Fields Excavating, Inc.

Plain-English summary

Fields Excavating employees entered inadequately protected pipeline excavations at two Ohio worksites. At Havener Road, a superintendent continued despite saturated, sloughing soil and explicit safety concerns from a gas repairman. At Xenia, a superintendent knowingly sent an employee into a 10-foot-deep, nearly vertical trench in Type C soil because using an available trench box would take more time. The judge found that Fields relied on a vague sloping rule, outdated and incomplete training, broad supervisor discretion, and a paper disciplinary program that had not been enforced. Both cave-in violations were affirmed as willful, with total penalties of $29,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: Two willful cave-in protection violations were affirmed and total penalties of $29,500 were assessed.
• Key point: A vague instruction to slope excavations safely, coupled with unenforced paper rules and wide supervisor discretion, does not establish a meaningful trench-safety program.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket Nos.
01-0447 and 01-0975 (Consolidated)
Fields Excavating, Inc.,
Respondent.

Appearances:

      Heather A. Joys, Esq., Linda Hastings, Esq., Office o f the Solicitor, U . S. De partm ent of Labo r, Cleveland , Ohio
      For Com plainant

      Douglas J. Segerman, Esq., McF adden, W inner & Savage, Columbus, Ohio
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                            DECISION AND ORDER
      Fields Excavating Inc. (Fields) is a small sewer and water pipeline installation company located

in Ohio and owned by Jeffery Fields. In response to a complaint, on February 6, 2001, Occupational Safety
and Health Administration (OSHA) compliance officer James Denton inspected Fields’s worksite on
Havener Road in South Webster, Ohio. As a result of the inspection, the Secretary issued to Fields a
one-item citation on February 27, 2001.
On May 3, 2001, James Denton and fellow OSHA compliance officer Charles Shelton inspected
a Fields’s worksite at Xenia, Ohio. Following that inspection, the Secretary issued to Fields another
one-item citation on May 10, 2001.
For both citations the Secretary asserts that Fields willfully violated § 1926.652(a)(1) by failing to
have a protective system in place to prevent cave-ins. On August 7, 2001, the cases were consolidated for
further proceedings, including for hearing and decision. A hearing was held in Columbus, Ohio, on
February 26 and 27, 2002. The parties filed briefs, and the case is ready for decision.
The Secretary contends that she met her burden of proving that Fields willfully violated the
standard at the two separate locations. Fields contends that the conditions did not violate the standard at
the Havener Road worksite and that, while a violation existed at Xenia, it was the result of supervisory
employee misconduct. For the reasons that follow, the Secretary established the existence of the violations,
both of which were properly classified as willful.
Discussion
The standard at issue governs protection from cave-ins and sets forth the types of protective
methods which are appropriate for various soils and trench configurations. Section 1926.652(a)(1)
provides:
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

    In order to establish the violation of the standard, the Secretary has the burden to prove: (a) the

applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms,
(c) employees access to the violative conditions, and (d) the employer’s actual or constructive knowledge
of the violation. Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1741, 1994). The parties
dispute only the second and fourth elements of proof.
The Havener Road Inspection – the February 27, 2001, Citation
Since 1992 Fields has installed over 1.3 million feet of trenched pipeline at various depths ranging
from 4 to 35 feet (Tr. 408). For normal sewer installations, Fields places the pipe anywhere from 4 feet
to 30 feet deep; for a water line it typically places the pipe so that it has 4 feet of cover (Tr. 339-340).
In January and February 2001, Fields was to lay an 8-inch sewer pipeline along an area paralleling
Havener Road in South Webster about 20 feet from the roadway (Tr. 82). The sewer line ran between two
streams, a larger one and a smaller “creek.” The proposed pipeline paralleled and then intersected the
creek (Exhs. C-5; R-1). Having sunk a 9 foot, 5-inch deep wet-well a month earlier, Fields began to
connect the wet well and to lay the pipeline on February 6, 2001. February 6 begun as overcast with
drizzling rain; it started to rain hard later that afternoon (Tr. 151, 153).
On February 6, 2001, Fields’s crew consisted of superintendent Warren Lambert, leadman and
trackhoe operator Thomas Hern, and pipelayers John Jones, Arthur Reaper, and Mark Norris. Also on site
was Gary Summe, an inspector for SEICO, Inc., a third party responsible to insure that the specifications
were met and to authorize payment for work done. Summe did not have expertise in the installation
process or in safety, although he was generally familiar with both (Exh. C-2; Tr. 150-151, 178).

