“Docket No. 89-0202 SECRETARY OF LABOR, Complainant,v.POTOMAC ELECTRIC POWER COMPANY,Respondent.OSHRC Docket No. 89-0202ORDERThis matter is before the Commission on a Direction for Reviewentered by former Chairman Linda L. Arey on October 30, 1989. The parties have now filed aStipulation and Settlement Agreement. Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission.[[1]] The terms of the Stipulationand Settlement Agreement do not appear to be contrary to the Occupational Safety andHealth Act and are in compliance with the Commission’s Rules of Procedure. Accordingly, we incorporate the terms of the Stipulation andSettlement Agreement into this order. This is the final order of the commission in thiscase. See 29 U.S.C. ? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: October 23, 1990ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.POTOMAC ELECTRIC POWER COMPANY,Respondent.OSHRC Docket No. 89-0202STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and completesettlement and disposition of the issues in this proceeding which are currently pendingbefore the Commission.II It is hereby stipulated and agreed between the Complainant,Secretary of Labor, and the Respondent, Potomac Electric Power Company (PEPCO), that:1. Respondent represents that the alleged violation for whichit was cited has been abated and shall remain abated.2. Respondent hereby agrees to withdraw its notice of contestpreviously filed in this case.3. The parties agree that in the future, when respondentengages in trenching and excavation work, PEPCO will ensure that all support systems areinstalled in a manner that protects employees from cave-ins, structural collapses, or frombeing struck by members of the support system; i.e., the installation of all protectivesupport systems in trenches and excavations shall begin at, and progress from, the top andwork down towards the bottom of the trench or excavation. Removal of support systems shallbegin at the bottom of the excavation and progress towards the top. The parties also agreethat all personnel of respondent involved in trenching and excavation operations shall betrained in the aforementioned installation and removal procedures.4. Complainant hereby amends the citation to characterize thealleged violation of 29 CFR 1926.652(c) as a violation of Section 17 of the Act. Theproposed penalty for this citation is amended to $1,000.5. Each party agrees to bear its own fees and other expensesincurred by such party in connection with any stage of this proceeding.6. None of the foregoing agreements, statements, stipulations,or actions taken by respondent shall be deemed an admission by respondent of theallegations contained in the citations or the complaint herein. The agreements,statements, stipulations, and actions herein are made solely for the purpose of settlingthis matter economically and amicably and they shall not be used for any other purpose,except for subsequent proceedings and matters brought by the Secretary of Labor directlyunder the provisions of the Occupational Safety and Health Act of 1970.7. No authorized employee representative elected party statusin this case.IIIRespondent hereby agrees to post this Stipulation andSettlement Agreement in accordance with Commission Rules 2200.7 and 2200.100.ROBERT P. DAVIS Solicitor of Labor CYNTHIA L. ATTWOOD Associate Solicitor forOccupational Safety and Health DANIEL J. MICKCounsel for Regional Trial LitigationORLANDO J. PANNOCCHIA (Date) Attorney for theSecretary of LaborBARBARA C. JOB (Date) Attorney for Respondent Potomac Electric Power Co.IN THE MATTER OF:ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. POTOMAC ELECTRIC POWER COMPANY Respondent.Docket No. 89-0202 Region IIIAPPEARANCES:\u00a0\u00a0\u00a0 MARK SWIRSKY, ESQUIREU.S. Department of Labor For the Complainant, BARBARA C. JOB, ESQUIRE Potomac Electric Power Company For the Respondent, DECISION AND ORDERJUDGE TENNEYI. PROCEDURAL HISTORYOn September 13, 1988, Mr. John R. Wiseman, an OccupationalHealth and Safety Administration (OSHA) Compliance Officer, conducted a comprehensiveinspection of the activities of all employers at the construction site of a new buildingat 750 17th Street, N.W., Washington, D.C. Following the inspection, one\”serious\” citation was issued to Potomac Electric Power Company (hereinafterPepco). That citation 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 theAct, and 29 CFR 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 of ladders did notextend more than 36 inches above landings, nor were grabrails provided.Item 2 specifies a serious violation of section 5(a)(2) of theAct, and 29 CFR 1926.652(c). The Complaint specifies that on September 13, 1988, Pepco’semployees were working in a trench which was dug in hard and compact soil, five feet ormore 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 briefshave been filed and considered.II. BACKGROUND AND FACTS1. Pepco, a corporation, is an investor-owned electric utilitycompany. Pepco has its principal place of business at 1900 Pennsylvania Avenue, N.W.,Washington, D.C. During the time of the inspection it maintained a worksite at 750 17thStreet, N.W., Washington, D.C. The Commission has jurisdiction because Pepco’s contest wastimely and because Pepco uses tools, equipment, machinery, materials, goods and supplieswhich have originated in whole or in part from locations outside the District of Columbia.