact that the center line of the trench wasonly nine feet from the edge of the road.\” The judge noted that Bowmanwas obviously unaware of O’Horo’s statement in its safety plan that\”[v]ibrations or sudden shock from passing vehicles . . . can contributeto cave-ins by loosening the soil. . . . If these conditions exist nearan excavation site, stronger support is vital.\”We conclude that Bowman should have known of the violative condition,and his constructive knowledge is imputable to O’Horo because of hissupervisory status.Based on the evidence discussed above, we affirm the judge’s conclusionthat the Secretary established a violation of section 1926.652(e).IV. _Willfulness_In the citation, the Secretary alleges that the violations of sections1926.21(b)(2), 1926.652(c), and 1926.652(e) were willful. A willfulviolation is one committed with intentional, knowing, or voluntarydisregard for the requirements of the Act, or with plain indifference toemployee safety. _E.g._, _Calang Corp.,_ 14 BNA OSHC 1789, 1791, 1990CCH OSHD ? 29,080, p. 38,870 (No. 85-319, 1990). In order to showintentional disregard of a standard, there must be evidence that theemployer knew of an applicable standard prohibiting the condition andthat it consciously disregarded it._E.g._, _Williams Enterprises, Inc.,_13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No.85-355, 1987).As the judge noted in his decision, O’Horo was aware of the requirementsof the three interrelated standards that it violated. O’Horo’s awarenessis most clearly demonstrated in the words of its own safety plan,Exhibit C-18. On page C.1.1, under the \”Training\” heading, the planquotes section 1926.21(b)(2) verbatim, although it miscites it as\”1926.21(a)(2).\” Regarding the other two standards, the first entryunder \”Trenching & Excavations–a Checklist\” cautions the reader to\”consult OSHA standards . . . 1926.652 . . . . \” O’Horo also hadknowledge of 29 C.F.R. ?1926.652(b)[[9\/]] from a prior citation it hadbeen issued in 1976, which alleged a willful violation of section1926.652(b) and resulted in a settlement. In addition, as indicated inPart II supra, the plan correctly states that \”OSHA requires that allexcavations over five feet deep be sloped, shored, sheeted, braced, orotherwise supported.\”O’Horo had been given warnings about shortcomings in its trenchingprocedures at this worksite prior to the OSHA Inspection in this case.On July 27, 1984, Thomas Rink, construction safety consultant for theOhio Industrial Commission’s Division of Safety and Hygiene, inspectedthe Mosquito Creek project and observed O’Horo employees working in atrench that had not been sloped, shored, or laid back as required by theState of Ohio’s trenching standards, which were essentially the same asfederal OSHA standards. Rink explained to the O’Horo foreman on the sitethat, in lieu of sloping or shoring, a trench box could be used. He sentO’Horo’s management written notification of the incident.In response to this notification and other complaints about safety filedby Rink against other contractors on the Mosquito Creek project, theAssistant Prosecutor for Trumbull County, Ohio, directed O’Horo andthose employers to appear at a meeting on August 8, 1984. David Limpach,O’Horo’s safety director, attended that meeting, at which Rink reviewedthe trench safety requirements and the prosecutor warned the contractorsto comply.During the week prior to the accident, O’Horo had used a trench boxwhile working near Route 46. On the morning of October 8, the day beforethe accident, foreman Bowman gave instructions to backhoe operator Blackto remove the trench box. Later that day, Mossman, the inspector for thecivil engineering firm overseeing the project, told Bowman that parts ofthe trench walls had collapsed. Nevertheless, despite his knowledge ofthe hazards involved in continuing operations, Bowman did not order useof the trench box on that day. Similarly, on October 9, prior to thecave-in of the west wall onto Richardson, the trench box was not used,even though Mossman again had told Bowman of partial collapses that hadoccurred earlier that morning.[[10\/]]As the judge correctly noted in his decision, based on the evidencediscussed above, O’Horo permitted its foreman Bowman and, throughBowman’s delegation, its backhoe operator Black, to substitute theirjudgment as to whether the trench was safe for the clear requirements ofthe standards, of which O’Horo was well aware.We conclude that the pattern of conduct of O’Horo’s management, from itspresident down to its working foreman, is properly characterized as bothintentional disregard of the construction safety standards and plainindifference to employee safety. _See_ _Titanium Metals Corp. ofAmerica,_ 7 BNA OSHC 2172, 2178, 1980 CCH OSHD ? 24,199 p. 29,434 (No.14080, 1980).We reject O’Horo’s argument that it cannot be found in willful violationbecause it partially sloped the trench. The Commission has notconsidered a violation to be willful where the employer made a goodfaith effort to comply with the standard, even though the effort was noteffective or complete. _Calang Corp._,14 BNA OSHC at 1791, 1990 CCH OSHDat p. 38,870. Here, however, the evidence demonstrates that O’Horo madeno good faith effort to comply with the standards at issue.We therefore affirm the judge and conclude that O’Horo’s violations ofsections 1926.21(b)(2), 1926.652(c), and 1926.652(e) were willful.V. PenaltyIn determining an appropriate penalty, in accordance with section 17(j)of the Act, 29 U. S. C. ?666(j), we must consider the size of theemployer, the gravity of the violation, the good faith of the employer,and the history of previous violations. As the judge noted, theprincipal factor in this case is the gravity of the offense. _SeeNacirema Operating Co._, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No.4. 1972). Here, we agree with the judge that the gravity of theviolations was \”quite severe\” in that Richardson was buried alive by thecollapsing wall of the trench.With regard to the other penalty criteria, O’Horo had been cited in 1976for violating section 1926.652(b). O’Horo is a fairly large constructioncompany, and it was working on a multi-million dollar waste watertreatment plant at the same time as it worked on the sewer project atissue here. There was no showing of good faith on the part of O’Horo.The Commission has the discretion to assess a single, combined penaltyfor violations involving related or similar conduct. _Wright & Lopez,_10 BNA OSHC at 1112, 1115, 1981 CCH OSHD at pp. 32,077, 32,080; _H.H.Hall Construction Co.,_ 10 BNA OSHC 1042, 1049, 1981 CCH OSHD ? 25,712,pp. 32,058-59 (No. 76-4765, 1981). Because these three willfulviolations are interrelated and concern similar conduct, we assess, asthe judge did, a combined penalty of $9,000.VI. _Order_Accordingly, we affirm the decision of the judge and conclude thatO’Horo committed willful violations of sections 1926.21(b)(2),1926.652(c) , and 1926.652(e). We assess a combined penalty of $9,000.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: January 31, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.A. P. O’HORO COMPANY, INC.,Respondent,andLABORERS INTERNATIONAL UNION OFNORTH AMERICA, TRUMBULL COUNTYLOCAL 935,Authorized EmployeeRepresentative.OSHRC Docket No. 85-0369APPEARANCES:F. Benjamin Riek, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainantAlan D. Wenger, Esquire, and George J. Limbert, Esquire, Youngstown,Ohio, on behalf of respondent_DECISION AND ORDER_Burroughs, Judge: Respondent, A. P. O’Horo Company, Inc. (\”O’Horo\”),contests alleged willful violations of 29 C.F.R. ? 1926.21(b)(2), fornot adequately instructing employees in the recognition and avoidance ofunsafe conditions, 29 C.F.R. ? 