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When the crew laid the first “stick” of pipe (one13-foot section of 8 inch sewer pipe), the backhoe
accidently hit an incorrectly marked gas line. Work stopped while the crew waited for the gas company
to repair it (Tr. 156-157, 195). According to SEICO’s Summe, when the gas service repairman arrived “he
started really going crazy,” saying “Man, this and this, they don’t have a trench box” (Tr. 158), and
becoming “totally spastic because of the depth” of the excavation (Tr. 162). The gas repairman related an
incident involving a multi-fatality cave-in, which occurred when employees failed to use trench boxes.
Summe went to Lambert and asked him “Ed, are you going to put a box in?” According to Summe,
Lambert replied, “No, when we get past the creek, we’ll be about 5 foot deep” (Tr. 158). Lambert knew
that the gas repairman was not “real pleased with the area” (Tr. 196). He denies the discussion with
Summe, whose opinion Lambert dismissed as worthless (Tr. 220).
Although Fields disputes Summe’s depth dimension, according to Summe the excavation was
approximately 10 feet deep at the point where the gas line broke (Tr. 162). Before the gas repairman
agreed to enter the excavation, leadman Hern partially backfilled earth into it. The gas repairman entered
the excavation and repaired the break. Shortly thereafter, superintendent Lambert left for another worksite
(Tr. 219, 273).
Two employees continued to work in the excavation as the crew proceeded digging toward the
creek. That morning OSHA’s Cincinnati office received a telephone complaint which asserted that on
Havener Road in South Webster employees were working in an unsafe excavation and there was the
potential for a cave-in. Denton received the assignment, traveled to the site, and began his inspection at
2 p.m. By that time the first sections of the excavation were backfilled, and a new portion was opened up
for about 20 feet (Tr. 16). Also around that time, Hern hit a diversion pipe which Fields earlier placed in
the creek to channel water away from the excavation. After the pipe was hit, water began flowing into a
lower portion of the excavation. Denton observed employees Arthur Reaper and John Jones working near
the middle of the excavation, which they exited a short time later by climbing up the trench wall.
Measurements
Using his engineering rod, Denton measured the excavation where the pipe ended and where the
employees exited (Exh. C-5; Tr. 16-17, 242, 282). Denton measured 6 feet horizontally between the tops
of the two trench walls. The depth of the two sidewalls was not the same. Denton measured the depth of
the Havener Road (south) side of the excavation wall to be 7 feet. He estimated, rather than measured, the

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depth at the north trench wall to be at least 5 feet deep. Denton considered it unsafe to walk over to that
side of the trench to measure it (Tr. 27-28). Denton estimated the width of the bottom of the excavation
to be between 3 to 4 feet wide (Tr. 115).1
Superintendent Lambert testified that he had not measured the trench walls and usually did not do
so. He relied on his visual observations to determine the depth of excavations (Tr. 215).
Soil Classification
Protective systems for an excavation deeper than 5 feet, not dug in stable rock, consist of sloping,
benching, use of a shoring or shield system, or use of some other approved protective system. Fields
asserts that it properly sloped the Havener Road excavation. The degree of slope required depends upon
the classification or the soil in which the trench is dug. Soil classification is “a method of categorizing soil
and rock deposits in a hierarchy of Stable Rock, Type A, Type B, and Type C, in decreasing order of
stability” based on the soil’s unconfined compressive strength and other factors (Subpart P, App. A).
Examples of Type A soil are clay, silty or sandy clay, or clay loam. However, no soil is Type A
if certain conditions exist, such as fissures, heavy vibration, or other factors which signal a less stable
composition. Examples of Type B soil include angular gravel, silt, or silt or sandy or clay loam. Again,
soils which may meet the compressive strength for Type B will be classified as Type C if other factors,
such as fissured walls, vibration, or varying soil layers reduce soil stability. Type C soil includes granular
soils such as gravel, sand, and loamy sand. Submerged soil from which water is freely seeping can also
cause a soil to be classified as Type C. The degree of moisture in the soil is a factor which can reduce soil
stability (Subpart P, App. A).
While the Secretary claims that the soil was Type C, Fields argues that the soil was Type A, or as
Jeffrey Fields admits “maybe B” (Tr. 352). Fields’s safety consultant witness James Vaughan testified that
the soil was not Type C, but was either Type A or Type B “in its original state” (apparently meaning
without the addition of the water) (Tr. 454). Fields relies on the recollections of Lambert and its pipelayer
Reaper for proof that the soil was Type A. Lambert’s testimony was uncertain. He believed that he
“would have” tested the soil at the wet well (or as he said in his deposition, at the gas line break) and that
it was Type A “if I remember correctly” (Tr. 192-193, 212-214). Reaper’s testimony was likewise

