Reynolds, Inc.

Plain-English summary

Reynolds was installing sewer lines in Ohio when employees, including the foreman, worked in a trench more than six feet deep without sloping, shoring, or a trench box. Excavated material was piled at the trench edge, and the foreman did not complete the required competent-person inspection before work began. The judge rejected the employee-misconduct defense because Reynolds did not adequately communicate its rules, conduct sufficient monitoring, or enforce discipline promptly and effectively. The unprotected-trench violation was willful because the trained foreman knowingly continued work while hurrying to finish, and the inspection violation was repeated based on a prior final order. All three violations were affirmed with penalties totaling $44,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(j)(2), 1926.652(a)(1), and 1926.651(k)(1)
• Outcome: Serious spoil-pile, willful cave-in-protection, and repeated inspection violations affirmed; $44,000 total penalty assessed.
• Key point: A supervisor's knowing participation in unprotected trench work, combined with weak monitoring and delayed discipline, defeats an unpreventable employee-misconduct defense and can support willfulness.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,

   v.

Reynolds, Inc. OSHRC Docket No. 00-0982
Respondent

APPEARANCES

             Elizabeth R. Ashley, Esq.; Office of the Solicitor; U. S. Department of Labor
             Cleveland , Ohio
                      For Complainant


             Corey V. Crognale, Esq.; Schottenstein, Zox & Dunn, P.A; Columbus, Ohio
                     For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                    DECISION AND ORDER
   Reynolds, Inc. (Reynolds) is a large utility contractor primarily engaged in underground

utility installation. In May, 1999, Reynolds began work on a contract with Montgomery County,
Ohio, to install 6,000 feet of gravity sewer line and 6,000 feet of force main sewer line and to
construct a pump station in Miamisburg, Ohio. On December 3, 1999, Occupational Safety and
Health Administration (OSHA) Compliance Officer (CO) Charles Shelton inspected Reynolds’
project. As a result of this inspection, Reynolds was issued serious, willful and repeat citations
on May 4, 2000. Reynolds timely contested the citations.
Citation 1, Item 1, alleges a serious violation of 29 C.F.R. § 1926.651(j)(2) for failing to
protect employees in an excavation from falling materials by maintaining a spoil pile at least two
feet from the edge of the excavation; the proposed penalty is $7,000. Citation 2, Item 1, alleges a
willful violation of 29 C.F.R. § 1926.652(a)(1) for failing to protect employees working in an
excavation that was 8-11 feet deep, by sloping or shoring the walls of the excavation or utilizing
a trench box; the proposed penalty is $70,000. Citation 3, Item 1, alleges a repeat violation of
29 C.F.R. § 1926.651(k)(1) for failing to have daily inspections of an excavation by a competent
person before the start of work and as needed throughout the day; the proposed penalty is
$12,500. The hearing was held on February 7 and 8, 2001, in Columbus, Ohio. The parties
stipulated jurisdiction and coverage. Both parties filed post-hearing briefs.
Reynolds denies it violated these standards. Although Reynolds admits that employees
were in an excavation over five feet deep without protection, it asserts the affirmative defense of
unpreventable employee misconduct.
For the following reasons, Reynolds’ employee misconduct defense is rejected and the
three violations are affirmed for a total penalty of $44,000.

                                       Background
   Reynolds is based in Middleton, Ohio, and operates in Ohio, Indiana, Kentucky, Iowa,

