Butch Thompson Enterprises, Inc.

Plain-English summary

A Butch Thompson Enterprises crew operated an excavator beneath overhead power lines and sent two workers into a 13-foot-deep excavation without cave-in protection. The judge found that the equipment-specific power-line-clearance standard applied, but OSHA's officer had only estimated the clearance while driving across several lanes of traffic and took no supporting measurements. That item was vacated for lack of proof, and OSHA withdrew a separate training item. The excavation foreman knew the trench was unsafe but directed the workers to enter it, and several trained employees and supervisors participated in or observed the condition without stopping the work. The judge rejected the supervisory-misconduct defense and found the excavation violation willful. She assessed $10,000, reducing OSHA's proposed $56,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.416(a)(1); 29 C.F.R. § 1926.550(a)(15); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Training item withdrawn and power-line item vacated; willful excavation violation affirmed with a $10,000 penalty.
• Key point: A supervisor's deliberate order to enter a known unsafe trench supports willfulness, particularly when trained workers and other supervisors fail to enforce the company's excavation rules.

Full text (OSHRC public release)

                                         United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 08-1273
Butch Thompson Enterprises, Inc.,
Respondent.

Appearances:
Uche N. Egemonye, Esq., and Sharon D. Calhoun, Esq., Office of the Solicitor,
U. S. Department of Labor, Atlanta, Georgia
For Complainant

      J. Larry Stine, Esq. And Raymond Perez, II, Esq., W imberly, Lawson, Steckel, Schneider & Stine, PC,
      Atlanta, Georgia
      For Respondent

Before: Administrative Law Judge Nancy J. Spies

                                     DECISION AND ORDER

      Butch Thompson Enterprises, Inc. (BTE), is a site contractor located in Kennesaw, Georgia.

On January 30, 2008, one of BTE’s crews was relocating part of a storm drainage system for the
Barrett Parkway road expansion project in Kennesaw. At approximately 10:00 a.m., Occupational
Safety and Health Administration (OSHA) compliance officer Noel Bouyett was driving on Barrett
Parkway when he observed BTE’s worksite. Believing he saw a safety violation, Bouyett turned off
the road, parked his car, and proceeded to conduct an inspection of the worksite. As a result of
Bouyett’s inspection, the Secretary issued two citations to BTE on July 30, 2008.
Item 1 of citation no. 1 alleges a serious violation of § 1926.21(b)(2), for failing to instruct
employees in the recognition and avoidance of unsafe conditions. Item 2 of the citation alleges a
serious violation of § 1926.416(a)(1), for permitting employees to work in proximity to energized
electric power circuits. Item 1 of citation no. 2 alleges a willful violation of § 1926.652(a)(1), for
failing to use an adequate protective system to protect employees from an excavation cave-in.
 BTE timely contested the citations. This case went to hearing on April 29 and 30, 2009, in
Atlanta, Georgia. BTE stipulated to jurisdiction and coverage (Vol. I, Tr. 11). At the hearing, the
Secretary withdrew item 1 of citation no. 1, the alleged safety training violation (Vol. I, Tr. 19).
In its defense to the remaining serious item of citation no.1, BTE argues the Secretary failed
to cite the appropriate standard. The Secretary cited § 1926.416(a)(1); BTE contends
§ 1926.550(a)(15) is more specifically applicable to the conditions present at its worksite. At the
hearing the undersigned allowed the Secretary (without objection from BTE) to amend item 2 to
allege, in the alternative, a violation of § 1926.550(a)(15) (Vol. I, Tr. 29). Section 1926.550(a)(15)
requires the employer to observe a minimum clearance of 10 feet when operating machinery
proximate to power lines rated 50 kV. or below. BTE argues it complied with the requirements of
§ 1926.550(a)(15).
With regard to the alleged willful violation of § 1926.652(a)(1), BTE contends the Secretary
failed to establish BTE knew of the violative conduct. BTE contends it established the affirmative
defense of supervisory employee misconduct on the part of its foreman Eugene Langston. If a
violation is found, BTE argues its classification should be reduced from willful to serious.
For the reasons discussed below, the undersigned vacates item 2 of citation no. 1. She
affirms item 1 of citation no. 2 as willful, and assesses a penalty of $10,000.00.
Facts
Joseph C. Butch Thompson founded BTE in 1975. He is the owner and president of the
company. BTE works as a site contractor whose duties include clearing and grading sites; installing
underground pipes for water, sewer, and storm drainage; installing concrete curbs, gutters, and
sidewalks; and paving roads (Vol. I, Tr. 186). BTE performs 90% of its work in Cobb County,
Georgia (Vol. I, Tr. 187).
In the fall of 2007, BTE began work on the Barrett Parkway expansion in Kennesaw, Georgia
(Vol. I, Tr. 252-253). BTE had several crews working on the project, including a piping crew
supervised by foreman Eugene Langston (Vol. I, Tr. 78-79). Langston’s crew consisted of Jose
Velasquez, Noe Uribe, and Pablo Cicairos (Vol. I, Tr. 52, 61).
BTE was responsible for moving or replacing various underground pipes (Vol. I, Tr. 257­
259). The morning of January 30, 2008, Langston’s crew began excavating a trench with a Komatsu