1
Fields’s employees recalled that they used a 24 inch to 30-inch bucket and that the bottom of the trench was about
that width (Tr. 250, 273 ).

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unconvincing on the point. Reaper had received no formal safety training on excavations since 1997 and
was confused about soil classifications. His testimony appeared coached and was controverted by other
credible evidence (Tr. 235-236, 243-245, 251, 253).
To prove that the soil was Type C, the Secretary points to Denton’s observations and soil tests and
the testimony of Summe. Denton described the sidewalls as “a brown, clay-type substance, but it was very
saturated; it was very wet” (Tr. 25). He observed “pieces of the side wall coming off and falling into the
excavation. It was very loose, very soft material” (Tr. 25). Although water from the diversion pipe began
flowing into the base of the excavation, the area where Denton measured (and where the employees were
exposed) was located towards the middle of the excavation and had not yet been affected by the diversion
pipe. The soil was very wet before the pipe broke (Tr. 114-115). From the spoil pile near the area where
he measured, Denton retrieved a clump of previously excavated soil. Denton performed the basic thumb
penetration test and then inserted a pentameter (a small pocket device which gives a rough reading of soil
types) into the soil. Denton concluded that the soil was Type C. He testified that since the walls were
saturated with water, were sloughing off, and had cracks and fissures, it could not be classified as anything
other than Type C.
While Fields’s employees minimize any problems with wet conditions, Summe supports the
conclusion that the soil between the creek and the stream was especially wet. Summe testified that “[t]he
ground was saturated due to ground water” (Tr. 155). “Tom [Hern] had to keep peeling [the excavation]
back because it was – it kept falling in. It was saturated; the ground was saturated,” a fact that Summe
recorded in his contemporaneous reports (Tr. 157, 168). “After they got past the gas line, . . . – you know,
it was a sloppy mess. I mean, it was a mess that day. But they had to keep pulling – laying it back, so that
they, you know, could keep the ditch opened up” (Tr. 169).
Denton had 23 years of experience with OSHA and had made many excavation inspections (Tr.14).
Summe had approximately 5 years of experience as a construction inspector in the installation of pipes
(Tr. 152). Summe had no continuing relationship with Fields and is considered a neutral third party. On
the other hand, Fields’s employees at the Havener Road project had a continuing financial relationship with
Fields, and some displayed selective memories of events. They may have had concerns that a
determination by Jeffery Fields that they caused Fields to receive an OSHA citation could translate into

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monetary repercussion for them.2 Finally, the inspection videotape verified the exceedingly wet condition
of the soil and some sloughing off of a portion of the trench wall (Exh. C-3; Tr. 21-24).3 It is concluded
that the soil, which may have carried a different classification in other circumstances, was properly
classified as Type C.
Sloping
The maximum allowable slopes for excavations are: for Type A soil, 3/4 foot horizontal to 1 foot
vertical (3/4:1, or 53° from the horizontal); for Type B, 1:1 (or 45°); and for Type C , 1½:1 (or 34°). Fields
argues in its brief that the soil was Type A and that the excavation was sloped at 2:1, more than was
required for a Type C soil. Fields relies on employee testimony that they had sloped (and always sloped)
the excavations at 2:1 (Tr. 227). Fields asserts that when the “natural slope” of the land lying between the
stream and the road is taken into account, the excavation was sloped at 2:1. The argument was only
generally presented, without providing measurements or showing how the natural “lay of the land”
specifically affected the dimensions of the excavation (Exh. R-13). While the lay of the land may have
created conditions where the north side of the excavation was higher than the south’s, the depth of both
sides required cave-in protection (Tr. 189). Any other conclusion ignores the physical reality of the
excavation as employees experience it from inside it.
Based upon the dimensions of the excavation, it is clear that Fields had not sloped the excavation
at 1:1 (required for Type B soil), at 1½:1 (required for Type C soil), and certainly not 2:1 (required by
Fields’s purported workrule). The excavation on Havener Road was inadequately sloped to comport with
§ 1926.652(a)(1).4

