“SECRETARY OF LABOR,Complainant.v.FLINT ENGINEERING & CONSTRUCTION CO.Respondent.OSHRC Docket No. 90-2873*DECISION*BEFORE: FOULKE. Chairman; WISEMAN and MONTOYA. Commissioners.BY THE COMMISSION:At issue is whether a Review Commission administrative law judge erredin finding an employer In serious violation of the Occupational Safetyand Health Act where none of the cited employer’s own employees wasexposed to any of the violative conditions.Flint Engineering & Construction Company (\”Flint\”) was among a number ofemployers under contract to install a gas pipeline in Midwest City,Oklahoma. After the Occupational Safety and Health AdministrationOklahoma City office was notified of an unprotected trench. ComplianceOfficer George McCown (\”CO\”) was sent to the site. Upon arriving at thesite, the CO asked the first group of workers he encountered to bedirected to the person in charge of the project. The CO was told that heshould see Jesse Winsett, who was later established to be a Flintemployee and one of the foremen at the site. Winsett gave the COpermission to inspect the premises.Several miles of 24-inch pipeline had already been laid during the sixweeks the crew had been on the job, which was performed in \”hopscotchfashion,\” opening up as many as three selected portions of the 4-to5-mile site at a time. Flint personnel made the decisions on how toprogress from day to day, where and when to dig, when to transfer theshoring materials from site to site, and how to compensate for thenarrow roadside right-of-way they had been given.Very early on the morning of the inspection, about 100 feet of trenchhad been opened. In the area where employees were working, the trenchwas approximately 11 feet deep and 11 feet wide, with an unretainedspoil bank 6 to 8 feet high at the edge. Except for a small section thatwas partially sloped, the walls of the unshored trench were vertical.Of the approximately ten to fifteen workers on the jobsite, three wereactually in the trench at the time of the inspection. Asked their namesby the CO, one gave his name as Dale McCulley and the other two refusedto answer. Jesse Winsett, supervisor, equipment operator, and foremanfor Flint, was the only witness, other than the CO, who was present atthe site at the time of the inspection. He testified that he had seen noone in the ditch, but admitted that he had been there only \”off and on.\”However. one photograph among the exhibits shows an employee in thetrench, and other photographs show an access ladder and a grinder in thetrench. Witnesses for Flint, Winsett and corporate safety manager RobertBaker, stated that they were unfamiliar with anyone by the name of DaleMcCulley and that the name did not appear on Flint company records. Theytestified that Flint employees had been instructed not to enter thetrench until it was safe to do so, and at the time of the inspection,the crew was waiting for the arrival of shoring materials from anotherworksite.The Secretary cited Flint for serious violations of six standards, threeof which are encompassed in the direction for review.[[1]] Items 4,5,and 6 of the citation alleged violations of three standards coveringsafe trenching practices: 29 C.F.R. ? 1926.6510)(2) (the \”spoil bank\”standard).[[2]] 29 C.F.R. ? 1926.651(k)(1) (the \”daily inspection\”standard).[[3]] and 29 C.F.R. ? 1926.652(a)(1) (the \”trench wall\”standard).[[4]]The judge found that the employees the CO saw in the trench were notFlint employees, and that Flint’s employees had stayed out of theunprotected trench. Nevertheless, the judge held that \”Commissionprecedent is well settled that an employer who creates or controls ahazardous condition, even when the only employees exposed to thecondition are those of different contractors at the site, will be heldliable under the Act,\” citing Anning-Johnson Co., 4 BNA OSHC 1193, 1199,1975-76 CCH OSHD ? 20,690 p. 24,784 (No. 3684, 1976) (consolidatedcases) and Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1188-89,1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775, 1976). He further foundthat Flint controlled the cited condition, that employees were exposedto it, and that the violation was serious. He therefore affirmed thethree items, assessing penalties as proposed by the Secretary: $240 forthe spoil bank standard violation, $480 for the daily inspectionstandard violation, and $480 for the trench wall standard violation.