“SECRETARY OF LABOR,Complainant,v.POTOMAC ELECTRIC POWER COMPANY,Respondent.OSHRC Docket No. 89-0202_ORDER_This matter is before the Commission on a Direction for Review enteredby former Chairman Linda L. Arey on October 30, 1989. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission.[[1]] Theterms of the Stipulation and Settlement Agreement do not appear to becontrary to the Occupational Safety and Health Act and are in compliancewith the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the commission inthis case. See 29 U.S.C. ? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _October 23, 1990_————————————————————————ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.POTOMAC ELECTRIC POWER COMPANY,Respondent.OSHRC Docket No. 89-0202_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed between the Complainant, Secretary ofLabor, and the Respondent, Potomac Electric Power Company (PEPCO), that:1. Respondent represents that the alleged violation for which it wascited has been abated and shall remain abated.2. Respondent hereby agrees to withdraw its notice of contest previouslyfiled in this case.3. The parties agree that in the future, when respondent engages intrenching and excavation work, PEPCO will ensure that all supportsystems are installed in a manner that protects employees from cave-ins,structural collapses, or from being struck by members of the supportsystem; i.e., the installation of all protective support systems intrenches and excavations shall begin at, and progress from, the top andwork down towards the bottom of the trench or excavation. Removal ofsupport systems shall begin at the bottom of the excavation and progresstowards the top. The parties also agree that all personnel of respondentinvolved in trenching and excavation operations shall be trained in theaforementioned installation and removal procedures.4. Complainant hereby amends the citation to characterize the allegedviolation of 29 CFR 1926.652(c) as a violation of Section 17 of the Act.The proposed penalty for this citation is amended to $1,000.5. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.6. None of the foregoing agreements, statements, stipulations, oractions taken by respondent shall be deemed an admission by respondentof the allegations contained in the citations or the complaint herein.The agreements, statements, stipulations, and actions herein are madesolely for the purpose of settling this matter economically and amicablyand they shall not be used for any other purpose, except for subsequentproceedings and matters brought by the Secretary of Labor directly underthe provisions of the Occupational Safety and Health Act of 1970.7. No authorized employee representative elected party status in this case.IIIRespondent hereby agrees to post this Stipulation and SettlementAgreement in accordance with Commission Rules 2200.7 and 2200.100.ROBERT P. DAVISSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationORLANDO J. PANNOCCHIA (Date)Attorney for theSecretary of LaborBARBARA C. JOB (Date)Attorney for RespondentPotomac Electric Power Co.————————————————————————IN THE MATTER OF:ELIZABETH DOLE,SECRETARY OF LABOR,Complainant,v.POTOMAC ELECTRIC POWER COMPANYRespondent.Docket No. 89-0202Region IIIAPPEARANCES: MARK SWIRSKY, ESQUIREU.S. Department of LaborFor the Complainant,BARBARA C. JOB, ESQUIREPotomac Electric Power CompanyFor the Respondent,_DECISION AND ORDER_JUDGE TENNEYI. _PROCEDURAL HISTORY_On September 13, 1988, Mr. John R. Wiseman, an Occupational Health andSafety Administration (OSHA) Compliance Officer, conducted acomprehensive inspection of the activities of all employers at theconstruction site of a new building at 750 17th Street, N.W.,Washington, D.C. Following the inspection, one \”serious\” citation wasissued to Potomac Electric Power Company (hereinafter Pepco). Thatcitation was divided into two items, Item 1 and Item 2. A total proposedpenalty of $800 was proposed for the items.Item 1 alleges a serious violation of section 5(a)(2) of the Act, and 29CFR 1926.450(a)(9). The Complaint specifies that on September 13, 1988,Pepco’s employees were working in a trench in which the side rails ofladders did not extend more than 36 inches above landings, nor weregrabrails provided.Item 2 specifies a serious violation of section 5(a)(2) of the Act, and29 CFR 1926.652(c). The Complaint specifies that on September 13, 1988,Pepco’s employees were working in a trench which was dug in hard andcompact soil, five feet or more in depth and which was not shored,supported or sloped.Pepco filed a timely notice of contest. After the filing of thepleadings, a hearing was held on May 11, 1989, in Washington, D.C.Post-hearing briefs have been filed and considered.II. _BACKGROUND AND FACTS_1. Pepco, a corporation, is an investor-owned electric utility company.Pepco has its principal place of business at 1900 Pennsylvania Avenue,N.W., Washington, D.C. During the time of the inspection it maintained aworksite at 750 17th Street, N.W., Washington, D.C. The Commission hasjurisdiction because Pepco’s contest was timely and because Pepco usestools, equipment, machinery, materials, goods and supplies which haveoriginated in whole or in part from locations outside the District ofColumbia. (Stipulation, Court’s Exhibit-1, Nos. 1, 3, 5). Pepco is anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Act, 29 U.S.C. 652(5).2. Mr. Schuetz accompanied Mr. Wiseman during the inspection of the 75017th St., N.W. worksite. Mr. Schuetz was the Corporate Safety Directorfor the general contractor, Tiber Construction Company. (Testimony ofMr. Wiseman, Tr. 17; Testimony of Mr. Schuets, Tr. 64).3. Mr. Wiseman has over twenty years’ experience as a complianceofficer; has taken many courses on trenching and shoring; and has taughta course in trenching and excavation. Mr. Wiseman has conducted over1500 inspections of trenching and excavation conditions. (Testimony ofMr. Wiseman, Tr. 10-12).4. Mr. Schuetz has seven years’ experience as a safety superintendent invarious positions and six years’ experience as a gold miner in Colorado.