Arby Construction Company

Plain-English summary

Three Arby Construction employees worked in a six-foot-deep, vertical-sided Type B soil trench without sloping, shoring, or a trench box. The judge rejected the foreman's claim that he believed the trench was under five feet deep, finding the condition obvious from his position directly above the workers. Arby had a trench-safety rule and provided training, but two competent persons failed to prevent entry and the company had not inspected the six-week worksite because its safety staff was occupied with training. Those facts showed ineffective enforcement and defeated the unpreventable employee misconduct defense. The cave-in item was affirmed with a reduced $1,500 penalty, while a separate access item was resolved by partial settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2) and 1926.652(a)(1)
• Outcome: The cave-in protection violation was affirmed with a $1,500 penalty; the safe-egress item was resolved by settlement.
• Key point: Training and a written trench rule do not establish misconduct when multiple competent persons allow entry and the employer performs no worksite inspections.

Full text (OSHRC public release)

                                                  United States of America
                     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                          1244 North Speer Boulevard, Room 250
                                               Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Compla inant,

                            v.                                 OSHRC DOCKET NO. 03-0826

ARBY CONSTRUCTION COMPANY, and its
successors,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Rafael B. A lvarez, Esq., Office o f the Solicitor, U .S. Department of Lab or, Chicago , Illinois

      For the Re spondent:
               Charles B. Palm er, Esq., M ichael, Best & Friedrich, LL P, W aukesha, W isconsin

Before: Administrative Law Judge: Benjamin R. Loye

                                            DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
Respondent, Arby Construction Company (Arby), at all times relevant to this action maintained
a place of business along Highway 47 near Appleton, Wisconsin, where it was excavating a trench for a
gas line. Respondent admits it is an employer engaged in a business affecting commerce and is subject to
the requirements of the Act (Exh. J-1).
On March 13, 2003, the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Arby’s Appleton work site. As a result of that inspection, Arby’s was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest Arby’s
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
On September 8, 2003, a hearing was held in Milwaukee, Wisconsin. At the hearing the parties
submitted a partial stipulation and settlement in which the Secretary agrees to reduce the proposed penalty
for citation 1, item 1, alleging violation of §1926.651(c)(2) in return for Respondent’s withdrawal of its
notice of contest (Tr. 5-6). The partial stipulation and settlement is hereby adopted and made a part of this
Order. The parties have submitted briefs on the matters remaining at issue and this matter is ready for
disposition.
Alleged Violations
29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-in by an adequate
protective system designed in accordance with 29 CFR 1926.652(c). The employer had not complied with
the provisions of 29 CFR 1926.652(b)(1)(i) in that the excavation was sloped at an angle steeper than one
and one-half horizontal to one vertical (34 degrees measured from the horizontal):

    (a) At the site, employees were working in a trench that was near 5 feet, 10 inches deep, 5-1/2 feet
    wide, and near vertical walls. The trench was not properly sloped, shored, nor was a trench box
    used.

Facts
OSHA Compliance Officer (CO) David Marx testified that he was driving down Country Highway
47 on March 13, 2003, when he noticed an employee in an unprotected trench by the side of the highway
(Tr. 21). CO Marx photographed the top of the employee’s helmet, which he could just see over the lower
lip of the trench closest to the highway (Tr. 21, Exh. C-1). He also photographed the employee’s foreman,
Henry Vissers, who was standing on the lip of the trench (Tr. 21-23, 26; Exh. C-1). Marx then approached
the site on foot in order to conduct an inspection. When Marx reached the trench, he found three
employees inside, putting a sleeve on a gas line (Tr. 23-24; Exh. C-2, C-3). When CO Marx measured the
trench at the point where the employees were working, he found that the trench was six feet deep, and
between five feet and five feet two inches wide, with vertical1 walls (Tr. 31-31, 61; Exh. J-1 at ¶17, C-5,
C-6, C-7). Arby stipulated that the soil in the trench was Type B (Exh. J-1 ¶14). During his inspection,
Marx saw soil sloughing off the side of the trench nearest to the highway just to the north of the area where
the employees were working (Tr. 34-36, 64; Exh. C-3).
Arby has a work rule which prohibits employees entering trenches over 4'11" deep unless the trench
is sloped shored, sheeted, braced or otherwise adequately supported (Exh. R-1, p. 21). Vissers, one of two
“competent persons” on the site, told Marx that he did not believe that cave-in protection was necessary
in this trench, because it should have been less than five feet deep (Tr. 27-28, 63, 85-87, 118, Exh. R-4;
Exh. R-5). At the hearing, Vissers testified that the trench was no more than four feet deep when he left
the trench area to “take care of some things at the other end of the job” (Tr. 120-22). However, Vissers
stated, while he was gone the second competent person on site, Tony Christensen, continued hand digging
around the gas line (Tr. 87, 120-22). According to Vissers, Christensen should have measured the trench