*I. Multi-Employer Worksite Defense*Under the principles of Anning-Johnson and Grossman Steel, theCommission and the courts have long held that it a hazardous conditionexists at a multi-employer worksite:(1) an employer that neither creates nor controls the condition may,under certain circumstances be relieved of liability for exposing itsemployees to the hazard.[[5]] and(2) an employer that does create or control a hazardous condition, onthe other hand, obligated to protect not only its own employees, butthose of other employers as well.[[6]]If the employees in the trench were not Flint’s own employees.[[7]]Flint’s multi-employer worksite defense turns on whether it created orcontrolled the hazardous condition. Flint admits that it treated thetrench.\” The judge, on the other hand, based his decision on a findingthat \”[I]t is obvious from the record Flint controlled the citedcondition.\” Flint countered that \”[s]ince Respondent was not the generalcontractor it cannot be said to have controlled the entire excavationarea.\” Although the Secretary did not show that Flint was the generalcontractor, the evidence does suggest that even as a subcontractor.Flint had considerable control over and responsibility for the workarea. For example, while other employers may have been under contract tocut or weld pipe once it was placed, it was Flint that decided when andwhere to excavate: when and where to have the crane place the pipe: andwhen and how to slope, shore, or otherwise protect the open trenches. Anemployer need not be labeled the \”general contractor\” to have controlover a hazard, particularly one it has itself created. See Brennan v.OSHRC (Underhill Constr. Corp.). 513 F.2d 1032 (2d Cir.1975). In orderto be relieved of liability, as part of its multi-employer worksiteaffirmative defense. Flint must show that it neither created norcontrolled the open trench.As Flint correctly notes, under Anning-Johnson, a subcontractor thatneither creates nor controls a hazardous condition may defend againstthe Secretary’s charge by showing that its employees were protected bymeans of realistic measures taken as an alternative to literalcompliance with the cited standard.Preventing its own employees from entering the trench, according toFlint, constitutes such a realistic alternative to shoring the trench.We concur that this action would have sufficed had Flint been anon-creating, non-controlling subcontractor on the worksite.However, where, as here, an employer is \”in control of an area, andresponsible for its maintenance,\” to establish a violation the Secretaryneed only show that a hazardous condition existed and \”that the area ofthe hazard was accessible to the employees of the cited employer orthose of other employers engaged in a common undertaking.\” Underhill,513 F.2d at 1038 (emphasis added). Similarly, in Beatty Equip. Leasing,Inc., 4 BNA OSHC 1211, 1975-76 CCH OSHD ? 20,694, (No. 3901, 1976),aff’d. 577 F.2d 534 (9th Cir. 1978), the Commission noted:[i]n our rule governing liability on multi-employer construction sites,we specifically adopted [Underhill] to the extent that it would imposeliability on a subcontractor who creates a hazard or has control overthe condition … even though only employees of other subcontractors areexposed.Id. at 1212, 19715-76 CCH OSHD at p. 24,802 (citation and footnoteomitted and emphasis added). In this case, the Secretary’s showing thata hazard existed and that employees were exposed is unrebutted.*ll. Knowledge of Employee Exposure*The record establishes that Flint knew that its own employees could beexposed to the hazard (it the unprotected trench and, as a realisticalternative to actual compliance with the standard. Flint instructedthem not to enter the trench until it was properly shored. At the sametime, Flint knew that there were a number of other subcontractors’employees on the site involved in various aspects of installing the newpipeline. Under Otis Elevator Co., 6 BNA OSHC 2048, 2050, 1978 CCH OSHD? 23,135 (No. 16057, 1978), access to the violative condition not actualexposure, is the test. Thus, the Secretary has established that Flinthad the requisite notice or knowledge that employees could reasonably beexpected to be exposed to the unprotected trench it has left open.Flint contends that \”Respondent had no notice that these unidentifiedworkers were in the trench on the day in question. Till this day. it isunknown who employed these men…. [T]he exposed employees were not[Flint’s] and. were working there without [Flint’s] knowledge.