“Secretary of Labor,\t Complainant, \t v.\t OSHRC Docket No. 06-0849RCS Contractors, Inc.,\t Respondent.\t Appearances: Tina D. Juarez, Esq., U. S. Department of Labor, Office ofthe Solicitor, Dallas, Texas For Complainant Eric R. Miller, Esq., Gordon, Arata, McCollam, Duplantis & Eagan, LLP,Baton Rouge, Louisiana For RespondentBefore: Administrative Law Judge Nancy J. SpiesDECISION AND ORDER RCS Contractors, Inc. (RCS), is a small constructioncontractor which installs underground drainage systems and utilities forcommercial projects (Tr. 131). On April 12, 2006, RCS began removing anolder pipeline and installing two new parallel storm drain pipelines,running next to an expanded Airline Highway in Baton Rouge, Louisiana.That afternoon, Ruth Michelli, a compliance officer with theOccupational Safety and Health Administration (OSHA), waited in heavytraffic at the turning lane where Bluebonnet Boulevard crosses AirlineHighway. She observed what appeared to her to be violations of theconstruction standards enforced by OSHA. From her automobile she tookphotographs of the excavation worksite. She then related herobservations to her OSHA office (Tr. 18, 19, 63). OSHA assignedcompliance officer Billy F. Wright to inspect the worksite. As a resultof the OSHA inspection, the Secretary issued RCS a two-item seriouscitation on May 1, 2006. For item 1, the Secretary asserts RCS violated \u00a71926.652(a)(1) by failing to protect employees working in an excavationfrom the potential hazard of a cave-in. For item 2, she asserts RCSviolated \u00a7 1926.100(a) by failing to ensure employees used protectivehelmets to protect against overhead hazards. RCS counters that theexcavation was not as deep as 5 feet but, even if it were, the trenchwalls were properly sloped for Type B soil. It contends head protectionwas not needed because employees inside the excavation were never in azone of danger from overhead hazards. In addition, RCS asserts thedefense of employee misconduct for item 2. On September 29, 2006, the undersigned held a hearing inthis matter in Baton Rouge, Louisiana, under simplified proceedings. Theparties filed post-hearing briefs, and the case is ready for decision. For the reasons discussed below, the Secretary failed toprove RCS violated the standard cited in item 1. She established aviolation for item 2.Facts The old 30-inch concrete pipeline that RCS contracted toremove ran inside a \u201cditch\u201d or \u201cculvert\u201d off from the shoulder areaalong Airline Highway. Earlier RCS stockpiled materials, but August 12,2006, was the crew\u2019s first day excavating on the project. On that dateRCS removed from the culvert area 40 feet of the old concrete stormpipe. It would install dual 42-inch \u201cround equivalent\u201d reinforcedconcrete arch pipelines. Each section of the newly installed arch-shapedpipe measured approximately 30 inches high and 52 inches wide. RCS laidthe two storm pipelines side-by-side, 18 inches apart (Tr. 41, 209-212).A 14-inch asbestos waterline, which RCS would also remove, ran along thenorth side of the excavation. The water line was 3 feet farther into thenorth trench wall, 1 to 2 feet below the level of the old 30-inch line(Tr.145, 196). A PVC irrigation\/sprinkler line, which ran between thebanks of the excavation not far from the culvert\u2019s surface, was easilyremoved (Exh. C-4; Tr. 149, 216). As the pipe laying proceeded fromBluebonnet Boulevard toward a driveway of a hotel along the highway, theculvert became higher and the excavation would have become deeper. RCS foreman G. Wayne Tullier supervised the project.Describing himself as \u201csupervisor, superintendent, foreman and,generally, I \u2013 I have to do everything,\u201d Tullier also operated the largetrackhoe to excavate the area and to lay the pipe (Tr. 131). With thetrackhoe Tullier dug out dirt from the base of the ditch and threw itbehind to make a work platform for the trackhoe. From the platformTullier pulled out the old storm pipeline, expanded the bed for both newpipelines, loaded up dirt into trucks, dumped in the limestone bedding,and carried over the new pipe to the trench. Three employees guided eachnew pipe section into the excavation. When they finished the preparationwork, Tullier pushed the pipe sections together with the trackhoe (Exhs.C-1, C-7 – C-9; Tr. 214). Michelli observed the RCS crew at 3:30 p.m., and theemployees were in the process of positioning the pipe and laying whatwould be the last course of new pipe for the day (Tr. 174). Tullier hadexited the trackhoe and watched the installation process from the bank.Wright arrived at the worksite