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excavator PC 270LC-7 (Vol. I, Tr. 135-136). BTE placed the excavator parallel to Barrett Parkway,
directly underneath a set of five overhead power lines. Velasquez operated the excavator while
Langston, Uribe, and Cicairos acted as spotters, watching so the arm (or “boom”) of the excavator
did not come into contact with the power lines (Vol. I, Tr. 53-54).
When the crew members had excavated to a depth of 5 or 6 feet, they determined there was
an underground metal pipe not shown on the plans. BTE was to remove this pipe to complete part
of its scheduled work. Langston ordered his crew to continue to excavate to a depth of 12 or 13 feet
to uncover the pipe. Once the excavation was 13 feet deep, Langston ordered Uribe and Cicairos
into the excavation to grade and clean up the pipe in preparation for its removal (Vol. I, Tr. 62-63,
72-74).
Bouyett had been driving eastbound on Barrett Parkway, approaching the intersection with
Cobb Place Boulevard. As he was driving, Bouyett noticed BTE’s worksite, across the street several
hundred feet ahead of him. Bouyett observed BTE’s excavator operating in proximity to the
overhead power lines. Bouyett saw the arm of the excavator moving up and down (Vol. I, Tr. 40).
Bouyett maneuvered his car across three lanes of traffic to the left turn lane, and turned off of Barrett
Parkway and parked his car (Vol. I, Tr. 117). By the time Bouyett exited his car and walked to the
site, BTE was no longer operating the excavator (Vol. I, Tr. 39). Bouyett observed Uribe and
Cicairos in the excavation (Vol. I, Tr. 37-38).
Bouyett interviewed Langston and his crew members. He took measurements of the
excavation and photographed the site. As he was leaving the site, he encountered BTE’s utility
locator, Michael McDaniel, and spoke briefly with him (Vol. I, Tr. 54).
As a result of Bouyett’s inspection, the Secretary issued the citations in the instant case.
Citation No. 1
The Secretary has the burden of proving each violation by a preponderance of the evidence.
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

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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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Item 1: Alleged Serious Violation of § 1926.416(a)(1),
or, in the Alternative, of § 1926.550(a)(15)

     In the citation, the Secretary alleged a serious violation of § 1926.416(a)(1), which provides:
     No employer shall permit an employee to work in such proximity to any part of an
     electric power circuit that the employee could contact the electric power circuit in the
     course of work, unless the employee is protected against electric shock by
     deenergizing the circuit and grounding it effectively by insulation or other means.

     The citation provides: “Safeguard measurements were not utilized to protect employees from

electrocution when operating a Komatsu excavator in proximity of energized overhead power lines.”
BTE contends § 1926.550(a)(15) is a more specific standard than § 1926.416(a)(1) with
respect to the cited conditions.1 Section 1926.550(a)(15) (captioned “Cranes and derricks”) is found
in “Subpart N–Cranes, Derricks, Hoists, Elevators, and Conveyors” of the construction standards.
On its face, § 1926.550 applies to “cranes and derricks,” and not excavators. The Commission has
held, however, that § 1926.550(a)(15) “expressly was made applicable to non-crane equipment,
including backhoes, by a provision in Subpart O, section 1926.600(a)(6).” Concrete Construction
Company, Inc., 12 BNA OSHC, 1174, 1175 (No. 82-1210, 1985).
Section 1926.600(a)(6) provides:
All equipment covered by this subpart [Subpart O] shall comply with the
requirements of § 1926.550(a)(15) when working or being moved in the vicinity of
power lines or energized transmitters.

