D’Allessandro Corporation

Plain-English summary

D’Allessandro Corporation employees entered a trench in South Boston to cut an existing pipe and install a fitting. OSHA measured the vertical-sided trench at 5½ feet deep where the employees were working, and the Type C soil was adjacent to a heavily traveled road. The company disputed the measurement, but the judge credited the compliance officer's testimony and contemporaneous photographs over the employees' accounts. Statements by the foreman and project manager also established that the company knew or should have known protective measures were required. The serious citation was affirmed with the proposed $1,225 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The serious excavation citation was affirmed, and a penalty of $1,225 was assessed.
• Key point: Contemporaneous measurements and photographs can establish that a trench exceeded the 5-foot threshold despite contrary employee estimates.

Full text (OSHRC public release)

D,Allesandro Corporation, Docket No. 07-0533

Secretary of Labor

Complainant,

v.

OSHRC DOCKET NO. 07-0533

D,Allesandro Corporation

Respondent.

APPEARANCES:

Paul J. Katz, Esquire                            Jerrold Solomon, Esquire

U.S. Department of Labor                    Newton, Massachusetts

Boston, Massachusetts                         For the Respondent.

For the Complainant.

Before:              Chief Judge Irving Sommer

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of a work site of Respondent, D’Allessandro Corporation (“Respondent”
or “D’Allessandro”), located in South Boston, Massachusetts, on September 13, 2006. As a result
of the inspection, Respondent received a serious citation alleging violations of OSHA’s excavations
standard.

Respondent contested the citation, and the hearing in this matter was held on January 10,
2008, in Boston, Massachusetts. Both parties have submitted post-hearing briefs.

The OSHA Inspection

CO Scott Kennedy drove by the subject site on the way to another site he was to inspect that
day when he noticed an excavation with the tops of two hard hats protruding from it. The CO went
by the site, parked his car and called his supervisor, and then walked to the trench.

He saw two
employees in it, and he announced who he was and why he was there, and he asked them to exit the
trench. The CO learned the two employees were Dennis Woleskas, the foreman at the site, and David
Gall, a laborer, and that they worked for D’Allessandro. He also learned the employees had been
setting up a “cutter” on a preexisting 12-inch-diameter pipe in the trench in order to cut the pipe and
add a fitting; the cutter sat on top of the pipe, and a chain went around the pipe and was attached to
the cutter on the other side. C-1 and C-2, photos the CO took, show the employees in the trench as
the CO saw them and how the trench looked after they got out, and C-2 shows the cutter on the pipe.
The CO took various measurements of the trench and found it to be 27 feet long, 4 feet 3 inches wide
at the top and the bottom, and 4 feet deep in the middle and at one end; however, the other end of
the trench, where the employees had been working, was 5 feet 6 inches deep, and the sides of the
trench were vertical. The CO used a steel tape measure to take his measurements, and he also used
a trench rod to measure the part of the trench that was 5 feet 6 inches deep; the CO had Mr.
Woleskas assist him by holding the trench rod in the 5.5-foot-deep part of the trench while the CO
photographed the measurement from the other side of the trench. C-3 is the CO’s photo of that
measurement, and C-4 is a close-up of what is shown in C-3. (Tr. 4-19, 26-38).

According to the CO, the soil at the site was granular, sandy and crumbly; in addition, the
pipe was preexisting and was thus in previously-disturbed soil, making the soil “Type C,” and the
trench was adjacent to a road with heavy traffic, which would create vibrations. The CO concluded
that all of these factors, combined with the trench’s depth and vertical side walls, could have resulted
in a cave-in and serious injuries or even death. (Tr. 8, 21-27, 39-46, 53-54).

Discussion

The cited standard, 29 C.F.R. 1926.652(a)(1), provides as follows:

Each employee in an excavation shall be protected from cave-ins by an adequate
protective system ... except when (i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than five feet ... in depth and examination of the ground by
a competent person provides no indication of a potential cave-in.

To prove a violation of a standard, the Secretary must show that (1) the standard applies, (2)
the terms of the standard were not met, (3) employees had access to the cited condition, and (4) the
employer knew, or could have known with the exercise of reasonable diligence, of the cited
condition. Astra Pharmaceutical Prod. , 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981). As the
Secretary notes, there is no contention here the trench was made in stable rock. Further, the CO
conceded he saw nothing about the condition of the trench that would have required sloping or a
trench box if the trench had been less than 5 feet deep. (Tr. 56-57). Thus, the issue to resolve is
whether the trench was 5 feet or more in depth. The Secretary contends that the CO’s testimony and
photos show the trench was more than 5 feet deep. Respondent , however, contends that the CO’s
testimony was unreliable and that the credible evidence of record shows the trench was under 5 feet
deep. In support of its contention, Respondent presented the testimony of Mr. Woleskas and Mr.
Gall, the two D’Allessandro employees the CO saw in the trench.