1926.652(c), for failure to properlyslope, shore or otherwise support the walls of a trench, and 29 C.F.R. ?1926.652(e), for failure to take additional precautions where the wallsof a trench were subjected to vibrations from highway traffic. Thealleged violations emanated from an investigation of a trench collapseon October 9, 1984, in Trumbull County, Ohio, that resulted in the deathof O’Horo employee Isaah (\”Ike\”) Richardson.O’Horo is a general contractor located in Youngstown, Ohio. It does aconsiderable amount of sewer construction work. Sometime in 1984 it wasawarded a contract to construct a sewerage treatment plant and installpart of the sewer lines for the Mosquito Creek Sewer project in TrumbullCounty, Ohio. O’Horo was the general contractor for the installation ofthe sewer line for that part of the job referred to as Madden Corners.The Madden Corners portion of the contract called for the laying ofapproximately 43,000 feet of pipe.The Madden Corners job commenced in early June, 1984. The company usedtwo trenching crews to lay the main sewer lines. Additional employeeswere used to connect the lateral lines from the sewer to the individualproperties. The foremen for the two crews were Ron Bowman and LarryPawlik. They were also responsible for the supervision of the employeesconnecting the lateral lines to the individual properties. Theirimmediate supervisor was Robert Sause. He was job superintendent for thesewerage plant construction and the sewer line installation. The safetydirector for O’Horo was David Limpach. The president, Daniel O’Horo, wasin overall charge of job safety.Around the first of October, O’Horo had installed the sewer line onDawson Road and had reached the intersection of State Route 46. OnOctober 5, 1984, the crew headed by Ron Bowman began to install thesewer line parallel to Route 46 in a northerly direction along the eastside of the road. In addition to Bowman, the crew was comprised of DonBlack, the backhoe operator, Mike Eazor and Ike Richardson, both of whomwere pipelayers, Bowman, Black and Richardson had worked several yearsin pipe construction and were considered to be experienced employees.On October 9, 1984, at approximately 10:00 a.m. there was a majorcollapse of the west wall of the trench located along Route 46 inHowland Township. Ike Richardson was in the trench when the wallcollapsed. He was completely buried by the collapse of the wall. When hewas uncovered, he was found to be in a standing position. He neverregained consciousness and died several days later.An investigation of the accident was conducted by Compliance OfficerThomas Pontuti. He determined that the trench was 25 feet in length, 10feet deep, 7 feet wide at the top after the cave-in, and approximately 31\/2 feet wide at the bottom. The walls of the trench were not shored orotherwise supported at the time of the collapse. As a result of theinvestigation, O’Horo was issued a willful citation on February 12,1985, alleging violations of 29 C.F.R. ? 1926.21(b)(2), 29 C.F.R. ?1926.652(c), and 29 C.F.R. ? 1926.652(e).In order to establish a violation of section 5(a)(2) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 654(a)(2), the Secretary mustprove that (1) the cited standard applies, (2) there was a failure tocomply with the cited standard, (3) employees had access to theviolative condition, and (4) the employer knew of the condition or couldhave known of the condition with the exercise of reasonable diligence._Astra Pharmaceutical Products, Inc.,_ 81 OSAHRC 79\/D9, 9 BNA OSHC 2126,1981 CCH OSHD ? 25,578 (No. 78-6247, 1981), affirmed on issue butremanded on penalty, 681 F.2d 69 (1st Cir. 1982). The evidenceconvincingly establishes that the Secretary has established thenecessary burden of proof essential to sustain the alleged violations.Bowman was the foreman at the site and in charge of the crew. Hisknowledge is imputable to O’Horo unless O’Horo can demonstrate that hewas adequately supervised regarding safety matters. _Wright & Lopez,Inc.,_80 OSAHRC 36\/A2, 8 BNA OSHC 1261, 1980 CCH OSHD ? 24,419 (No.76-3743, 1980). For reasons hereinafter discussed, it is concluded thatO’Horo had a lax safety policy and failed to adequately supervise Bowmanon safety matters. His knowledge of the conditions on October 9 areimputed to O’Horo.I. _Alleged Violation of 29 C.F.R. ? 1926.21(b)(2)_Item 1a of the citation alleged that O’Horo violated section1926.21(b)(2),[[1\/]] which requires employers to instruct employees inthe recognition and avoidance of unsafe conditions. The standard doesnot specify the extent of instruction that must be given to employees.\”Fairly read, the regulation [1926.21(b)(2)] requires that an employerinform employees of safety hazards which would be known to a reasonablyprudent employer or which are addressed by specific OSHA regulations.\”_The H.C. Nutting Co., _615 F.2d 1360 (6th Cir. 1980). 1980 CCH OSHD ?24,548, at p. 30,030. The court in Nutting vacated the alleged violationfor lack of evidence as to industry practice and the lack of specificOSHA standards detailing what steps should have been taken. There is nolack of such evidence in this case.O’Horo was cited for the violation of two standards, ?? 1926.652(c) and1926.652(e). These standards are specific in their requirements.O’Horo’s written safety plan (Ex. 18) specifically covers therequirements of the two standards (Ex. 18. pp. E.1.1-E.1.8) and is anacknowledgement that it was aware of the hazards which the standardsseek to prevent. In addition to the detailed written safety program,O’Horo issued employees a safety booklet (Ex. 1) which advised employeesto shore or lay back all trenches (Ex. 18, p. 23). Its written safetyprogram and safety booklet recognized all the unsafe conditions normallycovered by the OSHA standards. These conditions are also recognized bythe industry.[[2\/]]O’Horo’s primary defense centers on its representation that each of theemployees had extensive experience and knowledge in trenching andtrenching safety practices and had specific knowledge as to the citedOSHA standards. It argues that the standard \”requires only thatemployees be instructed as to hazards and as to safety standards anddoes not require continued warnings, or even enforcement of standards,\”citing Dravo Engineers and Constructors, 84 OSAHRC , 11 BNA OSHC 2010,1984 CCH OSHD ? 25,885 (No. 81-748, 1984), wherein the Commission states(11 BNA OSHC at 2011):*** The company argues that the standard requires only that instructionsbe given and that it complied with that requirement. We agree. The clearlanguage of the standard requires only that an employer instruct itsemployees.The preponderance of the evidence in this case clearly shows that O’Horobreached its duty of giving reasonable instructions to its employees.While there was a good written safety program, the evidence is lackingas to adequate implementation. The company lacked any type of formaltraining program and assumed employees to be well trained fromon-the-job experience (Tr. 272).During the investigation, the safety officer of O’Horo, David Limpach,presented a written safety program to Compliance Officer Pontuti (Tr.274). A careful reading of the program reflects that it is a writtenprogram prepared by some third party for contractors and was apparentlyadopted by O’Horo. The written plan is a good one and is quite detailed.Unfortunately, the evidence is lacking to support implementation of theplan. Daniel O’Horo testified that the plan had been distributed toforemen prior to October 9, 1984, the date of the accident. He had noreceipts from the foremen to show distribution (Tr. 374). Foreman LarryPawlik testified that he had never seen the plan prior to its beingshown to him at the trial (Tr. 207). Foreman Ron Bowman had norecollection of ever seeing the written safety program (Tr. 429, 431).At various times, usually once a month, O’Horo distributed safetypamphlets to employees (Tr. 181, 189, 190, 203, 428). Both Pawlik andBowman testified that they had received the safety booklet and othersafety materials (Tr. 189-190, 203, 428-429). Pawlik testified thatprior to commencing work on the project, he or the company never gaveemployees any type of safety instructions regarding what safety rulesmight apply or as to any type of problems they might encounter (Tr. 181,208). Bowman testified that prior to the accident, no formalinstructions had been given on when to use a trench box or when or howto slope (Tr. 428). Regular safety meetings, as required under thewritten safety program, were not conducted (Tr. 181-182, 273-274, 285).Daniel 0’Horo, who was in overall charge of safety, was unaware ofwhether any formal training, safety classes or instructions were givento employees prior to commencement of the project (Tr. 381- 382). He wasalso unaware of whether the company’s safety program called for weeklysafety meetings or whether the foremen conducted such meetings (Tr.384). His total involvement seems to be that he told David Limpach \”tomake sure that the men were apprised of all the OSHA regulations\” (Tr. 382).The duties of David Limpach would also appear to be rather nebulous.Bowman