2
As discussed infra, Fields withheld a projected $10,000 bonus from Mark Linkfield on the Xenia project when
Jeffery Fields concluded Linkfield’s unsafe actions precipitated the OSHA fine.

3
The perspective shown by the inspection videotape was not initially clear. The excavation wall can be seen where
the last section of sewer pipe was laid (Tr 22).

4
W hether the soil wa s properly classified as Typ e B or T ype C make s no difference to the existence of a violation.
The soil was improperly sloped even for Type B soil (Tr. 112 ). Indeed (although not proven since the Secretary
failed to take complete measurements), with only 6 feet between the top walls, it is questionable whether the
excavation was sloped sufficiently for T ype A soil.

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Knowledge
“In order to satisfy her burden of establishing knowledge, the Secretary must prove that a cited
employer either knew, or, with the exercise of reasonable diligence, could have known of the . . . violative
condition.” A.P. O'Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991). “The participation of the
company’s own supervisory personnel may be evidence that an employer could have foreseen and
prevented a violation through the exercise of reasonable diligence, but it will not, standing alone, end the
inquiry into foreseeablility” (Kerns Bros. Tree Service, 18 BNA OSHC 2064, 2071-72 (No. 96-1719,
2000), concurring opinion, quoting Pennsylvania Power & Light Co., 737 F.2d 350, 358 (3rd Cir, 1984).
Reasonable diligence includes such considerations as the adequacy of work rules and training programs,
the adequacy of supervision, anticipation of hazards, and measures taken to prevent violations. Precision
Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001), citing Pride Oil Well Serv., 19 BNA
OSHC 1809, 1814 (No. 87-692, 1992). On a daily basis Fields digs and works in excavations which can
be as deep as 30 feet. Cave-in hazards are inherent in the work. As discussed in the context of the
employee misconduct defense, Fields’s training and safety measures were deficient.
Knowledge of the violation is thus properly imputed to Fields through its supervisors.
Superintendent Lambert states that the trench would be difficult to slope (because the pipeline lay between
the road and the creek). Before he left the site, he made the operable decision on how much to slope and
not to use a trench box. He continued on this course even after the gas repairman’s and Summe’s safety
concern were relayed to him. (See North Landing, 19 BNA OSHC 1465,1472 (No. 96-0721, 2001)
(supervisor’s performance of similar work without precautions led to awareness that precautions would
not be taken for crew’s later work). Further, during the OSHA inspection the involvement of leadman
Hern in the violation was sufficient to impute knowledge to Fields (Exh. C-2(6); Tr. 18). Fields failed to
exercise reasonable diligence at Havener Road and could have known of the violative conditions.
The Secretary established the four elements of a violation of § 1926.652(a)(1) at Havener Road.
The violation is affirmed.
Xenia Inspection -- the May 10, 2001, Citation
The next OSHA inspection occurred on May 3, 2001. Towards the end of the one-year project in
Xenia, Ohio, Fields was installing a 20-inch ductile iron water main when inspected by OSHA (Tr. 36,
298-299, 372). Mark Linkfield was the superintendent, competent person, and excavator operator for the