Alabama, and Georgia (Tr. 244). It has approximately 750 employees.
The sewer installation project with Montgomery County began in May, 1999, and took
approximately one year to complete. It was referred to as the Blackbird Lane project. Reynolds
had as many as 20 employees working on the project (Tr. 253).
On the morning of December 3, 1999 (the inspection date), two Reynolds’ crews
(consisting of two foreman and five employees) were locating and repairing a leaking pipe at
Station 6675 (Exh. C-1, Tr. 17, 325). The two foremen were Brandon L. Drake and Terry A.
Hendershot (Tr. 28, 260, 319). Hendershot was there for a short time and left at approximately
8:00 a.m. to go to another job site, leaving Drake in charge of the crews (Tr. 328). Also on site
was James Schultz, the inspector for Montgomery County Sanitary Engineering Department, who
was assigned to oversee the Blackbird project on a full-time basis (Tr. 14, 44).
As the crews were finishing with the leak repair work at Station 6675, around 2:30 p.m.,
foreman Drake drove his backhoe to Station 5950 to remove a valve and fuse pipe (Tr. 19, 272-
273). Employees Wayne Baker, Becky Shearn, and David Patrick followed Drake in the crew
truck (Tr. 194-195). County Inspector Schultz followed the crew truck (Tr. 20).
Using the backhoe, foreman Drake uncovered the valve (Tr. 195). Baker climbed into the
trench and dug out the dirt from around the valve and pipe (Tr. 196). Prior to digging, the trench
was approximately 5 feet deep (Tr. 197-198, 279). Baker hooked a strap around the valve and
Drake wiggled the valve out with his backhoe (Tr. 278-279). Baker then cut out the bad pipe and

                                             2

Drake removed it (Tr. 201). When cut, water came out of the pipe. A sump pump was used to
remove the water (Tr. 198, 215, 293).
After finishing at Station 6675, trackhoe operator Bob Street went to Station 5950 to
help. Street and Drake continued digging to make room for the fusion machine, which is used to
fuse pipe (Tr. 291). Bob Street lowered the fusion machine into the trench with his trackhoe
(Tr. 23, 291). Foreman Drake and Baker went into the trench to level the fusion machine by
placing blocks and boards under it (Tr. 199-200, 204, 291-292). The trench was now over six
feet deep and was not sloped or shored and did not have a trench box (Tr. 200, 208, 292).
At approximately 4:00 p.m., CO Shelton was driving by the site on Interstate Highway 75
on his way from the Cincinnati OSHA office to an inspection site in Dayton, Ohio (Tr. 70). He
observed the excavation activities and pulled onto the berm for a better look. He was
approximately 300 feet from the trench (Tr. 70-71). CO Shelton exited the highway to locate the
site and initiate an inspection based on OSHA’s national emphasis program on trenching (Tr.
74).
CO Shelton parked his car about 500 feet away from the trench (Tr. 72). On his way to
the trench, CO Shelton saw foreman Hendershot, who had just returned to the site (Tr. 329). As
he was walking toward Hendershot, he saw an employee on a ladder coming out of the trench
(Tr. 73-74). He held an opening conference with Hendershot and inspected the excavation (Tr.
74). CO Shelton asked County Inspector Schultz to take measurements of the trench while he
videotaped (Tr. 19, 32). The trench measured 30 feet long, 10 feet wide, and 4 to 11 feet deep
(Exh. C-2; Tr. 47, 59). The walls of the trench were vertical (Exh. C-2).
Foreman Drake told CO Shelton that he had classified the soil as Class C (Tr. 173-174,
205-207, 293-294). County Inspector Schultz classified the soil as Class B (Tr. 41). Shelton saw
water in the bottom of the trench. Baker and Drake testified that the water came from the cut
pipe (Tr. 205-207, 293-294).

                                     DISCUSSION




                                            3

The Secretary has the burden of proving, by a preponderance of the evidence, a violation
of the standard.
In order to establish a violation of an occupational safety or health standard, the Secretary
has the burden of proving: (a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the violative conditions,
and (d) the employer’s actual or constructive knowledge of the violation (i.e., the
employer either knew, or with the exercise of reasonable diligence could have known, of
the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Reynolds’ knowledge of the violative conditions is imputed to it through its foreman,
Drake. Drake was the Reynolds’ foreman on this job site and responsible for the trench. Drake
operated the backhoe and was in charge of the activities to remove the valve and fuse the pipe at
Station 5950. He was supervising Baker. Drake himself was working in the trench. “(W)hen a
supervisory employee has actual or constructive knowledge of the violative conditions, that
knowledge is imputed to the employer.” Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No.
91-862, 1993).