     Section 1926.602 addresses “Material handling equipment,” and § 1926.602(b)(1)

specifically applies to “Excavating and other equipment.” Thus, BTE’s Komatsu excavator is
covered by Subpart O, and must comply with the requirements of § 1926.550(a)(15).
Section 1926.550(a)(15)(i) provides:

1
Section 1910.5(c)(1) provides: “If a particular standard is specifically applicable to a condition, practice, means,
method, operation, or process, it shall prevail over any different general standard which might otherwise be
applicable to the same condition, practice, means, method, occupation, or process.”

                                                      -4­

Except where electrical distribution and transmission lines have been deenergized
and visibly grounded at point of work or where insulating barriers, not a part of or an
attachment to the equipment or machinery, have been erected to prevent physical
contact with the lines, equipment or machines shall be operated proximate to power
lines only in accordance with the following:
(i) For lines rated 50 kV. or below, minimum clearance between the lines and any
part of the crane or load shall be 10 feet[.]

    Section 1926.416(a)(1) applies to employees working in proximity to an electric power

circuit. This covers a myriad of situations, including performing electrical wiring inside buildings.
On the other hand, § 1926.550(a)(15) applies specifically to situations in which employees operate
equipment or machinery in proximity to electrical power lines. In the instant case, BTE was
operating an excavator directly beneath overhead power lines. Section 1926.550(a)(15) is more
specific to the cited conditions than § 1926.416(a)(1). BTE concedes (indeed, first suggested)
§ 1926.550(a)(15) applies to its crew’s activity at the worksite.
The Secretary contends BTE violated § 1926.550(a)(15) because the arm of the crane entered
the 10-foot minimum clearance required by the standard. BTE argues it did not. Altogether, there
were five overhead lines at the site. At the beginning of the hearing, the parties stipulated to several
facts regarding these five lines (Vol. I, Tr. 11-13):
(1) The line closest to the ground is a fiber-optic communication line. It is 21 feet, 7
inches high.

    (2)     The second lowest line is a Marietta Power System TPX service line. It is 24 feet,
            6 inches high. Its voltage is 240 volts, and rated for a maximum of 110 amps. It
            services streetlights and traffic signals.

    (3)     The middle line is a Marietta Power System neutral line that carries stray voltage.
            It is 27 feet, 3 inches high.

    (4)     The second line from the top is a Marietta Power System primary conductor. Its
            voltage is 7,200 volts. It is 39 feet high.

    (5)     The highest line is managed by Georgia Power. Its height and voltage are unknown.

    (6)     BTE did not deenergize, or arrange to have deenergized, any of the lines.




                                              -5­

The Secretary and BTE agree that it is the second lowest line, the TPX service line, that is
at issue here. The lowest line is a communications line and does not carry voltage. The middle line
is neutral and does not present a threat of electrical shock. The two highest lines are out of range for
contact with the excavator.
The second lowest line is 24 feet, 6 inches high. At 240 volts (and assuming no insulating
barriers), the minimum clearance between the line and any part of the excavator is 10 feet.2
Therefore, to maintain a minimum clearance of 10 feet, no part of the excavator could reach above
14 feet, 6 inches.
According to Komatsu’s specifications, the height of the excavator cab is 3 meters, or 9 feet,
10 inches. The arm of the excavator has a maximum digging height of 32 feet, 10 inches, and a
maximum dumping height of 23 feet, 1 inch (Exh. C-7).
Bouyett testified he observed the arm of the excavator come within 5 feet of the line. He
stated he first observed the arm of the excavator operating “in very close proximity to the power
lines” (Vol. I, Tr. 36). Bouyett elaborated (Vol. I, Tr. 39-40, emphasis added):
I noticed that [the excavator] was moving soil. It was swinging around and placing
something–I mean, it was very difficult to see it as I was approaching it but, I mean,
basically what I saw was, basically, the arm was–actually it was going down. I saw
the movement of the arm going up, getting close to the line, and then swinging to the
left side of the excavator. I imagine it was just moving some soil.