                                                -7-

Xenia part of the project. Linkfield usually supervised five employees. On May 3, Linkfield directed the
work and operated the excavator. At his direction, employee Mike Zollman entered the trench to assist
with placing each new section of pipe. He stooped to grease the gasket of the pipe, to join the two parts,
and to test for leaks (Tr. 122).
Without dispute, the Xenia excavation was dug 10 feet deep (six feet from the top of the pipe), was
6 feet wide at the top of the excavation, and was 4 feet wide at the bottom. The excavation was 30 to 36
feet in length. The trench walls were nearly vertical. The soil was Type C at the bottom (granular soil with
stones and gravel) and Type B (clay/loam) at the top of the wall (Exh. C-4; Tr. 41, 48, 141, 299). That
combination of soils results in a soil classification of Type C. The vertical walls of the excavation should
have been sloped 1½ :1 on each side (App. B, Diagram B-1.4). No trench boxes were used (Tr. 123). The
trackhoe operating 10 to 15 feet away and heavy traffic on the nearby road created the potential for ground
vibration (Exh. C-4; Tr. 125).
The Xenia violation occurred at the direction of superintendent Linkfield, Fields’s designated
competent person for excavation safety. Based on the same considerations which imputed superintendent
Lambert’s knowledge to Fields at Havener Road (and which defeats the employee misconduct defense),
Linkfield’s knowledge is properly imputed to his employer.
The Secretary established the elements of a violation of § 1926.652(a)(1) at Xenia. The violation
will be affirmed unless Fields proves it resulted from isolated employee misconduct.
Employee Misconduct Defense Unproven
Fields contends that superintendent Linkfield was solely responsible for the violation since he
ignored Fields’s well-established, communicated, and enforced work rule regarding the use of trench boxes
or sloping in excavations. In order to negate a violation on the grounds of employee misconduct, Fields
bears the burden to prove that: (l) it established work rules designed to prevent the specific violation from
occurring; (2) the work rules were adequately communicated to its employees; (3) it took steps to discover
violations of those rules; and (4) it effectively enforced the rules when violations were discovered. E.g.,
CMC Electric, Inc., 19 BNA OSHC 1001, 1003 (No. 99-3801) (6th Cir. 2000).
Fields asserts that it had a workrule on use of either a trench box or “proper” sloping. Supervisors
made the decision whether to use trench boxes, sloping, or neither of them. Fields purchased trench boxes
in 1997, and they were available on the jobsite. As far as sloping, Jeffery Fields testified that the company

                                                -8-

had an oral workrule which required that all excavations over a certain depth must be sloped at 2:1,
regardless of the soil type. The existence of such a work rule is questionable.5 Fields also argues that its
employee knew that the OSHA standards require sloping, which Fields considers to be the equivalent of
having a work rule regarding sloping. This approach is rejected. The employee misconduct defense
requires an established work rule designed to prevent a specific violation from occurring. The employer
cannot generally refer its employees to the OSHA standards and expect the employees to know with any
accuracy what is required for compliance. In these circumstances, a reference to OSHA or to a 2:1 rule
became, in effect, unspecific. Lambert described how he applied Fields’s workrule (184-185):
A. They have standard sloping that – we have books from OSHA that tell us to do –
I’m not saying th[ose] books are wrong, but we do what we feel is safe or better.
You know, if we don’t feel like OSHA’s standard is what we’re feeling is right, we
do even more. We just you know, get it back away from the people.
***
Q. Do you have a general rule of thumb as to how far you’re going to set back an
excavation?
A. Yes, Generally, yes.
Q. What is that?
A. Safe.

    The only formal training on excavation safety for all employees occurred in 1997 at Jeffrey Fields’s

home (Tr. 337). Around the same time supervisors completed the 10-hour OSHA training course on
excavations (Exh R-8). No employee hired after 1997, including Zollman, received any formal excavation
safety training. Of the booklets, manuals, safety talks, or reminders given to employees at any time, only
one booklet, Keller’s “OSHA Excavation Standard Handbook”(Exh. R-6), sets out specific OSHA sloping
requirements. That booklet, and others, are given to newly hired employees. Fields tells them to read the
manuals “and, hopefully, they would do it” (Tr 384). Employees turn in a short open-book quiz at the back

5
Beca use a general 2:1 sloping rule wo uld entail far more extensive excavating than required even for the least
stable soil; because neither of the inspected excavations was consistent with OSHA ’s requirements for sloping, much
less a 2:1 rule; and because employees seemed unsure of what constituted a 2:1 slope, it is possible the “rule” was
more contrived than real. For example, Reaper replied to respondent’s counsel (Tr. 227):
A. Well, we always [did] on the sloping, if we [weren’t] using a box and it was good ground, we would do
two-to-one, and in the boo klet it says one to one and a half (sic). I asked him ab out that.
Q. W hat did he say?
A. Use whatever we was comfortable with.
Q. So you used two-to-one?
A. Two-to-one.