some thirty minutes after Michelli\u2019s callto OSHA. By that time, Tullier and the crew had finished for the day.Tullier left the worksite, and the others were in the truck preparing toleave. The crew telephoned foreman Tullier, who returned to the site andparticipated in the OSHA inspection. Wright identified himself toTullier and explained what prompted the inspection (Tr. 18, 27). Theexcavation remained open and was not to be backfilled for 5 days (Tr.150). Wright photographed the excavation, measured its depth at oneside, and interviewed employees. Discussion The excavation standards of Subpart P address protectionfrom cave-ins. The standards provide for alternative procedures andtypes of protective methods which can be used. In order to establish aviolation of the standard, the Secretary bears the burden to prove: (a)the standard applies to the condition cited; (b) the terms of thestandard were not met; (c) employees had access to the violativeconditions; and (d) the employer either knew of the violative conditionsor could have known with the exercise of reasonable diligence. \/OffshoreShipbuilding, Inc.\/, 18 BNA OSHC 2170, 2171 (No. 990257, 2000). It is not disputed that the cited standards apply to theexcavation activities of RCS. Employees were exposed to or had access toconditions inside the excavation. Remaining to be determined are whetherRCS violated the terms of the standard and whether RCS had knowledge ofthe violative conditions.Item 1: Alleged Serious Violation of \u00a7 1926.652(a)(1) The Secretary contends RCS violated \u00a7 1926.652(a)(1) byfailing to provide adequate cave-in protection for employees working inthe excavation. The standard requires:Each employee in an excavation shall be protected from cave-ins by anadequate protective system designed in accordance with paragraph (b) or(c) of this section except when: (i) Excavations are made entirely instable rock; or (ii) Excavations are less than 5 feet (1.52 m) in depthand examination of the ground by a competent person provides noindication of a potential cave-in. Whether RCS violated the terms of \u00a7 1926.652(a)(1) dependson the type of soil into which the excavation was dug and on the depthand slope of the excavation.\/Soil Type\/ Soils are classified as Type A (generally the most stabletypes of clay), Type B (angular gravel, silt, silt or sandy or clayloam, some previously disturbed or fissured soils, or those subject tovibrations), or Type C (the least stable gravel, sand, loamy sand, watersoaked soils, or some previously disturbed soils) (Subpart P, App. A).The more unstable the soil, the further back the employer must slope thewalls of the excavation. RCS\u2019s excavation was in \u201cpreviously disturbed\u201dsoil. Not only had an earlier storm drain pipeline been installed in thesoil, but the 30-inch pipe sections were pulled out of the bed beforethe excavation was dug to accommodate two pipelines. The soil was alsopreviously disturbed by installation of a 14-inch asbestos water linerunning along and underneath the old storm line for 146 feet. Otherutilities were previously placed in the excavation field. Neither partyseriously disputes the soil was Type B.\/Excavation Over 5 Feet — Cave-In Protection Required\/ Other than when dug in solid rock, the standard requiresexcavations 5 feet and deeper to have cave-in protection. RCS bears theburden of proving the excavation was less than 5 feet in depth and thatits inspection did not indicate the potential for cave-ins. \/A.E.Y.Enterps.\/, 21 BNA OSHC 1658, 1659 (No. 06-0224, 2006). Both parties tookmeasurements. The Secretary contends Wright properly measured the depthof the trench wall to be 6\u00bd feet. Although RCS disputes the Secretary\u2019smeasurement and claims the excavation was less than 5 feet, Footnote its own projectengineer and general manager Christopher Alonso measured the depth inthe middle of the excavation to be 5 feet, 2 inches (Tr. 231). Theexcavation was shown to be 5 feet or greater in depth, and cave-inprotection was required.