\” Flint’sforeman testified that he did not see anyone in the trench when he wasat the site off and on. As the Secretary notes, however, there wereconstruction materials and an access kidder in the trench in plain view.Only a failure to exercise reasonable diligence could leave Flintwithout knowledge. Even a non-creating, non-controlling subcontractormay not \”close its eyes\” to hazards. Grossman Steel, 4 BNA OSHC at 1189,1976-77 CCH OSHD at p. 25,481. A creating, controlling subcontractorlike Flint must be all the more vigilant.Flint claims that \”[s]hort of posting watchmen along all unshoredportions of [the] excavation site or fencing in the entire area.Respondent could not have foreseen or insured that workers would notenter into the trench of their own accord.\” However. the Secretarypoints out that \”[t]here was no evidence that … Flint took measures tobarricade the excavation or to alert other employers to keep theiremployees from the zone of danger until a protective system was inplace.\” As the Commission said in Knutson Constr. Co., 4 BNA OSHC 1759.1761. 1976-77 CCH OSHD ? 21,185, p. 25,481 (No. 76-5. 1976) aff’d.566F.2d 596 (8th Cir. 1977) \”the duty we imposed…in Grossman Steel &Aluminum Corp. and Anning-Johnson Co. is a reasonable one…\” Faced withthe hazard of a temporarily unprotected trench. Flint would not beexpected to order its employees to walk off the job. or to demand thatother employers employees clear the worksite altogether. See, e.g.,Anning- Johnson. 4 BNA OSHC at 1197, 1975-76 CCH OSHD at p. 24,782, andLee Roy Westbrook Constr. Co.,13 BNA OSHC 2101, 2104, 1987-90 CCH OSHD ?28,464, p. 37, 693 (No. 84-9, 1989). To the contrary, we think that thevery same \”realistic measures\” Flint took with respect to its ownemployees (telling them to stay out of the trench) would have fulfilledFlint’s obligation to protect the employees of other employers. Therecord here shows no effort on Flint’s part to advise or notify theother employers’ employees at the site that no one could safely enterthe trench until it was properly shored.*III. Characterization*Flint notes that although the trench had been opened and leftunprotected, shoring materials were en route from another site at thetime the inspection took place and were used to protect the trenchproperly after the inspection was over. It argues that \”the fact that aninspection occurred during this brief lapsed time should not raise thistechnical violation\” to serious. We take this to constitute a requestthat the Commission modify the characterization of this citation toother-than-serious.The Secretary responds that even if a hazardous condition exists onlybriefly, or if employees are exposed to a hazardous condition onlybriefly, brief duration does not negate the violation or itsseriousness.[[9]] She cites Walker Towing Corp., 14 BNA OSHC 2072, 1991CCH OSHD ? 29,239 (No. 87-1359, 1991) (passing an unguarded edgeconstitutes brief exposure to fall hazard, resulting in a seriousviolation and a $480 penalty); Whiting-Turner Contracting Co., 13 BNAOSHC 2155, 1987-90 CCH OSHD ? 28,501 (No. 87-1238, 1989) (brief exposureto a fall hazard while waiting for a welder to finish constitutesserious violation and $500 penalty); and Morgan and Culpepper, Inc. v.OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (professional engineers’brief exposure to fall hazard during walkaround inspection constitutes aserious violation and $50 penalty), in support of her position, as wellas H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1981 CCH OSHD ? 25,712 (No.76-4765, 1981) (five to ten minutes in an unsafe trench results inserious violation and $1,000 penalty.)Flint admits that the unprotected trench was dangerous, and its effortsto keep its own employees out of the trench belie its position that itwas cited for a technically.Commission precedent compiles a finding of a serious violation underthese circumstances.