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of the booklet, but according to Zollman they received no feedback from the quiz (Exh. R-6, p.21-22;
Tr. 129).
Fields primarily relied on its supervisors to enforce safety. Linkfield considered his decision not
to use a trench box or to slope “just a call I made that day” (Tr. 313). Zollman explained that whether
cave-in protection was used “was up to our supervisors” (Tr. 24). Fields’s superintendents directed how
the excavations were configured, and both excavations resulted in violations of the standard. “Where a
supervisory employee is involved, 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). As indicated, a supervisor’s participation in the violation does not by itself establish that a safety
program is inadequate. Yet, safety infractions by supervisors are evidence of poor communication and
implementation of a safety program. Further, not only the supervisors were involved in the violation. At
least five other employees participated in the pipelaying process at these locations. At Xenia no one
objected when Zollman was sent into the unquestionably hazardous excavation (Exh. C-4). See Falcon
Steel Co., 16 BNA OSHC 1179,1193 (Nos. 89-2883, -3444, 1993) (seven employees not wearing safety
belts, not merely one; “cumulative effect” of seven belies that conduct was isolated).
Finally, its defense also fails because Fields had only a “paper” enforcement system in place to
punish violations of its workrule (or of the OSHA excavation standard). Since Jeffery Fields started
managing the company in 1992, he never had occasion to give more than verbal direction while on a
jobsite. He never felt it necessary to issue either a verbal or written reprimand for a violation of the
company’s safety rules, except after the Xenia citation (Tr. 397-398). Likewise, superintendent Lambert
never reprimanded any of his crew for safety violations over an extended period of 7 to 10 years (Tr. 181).
The instant citations were the second and third OSHA inspections, and trenching violations were asserted
after each inspection.
Jeffery Fields stated that he made surprise inspections at his worksites to detect safety violations.
During the approximately 1 year Xenia project, Zollman remembered seeing Jeffrey Fields once (Tr. 127).
Fields offered one instance of its enforcement of its disciplinary system. The Xenia inspection occurred
on May 3, 2001, and the citation was issued on May 10. On May 18 Fields notified Linkfield and Zollman
that each was suspended for 30 days “due to the severity of the safety infraction” (Exh. R-12, R-14).

                                                 -10-

Jeffery Fields explained why he delayed penalizing the two employees until after he received the OSHA
citation (Tr. 409):
A. Once the facts became known, yes. I wasn’t aware of the facts until the citation.
You know, he was saying six to seven foot deep; they were saying ten foot deep.
Until I [saw] the video and knew exactly what it was, there wasn’t going to be any
[discipline]. Once I found out the true facts, yes, sir.

   The explanation is unconvincing. Even at 6 to 7 feet deep, the excavation violated Fields’s 2:1

workrule, as well OSHA’s trenching standard. The explanation also ignores the fact that Fields received
the video after, not before, the men had been suspended. In addition to Linkfield’s 30-day suspension, he
forfeited his projected $10,000 bonus, which was “probably paying attorney’s fees” related to the OSHA
case (Tr. 370). It is concluded that the May 18, 2001, suspension was prompted by receipt of the OSHA
citation. At the time of the violations Fields did not have an effective system in place to enforce company
workrules.
Fields failed to establish the elements of the isolated employee misconduct defense. Accordingly,
the violation of § 1926.652(a)(1) is affirmed.
Willful Classification
The Secretary alleges that the violations are willful.
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.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA
¶ 30,059, p. 41,330 (No. 89-2883, 1993) (consolidated): A.P. O’Horo Co., 14 BNA
OSHC 2004, 2012, 1991-93 CCH OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991).
A showing of evil or malicious intent is not necessary to establish willfulness.
Anderson Excavation and Wrecking Co., 17 BNA OSHC 1890, 1891, n. 3, 1995-97
CCH OSHA ¶31,228, p. 43,788, n. 3 (No. 92-3684, 1997), aff’d 131 F.3d 1254 (8th
Cir. 1997). A willful violation is differentiated from a nonwillful violation by an
employer’s heightened awareness of the illegality of the conduct or conditions and
by a state of mind, i.e., conscious disregard or plain indifference for the safety and
health of employees.