    When asked how close the arm of the excavator came to the lines, Bouyett replied, “I

estimate it was definitely less than five feet. It was very close” (Vol. I, Tr. 40). He stated he was
estimating the arm’s distance from the lowest line, which is not the TPX line at issue here (Vol. I,
Tr. 112). By the time Bouyett parked his car and walked to the site, the excavator was no longer
operating.
Bouyett interviewed Jose Velasquez, the operator of the excavator (Vol. I, Tr. 52). Velasquez
told Bouyett he had asked for BTE to bring a smaller excavator to the site because he was concerned
about the power lines, but Langston told him BTE had none available. Langston, Uribe and Cicairos
acted as spotters, checking the clearance between the wires and the arm while Velasquez operated

2
Section 1926.550(a)(15)(i) provides the minimum clearance for lines rated 50 kV. or below “shall be 10 feet.”
One kV. is a thousand volts, thus 50kV. = 50,000 volts.

                                                   -6­

the excavator. Despite Velasquez’s concern, he did not tell Bouyett the arm of the excavator actually
entered the minimum clearance space. Indeed, Bouyett testified Velasquez, as operator of the
excavator, was not in a good position to judge the arm’s distance from the power lines (Vol. I,
Tr. 53, 126).
Andrew Jenkins is BTE’s general superintendent over all field work (Vol. I, Tr. 247). He
testified the arm of the excavator did not need to enter the minimum clearance space in order to
complete the excavation (Vol. I, Tr. 279):
[W]hen you’re setting flat and you’re digging the arm is bent back as you come up,
so there’s no reason to raise high. I mean, I think it says the arm is like – the top of
the boom is ten foot something so, actually, you’re not coming much higher than the
boom. If it was folded back sitting on the ground it wouldn’t come up and swing, so
that’s why. I estimated it 14, 15 feet, maybe [.]

   Section 1926.550(a)(15) requires BTE to maintain a minimum clearance of 10 feet between

the TPX line and the excavator. Where, as here, the language of the standard states a specific
dimension, it is crucial to the Secretary’s case that she establish an accurate measurement. Bouyett
observed the excavator in operation from across seven lanes of traffic while he was driving in a car
(Exh. ALJ-1; Vol. I, Tr. 108, 111). He testified it was difficult to differentiate the five lines from
one another from his vantage point (Vol. I, Tr. 121). Once he was at the site, Bouyett took no
measurements of the excavator and power lines, although he had measuring equipment with him and
took measurements of the excavation (Vol. I, Tr. 134, 142).
Bouyett’s estimate of the distance between the power lines and the arm of the excavator
while it was operating is speculative. Although the arm may have entered the minimum clearance
space for the TPX line, the record does not establish it was more likely than not that this happened.
Bouyett is a credible witness, and there is no doubt he believes the arm of the excavator entered the
minimum clearance space (and it may have), but the undersigned cannot find BTE failed to comply
with the standard based solely on Bouyett’s eyeball estimate performed while driving a car in heavy
traffic. Absent corroborating evidence, the Secretary’s case fails.
Item 2 of citation no. 1 is vacated.

                                             -7­

Citation No. 2
Item 1: Alleged Willful Violation of § 1926.652(a)(1)
The Secretary alleges BTE committed a willful violation of § 1926.652(a)(1), which
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 (1.52 m) in depth and
examination of the ground by a competent person provides no
indication of a potential cave-in.