Mr. Woleskas, the foreman, testified he had worked for the company for 11 years, that he was
trained in excavation safety, and that he had an “OSHA 10-hour card.” He said the subject job had
started in July 2006, that by the time of the inspection he had laid about 3,000 feet of pipe for the job,
and that he had used a trench box for the entire 3,000 feet of the job. He also said it was his practice
to measure the trench “every time we went in,” that he had measured it the day of the inspection in
about the same area the CO later measured it, and that, because the depth was 4 feet 9 to 4 feet 10
inches, he had concluded he did not need to use the trench box. Mr. Woleskas noted that the backhoe
operator had excavated the trench “a little bit further” in the cited area that morning so they could
cut the pipe; he further noted that he himself had then done some hand digging around the pipe so
that they could get the “snapper” around it. Mr. Woleskas stated he did have to use the box later,
after they cut the pipe, when they had to dig a little deeper to install the new pipe. (Tr. 102-13, 116).

Mr. Gall, the laborer, testified he had worked for the company for three years. He said it was
normal practice to check the trench, that he himself had measured it before going in it that day, and
that it was 4 feet 10 inches deep. He noted he was 5 feet 9 inches tall, that he could see over the top
of the trench when he was in it except when he bent over, and that he was in the trench to help put
the snapper on and to pass the chain under the pipe. He also noted that the deepest part of the trench,
which was about 5 feet 6 inches, was the hole in which the water pump sat; that hole was on the
opposite side of the trench from where Mr. Woleskas held the trench rod. (Tr. 117-24).

It is clear from the foregoing and the summary of the CO’s testimony, set out supra , that
there are significant differences between the statements of Respondent’s witnesses and those of the
CO. I observed the demeanor of all three witnesses on the stand, and while I found the CO to be a
credible and convincing witness, I found Respondent’s witnesses to be less than candid in their
testimony.

I therefore credit the testimony of the CO over that of Respondent’s witnesses.

In finding the CO a persuasive witness, I have noted Respondent’s efforts to discredit him
at the hearing. For example, Respondent elicited testimony that the inspection took only about a half
hour, that the CO did not turn in his report on the inspection until February 2007, when the citation
was issued, and that the CO did not remember all the details of his inspection. (Tr. 57, 62, 84-85).
I disagree with Respondent’s assertion that these factors render the CO’s testimony unreliable,
particularly because of his statement that he made notes at the time of the inspection to support his
findings; many of these are set out in R-1 and R-2. (Tr. 62-67, 82-83). Respondent also questioned
the CO about the depth measurement of 5 feet 6 inches shown in R-1, stating that it looked “like it
was written over.” (Tr. 72). The CO explained that he first wrote 5 feet 8 inches on R-1 because the
5.6 measurement obtained with the trench rod, which is calibrated in tenths, was actually 5 feet 7.8
inches, or nearly 5 feet 8 inches; he further explained that as he had measured that same area to be
5 feet 6 inches with the steel tape measure, he decided to use the lower number. (Tr. 71-74, 96). I
found the CO’s explanation reasonable, and I credit his testimony about his depth measurement.
Finally, Respondent questioned the CO about C-3, showing the measurement with the trench rod,
suggesting that the photo indicated a measurement of less than 5 feet rather than 5.6. (Tr. 75-78).
However, the CO disagreed, stating that he had a view “straight across” from the measurement when
he took C-3 and that he observed the measurement showing the surface of the ground to be 5.6 at
that time. (Tr. 77-79). I credit the CO’s testimony in this regard, and I note that C-4, the close-up
view of C-3, reflects the trench rod’s 5.6 depth measurement.

Based on the foregoing, I find that the credible evidence of record demonstrates that the area
of the trench where the employees were working when the CO saw them was 5 feet 6 inches deep.
The Secretary has therefore established that the standard applies, that its terms were not met, and that
employees had access to the cited condition.

With respect to the employer’s knowledge of the cited
condition, the CO testified that when he informed Mr. Woleskas of his depth measurement, Mr.
Woleskas made no response.

(Tr. 35). The CO further testified that Mr. Woleskas did tell him, at
some point after learning of the depth measurement, that since he had been standing on the pipe
when he was in the trench he was at less than 5 feet; as the Secretary notes, this statement indicates
that Mr. Woleskas knew the trench was over 5 feet deep. Finally, the CO testified that he spoke to
D’Allessandro’s project manager, Paul Seidenberg, that day at the site and that Mr. Seidenberg told
him, after learning of the CO’s depth measurement, that the employees should have been using the
trench box. (Tr. 42). In light of these statements of management employees, the Secretary has
established that the employer either knew or should have known of the cited condition.

The Secretary has classified this citation item as a serious violation and has proposed a
penalty of $1,225.00. The violation is clearly serious, as a trench wall collapse can result in serious
injuries or death. With respect to the penalty, the CO testified that he considered the gravity of the
condition to be medium. He also testified that the employer was given reductions of 40, 10 and 15
percent, respectively, for size, history and good faith, and that abatement was accomplished by the
employees exiting the trench and the employer’s statement that they would use the trench box that
was present at the site. (Tr. 42-45). In view of the record, I find that the proposed penalty is
appropriate. A penalty of $1,225.00 is accordingly assessed.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 2 of Serious Citation 1 is AFFIRMED, and a penalty of $1,225.00 is assessed.

/s/

Irving Sommer

Chief Judge

Date:     Mar 7, 2008

Washington, D.C.