testified that Limpach visited the site but that he was unawareof what Limpach was doing (Tr. 429-430). Bowman was also unsure ifanyone ever checked on his judgment regarding matters of safety (Tr.443). The written safety plan states that \”[t]he Project Superintendenthas the full responsibility to implement and direct a safety program onhis project\” (Ex. 18, p. A.2.5). The superintendent for the project wasRobert Sause. He testified that he explained to Bowman what his dutieswere on the job (Tr. 489) but conceded that he \”wasn’t really thereenough to tell them [crew] too much\” (Tr. 461). He was not present atthe site each day (Tr. 449) and prior to the accident he had lastvisited the site on October 5 (Tr. 454, 489). He indicated that the crewgenerally made the decision as to what safety procedures to use (Tr.449-450) but that he never brought an inexperienced person into a crewand worked them in a trench (Tr. 450). Sause stated that all members ofthe crew had long tenure with the company and were experienced in sewerline construction work (Tr. 450). The degree of their past training andthe reasonableness of their judgment in performing trenching work isunknown.Sause testified that Black, the backhoe operator, had 25 to 30 years’experience (Tr. 455) and that he had observed his work and knew that hehad sloped trenches (Tr. 456). Black testified that he had neverreceived any training by O’Horo on trenching or how to properly slope atrench (Tr. 238). He had not been told how much slope to put into thetrench prior to the accident, and no one told him that the slope of thetrench was insufficient (Tr. 244). Black did, however, think the slopewas sufficient to make the trench safe (Tr. 248).Complacency seems to have permeated O’Horo’s safety program. Pawlikconceded that at times they had become lax on safety (Tr. 183-184).Instead of providing specific trenching instructions for the job, thesuperintendent and foreman relied on their belief that the crew wasexperienced. Bowman conceded that he did not tell Black how to slope thetrench; yet, he relied on Black’s judgment and experience (Tr. 440).Unfortunately, Black testified that he had never received any trainingfrom O’Horo on trenching or how to properly cut a trench (Tr. 238).O’Horo alludes to experience of employees gained through on-the-jobtraining. One must wonder who was doing the training. The fact thatemployees worked for the company a number of years does not per sesatisfy the requirements of section 1926.21(b)(2). The evidence isoverwhelming that O’Horo’s safety training was inadequate for the levelof instruction appropriate to the circumstances presented to employeesin their daily duties. There Is a lack of evidence showing thatemployees were properly trained in detecting unsafe conditions or thatthey were aware of the OSHA requirements. The fact that Black thoughtthe trench was safe (Tr. 248), and Bowman supposedly checked for theadequacy of the sloping (Tr. 436-437), shows a lack of understanding orplain indifference to the requirements of the trenching standards.A violation of section 1926.21(b)(2) has been determined where theevidence reflected that no safety meetings were held, no specificinstructions were given on digging the particular trench, except forbeing told to \”do it in a safe manner,\” and the foreman indicated thatemployees were supposed to know the hazards of the job. _CedarConstruction Company, _83 OSAHRC 40\/A6, 11 BNA OSHC 1652, 1983 CCH OSHD? 26,639 (No. 82-1029, 1983) (unreviewed Judge’s decision). The evidencein this case is much stronger. The violation of 29 C.F.R. ?1926.21(b)(2) has been established.II. _Alleged Violation of 29 C.F.R. ? 1926.652(c)_The Secretary alleges that O’Horo violated 29 C.F.R. ? 1926.652(c)[[3\/]]in that the walls of the trench were not properly sloped, shored orotherwise supported. In order \”[t]o establish a prima facie showing ofnoncompliance with section 1926.652(c), the Secretary must show that (1)the trench at issue is at least 5 feet deep and at least 8 feet long,(2) the trench is neither shored nor sloped appropriately, and (3) asignificant portion of the trench wall is composed of hard or compactsoil.\” _CCI, Inc.,_ 80 OSAHRC 127\/D4, 9 BNA OSHC 1169, 1173, 1981 CCHOSHD ? 25,091, p. 30,994 (No. 76-1228, 1980),_aff’d,_ 688 F.2d 88 (10thCir. 1982).The parties concur in the determination that the soil in which thetrench was excavated on October 9 was hard and compact (Respondent’sFinding of Fact, No. 10). This conclusion of the parties is inconsistentin this case with Table P-1 of Subpart P which sets forth the angle ofrepose for sloping the sides of excavations. The Commission has heldthat \”Tables P-1 and P-2 contain guidelines for the proper sloping andshoring of various dimensions in various soil types.\”_CCI, Inc.,_ 80OSAHRC 127\/D4, 9 BNA OSHC 1169, 1173, 1981 CCH OSHD ? 25,091, p. 30,993(No. 76-1228, 1980). _aff’d,_ 688 F.2d 88 (10th Cir. 1982). In_Connecticut Natural Gas Corporation,_ 78 OSAHRC 60\/B3, 6 BNA OSHC 1796,1799, 1978 CCH OSHD ? 22,874, p. 27,689 (No. 13964, 1978), theCommission discussed the interrelationship between section 1926.652(b)and (c) and the application of Tables P-1 and P-2, and reached thefollowing conclusion (6 BNA OSHC at 1799):The standards provide further guidance to enable employers to determinewhether a particular trench is regulated by ? 1926.652(b) or ?1926.652(c). In addition to the definitions of \”unstable soil\” and \”hardcompact soil in ? 1926.653, ? 1926.652 contains Table P-1, whichillustrates the approximate angle of repose for different types of earthmaterial. This Table lists an angle of repose of 1\/2 to 1 for compactedangular gravels, and less steep slopes for average soils, compactedsharp sand, and well rounded loose sand.Since ? 1926.652 (c) requires aslope of not steeper than 1\/2 to _1 for hard or compact soil, it isevident that those materials listed in Table P-1 as having a less steepangle of repose must be considered soft or unstable, and are thereforeregulated by ? 1926.652 (b)._ (Underlining added)This language makes clear that only compacted angular gravels can beclassified as hard and compact soil since it is the only material listedin Table P-1 that permits a slope of 1\/2:1. Under this rationale, O’Horoshould have been cited under section 1926.652(b), which pertains to softor unstable soil.The evidence in this case establishes that the soil was a sandy siltwith some clay, which under Table P-1 would be classified as averagesoil and require an angle of repose of 1:1. Thomas Rink, a constructionsafety consultant for the Ohio Industrial Commission, Division of Safetyand Hygiene, expressed the opinion that the trench was dug in averagesoil (Tr. 44, 87) and should have been sloped at a 45-degree angle (1:1)(Tr. 51, 87). The backhoe operator, Don Black, testified that the trenchshould have been sloped 1:1 (Tr. 242-243), which would indicate hethought the trench was of average soil. There is no evidence that thesoil was compacted angular gravel, which under Table P-1 would require aslope of 1\/2:1.The Commission has not always been consistent with the quoted rationalein _Connecticut Natural Gas Corporation,_ _supra._ In D. A. & L. Caruso,Inc., 84 OSAHRC__, 11 BNA OSHC 2138, 1984 CCH OSHD ? 26,985 (No.79-5676, 1984), a violation of section 1926.652(c) was sustained wherethe Commission placed credibility on evidence which indicated that \”thesoil was sandy clay with, perhaps, some weathered rock at the bottom ofthe trench.\” A violation by the Commission of section 1926.652(c) wassustained in _CCI, Inc.,_ 80 OSAHRC 127\/D4, 9 BNA OSHC 1169 1980 CCHOSHD ? 25,091 (No. 79-1228, 1980), even though it found that the soiltests \”indicated the presence of significant amounts of clays andsilts.\” The Commission has declined to review Judges’ decisions findinga violation of section 1926.652(c) where the trench walls were notcomposed of compacted angular gravels. _See Royal Plumbing & Heating,Inc.,_ 84 OSAHRC, 11 BNA OSHC 2249,1984 CCH OSHD ? 27,019 (No. 83-1112,1984) (material described as \”hard dirt\”); _Jennings & ChurellaConstruction Co.,_ 84 OSAHRC , 11 BNA OSHC 1915, 1984 CCH OSHD ? 26,842(No. 83-827, 1984) (material described as \”composed mostly of clay\”);_Kenneth E. Brown Construction Company, Inc.,_ 63 OSAHRC 8\/E14, 11 BNAOSHC 1208, 1983-84 CCH OSHD ? 26,435 (No. 81-2399, 1983) (materialdescribed as \”a clayey gravel\”);_Burn Construction Company, Inc.,_ 81OSAHRC 21\/C4, 9 BNA OSHC 1435, 1981 CCH OSHD ? 