*IV. Duplicativeness*As a final matter we address Flint’s claim that the citations forviolating the spoil bank standard at section 1926.651(j)(2) and thetrench wall standard at section 1926.652(a)(j) are duplicative. Flintasserts that the shoring \”included\” a plywood extension to protectemployees from all debris re-entering the trench and argues thatemployee exposure to the spoil pile would have been abated if the wallshad been adequately shored. Citing an unreviewed judge’s decision insupport.The Secretary maintains that the hazard involved in loose soil rollingor failing into an excavation is related to yet distinct from a cave-inresulting from the collapse of a trench. The Commission has heldcitations to be duplicative only where they involve substantially thesame violative conduct Cleveland Consolidated, Inc. 13 BNA OSHC 1114,1986-87 CCH OSHD ? 27,829 (No. 84-0696, 1987) In H.H. Hall, 10 BNA OSHCat 1049 1981 CCH OSHD at p. 32,058. the Commission held that the factthat compliance with two standards resulted in the same general hazarddoes not render them duplicative. In Capform, Inc., 13 BNA OSHC 2219,1987-90 CCH OSHD ? 28,503 (No. 84-0556, 1989). the Commission vacatedone of two citations under the former trench standards since with onenecessarily resulted In compliance with the other.Here, however, Flint could not meet two standards with one abatementeffort. Flint’s own safety manager testified that the intention waseither to (1) shore the trench walls and (2) install a plywood extensionto retain the spoil hank or to (1) use one trench box in the trench and(2) stack another on top to address the spoil bank hazard. Takingmeasures to abate the one hazard would not in and of itself result inthe abatement of the other hazard. In this case the hazards and theirrespective abatement methods are sufficiently distinct so as toconstitute separate violations deserving of separate penalties.V. OrderIn conclusion, the evidence shows that Flint was in charge of theexcavation. It created and controlled the hazards in opening the trenchbefore protective shoring materials or trench boxes were available,thereby endangering other employers employees. With respect to thisparticular hazard alone, Flint owed at least the same warning to othersemployees as the one it took the time to give its own.Accordingly items 4, 5, and 6 are affirmed. Having considered thestatutory criteria.including gravity see supra note 9, we concur withthe judge’s determination, undisputed by the parties, that the penaltiesproposed by the Secretary are appropriate. Therefore, we assesspenalties in the amount of $240 for item 4, $480 for item 5, and $480for item 6.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDecember 21,1992————————————————————————SECRETARY OF LABOR, Complainant. v. FLINT ENGINEERING & CONSTRUCTIONCOMPANY, Respondent.OSHRC DOCKET NO. 90-2873APPEARANCES:Terry K. Goltz, EsquireGeorge R. Carlton, Jr., EsquireFor the Complainant- For the Respondent.Before: Administrative Law Judge Louis G. LaVecchia*DECISION AND ORDER*This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to section 10 of theOccupational Safety and Health Act of 1970. 29 U.S.C. et seq. (\”the Act\”).On August 31, 1990, the Occupational Safety and Health Administration(\”OSHA\”) inspected an excavation site in Midwest City, Oklahoma whereRespondent was installing a gas line. As a result of the inspection acitation alleging six serious violations was issued. Respondentcontested the citation, and a hearing was held March 28, 1991.[[1]] Thealleged violations are discussed below._Item 3 – 29 C.F.R. 1926.303(c)(3)_George McCown is the OSHA compliance officer (\”CO\”) who inspected thesite.[[2]] He testified that during his inspection, he saw a portableright-angle grinder in a truck without the required guard over theabrasive wheel. He identified C-12 as a photo of the grinder, and notedthat while he did not see it used, he saw employees using the same typesof grinders in the trench, as shown in C-11. McCown said to the best ofhis recollection, the employee in C-11 was Dale McCulley, he explainedthere were ten to fifteen people at the site, and that while he talkedto Mr. Winsett, the foreman, and several others, McCulley was the one hegenerally spoke to and through whom he verified exposure to the citedconditions. McCown did not recall if there were employees besides thoseof Flint at the site. (Tr. 6-9; 13-15; 20; 34: 40-48; 52).Robert Baker is Flint’s corporate safety manager.