“Docket No. 90-2873 SECRETARY OF LABOR, Complainant. v. FLINT ENGINEERING & CONSTRUCTION CO. Respondent.OSHRC Docket No. 90-2873DECISION BEFORE: FOULKE. Chairman; WISEMAN and MONTOYA. Commissioners.BY THE COMMISSION:At issue is whether a Review Commission administrative lawjudge erred in finding an employer In serious violation of the Occupational Safety andHealth Act where none of the cited employer’s own employees was exposed to any of theviolative conditions.Flint Engineering & Construction Company(\”Flint\”) was among a number of employers under contract to install a gaspipeline in Midwest City, Oklahoma. After the Occupational Safety and HealthAdministration Oklahoma City office was notified of an unprotected trench. ComplianceOfficer George McCown (\”CO\”) was sent to the site. Upon arriving at the site,the CO asked the first group of workers he encountered to be directed to the person incharge of the project. The CO was told that he should see Jesse Winsett, who was laterestablished to be a Flint employee 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 duringthe six weeks the crew had been on the job, which was performed in \”hopscotchfashion,\” opening up as many as three selected portions of the 4-to 5-mile site at atime. Flint personnel made the decisions on how to progress from day to day, where andwhen to dig, when to transfer the shoring materials from site to site, and how tocompensate for the narrow roadside right-of-way they had been given.Very early on the morning of the inspection, about 100 feet oftrench had been opened. In the area where employees were working, the trench wasapproximately 11 feet deep and 11 feet wide, with an unretained spoil bank 6 to 8 feethigh at the edge. Except for a small section that was partially sloped, the walls of theunshored trench were vertical.Of the approximately ten to fifteen workers on the jobsite,three were actually in the trench at the time of the inspection. Asked their names by theCO, one gave his name as Dale McCulley and the other two refused to answer. Jesse Winsett,supervisor, equipment operator, and foreman for Flint, was the only witness, other thanthe CO, who was present at the site at the time of the inspection. He testified that hehad seen no one in the ditch, but admitted that he had been there only \”off andon.\” However. one photograph among the exhibits shows an employee in the trench, andother photographs show an access ladder and a grinder in the trench. Witnesses for Flint,Winsett and corporate safety manager Robert Baker, stated that they were unfamiliar withanyone by the name of Dale McCulley and that the name did not appear on Flint companyrecords. They testified that Flint employees had been instructed not to enter the trenchuntil it was safe to do so, and at the time of the inspection, the crew was waiting forthe arrival of shoring materials from another worksite.The Secretary cited Flint for serious violations of sixstandards, three of which are encompassed in the direction for review.[[1]] Items 4,5, and6 of the citation alleged violations of three standards covering safe trenching practices:29 C.F.R. ? 1926.6510)(2) (the \”spoil bank\” standard).[[2]] 29 C.F.R. ?1926.651(k)(1) (the \”daily inspection\” standard).[[3]] and 29 C.F.R. ?1926.652(a)(1) (the \”trench wall\” standard).[[4]]The judge found that the employees the CO saw in the trenchwere not Flint employees, and that Flint’s employees had stayed out of the unprotectedtrench. Nevertheless, the judge held that \”Commission precedent is well settled thatan employer who creates or controls a hazardous condition, even when the only employeesexposed to the condition 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 CCHOSHD ? 20,690 p. 24,784 (No. 3684, 1976) (consolidated cases) and Grossman Steel &Alum. Corp., 4 BNA OSHC 1185, 1188-89, 1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775,1976). He further found that Flint controlled the cited condition, that employees wereexposed to it, and that the violation was serious. He therefore affirmed the three items,assessing penalties as proposed by the Secretary: $240 for the spoil bank standardviolation, $480 for the daily inspection standard violation, and $480 for the trench wallstandard violation.I. Multi-Employer Worksite DefenseUnder the principles of Anning-Johnson and Grossman Steel, the Commission and the courtshave long held that it a hazardous condition exists at a multi-employer worksite:(1) an employer that neither creates nor controls the conditionmay, under certain circumstances be relieved of liability for exposing its employees tothe hazard.[[5]] and(2) an employer that does create or control a hazardouscondition, on the other hand, obligated to protect not only its own employees, but thoseof other employers as well.[[6]]If the employees in the trench were not Flint’s ownemployees.