    It is undisputed BTE’s employees Uribe and Cicairos were in the excavation when Bouyett

arrived at the site. The excavation was 13 feet deep, had nearly vertical walls, and was dug in
previously disturbed soil. BTE did not slope, shore, or otherwise provide protective measures
against a cave-in. Bouyett photographed the employees in the excavation (Exhs. C-8 and C-9).
There is no question that § 1926.652(a)(1) applies, that BTE violated the terms of the standard, and
that BTE exposed two of its employees to the hazard of being injured or (most likely) killed in the
event of a cave-in.3 BTE concedes this much in its brief (BTE’s brief, p. 38): the company “readily
admits that Complainant established the violative conditions of 29 CFR § 1926.652(a)(1) . . . when
its crew foreman Mr. Langston permitted employees to work in an unprotected 13-foot deep
trench[.]”
The only element of proof at issue is that of knowledge. Langston was the crew foreman, and
thus a supervisory employee. He knew the excavation was unsafe, yet ordered two employees to

3
Bouyett took Langston’s statement at the site. Langston read it over, made one correction (marked in brackets
below), and signed the statement. It reads (Exh. C-16):

    I am the foreman and trench “competent person” for the storm drain project at Barrett Parkway &
    Cobb Place Blvd. The project started on 1/30/08 at 8:00 a. m. I was replacing a 10.8 feet deep storm
    drain catch basin because of the road expansion project. I determined to be type “B” soil, but I knew
    I was dealing with pre-disturbed soil. Once I determined that I was dealing with type “C” soil I did
    not test the soil. I have 24 years of experience and I’ve taken several trench and excavation safety
    courses. I did not get a trench box because I was going to have the crew go in the trench and grade
    the soil real quick and then I was going to use a concrete [or brick] manhole structure for protection.
    I could not slope or bench the trench because of the road on one side and utility lines on the other.



                                                     -8­

enter it, and observed them while they were working in it. Despite this rather straightforward case
of actual knowledge, BTE argues the Secretary failed to prove the company had either actual or
constructive knowledge of the hazardous condition. In support of its contention, BTE cites W. G.
Yates & Sons Construction Co., Inc., Hvy. Div. v. OSHRC, 459 F.3d 604, 608-609 (5th Cir. 2006),
in which the court concludes:
[A] supervisor’s knowledge of his own malfeasance is not imputable to the employer
where the employer’s safety policy, training, and discipline are sufficient to make the
supervisor’s conduct in violation of the policy unforeseeable.

   BTE’s reliance on Yates is misplaced. The instant case does not present a Yates situation,

which occurs when a supervisor has knowledge of his own misconduct. The court in Yates
emphasizes it requires a foreseeability analysis for “only the situation in which it is the supervisor
himself who engages in unsafe conduct . . . Thus, a supervisor’s knowledge of his own rogue
conduct cannot be imputed to the employer.” Id., footnote 8 (emphasis added). Here, the cited
conduct is not Langston’s instruction to his employees to enter the excavation; the cited conduct is
the presence of the employees in the excavation. Their physical entry into the excavation triggered
the violation.
Langston, in his capacity as a supervisory employee, knew Uribe and Cicairos were in the
unsafe excavation. “[W]here a supervisory employee has actual or constructive knowledge of the
violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies [her]
burden of proof without having to demonstrate any inadequacy or defect in the employer's safety
program.” Dover Elevator Co., Inc., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). The Secretary
has satisfied her burden of proof for the knowledge element. She established BTE violated
§ 1926.652(a)(1).
Supervisory Misconduct Defense
BTE argues any violation of § 1926.652(a)(1) was the result of unpreventable employee
misconduct on the part of Langston. In order to establish the affirmative defense of unpreventable
employee misconduct, an employer is required to prove (1) that it has established work rules
designed to prevent the violation, (2) that it has adequately communicated these rules to its
employees, (3) that it has taken steps to discover violations, and (4) that it has effectively enforced

                                             -9­

the rules when violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455
(No. 93-2971, 1995), aff’d without published opinion, 106 F. 3d 401 (6th Cir. 1997).
BTE established the first element of its affirmative defense; it has a comprehensive safety
program, including work rules designed to prevent the violation of § 1926.652(a)(1). Newly-hired
employees must complete a safety orientation, available in both English and Spanish (Exhs. R-5
through R-8). BTE’s “Excavation & Trenching” policy provides in pertinent part (Exh. R-7):

   For any and all trenches more than (5') five feet deep, slope sides of trench 1.5 feet
   horizontal to 1.0 feet vertical, unless a COMPETENT PERSON classifies the soil
   and determines that this is not necessary. Other alternatives are to use shoring and/or
   trench boxes.
   ...
   A COMPETENT PERSON is one who has been trained and is capable of identifying
   existing and predictable hazards in the surrounding work areas, and/or working
   conditions that are unsanitary, hazardous, or dangerous and who has the authority to
   take prompt corrective measures to eliminate the hazard. Also, the competent person
   must have the authority to stop work if a hazard exists.