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           CO M arx testified that the top lip of the trench may have been back five or six inches back from the

trench wall (T r. 58). It is clear from the p hotographs, how ever, tha t the sides of the trench were, in fact, vertical.

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before he and the other employees went in, but he did not (Tr. 142). According to Vissers’ testimony,
Christensen had no means of measuring the trench in any event, as there was neither a trench rod nor tape
measure near the trench (Tr. 125; Exh. J-1 ¶19). Vissers testified that when he returned to the site, he was
standing on the high side looking down, and could not tell that the trench was more than five feet deep (Tr.
123).
Timothy Collins, Arby’s director of safety, supervises a staff of five, all of whom are responsible
for training Arby’s 400 to 450 employees and inspecting Arby’s 125-150 job sites to ensure that those
employees are working safely (Tr. 78, 81). In addition, Collins testified, 11 area managers dedicate
approximately 10% of their time conducting work site inspections (Tr. 103-04). According to Mr. Collins
Arby provides all its new employees with training on trenching, shoring, and hazards associated with
underground utilities (Tr. 79-80). Annually, Arby provides refresher training on “emphasis points” (Tr.
81). The 2003 training covered trenching and excavating (Tr. 81). The employees in Vissers’ crew
attended the 2003 training (Tr. 83-84, 117; Exh. R-3).
Collins stated that Arby has a progressive disciplinary policy which provides for written reprimands
when employees violate company policy (Tr. 90). Employees who receive reprimands may be terminated
if they violate safety rules a second time (Tr. 90). Arby produced disciplinary letters signed by Arby safety
coordinators, Bruce Morton and Phil Hamilton, dated between March and September, 2000 (Exh. R-7).
No disciplinary letters were issued in 2001 or 2002 (Tr. 106). The only other evidence of disciplinary
action were the letters written to Vissers’ crew following the 2003 OSHA inspection (Exh. R-7).
Members of Arby’s safety department had previously inspected job sites where Henry Vissers was
the crew leader (Tr. 88; R-6). Collins testified that his department found no violations involving Vissers’
work sites or crews prior to March 2003 (Tr. 89). None of Collins’ staff inspected the Appleton work site,
however, though Arby crews worked in the area for six weeks prior to the OSHA inspection (Tr. 94, 101).
At the hearing, Collins admitted that Arby took no steps to discover trenching violations at this work site,
as it was training season, and none of his employees were available to conduct inspections (Tr. 102, 105).
Following the OSHA investigation, Arby inspected the Appleton work site, and found that the
unprotected trench was deeper than five feet (Tr. 93, 113). As noted above, Mr. Vissers and his crew
received disciplinary letters for violating Arby company policy, which requires that employees in trenches
greater than 4' 11" inches shall be protected by a trench box, sloping, or benching (Tr. 82, 91, 101, 119,
134; R-7). Vissers was also disciplined for failing to provide a means of egress from the cited trench, the
violation cited at citation 1, item 1 (Tr. 104).

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Discussion
The cited standard 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 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.