[[7]] Flint’s multi-employer worksite defense turns on whether it created orcontrolled the hazardous condition. Flint admits that it treated the trench.\” Thejudge, on the other hand, based his decision on a finding that \”[I]t is obvious fromthe record Flint controlled the cited condition.\” Flint countered that \”[s]inceRespondent was not the general contractor it cannot be said to have controlled the entireexcavation area.\” Although the Secretary did not show that Flint was the generalcontractor, the evidence does suggest that even as a subcontractor. Flint had considerablecontrol over and responsibility for the work area. For example, while other employers mayhave been under contract to cut or weld pipe once it was placed, it was Flint that decidedwhen and where to excavate: when and where to have the crane place the pipe: and when andhow to slope, shore, or otherwise protect the open trenches. An employer need not belabeled the \”general contractor\” to have control over a hazard, particularly oneit has itself created. See Brennan v. OSHRC (Underhill Constr. Corp.). 513 F.2d 1032 (2dCir.1975). In order to be relieved of liability, as part of its multi-employer worksiteaffirmative defense. Flint must show that it neither created nor controlled the opentrench.As Flint correctly notes, under Anning-Johnson, a subcontractorthat neither creates nor controls a hazardous condition may defend against the Secretary’scharge by showing that its employees were protected by means of realistic measures takenas an alternative to literal compliance with the cited standard.Preventing its own employees from entering the trench,according to Flint, constitutes such a realistic alternative to shoring the trench. Weconcur that this action would have sufficed had Flint been a non-creating, non-controllingsubcontractor on the worksite.However, where, as here, an employer is \”in control of anarea, and responsible for its maintenance,\” to establish a violation the Secretaryneed only show that a hazardous condition existed and \”that the area of the hazardwas accessible to the employees of the cited employer or those of other employers engagedin a common undertaking.\” Underhill, 513 F.2d at 1038 (emphasis added). Similarly, inBeatty 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-employerconstruction sites, we specifically adopted [Underhill] to the extent that it would imposeliability on a subcontractor who creates a hazard or has control over the condition …even though only employees of other subcontractors are exposed.Id. at 1212, 19715-76 CCH OSHD at p. 24,802 (citation andfootnote omitted and emphasis added). In this case, the Secretary’s showing that a hazardexisted and that employees were exposed is unrebutted.ll. Knowledge of Employee ExposureThe record establishes that Flint knew that its own employeescould be exposed to the hazard (it the unprotected trench and, as a realistic alternativeto actual compliance with the standard. Flint instructed them not to enter the trenchuntil it was properly shored. At the same time, Flint knew that there were a number ofother subcontractors’ employees on the site involved in various aspects of installing thenew pipeline. Under Otis Elevator Co., 6 BNA OSHC 2048, 2050, 1978 CCH OSHD ? 23,135 (No.16057, 1978), access to the violative condition not actual exposure, is the test. Thus,the Secretary has established that Flint had the requisite notice or knowledge thatemployees could reasonably be expected to be exposed to the unprotected trench it has leftopen.Flint contends that \”Respondent had no notice that theseunidentified workers 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. wereworking there without [Flint’s] knowledge.\” Flint’s foreman testified that he did notsee anyone in the trench when he was at the site off and on. As the Secretary notes,however, there were construction materials and an access kidder in the trench in plainview. Only a failure to exercise reasonable diligence could leave Flint without knowledge.Even a non-creating, non-controlling subcontractor may not \”close its eyes\” tohazards. Grossman Steel, 4 BNA OSHC at 1189, 1976-77 CCH OSHD at p. 25,481. A creating,controlling subcontractor like Flint must be all the more vigilant.Flint claims that \”[s]hort of posting watchmen along allunshored portions of [the] excavation site or fencing in the entire area. Respondent couldnot have foreseen or insured that workers would not enter into the trench of their ownaccord.\” However. the Secretary points out that \”[t]here was no evidence that… Flint took measures to barricade the excavation or to alert other employers to keeptheir employees from the zone of danger until a protective system was in place.\” Asthe Commission said in Knutson Constr. Co., 4 BNA OSHC 1759. 1761. 1976-77 CCH OSHD ?21,185, p. 25,481 (No. 76-5. 