   A competent person must inspect/check all trenches, adjacent areas, and any
   protective systems for possible cave-ins, failure of protective systems, hazardous
   conditions, etc. Inspections MUST be performed DAILY before work begins and/or
   any worker enters the area. Inspections must be performed after any rainstorm, any
   hazard-increasing occurrence and/or any other change in conditions.

   The training programs BTE describes in the record show it intended to communicate the

substance of the workrule. The circumstances surrounding the violation demonstrate, however, BTE
failed effectively to communicate that the workrule had to be followed. Enforcement of the workrule
is shown to be lax when everyone at the site felt free to violate it. Where, as here, the purported
employee misconduct relates to a supervisory employee, the employer faces a higher standard of
proof. “[W]here 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 . . . . A supervisor’s involvement in the
misconduct is strong evidence that the employer’s safety program was lax.” Archer-Western
Contractors Ltd., 15 BNA OSHC 1013, 1016-1017 (No. 87-1067, 1991).
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

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implementation of a safety program. BTE had a total of seven employees on the Barrett Parkway
site at some point during January 30: the operator Velasquez, laborers Uribe, and Cicairos; the utility
locator McDaniel; the foreman Langston; and superintendents Andrew Jenkins and Marshall Hollis.
The latter three were supervisors on site.4 BTE provided all but Velasquez and McDaniel with
“competent person training,” which is a specialized 10-hour training course in trenching and
excavation safety requirements. McDaniel was a competent person but may have received the
training from another employer (Tr. Vol, I, 169, 238-239, 244). Velasquez would have been trained
on BTE’s workrule and the requirements for cave-in protection. Five of these individuals directly
participated in or observed the violation. 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).
BTE’s Excavation and Trenching policy states a competent person has the authority to stop
work if a hazard exists. Velasquez, Uribe, and Cicairos had the authority to stop the work and report
the unsafe conditions to a safety representative (Tr. 103, 238). No one countermanded Langston’s
order to Uribe and Cicairos to enter the unsafe excavation. McDaniel, who is highly experienced
in judging the depth of an excavation, observed Uribe and Cicairos working inside the 13-foot
excavation. McDaniel testified he did not think the excavation was deep enough to merit cave-in
protection. Bouyett interviewed Uribe and Cicairos, who separately reported they knew the
excavation needed some type of protective system but entered without it.
Field superintendent Hollis stated he was at the site that morning between 7:30 and 8:00 a.m.,
then left with the understanding the excavation would be dug between 5 and 8 feet deep (Vol. II,
Tr. 57). Hollis stated he learned the excavation was 13 feet deep when he returned to the site at
approximately 11:30 a.m. and found Bouyett there (Vol. II, Tr. 58). Superintendent Jenkins stated
he was present at the site early on the morning of January 30 and left before 9:00 a.m. (Vol. I,
Tr. 253). Jenkins testified that the original plan was to slope the excavation if it exceeded 5 feet in

4
The Secretary contends McDaniel was also a supervisory employee, which BTE disputes. McDaniel is a salaried
employee who considers himself to be a supervisor and in management. The record does not establish McDaniel
acted as a supervisor at the site. As stated, he was a competent person and was well informed on trenching
regulations. He directly observed the employees in the trench without commenting or protesting the obvious
violation (Tr. Vol. 1, 167-169).