[[3]] He testified heand three employees under his supervision oversee all company projects,that he had been at the site the day before the inspection, and that hewas there the day after. He said he had never heard of Dale McCulley,and that he had checked the company records and his name did not appearas an employee. Baker noted there were other individuals besides Flintemployees on the site, but that to his knowledge, no one had used agrinder or sander in the trench. He also noted that while Flint usessanders for other types of work, the grinder in C-12 was supplied by asubcontractor and did not belong to Flint. (Tr. 54-55; 59; 62; 65-66).Jesse Winsett has been employed by Flint for thirteen years. He has beena foreman for the last five years, and he was a foreman at the subjectsite. He testified that he had never heard of Dale McCulley. (Tr. 9; 20;40; 76-77; 83).The subject standard provides, in pertinent part, as follows:[P]ortable abrasive wheels used for external grinding, shall be providedwith safety guards (protection hoods).Based on the CO’s testimony and C-11 unguarded grinders were used in thetrench. The CO Identified the Individual in C-11 as Dale McCulley. whohe believed was a Flint employee. The testimony of Baker and Winsett.considered in conjunction with the CO’s inability to recall if therewere employees other than those of Flint at the site. indicates McCulleywas employed by another contractor at the site. Baker’s testimony,moreover, indicates that the cited grinders did not belong to Flint,that they were supplied by another contractor, and that Flint employeesdid not use them. According to established Commission precedent, anemployer who does not create or control the violative condition, andwhose employees are not exposed to the condition, will not be foundliable under the Act.[[4]] Anning-Johnson Co., 4 BNA OSHC 1993, 1199,1975-76 CCH OSHD ? 20,690, ? 24,784 (Nos. 3694 and 4409, 1976), GrossmanSteel & Aluminum Corp., 4 BNA OSHC 1185, 1188-89, 1975-76 CCH OSHD ?20,691, p. 24,791 (No. 12775, 1976). Based on the record. the Secretaryhas not shown that Flint created or controlled the cited condition, orthat Flint employees were exposed to it. This citation item isaccordingly vacated._Item 4 29 C.F.R. ? 1926.651 (j) (2)_George McCown testified that although Winsett told him the job hadstarted six weeks earlier. he saw only the part of the excavation thatwas south of Fifteenth Street. He identified C-1 as a diagram he drew ofthe site, and C-2-5, C-11 and C-13 as photos he took. McCown noted thetrench was about 127 inches deep, and that there was a spoil bank ofexcavated earth 6 to 8 feet high right on the edge of the west side ofthe trench that had no retaining device to keep it from failing backinto the trench. He further noted he observed Dale McCulley and twoother employees working in the trench in the area shown in C-5, whichwas below the spoil bank. McCown said the condition was hazardous andcould have caused serious injuries to the employees in the trench;falling clods of dirt could have struck and injured them and could alsohave caused them to be injured by the grinders they were using (Tr.10-12; 16-19; 41-44; 49-50; 53-54).Robert Baker testified that a predominant amount of Flint’s workinvolves pipeline construction. He said he had been to a number ofseminars addressing trenching and pipeline work, and that he and hisstaff had attended a Texas A&M program and received certificates oftraining in excavation safety.[[5]] He also said all new employees gothrough an orientation which addresses pipeline safety, that those onthe site had been trained, and that either he or Bobby Burns, the jobsuperintendent, conducted daily safety meetings at the site whichsometimes included representatives from the companies from whom theyobtained shoring and trench boxes. Baker observed that although therewere other individuals on the site, the Flint employees were instructedto not get into any type of excavation until it was shored, sloped ortrench boxes were in place. (Tr. 56-62, 68-69).Baker further testified the subject project was roughly a 5-mileexcavation through the middle of Midwest City, that it had a very narrowright-of-way due to its passing through residential areas, and that workwas taking place in three different areas at the same time. Baker notedhe had talked to Burns the day before the inspection, after which theydetermined there was insufficient right-of-way to slope the trench andthat shoring and trench boxes from other areas of