\/Dimensions of the Excavation\/ Shortly after the inspection, RCS\u2019s Alonso measured thedepth and lower width of the excavation. Alonso measured 5 feet, 2inches from the point between the new pipelines where the crew ended itswork up to a 2 by 4 he placed across the top of the excavation tofacilitate the measurement. Wright\u2019s 6 foot, 6 inch measurement wastaken against the north side of the trench wall beyond the end of thelast pipe (Exh. C- 3; Tr. 22, 39, 231). No one measured the top width. Tullier estimated he dug thetop width \u201capproximately between 22, 24, 26, somewhere in that area . .. I was actually digging about 24-, 26-foot wide at the top\u201d (Tr. 164). Alonso measured the bottom width in several locations to bebetween 16 to 18 feet (Tr. 231). Tullier testified the excavation haddifferent bottom widths at two different times. The first bottom widthwas only wide enough to accommodate two 52-inch wide pipes, plus 18inches from each bank and 18 inches between the pipes (or 13 feet, 4inches) (Tr. 212). According to Tullier this was the width at all timesemployees were in the excavation. He described how he later widened thenorth trench wall and removed part of the slope to dig out the old waterline (Tr. 145-146):It was – the bottom of the \u2013 the toe of that slope was removed when Iexcavated that 14-inch asbestos water line that was down there that hadto be removed, so it was \u2013 the bank come down and, about three foot intothat bank, there was a water line in there and, after I installed thepipe, I reached and grabbed the water line and pulled it out andbackfilled that with stone and, then, dug on down. I did it \u2013 I laidabout two joints and, then, I would dig the pipe out and, then, I\u2019d goabout two more and I\u2019d dig the pipe out. Tullier testified it was this latter, wider, steeperconfiguration Wright observed and photographed. Roughly corresponding toAlonso\u2019s bottom measurement, Tullier\u2019s new width equaled two 52-inchwide pipes, plus 18 inches from the south bank to the pipe, 18 inchesbetween the pipes, and 5 feet between the pipe and the north bank (or16foot, 8 inch ) (Tr. 212).\/Conflicting Calculations of the Slope\/ Sloping the sides of an excavation is one means of approvedcave-in protection, and the one RCS contends it utilized. The maximumallowable slope for Type B soil is 1-foot horizontal distance for each 1foot of vertical distance (or 1:1, or a slope of 45\u00b0). As long as thetrench walls were in fact sloped, with the bottom width of 13 feet, 4inches, the excavation could meet the 1:1 sloping requirements for TypeB soil. This is true whether the depth was 5 feet, 2 inches (as Alonsomeasured) or 6 feet, 6 inches (as Wright measured). If employees were inthe excavation when the bottom width was 16 feet, 8 inches, the oppositeis true. The top width in that configuration would not have beensufficiently wide to accommodate a 1:1 slope. Footnote The Secretary argues that regardless of the dimensions, theexcavation was not sloped. Wright observed the walls and photographedthem. He testified the north side of the trench was \u201cpracticallystraight up and down. There is no sloping, no benching\u201d (Tr. 37). TheSecretary bolsters Wright\u2019s observations with the photographs and withTullier\u2019s admissions. Wright recalled Tullier\u2019s initial statement to himthat \u201c[the area] wasn\u2019t a trench, it was a ditch. It was a 7-foot ditch,not a trench, and that all [Tullier] did was knock the sides off of itand how could he be responsible for employees in a ditch\u201d (Tr.21). AsWright measured the trench wall, he said to Tullier, who stood besidehim, \u201cit\u2019s 6\u00bd foot.\u201d In response, Wright testified Tullier replied,\u201cWell, I already told you it was a . . . 7-foot ditch\u201d (41). AlthoughTullier denies the comment, Wright recorded the statements which wereplaced in the file and provided to RCS. The statement comports withTullier\u2019s quick-tempered demeanor. It is concluded that Tullier made the\u201c7-foot ditch\u201d comment to Wright, but it is not certain what Tullierconsidered \u201cthe ditch.\u201d However, if Tullier\u2019s version of his method and sequence forlaying the pipe and removing the water line is correct, employees werenot exposed to the conditions Wright observed at the north side of theexcavation.\/Totality of the Evidence\/ The Secretary characterizes as \u201cfar fetched\u201d Tullier\u2019sassertion he dug out the water line \/after\/ employees laid the stormpipelines (Secretary\u2019s brief p. 6). She particularly notes Tullier wouldhave had to accomplish too much work within the short time frame betweenMichelli\u2019s observations and Wright\u2019s investigation. No one disputes thelower water line was removed. In fact, removing the line which wasanother 2 feet down accounts for the difference between Alonso\u2019s depthmeasurement in the middle and Wright\u2019s at the north trench wall. Thedispute is whether, contrary to Tullier\u2019s testimony, he excavated outthe water line before the limestone bedding and two new storm lines werelaid. Excavating out all the old pipes at one time appears to be thecommon-sense