   In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a

preponderance of the evidence that: (1) the standard applies to the conditions cited; (2) the terms of the
standard were not met; (3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable diligence. See, e.g.,
Offshore Shipbuilding, Inc., 18 BNA OSHC 2170, 2171, 2000 CCH OSHD ¶32,137, p. 48,443 (No. 99-
257, 2000).
Arby maintains that the Secretary failed to prove that the terms of the cited standard were not met,
or to show that it either knew or could have known of the cited condition. Arby further argues that any
violation was the result of unpreventable employee misconduct.
The Violation. The record clearly establishes that, at the point where the three employees were
working in the cited trench, the trench measured six feet deep and was less than five and a half feet wide.
The trench was neither sloped, benched nor shored as provided for by paragraphs (b) and (c) of §1926.652.
Clearly, Arby was in violation of the cited standard.
Moreover, it is inconceivable that Arby’s foreman, Vissers, was unaware of the cited condition.
CO Marx photographed one of Vissers’ crew members standing directly next to the offending trench wall,
which is level with the top of his head. Vissers is pictured standing directly above him. Vissers’ claim
to have believed the trench was less than five feet deep is simply not credible. The Secretary has
established her prima facie case.
Unpreventable employee misconduct. The knowledge, actual or constructive, of an employer's
supervisory personnel will be imputed to the employer, unless the employer establishes substantial grounds
for not imputing that knowledge. Specifically, the employer must establish that the failure of the
supervisory employee to follow proper procedures was unpreventable. The fact that [the employer] may
not have known of the specific instance of violative conduct at the time it occurred does not mean that the
conduct could not have been prevented Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991-93 CCH OSHD
¶29,254, p. 39,203 (No. 85-531, 1991). The employer must establish that it had relevant work rules which

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were adequately communicated and effectively enforced. Consolidated Freightways Corp., 15 BNA
OSHC 1317, 1991-93 CCH OSHD ¶29,500 (No. 86-531, 1991).
The record in this case does not support Arby’s contention that the misconduct in this instance was
unpreventable. The evidence establishes that Arby has a work rule requiring that excavations over 4'11"
be shored. It is also clear that Vissers received training and was aware of the rule. However, this judge
cannot find that the rule was effectively enforced where, as here, not one but two competent persons on
the work site failed to prevent employees from entering an unprotected trench which was clearly deeper
than allowed either by the employer’s work rules or OSHA regulations.
It is telling that one of the competent persons, Tony Christensen, entered the trench himself, and
that Vissers, in addition to failing to protect employees in the trench from the cave-in hazard, also failed
to provide them with a means of egress. Though the OSHA citation pertaining to the means of egress was
settled prior to the hearing, Vissers was disciplined for failing to provide an exit ladder as required by
Arby’s work rules at Exhibit R-1, p. 21. Misconduct by multiple employees, including supervisory
personnel, is strong evidence that an employer’s safety program is lax. See, Gem Industrial, Inc. 17 BNA
OSHC 1861, 1865, 1996 CCH OSHD ¶31,197 (No. 93-1122, 1996); Consolidated Freightways Corp. 15
BNA OSHC 1317, 1991-93 CCH OSHD ¶29,500 (No. 86-351, 1991).
The unanimity of the misconduct on this work site, the absence of any evidence of employee
discipline in all of 2001 and 2002, together with safety director Collins’ admission that his staff was too
busy with training to conduct inspections of this work site, demonstrate that Arby’s safety program was
ineffectively enforced. Arby has not established its affirmative defense.
Penalty
A penalty of $2,625.00 was proposed for this violation. CO Marx testified that Arby was a large
company, with more that 400 employees (Tr. 47). Arby has an adequate safety program on paper and has
no history of OSHA violations in the prior three years (Tr. 48). Marx believed the gravity of the violation
was “medium.” The record shows that three employees were exposed to the cited hazard; the soil in the
trench was sloughing from the walls; two of the employees were bent over in the trench as they placed the
sleeve on the gas line. However, the record indicates that the probability of a cave in was small, in that
the employees’ exposure was short, and the trench was not uniformly deep. The Secretary stipulated that
the north end of the trench was only four feet eight inches deep (Exh. J-1, ¶16), and it is clear from the
photographic evidence that the lip of the trench wall on the highway side is significantly lower than the
trench wall where CO Marx took his measurements. Taking into account the relevant factors, this judge

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finds that the gravity of the violation is overstated. A penalty of $1,500.00 is deemed appropriate, and will
be assessed.

                                             ORDER

1. Citation 1, item 1, alleging violation of 29 C.F.R. 1926.652(a)(1) is AFFIRMED, and a penalty
   of $1,500.00 is ASSESSED.

                                                     /s/
                                                    Benjamin R. Loye
                                                    Judge, OSHRC
   

Dated: December 15, 2003

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