                               ALLEGED VIOLATIONS
           Citation 1, Item 1 – Alleged Serious Violation of § 1926.651(j)(2)
   The citation alleges that Reynolds did not protect employees from excavated material by

keeping it at least two feet away from the edge of the excavation. Section 1926.651(j)(2) provides:
(j) Protection of employees from loose rock or soil. (2) Employees shall be
protected from excavated or other materials or equipment that could pose a hazard
by falling or rolling into excavations. Protection shall be provided by placing and
keeping such materials or equipment at least 2 feet (.61 m) from the edge of
excavations, or by the use of retaining devices that are sufficient to prevent materials
or equipment from falling or rolling into excavations, or by a combination of both if
necessary.

CO Shelton testified that there was a spoil pile at the edge of the trench along the north side
(Exh. C-2 at 4:28:21 and 4:28:27; Tr. 95). He stated that the spoil pile was about two feet high and
consisted of excavated material from the trench (Tr. 95).

                                              4

Reynolds alleges that the dirt on the north side of the trench was the bank of the retention
pond and not a spoil pile; however, even if it was a spoil pile, Baker was working in the trench
several feet away from it. Drake stated that he put the excavated material he was digging along the
bank of a retention/holding pond1 next to the trench, two to three feet away from the edge of the
trench (Exh. R-2; Tr. 283-286). Drake said that the pond was about two to three feet lower than the
existing grade (Tr. 275).
Drake, however, admitted that there was no elevation around the trench when he began
digging and that “(t)he only elevation change was where the spoil pile was” (Tr. 284). The videotape
shows what appears to be a spoil pile along the entire length of the north edge of the trench,
including the area above the fusion machine where Baker was working (Exh. C-2). The testimony
of Reynolds’ own employee disproves its attempt to characterizethe pile of dirt alongside the trench
as the bank of the retention pond.
Under § 17(k) of the Occupational Safety and Health Act (Act), a violation is serious if there
is a substantial probability that death or serious physical harm could result from the violative
condition. 29 U. S. C. § 666(k). The violation is serious because part or all of the spoil pile could
fall into the excavation and strike an employee working in the excavation, causing serious injury and
possibly death.
Accordingly, the violation of § 1926.651(j)(2) is affirmed as serious.

            Citation 2, Item 1 – Alleged Willful Violation of § 1926.652(a)(1)
    The citation alleges that Reynolds failed to ensure adequate sloping and/or use of trench

box protection while employees were working in a trench that was eight feet deep or greater.
Section 1926.652(a)(1) provides:
(j) Protection of employees in excavations. (1) Each employee in an excavation
shall be protected from cave-ins by an adequate protective system designed in
accordance with paragraph (b) or (c) of this section except when: (i) Excavations
are made entirely in stable rock; or (ii) Excavations are less than 5 feet (1.52m) in
depth and examination of the ground by a competent person provides no
indication of a potential cave-in.

1
Although the testimony of Baker, Drake, and Hendershot referenced the retention/holding pond, there was no
water in the pond.

                                                   5

There is no dispute that the trench was over five feet deep with vertical walls and two
employees, Baker and foreman Drake, were in the trench without a protective system (Exh. C-2;
Tr. 34, 100, 208, 266, 335).
The Secretary has established a violation of 29 C.F.R. § 1926.652(a)(1). The violation was
serious because, without a protective system, employees were exposed to serious injury or death
from a potential cave-in.

                    Unpreventable Employee Misconduct Defense
   Reynolds claims the affirmative defense of unpreventable employee misconduct because it

would be unfair to hold it responsible for Drake’s misconduct, since it had an adequate safety
program.
In order to establish the unpreventable employee misconduct defense, an employer must
show that it has:
(1) established work rules designed to prevent the violation; (2) adequately communicated
the rules to its employers; (3) taken steps to discover violations; and (4) effectively enforced
the rules when violations have been discovered.

Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994).
In addition, when a supervisor is involved, such as in this case, “the proof of unpreventable
employee misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision.” Archer-Western
Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991). “(A) supervisor’s failure to
follow the safety rules and involvement in the misconduct is strong evidence that the employer’s
safety program was lax.” Ceco Corp., 17 BNA OSHC 1173, 1176 (No. 91-3235, 1995).
The employer must first show that it has established work rules designed to implement the
requirementsof the standard. Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1784 (No. 91-
2524, 1994). In this case Reynolds had written safety rules designed to prevent a violation of
§ 1926.652(a)(1). Specifically, “Section C” of Reynolds’ safety rules quotes this standard for
excavation safety (Exh. C-10, at p. C-18).