method. The photographs show the newly installed stormpipes bear no ill effects from having the water line dug out right nextto them. It might seem likely that using a 4-foot bucket to dig out apipe less than 4 feet from the new pipes would leave some signs of theactivity, even if Tullier added additional limestone bedding (Tr. 197).The record raises the questions but does not satisfactorily answer them. The undersigned carefully weighed the relevant testimony andthe exhibits. Footnote Tullier\u2019s testimonywas particularly reviewed. Tullier agrees he was angry about theinspection and considered Wright\u2019s allegations of safety problems to bea personal affront to him (Tr. 217). Tullier\u2019s testimony was confusing,and it is unclear whether some of the confusion was intentional. Theproblem may have arisen, however, because water lines, old and new stormlines, and irrigation lines were not clearly distinguished. In the finalanalysis, the record does not provide sufficient evidence, minus thespeculation, to establish Tullier and the crew performed the work in amanner different than Tullier described. With Tullier\u2019s 25 years ofexperience operating the trackhoe, it may be possible that sequencingthe work in the manner claimed was somehow advantageous. Wright appeared to rely heavily on the photographs for histestimony. For example, he misinterpreted items shown in the photographsas metal, rather than cardboard pieces. The facts may have appeared toWright to be straight forward, making it unnecessary to take additionalmeasurements or to get a fuller understanding of the work operation.Michelli was prevented from testifying for medical reasons. While theissue is not without doubt, the Secretary bears the burden of proof thatthe excavation walls were not sloped in accordance with Type B soil. Shemust prove when and where employees were exposed (or had access) to theviolative condition. It is determined the Secretary failed to meet herburden. Item 1 is vacated.Item 2: Alleged Violation of \u00a7 1926.100(a) The Secretary asserts RCS violated \u00a7 1926.100(a) whenemployees worked inside the excavation without hard hats or other headprotection. RCS argues employees did not need head protection duringthat time because neither the pipe nor bucket or boom of the trackhoepassed directly overhead and placed employees in the zone of danger. Thestandard provides:Employees working in areas where there is a possible danger of headinjury from impact, or from falling or flying objects, or fromelectrical shock and burns, shall be protected by protective helmets. Tullier described how he brings the pipe over to be set,holding the pipe with a cable secured to a bracket on the trackhoe onone end and the pipe on the other (Tr. 214):I have a cable that sticks down through that hole [in the pipe] andhangs off of my trackhoe and, . . . when you pick that pipe up, youbring it over the ditch. When you get it down in and start moving it,the men in the hole that you see holding the pipe by the side, they\u2019llguide it straight for me and they\u2019ll stab it in. I\u2019ll set it down and,then, I take that cable, roll it like that and it pushes it on. The onlything they do is put the filter []cloth, the bands and the ram neck. Tullier lowers the pipe to the men in the excavation untilit drops down. Photograph Exhibit C-1 shows the pipe at the worker\u2019sneck or shoulder level as they push and guide the pipe into position.While the pipe is suspended, the crew leans, pushes and holds it intoplace. The crew stretches the black filter cloth underneath where thepipe section will sit. The crew applies the tar-like \u201cram neck\u201d onto thetop section of the new pipe and onto the bottom section of thepreviously set pipe (Tr. 185, 216). To do this the crew bends down towork around the upper and the lower pipes (Exh. C- 1, C-7-C-9 ; Tr. 205,216). Tullier describes how one of his crew, Brown, injured hishead when his hard hat fell off. \u201c[W]hen he reached in there to get it,he hit the back of his head on the top of the pipe, right on that lipwhere all the jagged concrete is from when they broke the form off ofit, and he cut the back of his head\u201d (Tr.206). Although intended to showhard hats cause problems, the event illustrates the need for headprotection while working bent down around these large pipes. RCS\u2019s understanding of overhead hazards is too narrow. Thestandard requires protection from \u201cpossible danger\u201d from impact or fromfalling or flying objects. The trackhoe bucket which suspends the pipeis 48 inches wide, only 4 inches less than the pipe