(Testimony of Mr. Schuetz, Tr. 63-68).5. Mr. Wiseman observed the Pepco employees opening a trench, on his wayto lunch at about 12:30 p.m. on the day of the inspection. Upon hisreturn at about 1:15 p.m., Mr. Wiseman saw two Pepco employees at thebottom of the trench about to install a jack. The two employees wereidentified as Mr. Troy Devane and Mr. \”Gogo\” Bacote. (Testimony of Mr.Wiseman, Tr. 19; Testimony of Mr. Devane, Tr. 96; Govt. Exhibit-F). Mr.Schuetz’ testimony corroborated Mr. Wiseman’s observations. (Tr. 64-65).6. The Pepco employees were constructing a drain to allow water to flowfrom a manhole to a sewer line. (Stipulation, Court’s Exhibit-1, No.13). To construct the drain the Pepco employees had dug a trench elevenand one half-feet deep and thirty inches in width. (Testimony of Mr.Wiseman, Tr. 18, 29; Govt. Exhibit-B, P. 2). The trench extended in aneast-west direction nine and one-half feet from the building underconstruction, across a sidewalk, and into 17th Street. The trench wasdug in hard or compact soil. (Stipulation, Court’s Exhibit-1, No. 17).7. At the time Mr. Wiseman observed the employees at the bottom of thetrench, the sides of the trench had not been shored or sloped. Accordingto Mr. Wiseman, there were no trench jacks in place; none of the touruprights that had been placed in the trench were secured. Additionally,there were no horizontal boards, or stringers, in place. (Testimony ofMr. Wiseman, Tr. 22-23; that of Mr. Devane, Tr. 130).8. As to the jacks, this is inconsistent with the testimony of Mr.Devane. According to Mr. Devane, the employees had installed a middleand bottom jack between the pair of uprights adjacent to them. (Tr.116-118). Later, Mr. Devane testified that they had not planned to usestringers. (Tr. 131-132).9. Mr. Wiseman’s testimony which is corroborated by Mr. Schuetz iscredited. (See Paragraph Nos. 2-5).10. Mr. Wiseman asked the two employees to come out of the trench andproceeded to delineate the proper shoring of a trench. (Tr. 23-26).Although familiar with OSHA standards on shoring, the employees had notconsulted the standards in determining how to proceed in shoringtrenches beyond four feet in depth. (Testimony of Mr. Devane, Tr. 130).11. There were eight Pepco employees at the worksite. (Stipulation,Court’s Exhibit-1, No. 11). Pepco had recently instituted a new jobassignment system. Under the new system experienced conduit installerscould become trained as crew leaders. (Testimony of Mr. Sigafoose, Tr.218-220). On the day of the inspection, Mr. Devane was the crew leaderin training.12. Another employee present at the scene, George Maslar, was anequipment operator, experienced crew supervisor, and the supervisor incharge of training Mr. Devane. Specifically, Mr. Maslar’s chargesincluded; to make sure the work was performed properly, to help Mr.Devane with decisions if asked, and to assist Mr. Devane should anyproblems arise. (Testimony of Mr. Maslar, Tr. 144-146; Testimony of Mr.Sigafoose, Tr. 219-220).13. There were two other supervisors at the Pepco worksite at the timeof the inspection. Mr. Terry Proctor had responsibility for severalworksites, one of which included the 750 17th St. worksite. (Testimonyof Mr. Proctor, Tr. 198). Mr. Bill Badgley was a foreman and supervisedMr. Proctor. (Testimony of Mr. Devane, Tr. 102, 106-107). Both men werepresent at the worksite on the day of the inspection._DISCUSSION __Alleged violation of 29 CFR 1926.450(a)(9)_14. Concerning Item Number 1, the Complaint alleges that on September13, 1998, Pepco’s employees were working in the cited trench and theside rails of ladders did not extend more than 36 inches above landings,nor were grabrails provided as required by the standard.15. Before the hearing, I called attention to a recent Review Commissiondecision. _Secretary of Labor v. Lowe Construction Co.,_ 13 BNA OSHC2182 (No. 85-1388, April 20, 1989). The parties concede that Lowe doescontrol. I have afforded the parties leave to supplement the record withrespect to the adequacy of the means of exit. See my separate Orderdated September 7, 1989._Alleged violation of 29 CFR 1926.652(c) _16. 