the job would be used.He said the company’s intent was to use the shoring, and if it wassatisfactory, install 4 by 8 plywood sheets to retain the spoil bank,otherwise, the trench boxes, which protect the employees working insidethem from cave-ins, would be stacked and locked in place to retain thespoil bank. Baker understood the shoring and trench boxes were en routewhen the CO was there, and observed that the shoring and the plywoodwere installed after the inspection. (Tr. 59-64).Jesse Winsett testified he was present during part of the inspection,and that Bobby Bums was the overall superintendent of the job. He saidhe had been trained in trenching safety and that the company has safetymeetings. He also said the same procedure was used on the entire job,which was to shore up the trench after it was opened. Winsett noted thespoil bank is normally kept 2 feet or more from the trench edge, butthat since this was not possible at the site, plyboard was used. Hefurther noted the portion of the trench the CO saw had been opened thenight before. that the crew was waiting for the shoring material toarrive when the CO, was there and that he himself had told the crew tonot get into the trench until it was shored. which was done after theCO, left. Winsett said no one should have been in the trench when the COwas there, and that no one was in it when he himself was present. (Tr.77-85).The subject standard provides as follows:Employees shall he protected from excavated or other materials orequipment that could pose a hazard by falling or rolling intoexcavations. Protection shall be provided by placing and keeping suchmaterials or equipment at least 2 feet (.61 m) from the edge ofexcavations, or by the use of retaining devices that are sufficient toprevent materials or equipment from failing or rolling into excavations,or by a combination of both if necessary.Based on CO’s testimony, Dale McCulley and two other employees wereworking in the trench below a 6 to 8-foot spoil bank located on the edgeof the trench without a retaining device. The CO’s testimony issupported by C-2-5, C- 11 and C-13, and was not rebutted by Respondent.The preceding discussion indicates McCulley was not a Flint employee,and there is nothing in the record to establish that the other twoworkers in the trench were employed by Flint. Moreover, the testimony ofBaker and Winsett in regard to the training and instructions employeesreceived and the trenching procedures used at the site suggests thatRespondent’s employees were not in the trench at the time of theinspection. Regardless, Commission precedent is well settled that anemployer who creates or controls a hazardous condition, even when theonly employees exposed to the condition are those of differentcontractors at the site. will be held liable under Act. Id. It isobvious from the record Flint controlled the cited condition. thatemployees were exposed to it, and that a serious violation has beenestablished. This citation item is affirmed as a serious violation, andthe proposed penalty of $240.00 is assessed._Item 5 – 29 C.F.R. ? 1926.651(k)(1)_George McCown testified the standard requires daily inspections by aperson 16 competent to determine any hazards in the excavation, and thatsuch person should have knowledge of soil analysis. protective systemsand OSHA regulations. He further testified that when he asked Winsettwhether anyone had been trained in these matters, Winsett responded thathe had not been trained, but that a Mr. White, a company employee whowas working on another project, had received excavation training earlierthat year. McCown said that not having a competent person available toconduct inspections was a serious hazard because soil conditions canchange daily. and an untrained person would be unable identify hazards.(Tr.19-22).Robert Baker testified that none of the persons on his staff were at thesite. Jesse Winsett testified he had been trained In trenching, slopingand shoring requirements. He indicated he had been trained by Burns, andthat Burns was at a different area of the project the day of theInspection. (Tr. 68. 