                                              6

The second requirement to prove the affirmative defense is that an employer must show that
it has adequatelycommunicated therules to its employees. Reynolds’ employees are required to take
annual safety training that is work site specific (Tr. 242). Baker testified that he had training in
various courses, including confined spaces and excavation standards (Tr. 213-214). However, there
is no evidence that he took the courses before the December 3, 1999, incident. He had only been
working for Reynolds for a few months prior to that date (Tr. 192). Foreman Drake stated that he
had training on excavation safetyand permit-required, confined spaces (Tr. 262). “When the alleged
misconduct is that of a supervisory employee, the employer must also establish that it took all
feasible steps to prevent the accident, including adequate instruction and supervision of its
employee.” Archer-Western, supra, at 1017. Clearly, Reynolds failed to adequately communicate
its safety rules to its employees.
Third, an employer must show that it has taken steps to discover violations. “Effective
implementation of a safety program requires ‘a diligent effort to discover and discourage violations
of safety rules by employees.’” Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999).
Reynolds has a director of risk management, Bill Kessler, who supervises four full-time safety
representatives (Tr. 236-237). The safety representatives conduct surprise audits of the various job
sites to ensure that Reynolds’ safety rules are followed (Tr. 237). There were three documented
audits of the Blackbird project (Exhs. R-3, R-4, R-5). Kessler stated that there was no injury on the
year-long Blackbird project as a result of cave-in or falling materials from thespoil piles or sidewalls
(Tr. 241). County Inspector Schultz stated that Reynolds was one of the county’s safest contractors
(Tr. 39).
Even though there were three audits, there was no other evidence of a more frequent effort
to oversee the safe operations of this year-long project involving 20 employees. “Establishing
adequate procedures for monitoring employee conduct for compliance with applicable work rules
is a critical part of any employer effort to eliminate hazards. It is not enough that an employer has
developed an exemplary safety program on paper.” American Sterilizer Co., 18 BNA OSHC 1082,
1087 (No. 91-2494, 1997). There is insufficient evidence to establish that Reynolds attempted to
discover violations.

                                               7

Finally, the employer must show that it effectively enforced the rules when violations were
discovered. “To prove adequate enforcement of its safety rule, an employer must present evidence
of having a disciplinary program that was effectively administered when work rule violations
occurred.” GEM Industrial, Inc., 17 BNA OSHC 1861, 1863 (No. 93-1122, 1996). Reynolds’
discipline system was inadequate.
Baker stated he received discipline on the day of the inspection in the form of a verbal
reprimand from foreman Hendershot to the effect that “he knew I had known better than to be in
there and thought I had better sense” (Tr. 211, 337). This is hardly what can be classified as a
reprimand or discipline and employees would not take such a remark seriously. In any case,
“(e)vidence of verbal reprimands alone suggests an ineffective disciplinary system.” Precast
Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d. without published opinion,
106 F.3d 401 (6th Cir. 1997).
Drake was suspended from work for three weeks without pay for the safety violations that
transpired on December 3, 1999 (Tr. 265). This discipline occurred after OSHA issued the citations
in this case on May 4, 2000 (Tr. 245). This is five months after the violation. Kessler was aware of
the alleged violations a couple of days after they occurred; nonetheless, he admitted that Reynolds
waited five months after the incident to discipline Drake (Tr. 246, 308). It is apparent that Reynolds
was not going to discipline Drake, in violation of its own rules, and only did so upon receipt of the
OSHA citations. Besides, waiting such an extensive period of time after an incident occurs to
discipline an employee greatly diminishes the effectiveness of the discipline.
Moreover, both employees were working in the unprotected trench. “Where all the
employees participating in a particular activity violate an employer’s work rule, the unanimity of
such noncomplying conduct suggests ineffective enforcement of the work rule.” GEM Industrial,
Inc., 17 BNA OSHC 1861, 1865 (No. 93-1122, 1996).
Reynolds also failed to introduce evidence of an enforcement program prior to the OSHA
inspection. Although Kessler mentioned a written discipline policy, it is not clear exactly when it
became effective (Exh. C-13). Hendershot stated that he did not know if the discipline policy was
in effect on December 3, 1999 (Tr. 345). A foreman who had been with the company for six years

                                              8

should be aware of how long the discipline policy has been in effect. Kessler testified that the
discipline policy was only communicated “recently” (Tr. 239).2
Therefore, Reynolds’ employee misconduct defense is rejected because it did not establish
that it took steps to discover violations and that it adequately communicated and enforced its safety
rules. The violation of § 1926.652(a)(1) is affirmed.