A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & -0638, 2000).
Fields argues that since there was a good faith disagreement about the extent of the slope and the
soil classification, the violation at Havener Road cannot be considered willful. It contends that any willful

                                                -11-

actions by its superintendents should not be imputed to Fields because of the existence of its safety
procedures.
Prior Citation
The Secretary contends that Fields had a “cavalier” attitude towards trenching safety. Based on a
1998 violation of § 1926.652(a)(1), the Secretary asserts that Fields had a “heightened awareness” of
OSHA’s excavation standards and also that its employees may not be complying with them. Item 3 of that
April 3, 1998, citation alleged that Fields laid a 4-inch pipe in a 6-foot trench, which was not properly
sloped or otherwise protected from cave-ins. Fields contested the citation but later informally settled it,
and the violation became a final order.6 The Secretary contends that the previous citation did not change
Fields’s conduct, and accordingly did not change the conduct of its supervisors. A supervisor’s willful
actions may be imputed to the employer, as would a supervisor’s knowledge of the violative conditions.
Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1541 (No. 86-360, 1992). “The key to whether a
supervisor’s actions are willful is the supervisor’s state of mind.” George Campbell Painting Corp., 18
BNA OSHC 1929, 1934 (No. 94-3121, 1999). Also relevant is the company’s actions and policies
regarding safety.
Willfulness-- The Havener Road Citation and Fields’s Response to it
The company’s response to receiving the 1998 citation was minimal. After the 1998 citation, Fields
sent its supervisors a copy of the 29 C.F.R. § 1926 excavation standards (but without the appendices which
describes how to implement the standards) (Exh. R- 10). Fields told its supervisors to read the standards.
Linkfield stated that he read and understood them at the time.
Beyond the 1998 citation, Denton recommended a willful classification, concluding that the
superintendent was trained on the excavation standards and thus made a knowing decision to ignore them.
The undersigned does not agree that training Fields’s supervisors in1997 and handing out the standards
in 1998 made Lambert’s decision at the Havener Road jobsite willful. It is one factor in assessing
Lambert’s state of mind, however, as is the fact that Lambert was the competent person on the job.
The strongest evidence of a willful state of mind comes from testimony related to the gas
repairman. Lambert admits that he knew the gas repairman was visibly upset by the excavation. He was

6
W hether the Havener Road citation was a “repeated” violation was not pled or tried (Tr. 173).

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not sure whether the repairman said something to him about the trench box. Summe recalls that he then
went to Lambert with those concerns and asked if he would use the trench box and was told, “No, when
we get past the creek, we’ll be about 5 foot deep” (Tr. 158). Among other interpretations, Lambert’s
response could mean that the excavation was deeper than 5 feet, but past the creek the excavations would
be less than 5 feet and cave-in protection would not be needed. Or, as Lambert suggests, it could mean
that the excavation was deeper than 5 feet; and the crew would slope until crossing the creek, when they
would use trench boxes. A trench box was available a few hundred feet away (Tr. 50).
Hern had to partially backfill before the gas repairman would enter the excavation. Summe’s
description of the crew having to continuously peel back the excavation indicates unstable soil at the point
the gasline was hit. Summe believed the excavation was probably about 10 feet at this point, but his
testimony does not establish the dimension. It was only an estimate made after a passage of time. Before
the inspection Summe did not know that sloping was an acceptable alternative to use of a trench box. He
had no reason to focus on the degree of slope of the excavation. The undersigned will not speculate as to
whether Lambert failed to properly sloped the excavation at the point where the gasline broke, although
some circumstances appear to point to the fact that he had not.
Without question, however, Lambert received a warning from the gas repairman that should have
put him on notice that others seriously questioned the safety of the excavation. His response was to
dismiss the warnings out of hand. No changes were made in the pipelaying procedures; and at the time
Denton arrived, a trenching violation was documented. Having considered all of the above, it is concluded
that Lambert’s actions at the Havener Road excavation were made with plain indifference to the safety of
the crew under his direction.
Willfulness--The Xenia Citation
After receipt of the Havener Road citation in February 2001, Jeffery Fields spoke with his
employees and Summe and concluded that Fields did nothing wrong. Accordingly, the company instituted
no change to avoid similar occurrences.
There can be little doubt that the violation in Xenia was willful. Having been trained in 1997,
Linkfield was designated as the competent person to protect employees in the excavations. Linkfield knew
that the standards required use of sloping or trench boxes; that the soil was unstable Type C; that the deep,
vertical trench walls constituted a hazard; and that trench boxes were available but would require more