25,242 (No. 80-1880,1981) (material consisted of \”soft caliche or clay-like sand\” to a depthof four feet and \”hard caliche\” below that level).This seeming disparity is easily explained by the following language ofthe Commission in _Rochester Products Division, General MotorsCorporation,_ 85 OSAHRC , 12 BNA OSHC 1324, 1326, 1985 CCH OSHD ?27,257, p. 35,218 (No. 80-5439, 1985):GM’s argument that the Secretary failed to prove the applicability ofsection 1926.652(c) therefore reduces to the argument that it shouldhave been cited under the more stringent provision of section1926.652(b) instead. However, under the circumstances of this case,there is no difference in the requirement of the two standards: bothrequire that the trench walls be shored._As the Secretary points out, hegave GM the benefit of the doubt by citing under subsection (c) ratherthan subsection (b) because subsection (c) requires less protection.Thus, if there was a defect in the citation, it tended to benefit GM anddoes not constitute grounds to vacate the citation. We concludetherefore that the judge erred in vacating citation for that reason._(Underlining added)Since section 1926.652(c) is less stringent than section 1926.652(b),the citing of O’Horo for a violation of section 1926.652(c) inured toits benefit. In the context of this case, the distinction has littlesignificance since the evidence establishes a violation of section1926.652(c) .The evidence is undisputed that the walls of the trench were not shoredor otherwise supported and that a trench box was not being used. Theevidence is also undisputed that the trench was more than five feet indepth and eight feet or more in length. O’Horo argues that themeasurements of the trench show that the trench was in substantialcompliance with the sloping requirements of 29 C.F.R. ? 1926.652(c). Theargument is based on its conclusion that 29 C.F.R. ? 1926.652(c)requires a slope of one-half foot horizontal for each one foot verticalrise above the five-foot level.There are some slight but insignificant differences in the measurementsof the trench. O’Horo, relying on the testimony of Don Black, thebackhoe operator, states that the trench was about three feet wide atthe bottom and seven to eight feet wide at the top (Tr. 245). Blacktestified that the trench was \”probably seven or eight feet\” wide buttestified that he did not recall exactly (Tr. 245). Robert G. Mossman,an inspector for the consulting engineering firm, testified that thewidth at the bottom was approximately three and a half feet andapproximately five or six feet at the top (Tr. 133). Compliance OfficerPontuti testified that the trench width at the top measured seven feetafter the collapse of the west wall (Tr. 266). He estimated the width atthe bottom to be approximately three and a half feet (Tr. 266-267). Thedepth of the trench was measured to have been approximately ten feetbefore the cave-in (Tr. 263-264). Pontuti was assisted by Bowman inmaking the measurements (Tr. 262-264). Pontuti further testified thatBlack and the other employees informed him that the trench wasapproximately ten feet deep (Tr. 266). Robert Sause, the superintendentfor the job, testified that the depth of the pipe from invert to theground elevation was about 9.56 feet (Tr. 474) and that thespecifications called for six inches of bedding. He agreed that a depthof ten feet was essentially correct (Tr. 477). The trench was 25 feet inlength (Ex. L).The end result in this case is not altered by the slight variances inthe measurements. Respondent uses Black’s estimate of seven to eightfeet as the width at the top and three feet wide at the bottom to arguethat the trench was sloped in substantial compliance with Table P-1 ofSubpart P. Pontuti measured the top width of the trench after thecollapse of the west wall. Since the actual measurement by ComplianceOfficer Pontuti was seven feet, the estimate of a width of possiblyeight feet advanced by Black is considered unreliable. Testimony basedon an actual measurement made by a witness is entitled to greater weightthan a \”ball park\” estimate. Since there is no way of determining howmuch of the west wall collapsed, seven feet will be used in determiningif there was an adequate slope. However, it is noted that Mossmantestified that the width at the top prior to the collapse wasapproximately five to six feet (Tr. 133). The opening was obviously lessthan seven feet since a substantial amount of soil fell into the trench.A depth of ten feet and width of seven feet at the top are consideredfavorable to O’Horo and are used in determining if the slope was incompliance with ? 1926.652(c). While Pontuti estimated the bottom widthto be three and a half feet, O’Horo uses a three-foot measurement. Sincea 35-inch bucket was used to excavate the trench (Tr. 477), the widthwas probably closer to three and a half feet. It is doubtful a trenchcould be dug a depth of several feet with only a total clearance of oneinch; however, the three-foot measurement will be used since it is morefavorable to O’Horo. While the critical width measurement under section1926.652(c) is at the five-foot level, there was no direct evidence ofthe measurement at this level. There was evidence that the walls werevertical from the bottom to the point of slope (Tr. 243-244), whichwould mean the same measurement at the five-foot level as at the bottom.For purposes of section 1926.652(c), the trench was three feet wide atthe five-foot level, ten feet deep, and seven feet wide at the top.To comply with the standard’s sloping requirements, each trench sideabove the five-foot level had to be sloped or laid back one-half foothorizontal for each one-foot rise. This means the trench should have hada two and a half foot slope of each wall (a total of five feet)commencing at the five-foot level. This would have required a top widthof eight feet. The top width was only seven feet. More importantly, theslope did not commence at the five-foot level. Black testified that theslope on the west wall commenced at a point approximately eight and ahalf feet from the bottom and that the slope for the east wall commencedat a point some seven to eight feet from the bottom of the trench (Tr.243-244). A violation of section 1926.652(c) has been established.III. _Alleged Violation of 29 C.F.R. ? 1926.652(e)_The Secretary alleges that O’Horo violated 29 C.F.R. ? 1926.652(e)[[4\/]]by failing to take additional precautions by way of shoring or bracingsince the excavation was subjected to vibrations from Route 46. Thetrench was dug parallel to Route 46. The center of the trench was ninefeet from the edge of the highway. The highway is heavily traveled.Traffic on the highway was not halted during the pipe installation.O’Horo argues that there was no evidence that there was traffic at thetime of the cave-in or that the traffic caused vibrations which led tothe cave-in. In_Wright & Lopez, Inc.,_ 81 OSAHRC 92\/D10, 10 BNA OSHC1108, 1111, 1981 CCH OSHD ? 25,728 at p. 32,076 (No. 76-256, 1981), theCommission, in commenting on 29 C.F.R. ? 1926.652(e), stated:***The plain words of the standard require additional precautions whenan excavation is \”subjected to vibrations.\” They do not require theSecretary to show that the vibrations created an additional danger ofcollapse, for the standard already makes the judgment that vibrationshave that effect. Thus, while the extent of the additional precautionsdepends upon the amount of vibration, the standard does not permit theemployer to do nothing.It is clear that the Secretary need only show that the trench wassubjected to vibrations and not that there were enough vibrations tocause a cave-in. _See also Boh Brothers Construction Co.,_ 76 OSAHRC142\/A2, 4 BNA OSHC 1879, 1880, 1976-77 CCH OSHD ? 21,336 (No. 7184,1976), wherein the Commission construed section 1926.652(e) to mean thatprecautions must \”be taken where external sources cause the possibilityof vibrations in the trench.