1976) aff’d.566 F.2d 596 (8th Cir. 1977) \”the duty weimposed…in Grossman Steel & Aluminum Corp. and Anning-Johnson Co. is a reasonableone…\” Faced with the hazard of a temporarily unprotected trench. Flint would not beexpected to order its employees to walk off the job. or to demand that other employersemployees clear the worksite altogether. See, e.g., Anning- Johnson. 4 BNA OSHC at 1197,1975-76 CCH OSHD at p. 24,782, and Lee Roy Westbrook Constr. Co.,13 BNA OSHC 2101, 2104,1987-90 CCH OSHD ? 28,464, p. 37, 693 (No. 84-9, 1989). To the contrary, we think thatthe very same \”realistic measures\” Flint took with respect to its own employees(telling them to stay out of the trench) would have fulfilled Flint’s obligation toprotect the employees of other employers. The record here shows no effort on Flint’s partto advise or notify the other employers’ employees at the site that no one could safelyenter the trench until it was properly shored.III. CharacterizationFlint notes that although the trench had been opened and leftunprotected, shoring materials were en route from another site at the time the inspectiontook place and were used to protect the trench properly after the inspection was over. Itargues that \”the fact that an inspection occurred during this brief lapsed timeshould not raise this technical violation\” to serious. We take this to constitute arequest that the Commission modify the characterization of this citation toother-than-serious.The Secretary responds that even if a hazardous conditionexists only briefly, or if employees are exposed to a hazardous condition only briefly,brief duration does not negate the violation or its seriousness.[[9]] She cites WalkerTowing Corp., 14 BNA OSHC 2072, 1991 CCH OSHD ? 29,239 (No. 87-1359, 1991) (passing anunguarded edge constitutes brief exposure to fall hazard, resulting in a serious violationand a $480 penalty); Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1987-90 CCH OSHD ?28,501 (No. 87-1238, 1989) (brief exposure to a fall hazard while waiting for a welder tofinish constitutes serious violation and $500 penalty); and Morgan and Culpepper, Inc. v.OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (professional engineers’ brief exposure to fallhazard during walkaround inspection constitutes a serious violation and $50 penalty), insupport of her position, as well as H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1981 CCH OSHD? 25,712 (No. 76-4765, 1981) (five to ten minutes in an unsafe trench results in seriousviolation and $1,000 penalty.)Flint admits that the unprotected trench was dangerous, and its efforts to keep its ownemployees out of the trench belie its position that it was cited for a technically. Commission precedent compiles a finding of a serious violationunder these circumstances.IV. DuplicativenessAs a final matter we address Flint’s claim that the citationsfor violating the spoil bank standard at section 1926.651(j)(2) and the trench wallstandard at section 1926.652(a)(j) are duplicative. Flint asserts that the shoring\”included\” a plywood extension to protect employees from all debris re-enteringthe trench and argues that employee exposure to the spoil pile would have been abated ifthe walls had been adequately shored. Citing an unreviewed judge’s decision in support.The Secretary maintains that the hazard involved in loose soilrolling or failing into an excavation is related to yet distinct from a cave-in resultingfrom the collapse of a trench. The Commission has held citations to be duplicative onlywhere they involve substantially the same violative conduct Cleveland Consolidated, Inc.13 BNA OSHC 1114, 1986-87 CCH OSHD ? 27,829 (No. 84-0696, 1987) In H.H. Hall, 10 BNA OSHCat 1049 1981 CCH OSHD at p. 32,058. the Commission held that the fact that compliance withtwo standards resulted in the same general hazard does not render them duplicative. InCapform, Inc., 13 BNA OSHC 2219, 1987-90 CCH OSHD ? 28,503 (No. 84-0556, 1989). theCommission vacated one 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 oneabatement effort. Flint’s own safety manager testified that the intention was either to(1) shore the trench walls and (2) install a plywood extension to retain the spoil hank orto (1) use one trench box in the trench and (2) stack another on top to address the spoilbank hazard. Taking measures to abate the one hazard would not in and of itself result inthe abatement of the other hazard. In this case the hazards and their respective abatementmethods are sufficiently distinct so as to constitute separate violations deserving ofseparate penalties.V. OrderIn conclusion, the evidence shows that Flint was in charge ofthe excavation. It created and controlled the hazards in opening the trench beforeprotective shoring materials or trench boxes were available, thereby endangering otheremployers employees. With respect to this particular hazard alone, Flint owed at least thesame warning to others employees as the one it took the time to give its own.Accordingly items 4, 5, and 6 are affirmed. Having consideredthe statutory criteria.including gravity see supra note 9, we concur with the judge’sdetermination, undisputed by the parties, that the penalties proposed by the Secretary areappropriate. Therefore, we assess penalties in the amount of $240 for item 4, $480 foritem 5, and $480 for item 6. Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDecember 21,1992SECRETARY OF LABOR, Complainant. v. FLINT ENGINEERING &CONSTRUCTION COMPANY, Respondent.OSHRC DOCKET NO. 90-2873APPEARANCES: Terry K. Goltz, EsquireGeorge R. Carlton, Jr., Esquire For the Complainant- For the Respondent. Before: Administrative Law Judge Louis G. LaVecchia DECISION AND ORDERThis is a proceeding brought before the Occupational Safety andHealth Review 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 HealthAdministration (\”OSHA\”) inspected an excavation site in Midwest City, Oklahomawhere Respondent was installing a gas line. As a result of the inspection a citationalleging six serious violations was issued. Respondent contested the citation, and ahearing was held March 28, 1991.[[1]] The alleged violations are discussed below.Item 3 – 29 C.F.R. 1926.303(c)(3)George McCown is the OSHA compliance officer (\”CO\”)who inspected the site.[[2]] He testified that during his inspection, he saw a portableright-angle grinder in a truck without the required guard over the abrasive wheel. Heidentified C-12 as a photo of the grinder, and noted that while he did not see it used, hesaw employees using the same types of grinders in the trench, as shown in C-11. McCownsaid to the best of his recollection, the employee in C-11 was Dale McCulley, he explainedthere were ten to fifteen people at the site, and that while he talked to Mr. Winsett, theforeman, and several others, McCulley was the one he generally spoke to and through whomhe verified exposure to the cited conditions. McCown did not recall if there wereemployees besides those of Flint at the site. (Tr. 6-9; 13-15; 20; 34: 40-48; 52).Robert Baker is Flint’s corporate safety manager.[[3]] Hetestified he and three employees under his supervision oversee all company projects, thathe had been at the site the day before the inspection, and that he was there the dayafter. He said he had never heard of Dale McCulley, and that he had checked the companyrecords and his name did not appear as an employee. Baker noted there were otherindividuals besides Flint employees on the site, but that to his knowledge, no one hadused a grinder or sander in the trench. He also noted that while Flint uses sanders forother types of work, the grinder in C-12 was supplied by a subcontractor and did notbelong to Flint. (Tr. 54-55; 59; 62; 65-66).Jesse Winsett has been employed by Flint for thirteen years. Hehas been a foreman for the last five years, and he was a foreman at the subject site. Hetestified that he had never heard of Dale McCulley. (Tr. 9; 20; 40; 76-77; 83).The subject standard provides, in pertinent part, as follows:[P]ortable abrasive wheels used for external grinding, shall be provided with safetyguards (protection hoods).Based on the CO’s testimony and C-11 unguarded grinders were used in the trench. The COIdentified the Individual in C-11 as Dale McCulley. who he believed was a Flint employee.The testimony of Baker and Winsett. considered in conjunction with the CO’s inability torecall if there were employees other than those of Flint at the site. indicates McCulleywas employed by another contractor at the site. Baker’s testimony, moreover, indicatesthat the cited grinders did not belong to Flint, that they were supplied by anothercontractor, and that Flint employees did not use them. According to established Commissionprecedent, an employer who does not create or control the violative condition, and whoseemployees are not exposed to the condition, will not be found liable under the Act.[[4]]Anning-Johnson Co., 4 BNA OSHC 1993, 1199, 1975-76 CCH OSHD ? 20,690, ? 24,784 (Nos.3694 and 4409, 1976), Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188-89,1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775, 1976). Based on the record. theSecretary has not shown that Flint created or controlled the cited condition, or thatFlint employees were exposed to it. This citation item is accordingly vacated.Item 4 29 C.F.R. ? 