                                             Willful Classification
     The violation of § 1926.652(a)(1) is classified as willful. “It is well settled that a willful

violation is one committed with intentional, knowing or voluntary disregard for the requirements of
the Act, or with plain indifference to employee safety.” Continental Roof Systems, Inc., 18 BNA
OSHC 1070, 1071 (No. 95-1716, 1997). It is not enough for the Secretary to show that an employer
was aware of conduct or conditions constituting the alleged violation. “A willful violation is
differentiated by heightened awareness of the illegality of the conduct or conditions and by a state
of conscious disregard or plain indifference when the employer committed the violation.” Hern Iron
Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993).
Foreman Drake allowed Baker to work in the unprotected trench and even worked in it
himself despite his knowledge of the excavation standards and the company’s safety rules. The
Commission has held that a supervisor’s “intentional disregard of the standards is imputable to his
employer.” Pentacost Contracting Corp., 17 BNA OSHC 1953, 1955 (No. 92-3788, 1997). See
also Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (No. 86-360 and 86-469, 1992).
Drake’s reason for permitting work in the trench without a trench box was because he felt
the trench was safe and he was in a hurry to finish the work (Tr. 297). See Donovan v. Capital City
Excavating Co., Inc., 712 F.2d 1008, 1010 (6th Cir. 1983) (fact that foreman had ordered a trench box
did not preclude a willful finding because he “consciously continuedthe trenching operations” while
awaiting the arrival of the trench box).

2
Even if the discipline p olicy was effective o n Decem ber 3, 1999 , Reynolds did not follow its own rules. The first
rule states that fo r the first offen se, a written w arning sh all be issued and plac ed in the p ersonne l file (Exh. C -13).
This was not done for Baker. Ke ssler testified that the company leaves it up to its foremen to decide whether a
verbal warning is sufficient discipline, even though he is aware that this is contrary to the written discipline policy
(Tr. 239 ).

                                                           9

Additionally, Reynolds has previously been cited, at least four times, for violations of
§ 1926.652(a)(1) (Exhs. C-8, C-9, C-12). Prior citations for the same or similar standards are proof
of the employer’s intentional disregard of or plain indifference to its safety obligations underthe Act.
See Cedar Construction Co. v OSHRC, 587 F.2d 1303, 1305-1306 (D.C. Cir. 1978) (employer found
to have willfully violated excavation safety standards because it was aware of standards since it had
been cited three times before for the same standards) and F. X. Messina Construction Corp. v.
OSHRC, 505 F.2d 701, 702 (1st Cir. 1974) (because employer had been convicted of violation of
same excavation standard within a year, it was held to have willfully violated the standard).
Reynolds is responsible for the plain indifference to employee safetythat its foreman showed.
Therefore, Reynolds willfully violated § 1926.652(a)(1).

           Citation 3, Item 1 – Alleged Repeat Violation of § 1926.651(k)(1)
   The citation alleges that Reynolds failed to perform an inspection of the excavation to

identify unsafe conditions by a competent person. Section 1926.651(k)(1) provides:
(k) Inspections. (1) Daily inspections of excavations, the adjacent areas, and
protective systems shall be made by a competent person for evidence of a situation
that could result in possible cave-ins, indications of failure of protective systems,
hazardous atmospheres, or other hazardous conditions. An inspection shall be
conducted by the competent person prior to the start of work and as needed
throughout the shift. Inspections shall also be made after every rainstorm or other
hazard increasing occurrence. These inspections are only required when employee
exposure can be reasonably anticipated.