\”The statement by O’Horo that there was no evidence of traffic on thehighway at the time of the evidence is apparently directed to a lack ofevidence of traffic at the exact moment of the cave-in. It is undisputedthat there was traffic on the highway while the sewer pipe was beinginstalled. Traffic was maintained on Route 46 while work progressed inthe trench (Tr. 125, 249). The foreman, Ron Bowman, testified that\”[t]here was traffic on the road\” (Tr. 437, lines 4-5). Don Black, thebackhoe operator, testified that there was heavy traffic on Route 46(Tr. 249). The Secretary does not have to show traffic present at theexact tire of the cave-in or that the cave-in was caused by vibrationsfrom traffic. The standard is made applicable when excavations aresubjected to vibrations from highway traffic.Three witnesses, Ron Bowman, Don Black and Robert Mossman, were presentat the site prior to the collapse at the west wall. There is notestimony from any one of them that they felt vibrations from thetraffic. Mossman could not recall if he felt vibrations from the passingtraffic (Tr. 125). Black and Bowman were not asked a question concerningwhether they felt vibrations from the traffic.Bowman was asked if he had watched for changes in vehicular traffic ortraffic patterns near the trench. He replied (Tr. 437):A. That, I’m not so sure about. There was traffic on the road. They don’t come over on the berm, so you wouldn’t think that would affectanything on the ditch that far away.His statement indicates that he did not regard the traffic as a problem.His lack of concern is surprising in view of the fact that the centerline of the trench was only nine feet from the edge of the road (Ex. L;Tr. 263, 334). It is obvious that Bowman was unaware of O’Horo’sstatement in its safety plan concerning vibrations. The plan states (Ex.18, p. E.1.4):Vibrations or sudden shock from passing vehicles or railways, blasting,equipment such as trucks or pile drivers, and some tools can contributeto cave-ins by loosening the soil. Even machines operated in nearbybuildings, such as punch presses, can create enough vibration toendanger a shoring system. If these conditions exist near an excavationsite, stronger support is vital.Since the plan refers to the possibility of vibrations from machines innearby buildings and vibrations from passing vehicles, it is clear thatBowman should have been more alert to the possibility of vibrations.While Compliance Officer Pontuti was not at the site at the time of theaccident, he was familiar with the traffic conditions along Route 46. OnOctober 12, 1984, he personally observed a different trench cave-inalong Route 46 that he felt was caused by vibrations (Tr. 308). Thetrench was located approximately one to one and a half miles north ofthe O’Horo accident site along Route 46 (Tr. 309-310). The trench waslocated approximately nine to ten feet off the street (Tr. 310). Thesoil type was basically the same as at the O’Horo accident site (Tr.311). The circumstances on October 12 were similar to those existing atthe accident site on October 9. If vibrations were present on October12, they would have been present on October 9. Heavy traffic, whichincluded large tractors and trailers, would cause vibrations within ninefeet of the road. The violation has been established.IV. _The Unpreventable Employee Misconduct_ _Defense is Rejected_O’Horo argues that any violations determined in this case should not beattributed to it on the grounds that the violations resulted fromemployee misconduct. This defense recognizes that it would be unfair topenalize an employer for conditions that were unpreventable. In order toestablish the affirmative defense of unpreventable employee misconduct,an employer must show: (1) that it has established work rules designedto prevent the violation; (2) that it has adequately communicated theserules to its employees; (3) that it has taken steps to discoverviolations; and (4) that it has effectively enforced the rules whenviolations have been discovered. _Jensen Construction Company,_ 79OSAHRC 49\/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ? 23,664 (No. 76-1538,1979). \”Employees must be properly trained and supervised and must bemade aware that the work rules will be enforced.\” _Marson Corp., _82OSAHRC 29\/C4, 10 BNA OSHC 1660, 1662, 1982 CCH OSHD ? 26,075, p. 32,804(No. 78-3491, 1982). The employer bears the burden of proving the defense.A. _O’Horo Had a Work Rule Designed to Prevent the Violation_The first element to establish an unpreventable employee misconductdefense must show that the employer had established work rulesimplementing the requirements of the standard. The lack of anestablished work rule adequate to meet the particular violative conductencountered is sufficient to defeat the defense. _See Frank Swidzinski,_81 OSAHRC 4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627,1981). The rule must afford the employees \”a degree of protectioncomparable to that provided in the standard.\” _The Kansas Power & LightCo.,_ 77 OSAHRC 39\/A2, 5 BNA OSHC 1202, 1206, 1977-78 CCH OSHD ? 21,696,p. 26,059 (No. 11015, 1977).Exhibit 18, which was introduced into evidence as O’Horo’s safety plan,covers the particular conduct set forth in the three standards. Thesegment on training (p. C.1.1) covers section 1926.21(b)(2), althoughthe reference is inadvertently made to 1926.21(a)(2). The section ontrenching and excavation covers the requirements of sections 1926.652(c)and 652(e). The safety booklet distributed to employees covers therequirements of trenching but makes no mention of vibrations or therequirement for providing instruction to employees. The written safetyprogram satisfies the first requirement of the unpreventable employeemisconduct defense.B. _The Work Rules Were Not Adequately Communicated to Employees_The second element focuses on an employer’s safety training, specificwork instructions, and hazard warnings. The failure to provide adequatesafety training may result in rejection of the defense. _New EnglandTelephone Co.,_ 80 OSAHRC 54\/A2, 8 BNA OSHC 1478, 1980 CCH OSHD ? 24,523(No. 76-3010, 1980). The defense is also not applicable where there areinadequate specific work instructions. _Danco Construction Co.,_ 77OSAHRC 189\/B1, 5 BNA OSHC 2043, 1977-78 CCH OSHD ? 22,280 (No. 12847,1977), _aff’d_, 586 F.2d 1243 (8th Cir. 1978). The defense has beensustained where the employees were well trained, experienced, and knewof the rules. _Texland Drilling Corp.,_ 80 OSAHRC 106\/C13, 9 BNA OSHC1023, 1980 CCH OSHD ? 24,954 (No. 76- 5307, 1980).There is no evidence that the information in the written safety plan wasever adequately disseminated to employees. This plan was supposedlydistributed to foremen; yet, they were unaware of its existence. ForemanLarry Pawlik testified that he had never seen the plan prior to itsbeing shown to him at the trial (Tr. 207). Foreman Ron Bowman had norecollection of ever seeing the written safety program (Tr. 429, 431).While the superintendent, Robert Sause, testified that he told companypersonnel many times about proper procedures (Tr. 450), the evidencereflects he did not do an adequate job. In addition to Pawlik and Bowmanhaving never seen the written safety plan, the backhoe operator, DonBlack, had never received any training by O’Horo on trenching or how tocut a trench (Tr. 238). Regular safety meetings were not conducted (Tr.181-182, 273-274, 285), and no formal instructions had been given onwhen to use a trench box or when or how to slope (Tr. 428). The plan wasnever adequately communicated to employees. The mere distribution ofsafety pamphlets to employees does not satisfy the requirement.C._Steps Were Not Taken to Discover Violations_The third element in establishing the defense requires evidence that theemployer exercised reasonable diligence in detecting workplace hazards.The defense has been rejected where there were numerous incidents ofprior noncompliance and where several employees were engaged in theproscribed conduct. _Daniel Construction Co.,_ 82 OSAHRC 23\/A2, 10 BNAOSHC 1549, 1982 CCH OSHD ? 