(Stipulation, Court’s Exhibit-1, Nos. 1, 3, 5). Pepco is an employer engaged in a businessaffecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. 652(5).2. Mr. Schuetz accompanied Mr. Wiseman during the inspection ofthe 750 17th St., N.W. worksite. Mr. Schuetz was the Corporate Safety Director for thegeneral contractor, Tiber Construction Company. (Testimony of Mr. Wiseman, Tr. 17;Testimony of Mr. Schuets, Tr. 64).3. Mr. Wiseman has over twenty years’ experience as acompliance officer; has taken many courses on trenching and shoring; and has taught acourse in trenching and excavation. Mr. Wiseman has conducted over 1500 inspections oftrenching and excavation conditions. (Testimony of Mr. Wiseman, Tr. 10-12).4. Mr. Schuetz has seven years’ experience as a safetysuperintendent in various 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 way to lunch at about 12:30 p.m. on the day of the inspection. Upon his return atabout 1:15 p.m., Mr. Wiseman saw two Pepco employees at the bottom of the trench about toinstall a jack. The two employees were identified 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 waterto flow from a manhole to a sewer line. (Stipulation, Court’s Exhibit-1, No. 13). Toconstruct the drain the Pepco employees had dug a trench eleven and one half-feet deep andthirty inches in width. (Testimony of Mr. Wiseman, Tr. 18, 29; Govt. Exhibit-B, P. 2). Thetrench extended in an east-west direction nine and one-half feet from the building underconstruction, across a sidewalk, and into 17th Street. The trench was dug in hard orcompact soil. (Stipulation, Court’s Exhibit-1, No. 17).7. At the time Mr. Wiseman observed the employees at the bottomof the trench, the sides of the trench had not been shored or sloped. According to Mr.Wiseman, there were no trench jacks in place; none of the tour uprights that had beenplaced in the trench were secured. Additionally, there were no horizontal boards, orstringers, in place. (Testimony of Mr. Wiseman, Tr. 22-23; that of Mr. Devane, Tr. 130).8. As to the jacks, this is inconsistent with the testimony ofMr. Devane. According to Mr. Devane, the employees had installed a middle and bottom jackbetween the pair of uprights adjacent to them. (Tr. 116-118). Later, Mr. Devane testifiedthat they had not planned to use stringers. (Tr. 131-132).9. Mr. Wiseman’s testimony which is corroborated by Mr. Schuetzis credited. (See Paragraph Nos. 2-5).10. Mr. Wiseman asked the two employees to come out of thetrench and proceeded to delineate the proper shoring of a trench. (Tr. 23-26). Althoughfamiliar with OSHA standards on shoring, the employees had not consulted the standards indetermining how to proceed in shoring trenches beyond four feet in depth. (Testimony ofMr. 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 installers could becometrained as crew leaders. (Testimony of Mr. Sigafoose, Tr. 218-220). On the day of theinspection, Mr. Devane was the crew leader in training.12. Another employee present at the scene, George Maslar, wasan equipment operator, experienced crew supervisor, and the supervisor in charge oftraining Mr. Devane. Specifically, Mr. Maslar’s charges included; to make sure the workwas performed properly, to help Mr. Devane with decisions if asked, and to assist Mr.Devane should any problems 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 atthe time of the inspection. Mr. Terry Proctor had responsibility for several worksites,one of which included the 750 17th St. worksite. (Testimony of Mr. Proctor, Tr. 198). Mr.Bill Badgley was a foreman and supervised Mr. Proctor. (Testimony of Mr. Devane, Tr. 102,106-107). Both men were present 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 onSeptember 13, 1998, Pepco’s employees were working in the cited trench and the side railsof ladders did not extend more than 36 inches above landings, nor were grabrails providedas required by the standard.15. Before the hearing, I called attention to a recent ReviewCommission decision. Secretary of Labor v. Lowe Construction Co., 13 BNA OSHC 2182(No. 85-1388, April 20, 1989). The parties concede that Lowe does control. I have affordedthe parties leave to supplement the record with respect to the adequacy of the means ofexit. See my separate Order dated September 7, 1989.Alleged violation of 29 CFR 1926.652(c) 16. 