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time to use. Without using cave-in protection, he sent Zollman to work inside the excavation anyway.
Linkfield felt free to make this decision as “his call” (Tr. 313). Linkfield’s willful state of mind is imputed
to Fields. The Xenia violation is properly classified as willful.
In making a determination on willfulness in these instances, Fields’s conduct as an employer was
also weighed. Fields would be incorrect to conclude that the willful characterization was due solely to the
actions of its two superintendents. Fields allowed its supervisors wide discretion in how they achieved
production. The company echoed the understanding of the superintendents that everyone “knew what to
do,” “these guys do this every day. We don’t measure every slope, every bank”(Tr. 393, 397). The
employees may have been experienced and skilled in pipelaying. However, Fields had not made it clear
to employees in any concrete way how to implement the requirements for safety in the excavations. The
vague “2:1” rule which incorporated “natural sloping” was the equivalent of telling employees to slope
“properly” or “safely.” Fields’s “hands off” attitude played a part in the characterization of the violations.
In light of the previous citations and the circumstances of the violations, a failure to clarify the company’s
safety program amounted to plain indifference to the safety of its employees.
Penalty
The Commission has authority to assess a penalty amount based upon the factual findings. In
arriving at an appropriate penalty, the Commission gives “due consideration” to the size of the employer’s
business, the gravity of the violation, the employer’s good faith, and history of past violations. Hern Iron
Works Inc., 16 BNA OSHC 1619,1621-23 (No. 88-1962, 1994). These factors are not necessarily accorded
equal weight, with gravity being the primary element in the assessment.
The gravity of both violations is high. Although trenching violations are often high gravity
violations because of the high incidence of cave-ins and the high likelihood of death or serious physical
injury, the instant violations were especially hazardous. The very wet, unstable soil at Havener Road and
the deep vertical walls dug in unstable soil in Xenia made cave-ins more likely. The gravity of the Xenia
violation is obviously greater than that of the violation at Havener Road. As they entered the excavations
to lay new sections of pipe, two employees were exposed at Havener Road (one of whom was on the
embankment) and one was exposed in Xenia.
Fields employs approximately 35 employees, many of whom have been with the company for years
(Tr. 34). Fields had previous serious violations, and no credit is afforded for past history. Only minimal

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credit is allowed for good faith. Although not usually considered in a penalty calculation, after the Xenia
citation Fields instituted additional safety procedures, which is considered a positive factor. Fields had
only a “paper” safety program, and its supervisors could choose production over safety. The Secretary
argues that the penalty for the Xenia violation should address the fact that Fields recouped a $10,000 bonus
from Linkfield. She suggests that only a substantial penalty is appropriate.
Overriding many other considerations, however, is the fact that Fields is a very small employer.
Although small employers have the same responsibility to protect the safety of their employees as do large
ones, the same penalty has a greater effect on a small company. The Secretary reduced the calculation of
her recommended penalty almost by half in recognition of that fact. The willful characterization of the
violations carries an enhanced penalty, but some further reduction for the small size of the company is
made.
Based on all of the above, a penalty of $9,500 is assessed for the Havener Road citation and a
penalty of $20,000 is assessed for the Xenia citation.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with
Rule 52(a), Fed. R. Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED that:
1. The violation of § 1926. 652(a)(1) at Havener Road, South Webster, Ohio is affirmed as
willful and a penalty of $9,500 is assessed.
2. The violation of § 1926. 652(a)(1) at Xenia, Ohio is affirmed as willful and a penalty of
$20,000 is assessed.

                                                              /s/
                                                          NANCY J. SPIES
                                                          Judge

Date: February 21, 2003

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