26,027 (No. 16265, 1982); _JensenConstruction Co.,_ 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ?23,664 (No. 76-1538, 1979).If steps were taken to insure compliance with the written safety plan,the course of action pursued was not made clear to the foremen oremployees. Foreman Ron Bowman testified that he was unaware of anyonechecking on his judgment as to safety matters (Tr. 443). He was alsounaware of what David Limpach, the safety director, was doing on the Job(Tr. 443). The superintendent, Robert Sause, testified that heoccasionally checked on the foreman but did not specifically refer tohis checking on safety habits or procedures (Tr. 448). He stated thatthe crew made the decision as to what precautions should be taken (Tr.450). Sause indicated that on one occasion he observed employees workingoutside the trench box, and the matter was brought to the attention ofBowman (Tr. 458, 460, 490). Foreman Pawlik testified that Daniel O’Horoinspected jobsites and let employees know if the job was safe (Tr.181-182, 190) . The policy seems to have been that Daniel O’Horo, RobertSause or David Limpach corrected any unsafe conditions they observedwhile on the site. There appears to have been no stated policy on whatsteps were to be taken to discover violations. The preponderance of theevidence clearly shows that employees were not adequately made aware ofthe fact that work rules would be enforced.D. _Work Rules Have Not Been Effectively Enforced When Violations Have Been Discovered_The last element of the defense involves the degree to which theemployer takes action through sanctions and discipline to enforce itssafety rules. Where an employer fails to discipline employees afterprior incidents of violative conduct, subsequent violations have notbeen considered unpreventable and the defense has been rejected. _AustinBuilding Co. v. OSHRC,_ 647 F.2d 1063 (10th Cir. 1981); _H. B. ZachryCo.,_ 80 OSAHRC 9\/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ? 24,196 (No.76-1393, 1980), _aff’d,_ 638 F.2d 812 (5th Cir. 1981); _Leo J. Martone &Associates, _77 OSAHRC 87\/A3, 5 BNA OSHC 1228, 1977-78 CCH OSHD ? 21,718(No. 11175, 1977). Where sanctions such as reprimands and docking of payhave been imposed, the defense has been sustained. _Asplundh Tree ExpertCo.,_ 79 OSAHRC 109\/A2, 7 BNA OSHC 2094, 1980 CCH OSHD ? 24,147 (No.16162, 1979); _Engineers Construction, Inc.,_ 75 OSAHRC 84\/E11, 3 BNAOSHC 1537, 1975-76 CCH OSHD ? 20,012 (No. 3551, 1975).There is no evidence of any policy of imposing discipline or reprimandsfor violations of safety rules. The written safety plan (Ex. 18) andsafety booklet (Ex. I) do not cover the subject. No examples ofdiscipline imposed for violations of safety rules were offered at thehearing.O’Horo has failed to satisfy three of the requisite requirements tosupport its defense of unpreventable employee misconduct. While thewritten plan was adequate, O’Horo made little or no effort to adequatelycommunicate the rules to employees, to discover violations or enforcethe rules by imposing sanctions on the violators. The defense ofunpreventable employee misconduct is rejected.V. _Classification of Violations__Willful _The violations of 29 C.F.R.? 1926.652(c), 29 C.F.R.?1926.21(b)(2), and29 C.F.R. ?1926.652(e) were classified as willful. A willful violationis one that is \”committed with intentional, knowing or voluntarydisregard for the requirements of the Act or with plain indifference toemployee safety.\” _Asbestos Textile Co., Inc_. 84 OSAHRC__, 12 BNA OSHC1062, 1063, 1984 CCH OSHD ? 27,101 (No. 79-3831, 1984) appeal filed andwithdrawn. The Secretary must establish more than carelessness or a lackof diligence in discovering or eliminating a hazard. Where an employerhas made a good faith effort to comply with the standard, a willfulviolation is not justified even though the employer’s efforts are notentirely effective or complete._Marmon Group, Inc.,_ 84 OSAHRC ____, 11BNA OSHC 2090, 1984 CCH OSHD ? 26,975 (No. 79-5363, 1984), appeal filedand withdrawn.A number of factors has been considered by the Commission in decidingthe issue of willfulness. These factors include not only the evidence ofknowledge or plain indifference but also factors which argue in anemployer’s favor, _e.g._, good faith efforts at compliance. Such factorsas an employer’s knowledge of the standard, his reason fornoncompliance, good faith efforts made to comply, established proceduresfor compliance, responsibility for compliance, previous violations ofthe same standard, warning from employees or other workers at the site,precautions, if any, taken to protect employees, the isolated acts ofemployees or supervisors, and training of employees are considered inreaching a determination as to whether a violation is willful. _See,e.g.,_ _Asbestos Textile Co., Inc., supra; Marmon Group, Inc.,_ _supra;__D. A. & L. Caruso, Inc.,_ _supra_; _Mobil Oil Corporation,_ 83 OSAHRC47\/B6, 11 BNA OSHC 1700, 1983-84 CCH OSHD ? 26,699 (No. 79-4802, 1983).There must be evidence, apart from establishing knowledge of a hazard,from which it can be reasonably concluded that the employerintentionally disregarded or was indifferent to the safety of theworkplace. _Kus-Tum Builders, Inc.,_ 81 OSAHRC 97\/B2, 10 BNA OSHC 1128,1981 CCH OSHD ? 25,738 (No. 76-2644, 1981).O’Horo was aware of the requirements of the standards. Its writtensafety rules adequately covered the work situation but were noteffectively communicated to employees. In addition, the contract for theconstruction of the sewer line required O’Horo to support the walls ofthe trench to fully protect all workers (Ex. 15). It had previously beenissued and agreed to a willful violation of 29 C.F.R. ? 1926.652(b) (Ex.38). On July 27, 1984, it had been notified by Thomas Rink, aconstruction safety consultant employed by the State of Ohio IndustrialCommission, that the trench on Dawson Street (part of the same project)needed to be shored or sloped (Ex. 1; Tr. 20-21, 64). Its safetydirector, David Limpach, attended a meeting of the various contractorson the job that was called by the Assistant Prosecutor of the county.The meeting was arranged because of the number of safety violationsobserved by Rink during his inspections. At the meeting, Rink informedthe contractors that there had been a failure to slope, shore or use atrench box to conform to the construction codes of the State of Ohio(Tr. 25-26). The trenching standards of the State of Ohio are basicallythe same as the OSHA standards (Ex. A; Tr. 55-56).The fact that the foreman and backhoe operator thought the trench wassafe (Tr. 248, 431, 438) is not controlling. They substituted theirjudgment for that of the standards. Bowman made a conscious decision toremove the trench box from the excavation on Friday, October 5, 1984.The trench box was not used on October 8 in spite of the fact thatpartial collapses of the east wall occurred on that date and werebrought to Bowman’s attention (Tr. 117-121). Partial collapses alsooccurred on the morning of October 9 prior to the collapse of the westwall and were brought to the attention of Bowman. Yet, he refused to usethe trench box. The standards are clear in their requirements. If Bowmanand Black were not fully cognizant of the requirements of the standards,the fault must be placed on the lax safety policy of O’Horo. Thefailure to follow the standards in the circumstances of this caseindicates an intentional disregard of and plain indifference to OSHAregulations and a careless disregard for the safety of its employees. The violations were willful.VI. _Penalty Determination_While the Secretary proposed a penalty of $9,000 for the willfulviolations of 29 C.F.R. ? 1926.21(b)(2), 29 C.F.R. ? 1926.652(c) and 29C.F.R. ? 1926.652(e), the Commission is the final arbiter in allcontested cases._Secretary v. OSHRC and Interstate Glass Co., _487 F.2d438 (8th Cir. 1973). Under section 17(j) [[5\/]] of the Act, theCommission is required to find and give \”due consideration\” to the sizeof the employer’s business, the gravity of the violation, the good faithof the employer, and the history of previous violations in determiningthe assessment of an appropriate penalty. The gravity of the offense isthe principal factor to be considered. _Nacirema Operating Co. _72OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The gravity of the violations was quite severe. An employee was workingin a trench ten feet deep. A collapse of the west trench wall resultedin the death of employee Isaah Richardson. O’Horo has previouslyreceived and agreed to a willful violation of 29 C.F.R. ? 