29 CFR 1926.652(c) provides in pertinent part that sides of trenches in hard orcompact soil, including embankments, shall be shored or otherwise supported when thetrench is more than five feet deep and eight 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 hard and the trench isfrom ten to fifteen feet in depth both uprights and stringers and cross braces arerequired.18. Although Pepco argues that the employees were in theprocess of shoring the trench when Mr. Wiseman halted their operations, the testimonyindicates differently. At the time Mr. Wiseman passed by the trench on his return fromlunch, there were two Pepco employees at the bottom of the trench about to install a jackat the bottom. (Testimony of Mr. Devane, Tr. 116; See Paragraph No. 5). Moreover, thetestimony of the various crew members present at the trench was contradictory and is notfully credited because of their uncertainty in what actually occurred. Even Pepcopersonnel had been unable to determine what had actually occurred on the day in question.(Testimony of Mr. Sigafoose, Tr. 227).19. The standard is read to require that shoring be done in areasonably safe manner. Also, the standard contemplates that there be vertical andhorizontal support. (Table P-2 following section 1926.652; Paragraph No. 17). As therewere no jacks to provide horizontal support I find that the trench was not properly shoredunder the standard.20. Despite the number of Pepco supervisors on the job, therewas a lack of supervision. (Paragraph Nos. 11-13). There was confusion at the worksite asa result of a newly instituted job assignment system. (Testimony of Mr. Sigafoose, Tr.218). Devane, the supervisor in training, was inexperienced in that capacity, and had noexperience in digging trenches beyond four feet in depth. Indeed, Devane stated that hewas not aware of any Pepco rules or training in digging beyond four feet. (Testimony ofMr. Devane, Tr. 137). The crew members similarly were without experience. Although Mr.Maslar was supposed to assist in the supervising, if needed, the evidence indicates thathe paid little attention to what was happening during the digging of the trench.(Testimony of Mr. Devane, Tr. 140-141). Moreover, even if Mr. Maslar had been supervisingthe employees properly, he had only a sparse knowledge of Pepco’s safety manual, havingglanced at it only \”a ‘time or two.\” (Testimony of Mr. Maslar, Tr. 156-157).This lack of knowledge is evinced by Mr. Maslar’s mistaken belief that in a trench of overten feet, two-inch width stringers were sufficient. (Testimony of Mr. Maslar, Tr.151-153).21. This lack of supervision was further complicated by Pepco’straining system with respect to trenches in excess of four feet in depth. Pepco’s traininghad a weakness. It did not include digging trenches beyond four feet in depth. AlthoughPepco’s safety manual indicated the proper shoring of trenches in cases such as this, theemployees did not actively refer or refresh their memories of the required standards. (SeeParagraph 20).22. The Secretary having established that Pepco failed toproperly instruct its employees on necessary safety precautions and that three supervisorypersonnel present on the day of the inspection had knowledge of or participated in theconduct violating the Act, has made out a prima facie case. Brock v. L.E. Myers Co.,High Voltage Div., 818 F.2d 1270, 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 citation should be vacatedbecause of unpreventable employee misconduct. In order to establish the affirmativedefense of employee misconduct, Pepco must prove that the employee’s action constitutingnoncompliance with a standard was a departure from a uniformly and effectively enforcedwork rule. Daniel International Corporation Wansley Project, 9 BNA OSHC 2027, 2031,(No. 76-1538, 1979).24. Pepco has failed to prove that the conduct which occurredhere was the result of idiosyncratic or unforeseeable employee misconduct. The employees’lack of knowledge in the proper shoring of a trench beyond four feet is indicative of theaforementioned deficiency in the training program. The violation is affirmed.PENALTY 25. Under section 17(j) of the Act, consideration is given tothe size of the employer’s business, the gravity of the violation, the good faith of theemployer, and the history of any previous violations in determining the assessment of anappropriate penalty.Pepco, a large corporation, had eight employees at the worksiteon the day of the inspection. Pepco acted in good faith and the objectives in establishingthe crew leader position are commendable. Although proceeding in a mistaken fashion, thecrew leader was taking steps to shore the trench. The record does not reflect any previousviolations. A penalty is assessed only because the gravity of the offense is potentiallysevere. Under these circumstances a penalty of $200 is appropriate.ORDER IT IS HEREBY ORDERED THAT:1. Consistent with a separate order entered on this date, theallegation concerning means of egress from the trench, 29 CFR 1926.450(a)(9) Citation 1,Item 1, is severed and is hereby assigned a separate docket number, 89-2435. The partiesare allowed 14 days to notify me in writing if they intend to offer additional evidence inwhich event, a supplementary hearing will be noticed.2. The alleged violation of 29 CFR 1926.652(c) Citation 1, Item2, is affirmed with a penalty of $200.Paul A. Tenney Judge, OSHRCDATED: SEP 27 1989 Washington, D.C.FOOTNOTES: [[1]] The Stipulation and Settlement Agreement renders moot aMotion for Oral Argument filed previously by Respondent.”