A competent person is defined as “one who is capable of identifying existing and predictable hazards
in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to
employees, and who has authorization to take prompt corrective measures to eliminate them.”
29 C.F.R. § 1926.650(b).
There is no dispute that foreman Drake was a competent person. He received the competent
person training and as foreman, he had authority to take corrective measures (Exh. C-5, Tr. 262).
CO Shelton considered Drake a competent person (Tr. 155).
Reynolds requires its foremen to fill out a daily inspection checklist. Drake testified that he
did not fill one out for Station 5950 because he was operating the backhoe and was in a hurry

                                              10

(Tr. 297). Drake stated that he did a visual and physical inspection of the trench at Station 5950
while he was digging it (Tr. 292). He stated that his physical inspection involved “when I’m digging
it, I can feel how hard the ground is” (Tr. 292). He found that the ground was hard. Drake did not
perform a manual test of the soil in conformance with Appendix A to Subpart P, “Soil
Classificiation.” Drake’s observations while operating the backhoe do not constitute an inspection
prior to the start of work.
Accordingly, the violation of § 1926.651(k)(1) is affirmed.

                                  Repeat Classification
    The violation of § 1926.651(k)(1) is classified as repeat. Under the Commission’s long

stated test, a repeat violation under § 17(a) of the Act occurs if the Secretary shows “a Commission
final order against the same employer for a substantially similar violation.” Potlatch Corporation,
7 BNA OSHC 061, 1063 (No. 16183, 1979). The Secretary establishes substantial similarity “by
showing that the prior and present violations are for failure to comply with the same standard, at
which point the burden shifts to the employer to rebut that showing.” Monitor Construction Co., 16
BNA OSHC 1589, 1594 (No. 91-1807, 1994).
The repeat classification is based on a citation issued to Reynolds on June 12, 1997, for
violations including § 1926.651(k)(1) (Exh. C-8). That citation involved failure to properly inspect
a trench that was 8 feet deep and 6 feet wide, with no sloping, shoring or box protection for
employees working in the trench (Exh. C-8). The citation became a final order based on an informal
settlement agreement dated June 30, 1997 (Exh. C-9). This prior citation was for violation of the
same standard under similar conditions as the instant case. Reynolds does not dispute the similarity
of the violations.
The violation of § 1926.651(k)(1) is properly classified as repeat.

                               PENALTY ASSESSMENT
    Section 17(j) of the Act requires that when assessing penalties, the Commission must give

“due consideration” to four criteria: (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the prior history of violations. 29 U.S.C.

                                             11

§ 666(j). The Commission has wide discretion in penalty assessment. Kohler Co., 16 BNA OSHC
1769, 1776 (No. 88-237, 1994).
Reynolds is a large corporation that employed approximately 750 employees at the time of
the inspection. Reynolds is not entitled to credit for size.
Generally, the gravity of the violation is the primary consideration in assessing penalties.
Trinity Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation “depends upon such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury would result.” J. A.
Jones Construction Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). In this case, the gravity
is low. Only two employees were in the trench for less than 30 minutes. Drake believed that the
trench was safe. There was no evidence of fissures or cracks in the trench walls (Tr. 41, 292).
During the Blackbird Lane project, there was no injury or trench collapse. A reduction in the
proposed penalties is appropriate.
Reynolds exhibited good faith. It was cooperative throughout the inspection and immediately
installed a trench box. Credit is given for good faith.
Reynolds has a prior history of OSHA violations for lack of excavation protection; therefore,
no credit for good history is given.
Based on these factors, a penalty of $5000 is reasonable for Citation 1; a penalty of $35,000
is reasonable for Citation 2; and a penalty of $4,000 is reasonable for Citation 3.

                                 FINDINGS OF FACT AND
                                 CONCLUSIONS OF LAW
   The preceding decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER
   Based on the preceding decision, it is ORDERED that:
   1. Citation 1, Item 1, alleging serious violation of § 1926.651(j)(2), is affirmed and a
       penalty of $5,000 is assessed.


                                              12

2. Citation 2, Item 1, alleging willful violation of § 1926.652(a)(1), is affirmed and a
penalty of $35,000 is assessed.
3. Citation 3, Item 1, alleging repeat violation of § 1926.651(k)(1), is affirmed and a
penalty of $4,000 is assessed.

                                               /s/
                                         KEN S. WELSCH
                                         Judge

Date: July 16, 2001

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