1926.652(b). Apenalty of $9,000 is appropriate and is assessed for the violations._FINDINGS OF FACT_1. The A. P. O’Horo Company, Inc. (\”O’Horo\”), is a general contractorlocated in Youngstown, Ohio. It is engaged in the construction businessand has considerable experience in sewer construction which involvesexcavations and trenches. Daniel O’Horo is president of the company (Tr.359-362, 423, 446).2. O’Horo is a member of the Ohio Contractors Association and theAssociated General Contractors of America (Tr. 377).3. O’Horo was the general contractor for the installation of sewer pipeon a job known as Madden Corners which was located in Trumbull County,Ohio. The job was a portion of the comprehensive Mosquito Creek SewerImprovement Project in Trumbull County, Ohio (Tr. 12, 102-103, 362, 372,446-448). It was also the general contractor for the construction of thewaste treatment plant (Tr. 372, 447). The sewerage plant constructionwas being done simultaneously with the Madden Corners sewer project (Tr.447).4. The Madden Corners job commenced in late June or early July, 1984(Tr. 447). Two main line crews were working on the job. Additionalpersons were installing lateral lines to homes off the main line (Tr.448). The project involved laying 43,000 feet of various size sewer pipefor a sewerage treatment plant (Tr. 12, 362). Approximately 20 to 22employees were working on the Madden Corners job (Tr. 448).5. O’Horo’s contract for construction of the sewer line required it \”tokeep the sides of the trench adequately supported by use of suitableplanks and jacks, sheet piling, rangers, shores, braces or other meansto fully protect all workmen, adjacent structures and conduits andproperty\” (Ex. 15; p. S107; Tr. 304, 379) .6. Commencing on October 5, 1984, the sewer line was laid in a northdirection parallel to State Route 46 (Tr. 106-107, 118).7. On October 9, 1984, the west wall of the trench along Route 46 inHowland Township collapsed (Ex. 4, 7, 9; Tr. 36-37, 41, 43, 117, 123,132, 134, 244, 252, 255, 401).8. There was a distance of nine feet from the center line of the trenchto the edge of the road (Ex. L; Tr. 263, 334). At the time of thecollapse, the crew had been working parallel to Route 46 forapproximately three days (Tr. 238).9. Route 46 is a two-lane road that runs north and south. It is heavilytraveled and is used by all types of vehicles, including large tractorsand trailers (Tr. 49-50, 106-107, 124-125, 222-223, 249, 307-308, 437).Traffic was heavy on the morning of October 9, 1984 (Tr. 50, 223, 249).10. Traffic was maintained on Route 46 while work progressed in thetrench (Tr. 89, 125, 249).11. The foreman of the crew working during the wall collapse was RonBowman. The crew also included Don Black, backhoe operator, Mike Eazorand Isaah Richardson, both of whom were pipelayers (Tr. 104-106, 199,237-238, 368, 421-422, 458-459). Black was operating the backhoe at thetime of the collapse (Tr. 237).12. Prior to October 9, 1984, Black had received no training fromO’Horo on trenching requirements or how to slope a trench (Tr. 238,368). He had never been informed as to how much to slope a trench. Heusually cut away the walls until he concluded the slope was appropriate(Tr. 244).13. Employee Isaah Richardson was completely buried (Ex. 5, 6; Tr. 38,96, 132, 219, 222, 371). When extricated from the trench, Richardson wasalmost in a full standing position (Tr. 39-41, 219).14. The alignment of the pipe was off a little. Richardson was in thetrench at the time of the accident trying to find how much misalignmentwas present (Tr. 130-132).15. There was no shoring, trench box or other means used to support thetrench walls (Ex. 4, 8, 20-21, J; Tr. 52, 85, 122, 205, 243). A trenchbox was at the site (Tr. 48, 122, 126, 301).16. Prior to the collapse which buried Richardson on October 9, 1984,two or more partial collapses of the east wall had occurred on thatmorning. Additional collapses of the east wall had occurred on October8, 1984. The collapses were brought to the attention of Ron Bowman, theforeman (Tr. 117-122).17. A trench box had been used in the trench prior to October 8, 1984,but was ordered removed by the foreman, Ron Bowman (Tr. 108-110,112-113, 239).18. The west wall of the trench was vertical from the bottom of thetrench to a point approximately one to one and a half feet from the top.The east wall of the trench was vertical from the bottom to a Pointapproximately two to three feet from the top (Tr. 243-244).19. At the time of the collapse, the trench was approximately ten feetdeep. The soil was a sandy silt with some clay (Ex. L; Tr. 123, 126,130, 241, 263, 266, 297, 438-439, 474-475, 477).20. The bore samples taken by the consulting engineers previous to thebid contract show the soil in the area of the collapse to a depth of tenfeet to be clay with some gravel (Ex. 36, 37; Tr. 297-299).21. The trench was approximately three to three and a half feet inwidth at the bottom and approximately seven feet in width at the topafter the cave-in. It was 25 feet in length (Ex. L; Tr. 245, 262-263,266-267, 338, 356). Eight-inch diameter pipe was being installed in thetrench (Tr. 126-127). It was being dug with a 35-inch bucket (Tr. 477).22. O’Horo has a written safety program (Ex. 18; Tr. 274, 373-374),which discusses the fact that ? 1926.21(b)(2) requires training foremployees (Ex. 18, p. C.1.1; Tr. 274-275). Pages E.1.1 through E.1.60 ofthe program discuss proper procedures for trenching and excavating. PageE.1.8 is a checklist of items to be checked before, during and aftertrenching or excavating (Ex. 18; Tr. 373-375, 380). The written safetyprogram was not distributed to foremen of the company (Tr. 207, 429, 431).23. The Associated General Contractors Association publishes a safetyprogram which makes reference to and discusses the requirements of ?1926.21(b)(2) (Ex. 33; Tr. 276-279).24. O’Horo had a safety officer, David Limpach, who reported directly toDaniel O’Horo, the president. Daniel O’Horo oversees the safety programthrough the safety officer whose duty was to implement the safetyprogram (Tr. 363, 383).25. Daniel O’Horo was personally aware of OSHA safety standards fortrenching (Tr. 363-364). He visits jobs of the company as often as hecan (Tr. 363).26. A safety booklet is distributed to all employees. Page 23 of thebooklet covers trenching and excavating (Ex. 1; Tr. 203, 303-304). Thefollowing warning is shown on page 23 of the booklet in bold letters(Ex. 1):AVOID BEING BURIED ALIVE — SHORE ORLAY BACK ALL TRENCHES27. Paragraph one on page 23 of the safety booklet provides (Ex. 1; Tr.203):1. Do not enter a trench more than 5 feet deep unless it is shored,sheeted, boxed, layed-back or in solid rock.28. The safety booklets are obtained from the Ohio ContractorsAssociation for distribution to employees (Tr. 376). They are preparedand published by the safety committee of the Ohio ContractorsAssociation (Ex. 1, p. 28).29. O’Horo does not hold regular safety meetings. Safety pamphlets weredistributed to employees about once a month (Tr. 181-182, 190, 284-285).30. The foreman, Ron Bowman, was aware of the OSHA standards. He feltit was a safe trench (Tr. 300-301, 431).31. O’Horo has had at least one employee previously injured from acave-in (Tr. 318, 488).32. On August 2, 1976, O’Horo was issued a willful citation forviolation of 29 C.F.R. ? 1926.652(b). The citation, with a reduction inthe proposed penalty, was affirmed under the terms of a settlementagreement filed with the Commission on November 24, 1976 (Ex. 38; Tr.315-316).33. Thomas Rink, a construction safety consultant employed by the Stateof Ohio Industrial Commission, Division of Safety Hygiene (Tr. 8-9),conducted an inspection of the sewer project on July 27, 1984. The crewwas working on Dawson Street. The foreman in charge was Larry Pawlik(Ex. 1; Tr. 13-14, 20, 62, 177-178).34. When Rink arrived at the site, a trench was being excavated. Therewere seven or eight employees at the site (Tr. 13). An open trench ranalongside Dawson Street (Tr. 14). The trench was approximately ten totwelve feet deep and three to four feet wide. The lower two feet of thetrench was composed of rock (Tr. 14-15). There was approximately eightto ten feet of soil on the rock (Tr. 15). The walls of the trench werenot sloped, shored or otherwise supported (Tr. 14, 18).35. On July 27, 1984, Rink recommended to O’Horo by his report that thetrench in which employees were working be sloped or shored. Astandardized form, called a \”Report of Services and Activities,\” showinga failure to slope or shore was mailed to O’Horo on July 27, 1984 (Ex.1; Tr. 20-21, 64).36. Rink spoke with the prosecutor of Trumbull County concerning safetyproblems on the Mosquito Creek Sewer Project with the variouscontractors. Assistant Prosecutor Milan Brickich wrote O’Horo a letterdated August 1, 1984, and advised the company that a meeting wasscheduled for 2:00 p.m. on Thursday, August 8, 1984, with allcontractors to discuss safety problems (Ex. 2; Tr. 22-24, 77-78).37. The meeting was held on Thursday, August 9, 1984 (Ex. 3; Tr. 31-34,76). David Limpach attended the