77-78).The subject standard provides as follows:Daily inspections of excavations, the adjacent areas, and protectivesystems shall be made by a competent person for evidence of a situationthat could result in possible cave-ins, indications of failure ofprotective systems, hazardous atmospheres, or other hazardousconditions. An inspection shall be conducted by the competent personprior to the start of work and as needed throughout the shift.Inspections shall also be made after every rainstorm or other hazardincreasing occurrence. These inspections are only required when employeeexposure can be reasonably anticipated.\”Competent person\” is defined at 1926.650(b) as follows:Competent person means one who is capable of identifying existing andpredictable hazards in the surroundings, or working conditions which areunsanitary, hazardous, or dangerous to employees, and who hasauthorization to take prompt corrective measures to eliminate them.The basis of this citation item was Winsett’s response to the CO that hehad not been trained in such matters as soil analysis, protectivesystems and OSHA regulations relating to excavations. It is evident fromWinsett’s testimony he was unfamiliar with soil analysis. (Tr. 84).Moreover, while he indicated Burns had trained him in trenchingrequirements, there was no evidence Burns was adequately trained inthese matters. There was likewise no evidence that White, who Winsettsaid had been trained, was available to conduct daily inspections of thesite. Finally, while the preceding discussion demonstrates Baker and hisstaff received excavation safety training, it is clear Baker was notpresent the day of the inspection and that none of his staff was at thesite. The preceding discussion establishes employee exposure, and theserious nature of the violation is apparent. This citation item isaffirmed as a serious violation, and the proposed penalty of $480.00 isassessed.Item _6 – 29 C.F.R. ? 1926.652(a)(1)_George McCown testified the standard requires employers to use one ofseveral methods to protect employees in excavations. including sloping,shoring and the use of trench boxes. He further testified the onlyprecaution he saw at the site was that the top 37 inches of the trenchhad been sloped back 43 inches; the rest of the trench walls werevertical and unprotected. McCown noted he took samples of the twodifferent types of soil present at the excavation and submitted thesamples to a lab for testing; the results, shown in C-14, indicated bothsamples were \”Type B.\” McCown said he would have recommended thecitation even if the soil had been \”Type A\” the most cohesive class ofsoil, since the walls were vertical and not sloped as required foreither \”Type A\” or \”Type B\” soil (Tr. 22-34; 50; 53).The subject standard provides, in pertinent part, as follows:Each employee in an excavation shall be protected from cave-ins by anadequate protective system.The CO testified that the walls of the trench at the site were vertical,other than the top 37 inches which had been sloped back 43 inches. Hefurther testified that the sloping was inadequate, even if the soil hadbeen \”Type A.\” His conclusion is supported by Table B-1 of the standard,which provides the maximum allowable slopes for \”Type A\” and \”Type B\”soil, and by Figure B-1, which shows the required sloping for anexcavation in \”Type A\” soil. Respondent did not rebut the CO’stestimony, and the statements of Baker and Winsett set out in item 4,supra, demonstrate there was no other method of protection in use at thetime of the inspection. The discussion in item 4 also demonstratesemployee exposure to the unprotected trench, and the serious nature ofthe condition is obvious. This citation item is affirmed as a seriousviolation, and the proposed penalty of $480.00 is assessed._Penalty Determination_Penalties have been assessed for Items 4, 5, and 6, supra. In assessingthe penalties, due consideration has been given to the employer’s size,history and good faith, as well as to the gravity of the violations._Conclusions of Law_1. Respondent, Flint Engineering and Construction Company, is engaged ina business affecting commerce and has employees within the meaning ofsection 3(5) of the Act. The Commission has jurisdiction of the partiesand of the subject matter of the proceeding.2. On August 31, 1990, Respondent was in nonserious violation of 29C.F.R. ?? 