1926.651 (j) (2)George McCown testified that although Winsett told him the jobhad started six weeks earlier. he saw only the part of the excavation that was south ofFifteenth Street. He identified C-1 as a diagram he drew of the site, and C-2-5, C-11 andC-13 as photos he took. McCown noted the trench was about 127 inches deep, and that therewas a spoil bank of excavated 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 back into the trench. Hefurther noted he observed Dale McCulley and two other employees working in the trench inthe area shown in C-5, which was below the spoil bank. McCown said the condition washazardous and could have caused serious injuries to the employees in the trench; fallingclods of dirt could have struck and injured them and could also have caused them to beinjured by the grinders they were using (Tr. 10-12; 16-19; 41-44; 49-50; 53-54).Robert Baker testified that a predominant amount of Flint’s work involves pipelineconstruction. He said he had been to a number of seminars addressing trenching andpipeline work, and that he and his staff had attended a Texas A&M program and receivedcertificates of training in excavation safety.[[5]] He also said all new employees gothrough an orientation which addresses pipeline safety, that those on the site had beentrained, and that either he or Bobby Burns, the job superintendent, conducted daily safetymeetings at the site which sometimes included representatives from the companies from whomthey obtained shoring and trench boxes. Baker observed that although there were otherindividuals on the site, the Flint employees were instructed to not get into any type ofexcavation until it was shored, sloped or trench boxes were in place. (Tr. 56-62, 68-69).Baker further testified the subject project was roughly a5-mile excavation through the middle of Midwest City, that it had a very narrowright-of-way due to its passing through residential areas, and that work was taking placein three different areas at the same time. Baker noted he had talked to Burns the daybefore the inspection, after which they determined there was insufficient right-of-way toslope the trench and that shoring and trench boxes from other areas of the job would beused. He said the company’s intent was to use the shoring, and if it was satisfactory,install 4 by 8 plywood sheets to retain the spoil bank, otherwise, the trench boxes, whichprotect the employees working inside them from cave-ins, would be stacked and locked inplace to retain the spoil bank. Baker understood the shoring and trench boxes were enroute when the CO was there, and observed that the shoring and the plywood were installedafter the inspection. (Tr. 59-64).Jesse Winsett testified he was present during part of theinspection, and that Bobby Bums was the overall superintendent of the job. He said he hadbeen trained in trenching safety and that the company has safety meetings. He also saidthe same procedure was used on the entire job, which was to shore up the trench after itwas opened. Winsett noted the spoil bank is normally kept 2 feet or more from the trenchedge, but that since this was not possible at the site, plyboard was used. He furthernoted the portion of the trench the CO saw had been opened the night before. that the crewwas waiting for the shoring material to arrive when the CO, was there and that he himselfhad told the crew to not 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 CO was there, andthat 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 materialsor equipment that could pose a hazard by falling or rolling into excavations. Protectionshall be provided by placing and keeping such materials or equipment at least 2 feet (.61m) from the edge of excavations, or by the use of retaining devices that are sufficient toprevent materials or equipment from failing or rolling into excavations, or by acombination of both if necessary.Based on CO’s testimony, Dale McCulley and two other employeeswere working in the trench below a 6 to 8-foot spoil bank located on the edge of thetrench without a retaining device. The CO’s testimony is supported by C-2-5, C- 11 andC-13, and was not rebutted by Respondent. The preceding discussion indicates McCulley wasnot 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 of Baker and Winsettin regard to the training and instructions employees received and the trenching proceduresused at the site suggests that Respondent’s employees were not in the trench at the timeof the inspection. Regardless, Commission precedent is well settled that an employer whocreates or controls a hazardous condition, even when the only employees exposed to thecondition are those of different contractors at the site. will be held liable under Act.Id. It is obvious from the record Flint controlled the cited condition. that employeeswere exposed to it, and that a serious violation has been established. This citation itemis affirmed as a serious violation, and the proposed penalty of $240.00 is assessed.Item 5 – 29 C.F.R. ? 