29 CFR 1926.652(c) provides in pertinent part that sides of trenchesin hard or compact soil, including embankments, shall be shored orotherwise supported when the trench is more than five feet deep andeight feet or more long.17. Table P-2 following Section 1926.652 outlines the minimumrequirements for trench shoring. When the condition of the earth is hardand the trench is from ten to fifteen feet in depth both uprights andstringers and cross braces are required.18. Although Pepco argues that the employees were in the process ofshoring the trench when Mr. Wiseman halted their operations, thetestimony indicates differently. At the time Mr. Wiseman passed by thetrench on his return from lunch, there were two Pepco employees at thebottom of the trench about to install a jack at the bottom. (Testimonyof Mr. Devane, Tr. 116; See Paragraph No. 5). Moreover, the testimony ofthe various crew members present at the trench was contradictory and isnot fully credited because of their uncertainty in what actuallyoccurred. Even Pepco personnel had been unable to determine what hadactually occurred on the day in question. (Testimony of Mr. Sigafoose,Tr. 227).19. The standard is read to require that shoring be done in a reasonablysafe manner. Also, the standard contemplates that there be vertical andhorizontal support. (Table P-2 following section 1926.652; Paragraph No.17). As there were no jacks to provide horizontal support I find thatthe trench was not properly shored under the standard.20. Despite the number of Pepco supervisors on the job, there was a lackof supervision. (Paragraph Nos. 11-13). There was confusion at theworksite as a result of a newly instituted job assignment system.(Testimony of Mr. Sigafoose, Tr. 218). Devane, the supervisor intraining, was inexperienced in that capacity, and had no experience indigging trenches beyond four feet in depth. Indeed, Devane stated thathe was not aware of any Pepco rules or training in digging beyond fourfeet. (Testimony of Mr. Devane, Tr. 137). The crew members similarlywere without experience. Although Mr. Maslar was supposed to assist inthe supervising, if needed, the evidence indicates that he paid littleattention to what was happening during the digging of the trench.(Testimony of Mr. Devane, Tr. 140-141). Moreover, even if Mr. Maslar hadbeen supervising the employees properly, he had only a sparse knowledgeof Pepco’s safety manual, having glanced at it only \”a ‘time or two.\”(Testimony of Mr. Maslar, Tr. 156-157). This lack of knowledge isevinced by Mr. Maslar’s mistaken belief that in a trench of over tenfeet, two-inch width stringers were sufficient. (Testimony of Mr.Maslar, Tr. 151-153).21. This lack of supervision was further complicated by Pepco’s trainingsystem with respect to trenches in excess of four feet in depth. Pepco’straining had a weakness. It did not include digging trenches beyond fourfeet in depth. Although Pepco’s safety manual indicated the propershoring of trenches in cases such as this, the employees did notactively refer or refresh their memories of the required standards. (SeeParagraph 20).22. The Secretary having established that Pepco failed to properlyinstruct its employees on necessary safety precautions and that threesupervisory personnel present on the day of the inspection had knowledgeof or participated in the conduct violating the Act, has made out aprima facie case. _Brock v. L.E. Myers Co., High Voltage Div.,_ 818 F.2d1270, 1276, f.7, (6th Cir. 1987). _Pennsylvania Power & Light v. OSHRC,_737 F.2d 350, 357 (3d Cir. 1982).23. Pepco asserts one affirmative defense. It argues that the citationshould be vacated because of unpreventable employee misconduct. In orderto establish the affirmative defense of employee misconduct, Pepco mustprove that the employee’s action constituting noncompliance with astandard was a departure from a uniformly and effectively enforced workrule. _Daniel International Corporation Wansley Project, _9 BNA OSHC2027, 2031, (No. 76-1538, 1979).24. Pepco has failed to prove that the conduct which occurred here wasthe result of idiosyncratic or unforeseeable employee misconduct. Theemployees’ lack of knowledge in the proper shoring of a trench beyondfour feet is indicative of the aforementioned deficiency in the trainingprogram. The violation is affirmed._PENALTY _25. Under section 17(j) of the Act, consideration is given to the sizeof the employer’s business, the gravity of the violation, the good faithof the employer, and the history of any previous violations indetermining the assessment of an appropriate penalty.Pepco, a large corporation, had eight employees at the worksite on theday of the inspection. Pepco acted in good faith and the objectives inestablishing the crew leader position are commendable. Althoughproceeding in a mistaken fashion, the crew leader was taking steps toshore the trench. The record does not reflect any previous violations. Apenalty is assessed only because the gravity of the offense ispotentially severe. Under these circumstances a penalty of $200 isappropriate._ORDER _IT IS HEREBY ORDERED THAT:1. Consistent with a separate order entered on this date, the allegationconcerning means of egress from the trench, 29 CFR 1926.450(a)(9)Citation 1, Item 1, is severed and is hereby assigned a separate docketnumber, 89-2435. The parties are allowed 14 days to notify me in writingif they intend to offer additional evidence in which event, asupplementary hearing will be noticed.2. The alleged violation of 29 CFR 1926.652(c) Citation 1, Item 2, isaffirmed with a penalty of $200.Paul A. TenneyJudge, OSHRCDATED: SEP 27 1989Washington, D.C.————————————————————————FOOTNOTES:[[1]] The Stipulation and Settlement Agreement renders moot a Motion forOral Argument filed previously by Respondent.”