meeting on behalf of O’Horo (Ex. 3; Tr.23, 25, 76). The meeting was conducted by the prosecutor. At themeeting, Rink discussed various Ohio code violations and reviewedtrenching requirements. Rink informed the contractors that there hadbeen a failure to slope, shore or use a trench box to conform to theconstruction codes of the State of Ohio (Tr. 25-26). The trenchingstandards of the State of Ohio are basically the same as the OSHAstandards (Ex. A; Tr. 55-56, 59).38. Rink also conducted inspections of the trench on July 26, July 30,and August 6. No trenching violations were observed during these visits(Ex. B-D; Tr. 67-74, 92).39. After the collapse was reported to OSHA on October 9, 1984Compliance Officer Thomas Pontuti was assigned to conduct aninvestigation. He commenced his investigation on October 10, 1984, witha visit to the work site (Tr. 253). The foreman, Ron Bowman, accompaniedhim to the location of the cave-in on Route 46 (Tr. 256)._CONCLUSIONS OF LAW_1. O’Horo, at all times material to this proceeding, was engaged in abusiness affecting commerce within the meaning of the Act.2. O’Horo, at all times material to this proceeding, was subject to therequirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction over the parties and over the subject matterherein.3. On October 9,1984, O’Horo employee Isaah Richardson was working in atrench 25 feet long, ten feet deep, and three to three and a half feetwide at the bottom and five-foot level. The trench was seven feet wideat the top. The soil was hard and compact.4. The walls of the trench were not shored or otherwise supported andthe slope was inadequate. O’Horo was in violation of 29 C.F.R. ?1926.652(c).5. The trench was excavated parallel to State Route 46, TrumbullCounty, Ohio. The road is heavily traveled and traffic was not curtailedduring the sewer pipe installation. The center of the trench was ninefeet from the edge of the road. No precautions were taken to protectagainst vibrations from vehicles on the road. O’Horo was in violation of29 C.F.R. ? 1926.652(e).6. Employees performing sewer installation work in the trench were notadequately instructed regarding proper trench safeguards. O’Horo was inviolation of 29 C.F.R. ? 1926.21(b)(2).7. The violations of 29 C.F.R. ? 1926.21(b)(2), 29 C.F.R. ? 1926.652(c)and 29 C.F.R. ? 1926.652(e) were willful. A penalty of $9,000 isassessed for the violations._ORDER _Based upon the foregoing findings of fact and conclusions of law, it isORDERED: That the willful citation issued to O’Horo on February 12,1985, is affirmed and a penalty of $9,000 assessed for the violations.JAMES D. BURROUGHSJudgeDate: March 18, 1986————————————————————————FOOTNOTES:[[1\/]] The direction for review in this case particularly set forthissues concerning Items 1a and 1c of the citation. The Secretarycontends that, by requesting supplemental briefs on the additional issueof the alleged willful violation of section 1926.652(c) (concerning Item1b of the citation), the Commission was reaching an issue not includedin the petition for review. However, it is well-settled that theissuance of the direction for review gives the Commission jurisdictionto review any and all issues in a case. _See Hamilton Die Cast Inc._, 12BNA OSHC 1797, 1986-87 CCH OSHD ? 27,576 (No. 83-308, 1986); 29 C.F.R. ?2200.92 (a). Furthermore, contrary to the Secretary’s contention, in itspetition for review O’Horo did take issue with the judge’s dispositionof Item 1b.[[2\/]] Since the citation in this case was issued, the Secretary hasextensively revised the standards in Subpart P. See 29 C.F.R. Part 1926,Subpart P–Excavations, effective March 5, 1990; 54 Fed. Reg. 45,894,45,959 (1989); 54 Fed. Reg. 53,055 (1989).[[3\/]] The judge stated that the \”Trenching and Excavating\” section inO’Horo’s safety plan covered the requirements of section 1926.652 (c).While the plan includes the general safety aspects of the standard andthe specific shoring requirements incorporated by reference, it lacksthe specific sloping requirement. (For a more detailed discussion of theplan’s provisions, see Part II _infra._)[[4\/]] O’Horo argues that because another compliance officer consideredits safety program to be acceptable during two inspections at anotherworksite in 1981, and it had not changed its program by the time of theaccident, its safety program should not be found to be inadequate here.However, those inspection reports evaluated O’Horo’s safety program ingeneral as \”average\”. There was no indication in the reports that thecompliance officer evaluated O’Horo’s trenching instructions.[[5\/]] See note 2 _supra._[[6\/]] In its brief on review, O’Horo misstates the holding in_MooreConstruction, Inc.,_ 4 BNA OSHC 1133, 1134, 1975-76 CCH OSHD ? 20,632,p. 24,696 (No. 5093, 1976) by describing that decision as one in whichthe Commission vacated a citation due to lack of proof that traffic neara trench created vibrations that caused a cave-in. In Moore, theSecretary based the citation solely on alleged vibrations from a backhoeidling near the excavation. The Commission concluded that such evidencewas not sufficient to prove a violation of the standard, and it notedthe other conditions, such as vibrations from highway traffic, thatmight have established a violation of the standard, but were notasserted by the Secretary.[[7\/]] This finding is based on the judge’s determination that Pontuti’sown measurement of nine feet was more credible than the estimations of12 to 15 feet in the testimony of foreman Bowman and projectsuperintendent Sause. The judge credited the compliance officer becausehe measured from the edge of the shoulder, rather than from the edge ofthe traveled road, which was 4 feet farther from the trench. O’Horocontends that the judge erred in this determination. We reject thatargument and defer to the judge’s credibility finding. _See C. Kaufman,Inc.,_ 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ? 22,481, p. 27,099 (No.14249, 1978). We note that, for purposes of finding a violation here, itdoes not matter whether the center of the trench was 9 feet or 12 to 15feet from the highway.[[8\/]] Recognizing that it was a contributing, but not dispositive,factor, we take administrative notice of the fact that October 9 and 12,1984, the dates involved, were both weekdays. The traffic volume at thetime of the cave-in at issue here would have therefore been similar tothe traffic on the day of that later trench collapse, in contrast toweekend traffic.[[9\/]] Section 1926.652(b) set forth the requirements for supporting thewalls of trenches in soft and unstable soil, prior to the revisions inSubpart P. See note 2 _supra._[[10\/]] The judge based his findings that Mossman had alerted Bowman tothe partial cave-ins on Mossman’s unrefuted testimony. O’Horo arguesthat the testimony of Mossman was unreliable. We reject that argument.We accept the judge’s findings in this matter because Mossman’stestimony was not rebutted, and because the judge, after observing thedemeanor of the witness, found the testimony to be credible. [[1\/]] Section 1926.21(b)(2) provides:(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.[[2\/]] The safety booklet (Ex. 1) distributed by O’Horo was prepared bythe Safety Committee, Ohio Contractors Association. The American GeneralContractors Association, a trade group to which O’Horo belongs (Tr.377), recognizes the need for instruction as required by 29 C.F.R. ?1926.21(b)(2) (Ex. 33, p. C.1).[[3\/]] The standard at 29 C.F.R. ?1926.652(c) provides:(c) Sides of trenches in hard or compact soil, including embankments,shall be shored or otherwise supported when the trench is more than 5feet in depth and 8 feet or more in length. In lieu of shoring, thesides of the trench above the 5-foot level may be sloped to precludecollapse, but shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal. When the outside diameter of a pipe is greater than 6 feet,a bench of 4-foot minimum shall be provided at the top of the slopedportion.[[4\/]] The standard at ? 1926.652(e) states:(e) Additional precautions by way of shoring and bracing shall be takento prevent slides or cave-ins when excavations or trenches are made inlocations adjacent to backfilled excavations, or where excavations aresubjected to vibrations from railroad or highway traffic, the operationof machinery, or any other source.[[5\/]] Section 17(j) of the Act provides:(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.”