1926.651(k)(1)George McCown testified the standard requires daily inspectionsby a person 16 competent to determine any hazards in the excavation, and that such personshould have knowledge of soil analysis. protective systems and OSHA regulations. Hefurther testified that when he asked Winsett whether anyone had been trained in thesematters, Winsett responded that he had not been trained, but that a Mr. White, a companyemployee who was working on another project, had received excavation training earlier thatyear. McCown said that not having a competent person available to conduct inspections wasa serious hazard because soil conditions can change daily. and an untrained person wouldbe unable identify hazards. (Tr.19-22).Robert Baker testified that none of the persons on his staffwere at the site. Jesse Winsett testified he had been trained In trenching, sloping andshoring requirements. He indicated he had been trained by Burns, and that Burns was at adifferent area of the project the day of the Inspection. (Tr. 68. 77-78).The subject standard provides as follows:Daily inspections of excavations, the adjacent areas, andprotective systems shall be made by a competent person for evidence of a situation thatcould result in possible cave-ins, indications of failure of protective systems, hazardousatmospheres, or other hazardous conditions. An inspection shall be conducted by thecompetent person prior to the start of work and as needed throughout the shift.Inspections shall also be made after every rainstorm or other hazard increasingoccurrence. These inspections are only required when employee exposure can be reasonablyanticipated.\”Competent person\” is defined at 1926.650(b) asfollows:Competent person means one who is capable of identifyingexisting and predictable hazards in the surroundings, or working conditions which areunsanitary, hazardous, or dangerous to employees, and who has authorization to take promptcorrective measures to eliminate them.The basis of this citation item was Winsett’s response to theCO that he had not been trained in such matters as soil analysis, protective systems andOSHA regulations relating to excavations. It is evident from Winsett’s testimony he wasunfamiliar with soil analysis. (Tr. 84). Moreover, while he indicated Burns had trainedhim in trenching requirements, there was no evidence Burns was adequately trained in thesematters. There was likewise no evidence that White, who Winsett said had been trained, wasavailable to conduct daily inspections of the site. Finally, while the precedingdiscussion demonstrates Baker and his staff received excavation safety training, it isclear Baker was not present the day of the inspection and that none of his staff was atthe site. The preceding discussion establishes employee exposure, and the serious natureof the violation is apparent. This citation item is affirmed as a serious violation, andthe proposed penalty of $480.00 is assessed.Item 6 – 29 C.F.R. ? 1926.652(a)(1)George McCown testified the standard requires employers to useone of several methods to protect employees in excavations. including sloping, shoring andthe use of trench boxes. He further testified the only precaution he saw at the site wasthat the top 37 inches of the trench had been sloped back 43 inches; the rest of thetrench walls were vertical and unprotected. McCown noted he took samples of the twodifferent types of soil present at the excavation and submitted the samples to a lab fortesting; the results, shown in C-14, indicated both samples were \”Type B.\”McCown said he would have recommended the citation even if the soil had been \”TypeA\” the most cohesive class of soil, since the walls were vertical and not sloped asrequired for either \”Type A\” or \”Type B\” soil (Tr. 22-34; 50; 53).The subject standard provides, in pertinent part, as follows:Each employee in an excavation shall be protected from cave-insby an adequate protective system.The CO testified that the walls of the trench at the site werevertical, other than the top 37 inches which had been sloped back 43 inches. He furthertestified that the sloping was inadequate, even if the soil had been \”Type A.\”His conclusion is supported by Table B-1 of the standard, which provides the maximumallowable slopes for \”Type A\” and \”Type B\” soil, and by Figure B-1,which shows the required sloping for an excavation in \”Type A\” soil. Respondentdid not rebut the CO’s testimony, and the statements of Baker and Winsett set out in item4, supra, demonstrate there was no other method of protection in use at the time of theinspection. The discussion in item 4 also demonstrates employee exposure to theunprotected trench, and the serious nature of the condition is obvious. This citation itemis affirmed as a serious violation, and the proposed penalty of $480.00 is assessed.Penalty DeterminationPenalties have been assessed for Items 4, 5, and 6, supra. Inassessing the penalties, due consideration has been given to the employer’s size, historyand good faith, as well as to the gravity of the violations.Conclusions of Law1. Respondent, Flint Engineering and Construction Company, isengaged in a business affecting commerce and has employees within the meaning of section3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matterof the proceeding.2. On August 31, 1990, Respondent was in nonserious violationof 29 C.F.R. ?? 