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depth. He stated, “We should have been able to slope it back with no trouble at the depth it was
going to be” (Vol. I, Tr. 252). Jenkins testified he did not know the excavation had been dug deeper
than 5 or 6 feet until he received a phone call from supervisor Hollis at approximately 11:00 a.m.
(Vol. I, Tr. 254).
Even if the trench had been between 5 to 8 feet, BTE needed to implement cave-in protection.
Langston did not believe he could properly slope the trench walls because the power lines obstructed
one side and the street obstructed the other (Exh. C-16). To be properly sloped for Type C soil, even
if only 5 feet deep, the nearly vertical walls should have shown a far greater degree of sloping than
Bouyett observed. It does not appear the crew actually intended to slope the trench walls as a means
of cave-in protection. No trench box was on site.
Although Hollis and Jenkins were not on the site as the excavation approached 13 feet, they
were carrying their cell phones. Thompson explained all supervisors have a cell number as well as
a Nextel number where they can be reached (Vol. I, Tr. 195): “[A]s you know, in some cases the
cell number can’t be reached. Nextels are more available, but most of our people – I think everybody
that’s in a foreman or supervisory position has a Nextel so, you know, we’re available by one or the
other all the time.” Langston testified he consulted his two immediate supervisors regarding
protection for the excavation. The two supervisors deny this, but Langston did have the means to
contact them.
Langston was a credible witness who acknowledged his mistake without excuses or
rationalizations. He freely admitted he knew the excavation was unsafe and that he ordered two
employees to enter it anyway (Vol. I, Tr. 155). He recognized a cave-in could have occurred while
the employees were in the excavation, and he admits he was lucky (as were Uribe and Cicairos) that
one did not (Vol. I, Tr. 156). When questioned by the undersigned, the following exchange occurred
(Vol. I, Tr. 163, emphasis added):
Q. And why no trench box?

    Langston: We just made the wrong decision that morning, you know. We made a–

    Q. Was it yours alone or were you talking to other people?

    Langston: I was talking to my two immediate supervisors.


                                            -12­

Q. And you just decided to go with–

     Langston: We felt the trench was safe.

     Langston’s testimony establishes he had contacted Hollis and Jenkins about the excavation

at some point prior to OSHA’s inspection.5 There is no apparent reason for Langston to state his
immediate supervisors knew of the decision to perform the work without providing cave-in
protection. Langston accepted responsibility for his decision. BTE reprimanded Langston. On his
January 30 disciplinary sheet BTE wrote “Andy Jenkins and Marshall Hollis accept limited
responsibility for the safety violation”(Exh. R-39, p.3). It remains unclear why Langston’s two
immediate supervisors were reprimanded if they had no contemporary knowledge of the workrule
violation. The rationale of a shared supervisory responsibility appears lacking. BTE points to no
part of its safety program or to no other instance where the supervisors up-the-line were disciplined
because of an infraction by a subordinate. BTE did not reprimand the down-the-line employees
Uribe or Cicairos, although they participated in the violation.
Langston’s demeanor during his testimony was consistent with someone giving his honest
assessment of the decision to send the employees into the excavation without a trench box. He was
calm and controlled, and did not hesitate or stumble in giving his answers. His answers were direct
and to the point, without the evasiveness often seen in witnesses attempting to avoid or shift
responsibility. Langston’s testimony is assessed as credible.
The excavation was more than twice the depth of one which required a protective system
and was dug in previously disturbed soil next to a heavily traversed road. Neither the foreman nor
McDaniel, each a competent person, or the three trained employees, two of whom were also
competent persons, questioned the decision to work in the excavation. The undersigned cannot
overlook the shared knowledge of the hazardous condition. The fact that no one voiced any
objection to sending employees into the excavation (including the employees who entered it)

5
Prior to asking the question set out above, this judge noted Langston carefully answered only the specific question
asked. W hen this judge’s questions elicited the answer set out above, she did not wish to continue questioning in the
area which directly impacted the parties’ primarily contested issue. Somewhat surprisingly, the Secretary did not
inquire further. Counsel for BTE chose not to follow up on Langston’s unequivocal statement that Jenkins and
Hollis knew of the violative condition of the excavation (Tr. Vol. I, 164). Thus, the details of the exchanges between
Langston and his supervisors are unknown.