it suspends. Becauseemployees must guide, hold, and push the 52-inch wide pipe, someone maywell come under the bucket. Further, the bucket was digging out theexcavation shortly before it would swing the pipe into the excavation.Dirt and stones which cling to the bucket may drop or be thrown into theexcavation. Employees were subjected to hazards requiring hard hatprotection. RCS violated the terms of the standard. Anticipated headinjuries range from the minor cuts described by Tullier to severe anddebilitating head wounds. A violation would be classified as serious. \/Knowledge\/ Did RCS know or should it have known of the violativeconduct? According to Tullier, the crew quickly follows his expressverbal instructions. He does not put up with \u201chumbug\u201d (Tr. 165, 192).Tullier was the supervisor of the employees and was responsible fordirecting them and ensuring that they worked safely. None of the threeemployees in the excavation, including the leadman Darren Camp, wore ahard hat. Tullier testified he did not expect them to do so (Tr. 208):I mean, it\u2019s my common practice, when it comes to the hard hat issue, myhill men generally wear their hard hats. My road flaggers and stuff,people like that do, but the men that are working in the hole that\u2019sstooping and bending and leaning, I have them have theirs readilyavailable. They \u2013 I don\u2019t strictly enforce them keeping it on their headbecause it causes more problems than not. When a supervisor\u2019s own violative conduct constitutes theviolation, the foreseeability of the action must be considered. Yet,when the supervisor directs his subordinates to perform activities whichviolate a standard, a different criteria applies. \/See W. G. Yates &Sons Constr. Co. v. OSHRC\/, 459 F.3d 604 (5^th Cir., 2006). TheSecretary establishes a prima facie showing of knowledge by proving thata supervisory employee was responsible for the violation. \/AquateckSystems, Inc., \/21 BNA OSHC 1400 (No. 03-1351, 2006). The Secretary madethis showing. Nor can RCS rebut the showing of knowledge since it didnot take reasonable measures to prevent the violation. Its workrulegoverning personal protective equipment gives too much discretion to thesupervisor and states (Exh. R-3): \u201crequired personal protective clothingand\/or equipment shall be worn at all times \/as deemed necessary by yourimmediate supervisor\/\u201d (emphasis added).\/ \/The Secretary has established the elements of a violation,and it will be affirmed unless RCS proves a defense of employee misconduct.\/Employee Misconduct\/ RCS contends Tullier warned the employees to wear hard hats,and their failure to wear them in the excavation constituted employeemisconduct. As discussed above, RCS did not have a specific workrulerequiring employees to wear hard hats under the cited conditions. Thevague workrule about following directions of the immediate supervisorwould not avail when the supervisor did not believe in requiring headprotection (Exh. R-3; Tr. 203-205). Nor is the vagueness of the rulecured by a bare notation that Tullier addressed \u201chard hat\u201d during threeweekly safety meeting over a year\u2019s time (Exh. R-2). The employer lackeda safety rule aimed at preventing the violation. The employee misconductdefense fails. The violation of \u00a7 1926.100(a) is affirmed\/Penalty\/ In determining an appropriate penalty, the Commission isrequired to consider the size of the employer\u2019s business, the gravity ofthe violation, the employer\u2019s good faith, and its history of pastviolations. \/J.A. Jones Constr. Co., \/15 BNA OSHC 2201, 2213-14 (No.87-2059, 1993). Gravity is the principal factor to be considered. RCShad 30 to 35 employees and is a small employer. The gravity of theviolation is moderate. The excavation was wide, but the three men workedin tight spaces with 18 inches between the pipes and the banks andbetween the pipes. Tullier and the crew worked very fast (Tr. 218),increasing the likelihood that debris from the bucket could fall orworkers could hurt their heads on the sharp edges of pipe. Therecommended penalty of $225.00 is appropriate and is assessed.FINDINGS OF FACT AND CONCLUSIONS OF LAW The foregoing decision constitutes the findings of fact andconclusions of law in accordance with Rule 52(a), Fed. R. Civ.P.ORDER Based on the foregoing decision, it is ORDERED: 1. Citation No. 1, item 1, an alleged violation of \u00a71926.652(a)(1) is vacated. 2. Citation No. 1, item 2, a serious violation of \u00a71926.100(a) is affirmed with a penalty in the amount of $225.00 \/s\/ Nancy J. SpiesNANCY J. SPIESJudgeNovember 13, 2006”