1926.21(b)(2) and 1926.59(h).3. On August 31, 1990, Respondent was not In violation of 29C.F.R. ? 1926.303(c)(3). 4. On August 31, 1990, Respondent was in serious violation of29 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 asnonserious violations, and no penalties are assessed.2. Item 3 of serious citation number 1 is VACATED.3. Items 4, 5 and 6 of serious citation number 1 are AFFIRMED,and penalties of $240.00, $480.00 and $480.00, respectively, are assessed.Louis G. LaVecchia Administrative Law JudgeDATE: May 18, 1992FOOTNOTES: [[1]]Flint withdrew its notice of contest of two citation itemswhen the Secretary downgraded the violations to other-than-serious with no penaltyassessed. The judge vacated a third citation item for an unguarded grinding tool becausethe Secretary failed to show either that Flint employees were exposed or that Flintcreated or controlled the hazard.[[2]] Found in Subpart P–Excavations, the cited standardprovides:? 1926.651 General requirements.(j) Protection of employees from loose rock or soil.(2) Employees shall be protected from excavated…materials…that could pose a hazard byfalling or rolling into excavations.[[3]] Found in Subpart P–Excavations, the cited standardprovides:? 1926.651 General requirements.(k) Inspections (1) Daily inspections of excavations, the adjacent areas, and protectivesystems shall be made by a competent person for evidence of a situation that could resultin possible cave-ins, failure of protective systems…or other hazardous conditions….These inspections are only required when employee exposure can be reasonably anticipated.[[4]] Found in Subpart P–Excavations, the cited standardprovides:? 1926.652 Requirements for protective systems.(a) Protective of employees in excavations. (1) Each employee in an excavation shall beprotected from cave-ins by an adequate protective system….[[5]] See D Harris Masonry Contract. Inc., v. Dole. 876 F.2d343 (3rd Cir. 1989); Electric Smith. Inc. v Sec’y of Labor 666 F.2d 1267(9th Cir. 1982):Central of Ga R Co. v. OSHRC 576 F.2d 620 (5th Cir. 1978); Novak & Co., Inc. 11 B N AOSHC 1763 1983-84CCH OSHD ? 26,756 (No. 80-7335, 1984)[[6]] See Dun-Par Engineered Form Co. v. Marshall. 676 F.2d1333 (10th Cir. 1982): Marshall v. Knutson Constr. Co.,566 F.2d 596 (8th Cir.1977) F.L.Hughes and Co., 11 BNA OSHC 1391. 1983-84 CCH OSHD ? 26,520 (No. 14519, 1983); H. B.Zachry Co., (Intl).8 BNA OSHC 1669. 1980 CCH OSHD ? 24,588 (No. 76-267,1980).[[7]] The Secretary argues that the employees observed in thetrench were in fact Flint employees. Since, as the Secretary acknowledges,affirmance ofthe citation does not depend on a determination of this issue, we make no factual findingas to whether the employees in the trench were Flint employees or those of anothersub-contractor. For analytical purposes, however, we treat the ma s non-Flint employees.[[8]] Flint contends, that the trench itself was not the hazardin question. Instead, it claims that the hazard was the absence of adequate shoring in thetrench, and then only when combined with the presence of employees. We disagree. The opentrench was the hazard. [[9]] The duration of employees exposure is not determinativeof the seriousness of a violation; it relates rather to the gravity factor in assessing apenalty. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1047, 1981 CCH OSHD ? 25,712 at p.32,057 (No. 76-4765, 1981) and cases cited.[[1]] Items 1 and 2 of the citation alleged violations of 29C.F.R. ? 1926.21(b)(2) and 1926.59(h), respectively. At the hearing, the Secretaryamended items 1 and 2 to nonserious and reduced the proposed penalties to zero after whichRespondent withdrew its contest of these items. (Tr. 4-6)[[2]] McCown has been with OSHA for six years; his previousexperience includes seven years as a safety officer with the United States Army and tenyears as an accident loss control supervisor and manager with Aetna Insurance Company.(Tr. 6-8, 36-37).[[3]] Prior to this position, which he has held for two years,Baker was a corporate safety manager for Western Oil Well Service Company for thirteenyears. (Tr. 55).[[4]] A general contractor on a multi-employer worksite istypically responsible for assuring the prevention or abatement of all conditions affectingthe safety or health of employees on the site. Id. However, the Secretary did notestablish Flint was. the general contractor in this case.[[5]] Baker said the seminars and Texas A&M program hadtaken place in 1989 and 1990. (Tr. 68).”