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demonstrates a cumulative laxness towards excavation safety. BTE has the burden of proving its
affirmative defense of supervisory misconduct, and BTE has failed to meet that burden.
Willful Classification
The Secretary classifies this violation as 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 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991).
A showing of evil or malicious intent is not necessary to establish willfulness.
Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97
C.H. 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. General Motors Corp., Electro-Motive Div., 14 BNA OSHC
2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630,
1991)(consolidated). A willful violation is not justified if an employer has made a
good faith effort to comply with a standard or eliminate a hazard, even though the
employer’s efforts were not entirely effective or complete. L.R. Willson and Sons,
Inc., 17 BNA OSHC 2059, 2063, 1997 C.H. OSHA ¶ 31,262, p. 43,890 (No.
94-1546, 1997), rev’d on other grounds, 134 F.3d 1235 (4th Cir. 1998); Williams
Enterp., Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 C.H. OSHA ¶ 27,893,
p. 36,589 (No. 85-355, 1987). The test of good faith for these purposes is an
objective one; whether the employer’s efforts were objectively reasonable even
though they were not totally effective in eliminating the violative conditions.
Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 441-42 (7th Cir. 1997); General Motors
Corp., Electro-Motive Div., 14 BNA OSHC at 2068, 1991-93 C.H. OSHA at
p. 39,168; Williams Enterp., Inc., 13 BNA OSHC at 1256-57, 1986-87 C.H. OSHA
at pp. 36, 589.

A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & 91-0638, 2000).
Langston, Jenkins, and Hollis knew the excavation was dug in Type C soil next to a busy
roadway. They were experienced in excavation work. BTE is a site contractor whose work routinely
requires its crews to excavate. Langston admitted he knew the excavation was unsafe, yet he
instructed Uribe and Cicairos to enter it and prepare the pipe for removal. He made no other
provision for protecting his crew members from a cave-in. He knew the risks to which he was
exposing the men in his charge and the prevalence of cave-ins in Cobb County (Tr. Vol. I, 187).

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“The hallmark of a willful violation is the employer’s state of mind at the time of the
violation–an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . .
plain indifference to employee safety.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181
(No. 90-2775, 2000), aff’d 268 F.3d 1123 (D.C. Cir. 2001). The record makes clear Langston’s state
of mind at the time he instructed Uribe and Cicairos to work in the excavation. Langston knew the
excavation was not safe. Langston knew BTE should place a trench box in the excavation, but he
knowingly disregarded this requirement. The willful state of mind of a supervisor can be imputed
to his or her employer. E.g. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (Docket
No. 86-360-469, 1992).
The Secretary has established BTE’s violation of § 1926.652(a)(1) is willful.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
The gravity of employees working in a 13 foot deep excavation dug in Type C soil without
any form of fall protection is high. Had a cave-in occurred Uribe and Cicairos most likely would
have been crushed by the weight of the soil from the trench walls. An excavator and a busy roadway
ran adjacent to the excavation, creating vibrations that could contribute to the occurrence of a
cave-in.
BTE employed approximately 140 employees at the time of Bouyett’s inspection and is
considered a medium-sized employer. Since its inception in 1975, BTE has never received an
OSHA citation (Vol. I, Tr. 93). BTE demonstrated good faith during the inspection. The Secretary’s
proposed penalty of $56,000.00 is too high. Although its employees did not follow its workrule,
BTE designed a safety program with an emphasis on safety training beyond that required by OSHA.
BTE’s owner, Joseph “Butch” Thompson, appears personally involved in the company’s safety
equipment and training decisions, and he has invested the company’s resources towards both. BTE
disciplined Langston, and to some extent, Jenkins and Hollis. Langston, the person most at fault for

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the instant violation, accepted responsibility for his action. It is determined a penalty of $10,000.00
is appropriate.
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) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Item 1 of citation no. 1, alleging a serious violation of § 1926.21(b)(2) and withdrawn
by the Secretary, is vacated and no penalty is assessed;
2. Item 2 of citation no. 1, alleging a serious violation of § 1926.416(a)(1), is vacated
and no penalty is assessed; and
3. Item 1 of citation no. 2, alleging a willful violation of § 1926.652(a)(1), is affirmed
as willful, and a penalty of $10,000.00 is assessed.

                                                       /s/
                                                       NANCY J. SPIES
                                                       Judge

Date: October 27, 2009
Atlanta, Georgia

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