1926.21(b)(2) and 1926.59(h).3. On August 31, 1990, Respondent was not In violation of 29 C.F.R. ?1926.303(c)(3).4. On August 31, 1990, Respondent was in serious violation of 29 C.F.R.?? 1926.651(j)(2), 1926.651(k)(l) and 1926.652(a)(1).OrderOn the basis of the foregoing Findings of Fact and Conclusions of Law,it is ORDERED that:1. Items 1 and 2 of serious citation number 1 are AFFIRMED as nonseriousviolations, and no penalties are assessed.2. Item 3 of serious citation number 1 is VACATED.3. Items 4, 5 and 6 of serious citation number 1 are AFFIRMED, andpenalties of $240.00, $480.00 and $480.00, respectively, are assessed.Louis G. LaVecchia Administrative Law JudgeDATE: May 18, 1992FOOTNOTES:[[1]]Flint withdrew its notice of contest of two citation items when theSecretary downgraded the violations to other-than-serious with nopenalty assessed. The judge vacated a third citation item for anunguarded grinding tool because the Secretary failed to show either thatFlint employees were exposed or that Flint created or controlled the hazard.[[2]] Found in Subpart P–Excavations, the cited standard provides:? 1926.651 General requirements.(j) Protection of employees from loose rock or soil.(2) Employees shall be protected from excavated…materials…that couldpose a hazard by falling or rolling into excavations.[[3]] Found in Subpart P–Excavations, the cited standard provides:? 1926.651 General requirements.(k) Inspections (1) Daily inspections of excavations, the adjacentareas, and protective systems shall be made by a competent person forevidence of a situation that could result in possible cave-ins, failureof protective systems…or other hazardous conditions…. Theseinspections are only required when employee exposure can be reasonablyanticipated.[[4]] Found in Subpart P–Excavations, the cited standard provides:? 1926.652 Requirements for protective systems.(a) Protective of employees in excavations. (1) Each employee in anexcavation shall be protected from cave-ins by an adequate protectivesystem….[[5]] See D Harris Masonry Contract. Inc., v. Dole. 876 F.2d 343 (3rdCir. 1989); Electric Smith. Inc. v Sec’y of Labor 666 F.2d 1267(9th Cir.1982): Central of Ga R Co. v. OSHRC 576 F.2d 620 (5th Cir. 1978); Novak& Co., Inc. 11 B N A OSHC 1763 1983-84CCH OSHD ? 26,756 (No. 80-7335, 1984)[[6]] See Dun-Par Engineered Form Co. v. Marshall. 676 F.2d 1333 (10thCir. 1982): Marshall v. Knutson Constr. Co.,566 F.2d 596 (8th Cir.1977)F.L. Hughes and Co., 11 BNA OSHC 1391. 1983-84 CCH OSHD ? 26,520 (No.14519, 1983); H. B. Zachry Co., (Intl).8 BNA OSHC 1669. 1980 CCH OSHD ?24,588 (No. 76-267,1980).[[7]] The Secretary argues that the employees observed in the trenchwere in fact Flint employees. Since, as the Secretaryacknowledges,affirmance of the citation does not depend on adetermination of this issue, we make no factual finding as to whetherthe employees in the trench were Flint employees or those of anothersub-contractor. For analytical purposes, however, we treat the ma snon-Flint employees.[[8]] Flint contends, that the trench itself was not the hazard inquestion. Instead, it claims that the hazard was the absence of adequateshoring in the trench, and then only when combined with the presence ofemployees. We disagree. The open trench was the hazard.[[9]] The duration of employees exposure is not determinative of theseriousness of a violation; it relates rather to the gravity factor inassessing a penalty. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1047, 1981CCH OSHD ? 25,712 at p. 32,057 (No. 76-4765, 1981) and cases cited.[[1]] Items 1 and 2 of the citation alleged violations of 29 C.F.R. ?1926.21(b)(2) and 1926.59(h), respectively. At the hearing, theSecretary amended items 1 and 2 to nonserious and reduced the proposedpenalties to zero after which Respondent withdrew its contest of theseitems. (Tr. 4-6)[[2]] McCown has been with OSHA for six years; his previous experienceincludes seven years as a safety officer with the United States Army andten years as an accident loss control supervisor and manager with AetnaInsurance Company. (Tr. 6-8, 36-37).[[3]] Prior to this position, which he has held for two years, Baker wasa corporate safety manager for Western Oil Well Service Company forthirteen years. (Tr. 55).[[4]] A general contractor on a multi-employer worksite is typicallyresponsible for assuring the prevention or abatement of all conditionsaffecting the safety or health of employees on the site. Id. However,the Secretary did not establish Flint was. the general contractor inthis case.[[5]] Baker said the seminars and Texas A&M program had taken place in1989 and 1990. (Tr. 68).”